OJornpU IGatu ^rl^nnl ICibraty KF 213.P36L84""'™""'' """^ The jaw lectures of the late Chief JustI 3 1924 024 343 026 The original of tiiis book is in tine Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/cletails/cu31924024343026 TKLE LAW LECTURES OF THE LATE CHIEF JUSTICE Richmond M. Pearson, treating of the Rights which Eelate to things Real and Personax^ THE Rights which relate to the Person, the Practice of the Law in Civil Cases, The Rules op Pleading and their Incidents,. Executors and Administrators, and the ■ Doctrine of Equity. Compiled with Keferences, Notes and a Historical Summary, By BENJAMIN F.,LONG, A. M., B. L. RALEIGH, N. C: EDWARDS, BROUGHTON & CO., LAW PUBLISHERS. 1879. Entered, according to act of Congress, in tlie year eighteen hundred and seventy-nine, By Edwabds, Beoughton & Co., and Benjamin F. Long, In tlie oflSce of the Librarian of Congress, at Washington. Preface. The plan which was pursued by the late distinguished Chief Justice Pearson in imparting instruction to stu- dents of the law was peculiar to himself, as will be remem - bered by all the numerous members of the bar of North Car- olina who laid the foundation of their legal attainments under his tuition. No text-books were used at his recita- tions. By a few simple questions, so pointed as to reach the marrow of the subject in hand, he tested and drew out the student's knowledge ; and any incompleteness in the answers he received was supplemented by the stores of learning poured forth from his own full mind. A long life devoted to the mastery of the science of law had made him at home in every branch of it ; and every student will bear testimony to the closeness, the correctness, and the fidelity of his explanations and illustrations. As his Lectures were not delivered from manuscript, and were never put in writing by him, it is proper to say, by way of satisfying inquiry, that they have been very com- pletely preserved by means of notes taken by his students. The field of instruction travelled over by him in teaching each successive class was essentially the same. This iden- tity in the law course, from session to session at his school, gave a distinct individuality to each lecture ; and from an early period the students began to note down the questions and answers of which these lectures consisted. The manu- 4 PREFACE. scripts thus prepared by one class became the heritage of the next, growing more complete from year to year through the additions made by diligent and pains-taking students during a[]period embracing more than a quarter of a cen- tury, until at length they furnish a correct transcript of the teachings of the great Jurist to those who enjoyed the privilege of learning the elementary principles of the law from his lips. It is from this source, together with his own careful notes taken down while a student of the Chief Jus- tice, that the compiler is enabled to give these " Lectures " to the public ; and he cheerfully acknowledges here the great assistance, which the diligence of the students who preceded him have rendered, towards making this a full and complete rehearsal of the instructions of the learned lecturer. Two characteristic peculiarities will be at once observed in these "Lectures" as distinguishing them in style from what is usual with text-writers on law. One is, their being in the form of question and answer. This form has been preserved in this publication both for the sake of literal accuracy, and also because it will no doubt add to the live- liness and naturalness of the style. The other is, the appa- rent want of continuity here and there in the text. Strict- ness of logical sequence might suggest changes in some places in the arrangement of subjects and principles touch- ed upon; but the compiler has endeavored to follow, as nearly as possible, the precise course pursued by the Chief Justice in the arrangement of his points. It was a maxim with him that it was not best for the student to pursue too analytically or consecutively page after page of Coke or PREFACE. 5 Blackstone, but rather try to master, in its turn, each great subject of the law, — learning to look at it from various points of view, — so as to answer such questions as might be casually propounded by the instructor; thus becoming at the beginning, better furnished for the conflicts of the fo- rum, where questions of law arise in no regular order. Training that would make one ready to meet any question, however suddenly arising, was what he aimed at. Hence the lectures sometimes present rapid changes in theme and a want of perfect consecutiveness as to parts. But the com- piler has thought it best to follow the lecturer in these re- spects. To the " Lectures " themselves the compiler has added some historical data, for which he is much indebted to " Minor's Institutes," which may be useful for reference, and may aid the student in readily recalling the times of important changes in the law, both of England and of this country. References have also been inserted to cases and text- books illustrating or treating of the doctrines set forth in the text of the " Lectures ;" and copious notes have also been added. For these notes and references, the compiler is wholly responsible, and his aim has been to make them accurate and as useful as possible, so as to enable the stu- dent to draw from the best authorities additional light on the subjects treated in the text, where the text does not stop for details, or to have the benefit of different views of the subject. It is not claimed by the compiler that the profound instructions of the Chief Justice, as given in his law course, b PREFACE. « are presented in absolute perfection and completeness in this little volume. But it is hoped that the gleanings here furnished may be useful, not only to those who are enter- ing upon the study of the law, but even to more advanced members of the profession, and may be deemed a not unac- ceptable tribute to one of North Carolina's greatest lumi- naries." B. F. L. Statesville, N. C, June 1, 1879. Contents Page. Historical SuMMABT, 17-36 BOOK THE FIRST. OF THE RIGHTS WHICH RELATE TO THINGS REAL. Lbctuke I. — Introduction, 39-51 Lecture II. — The Feudal System, 52-58 Lecture III. — Estates, 59-79 Lectuee IV. — Estates continued, 80-90 Lecture V. — Estates continujd, 91-100 LEcr&RE VI.— Uses and Trusts, 100-112 Lecture VII. — Uses— Powers — Conditional Limitations — Ex- ecutory Devises, 112-126 Lecture VIII.— Conditions, .... . , 127-137 Lecture IX. — Kemainders, 138-150 Lecture X. — Joint Tenants, Tenants in Common, and in Co- parcenary, 1 51-158 Lecture XI. — Descent,. 159-162 Lecture XII.— Purchase, 163-178 Lecture XIII.— Warranty, 179-188 Lecture XIV.— Devise, 189-198 Lecture XV.— Estoppel, 199-203 Lecture XVL— Remitter 204-206 BOOK THE SECOND. THE RIGHTS WHICH RELATE TO THINGS PERSONAL. Lecture I. — Personal Property — including Executory Limi- tations, Bailment, &c., 209-318 Lecture II. — Bills of Exchange and Promissory Notes, 219-230 Lecture III. — Executors, Administrators, &c., 231-237 Lecture IV.— Legacies, 238-243 CONTENTS. BOOK THE THIRD. THE RIGHTS WHICH RELATE TO THE PERSON. PAGE. Lecture I.— Husband and Wife — Parent and Child 247-256 Supplementary Ifotes on Master and Servant, Guardian and Ward, 257-266 BOOK THE FOURTH. PRACTICE OF THE LAW IN CIVIL CASES. Lecture I.— Nature of Courts, &c., 369-280 Lectube II. — Actions Ex Contractu, 281-292 Lecture III.— Actions Ex Delicto, 393-306 Lecture IV.— Mixed Actions, 307-317 Lecture v.— Process, 318-329 Lecture VI.— Pleading, 330-345 Lecture VII.— Eules of Pleading, 346-360 Lecture VIII.— Color, 361-363 Lecture IX.— Trial, 863-375 Lecture X.— Judgment, 376-384 Lecture XI. — Bemedies in the nature of Appeal — Remedies against Executors and Administrators, . . . 383-397 BOOK THE FIFTH. DOCTRINE OP EQUITY. Lecture I.— Equity defined ; Discovery, &c., 401-411 Lecture II.— Account— Specific Performance, &c., 412-421 Lecture III . — Mortgages — Relief against Penalties— Discharge by matter in pais— Rescission— Fraud, &c. 422-436 Lecture IV.— Eqnity Pleading, 437-449 Lecture v.— Equity Pleading continued, 450-458 HISTORICAL SUMMARY. SECTION I. IMPORTANT DATES CONNECTED "WITH THE HISTORY OF ENGLISH LAW. B. C. 55 Julius Csesar invaded Britain. A. D. 186. Under the auspices of Pope Eleutherius, and at the' instance of Lucius, the British King, Christianity is brought to Britain. 1 Eapin Hist. Eng., 28 (B. 1.) 408. In the reign of Emperor Honarius, Britain is deserted by the Romans. 449. To aid in repelling the Picts and Scots, the Britains invite the Saxons into their dominions. 600. The Heptarchy under the Saxons begins. 827. The Heptarchy is united with Egbert as King. 832. The Danes make their first invasion. 871. Reign of Alfred the Great begins. 890. The Dome book — Dom-boc — or Liber Judicialis col- lected and digested, containing the local customs of the Heptarchy. This general code is now lost, but was extant in Edw. IV's reign, A. D. 1461. 1 Bl. dom., 64-'5 ; 1 Reeves Hi^t. of Eng. Law, 25-'6; 1 Minor's lusts., XXVIL 901-78. The following Kings reign successively : Edward the Elder, Athelstan, Edmund, Edred, Edwy, Edgar, Edward the Martyr. 978. Ethelred. 1013. Sweyn, the Dane, becomes King. Ethelred at the arrival of the Danes in London, fled to Normandy. 1013. Sweyn reigns. First of the Danes. 2 18 HISTORICAL SUMMARY. A. D. 1014. Restoration of Ethelred. 1016. Canute, a son of Sweyn the Dane, and King Edmund divide the kingdom by agreement. 1017. Edmund dies. Canute is sole ruler. Second King of the Danes. 1035. Reign of Harold Harefoot. Third King of the Danes. 1039. Reign of Hardi — Canute — Canute II.. Fourth'Kmgoi the Danes. 1041. Reign of Edward the Confessor — the last king of the Saxons of the Royal line. 1041. Alfred's laws re compiled. During the one hun- dred and fifty-one years which had passed since these laws of Alfred were digested into the Dome- book, they had been corrupted by local usages. As Alfred was the Conditor, so Edward the Con- , fessor was the Eestitvior legum Anglicanarum. 1 Bl. Com., 66 ; 1 Reeves Hist. Eng. Law, 25-6 ; 1 Rap. Hist. Eng., 147 etseq.; Disert. Gov. of Ang. Sax. ; 2 Tur. Aiig. Sax. Hist., ISl etseq.; 1 Minor's Insts. Com. and Stat. Law, 30. 1066. Dynasty of the Normons. — Harold reigns by irregu- lar succession ; 5th January. 1066. William I reigns 14th October. Came to the throne by conquest — known as " William the Conqueror." 1086. The Commune Concilium, Wiitena-gemote, or Parlia- ment, consent to the establisment of the Feudal law. 1 Reeves' Hist. Eng. Law, 34-'6 ; Hale's Hist. Com. Law, 133-'5, and n (K) ; 1 Humes' Eng. App. II; 1 Min. Insts., XXVIL 1086. Dooms-day Book finished, containing a censug of tenants, tenures and lands for the whole King- dom. 1 Reeves' Hi5t. Eng. Law, 219; Hale's Hist. Com. Law, 137 and seq., ns (a) and (M); Hall. Mid. Ages, c. VIII; 1 Minor's Insts., XXVIII. 1087. Reign of William Rufus, 26th September. 1100. Reign of Henry I, Aug. 5. During this reign by a HISTORICAL SUMMARY. 19 A. D. non-extant stat. or assize the first limitation on ac- tions for lands was imposed — that no writ of Right should be brought on any title accruing before 1 Hen. I. 2 Min. Insts. Com. and Stat. Law, c. XVII. 1135. Blois Dynasty. — Reign of Stephen, 26th December. 1138. The Civil Law introduced into England by the Ecclesiastics. Prominent in the work was Theo- bald the Norman abbot, and his retinue. 1 Bl. Com. 18; 1 Min. Insts. Com. and Stat. Law, 12-13 ; 1 Reeves' Hist. Eng. Law, 68. 1154. Plantagenet Dynasty. — Reign of Henry II, 19th De- cember. 1164 lOHen. IL "The Constitutions of Clarendon," defining and limiting the immunities of the clergy and the ecclesiastical jurisdiction. Hale's Hist. Com. Law, 164, and n. (B); 1 Minor's Insts. Com. and Stat. Law, XXVIII. 1187. 33 Hen. II. "Treatise on the Laws and Customs of England," written by Glanville. 1189. Reign of Richard I, Coeur de Leon, 23d Sept. 1194. After Richard's return from Palestine, under his direction, the " Laws of Oleron " were compiled, at the isle of Oleron, near the French coast. 1 Reeves' Hist. Eng. Law, 212 ; Hale's Hist. Com. Law, 105, n. (D) ; 1 Minor's Insts. XXIX. 1199. Reign of John, 27th May. ' 1215. 17 John. Magna Charta extorted from John at Runnimede on the Thames, near London. 1 Rap. Eng., 285, B. VIII ; 1 Reeves' Hist. Eng. Law, 209-'31; Hal. Mid. Ages, c. VIII; 1 Min. Insts., XXIX. 1216. Reign of Henry III., 28th October. 1225. 9 Hen. III. Magna Charta confirmed. Oldest English statute in existence. Magna Charta was confirmed about thirty times. 1 Th. Co. Lit., 22 ; 2 Reeves' Hist. Eng. Law, 84-'5 ; 1 Min. Insts., XXIX. 20 HISTORICAL SUMMARY. A. D. 1225. 9 Hen. III. First statute of mortmain. 2Bl.Com. 270; 1 Reeves' Hist. Eng. Law, 209-'31 ; 2 Min. Insts. Com. and Stat. Law, ch. XVIII. 1263. " Treatise of the Laws and Customs of England," by Bracton. Hale's Hist. Com. Law, 289-'90 ; 2 Reeves' Hist. Eng. Law, 86 and seq.; 1 Minor's Insts. Com. and Stat. Law, XXIX. 1265. The germ of the House of Commons is recog- nized. Bac. Abr. Court of Parliament, (A); 1 Hume's Eng., 432; 1 Min. Insts. Com. and Stat, Law, p. XXIX. 1268. 52 Hen. III. Statute of waste — making waste punishable in all tenants for life or years. 2 Min. Insts. Com. and Stat. Law, c. XVIII. 1272. Reign of Edward L, the English Justinian, 20th Nov. 1272. Reports of cases adjudged by the chief courts of England first published by authority of law. These reports obtained the style of year-books, and were published annually. Continued for 105 years (from 1 Ed. I. to end of Ed. Ill's reign, A. D. 1377) ; stopped in Rich. II's reign for 22 years ; again printed about the reign of 1 Hen. IV., A. D. 1399 ; continued irregularly till 27 Hen. VIII., A. D. 1536. 2 Reeve's Hist. Eng. Law, 357 ; 1 Min. Insts. Com. and Stat. Law, p. XXIX. 1278. 6 Ed. I., c. 5. Waste made punishable with treble damages and forfeiture of the thing or place wasted, by Stat, of Gloucester. 2 Min. Insts. Com. and Stat. Law, c. XVIII. 1278. 6 Ed. I., c. 3. Statute of Gloucester, limiting the effect of collateral warranty by tenant by the Curtesy in barring the claim of the wife's heir, to the heritage descended from the father. 2 Min. Insts. Com. and Stat. Law, c. XX. 1279. 7 Edw. I. Second Stat, of mortmain. HISTORICAL SUMMARY. 21 A. D. 1280. Common Recoveries introduced by the Ecclesi- astics to evade the Stats, of mortmain, by pre- tended, but collusive, recovery of lands by suit. 2 Bl. Com., 271 ; 2 Min. Insts. Com. and Stat. Law, c. XXIII. 1285. Fleta writes his " Commentaries upon the Eng- lish Law," as a supplement to Bracton's work. 2 Reeves' Hist. Eng. Law, 279; 1 Min. Insts. Com. and Stat. Law, p. XXX. 1285. 13 Edw. I., c. 1. Stait. of West. II, "Z)e Bonis Con- dition-alibus," originating estates tail. 2 Reeves' Hist. Eng. Law, 164 ; 2 Insts. Com. and Stat. Law, c. VII. 1285. 13 Edw. L, c. 18. Stat West. II, "De Mercatori- bus," allowing a security for monej', to be charged on cdl the lands of the debtor, by way of a recog- nizance called statute staple. 2 Bl. Com., 160; 2 Min. Insts. Com. and Stat. Law, c. X. 1285. 13 Edw. I., c. 18. Stat, of Elegit, West. II, giving an execution (afterwards called Elegit,) to creditors against one-half of the debtor's freehold lands. 2 Minor's Insts. Com. and Stat. Law, c. X. 1285. 13 Edw. I. Joint tenants allowed an action for waste. 1289. Britton writes a Compendium of Bracton, giving a clearer insight into the doctrines of the law. The work appeared in Norman French. 2 Reeves' Hist. Eng. Law, 280; 1 Min. Insts. Com. and Stat. Law, p. XXX. 1290. 18 Edw. I., c. 1. Quia Emplores terrarum{ whereas purchasers of lands,) Stat. West. Ill, allowing all tenants of feuds, except tenants in capite, to alien their lands in fee simple without lord's license ; the lands to be held after this Stat, of the feoffor's or grantor's lord, but not of the feoffor or grantor. The compromise between lord and 22 HISTORICAL SUMMARY. A. D. tenant was, that the lord's consent for tenants alienation was taken away ; but the tenant had no longer the right of sub-infeudation. 2 Reeves' Hist. Eng. Law, 223 ; 2 Minor's Insts. Com. and Stat. Law, c. XIX. 1295. 23 Edw. I. The real era when the House of Commons is recognized. 1 Hume's Eng., 470. 1307. Reign of Edward II, 8th July. 1322. 15 Ed. II. House of Commons recognized by Statute. 1 Hal. ' Const. Hist., 3 ; 1 Min. Insts., XXX. 1326. Reign of Ed. HI, 25 January. 1326. 1 Ed. Ill, c. 12. Tenants in capite allowed by Stat, to alien their lands by paying a fine for King's consent. 3 Th. Co. Lit., 211-'12, n (A) ; 1 Min. Insts., XXX. 1330. 4 Ed. Ill, c. 14. Annual Parliaments provided for by statute. 2Hal. Const. Hist. H., 72; 1 Min. Insts., XXX. 1351. 23 Ed. Ill, 0. 2. Treason defined. Constructive treasons abolished. 4 Bl. Com., 67; Minor's Syn. Crim. Law, 26-'7. 1363. 36 Ed. Ill, c. 15. Provided by statute that proceed- ings in law be conducted in English, but be entered and enrolled in Latin. Proceedings hitherto had been both conducted and enrolled in Norman French ; and for more than three hundred years afterwards, law treatises and reports were written in Norman French. 3 Bl. Com., 318 and seq.; 1 Min. Insts. Corn, and Stat. Law, XXXL 1370. 43 Ed. III. Uses and Trusts, at the instance of the Ecclesiastics, and in order to evade the statutes of mortmain, incorporated into the Eng- lish law, and not long after used by the people as a relief against feudal exactions and oppressions. HISTORICAL SUMMARY. 23 A. D. 2B1. Com., 328; 2 Min. Insts. Com. and Stat. Law, c. X, XVIII. 1377. 50 Ed. Ill, c. 6. Existence of uses recognized by statute. 2 Bl. Com., 328; 2 Min. Insts. Com. and Stat. Law, c. X. 1377. Reign of Richard II., 22d June. 1392. 15 Richard II., c. 5. Fourth statute of mortmain, making uses and trusts subject to the mortmain policy. 2 Bl. Com., 329 ; 2 Min. Insts. Com. and Stat. Law, c. x, XVIII. 1399. Lancaster Plantagenet Dynasty. — Reign of Henry IV., 30th September. 1413. Reign of Henry V., 21st March. 1422. Reign of Henry VI., 1st September. 1461. York— Plantagenet Dynasty.— Reign of Ed. IV., 4th March. « 1461. 1 Ed. IV. Confirmed by statute all judicial acts and private business transactions occurring in the " Time or times of Henry IV., Hen. V., his son, and Hen. VI., his son, late in Deed, and not in Right, successively Kings of England. 2 Eng. Stats, at large, 586; 1 Min. Insts., XXXL 1473. 12 Ed. IV. The celebrated Taltarum's case de- cided, making estates tail harrahle by common recovery, i. e., that they could be conveyed by this method. 2 Bl. Com., 117 ; 2 Min. Insts. Com. and Stat. Law, c. VII. 1475. 14 Ed. IV. Littleton's tenures composed but not printed till about 1481. Lit. Ten. Pref., IX;1 Hargr. Co. Lit. Pref., V, XXII ; 4 Reeves' Hist. Eng. Law, 113, et seq. 1483. Reign of Ed. V., 9th April. 1483. Reign of Richard III., 26th June. 1483. 1 Rich. Ill, c. 5. Statute vesting lands where the King, while Duke of Gloucester, had been joint feoffee with the subject, in the subject ; and where 24 HISTORICAL SUMMARY. A. D. he had been sole enfeoffed to uses, vesting the lands in the cestui que use. 1 Bl. Com., 332; 2 Min. lusts., c. X. 1485. Lancaster — Plantagenet and Tudor Dynasty. — Reign of Hen. VII., 22d August. 1496. 11 Hen. VII., c. 20. Statute limiting the effect of collateral warranty by tenant in Bower, in barring the husband's heir to the heritage descended from the dowress. 2 Bl. Com., 308; 2 Min. Insts. Com. and Stat. Law, c. XX. 1504. 19 Hen. VII., c. 15. Uses subjected, like legal estates, to execution. 2 Bl. Com., 832 ; 4 Reeves' Hist. Eng, Law, 189. 1509. Reign of Henry VIII., 22d April. 1532. 23 Hen. VIII. In England the reformation is started. 4 Reeves' Hist. Eng. Law, 205, 437, 443 ; 1 Rap. Eng., 794, B. XV; Burnet's Hist. Reform'n ; 5 D'Aubigne's Hist. Reformation. 1537. 27 Hen. VIII., c. 10. Celebrated Statute of Uses designed to abolish u^es altogether, (in which it failed,) transferring the possession to the use, or converting wsesinto legal estates. 2 Bl. Com., 333 ; 2 Min. Insts., c. X, XX. 1541. 32 Hen. VIII., c. 1. Wills of lands in vjriting allowed, supplemented by 34 Hen. VIIL, c. 5. 2 Bl. Com., 375; 1 Min. Insts., XXXIL 1541. 32 Hen. VIIL, c. 24. Monasteries dissolved. 1547. Reign of Ed. VL, 28th January. 1552. 5 and 6 Ed. VL, c. 16. Concerning the sale of offices. 2 Bl. Com., 36-'7, and n (81) ; 2 Min. lusts., c. XXI ; Bac. Abr. OfKces, (F). 1558. Reign of Mary, 6th of July. 1557. 4 and 5 Ph. and Mar., c. 8. Statute concerning the custody and the guardianship by construc- tion, of infant females under sixteen, in respect HISTORICAL SUMMARY. 25 A. D. of marriage. 1 Bl. Com., 461 ; 1 Min. Insts., 429-'30. 1558. Elizabeth's reign, 17th November. 1571. 13 Eliz., c. 5. Fraudulent conveyances of lands and chattels, as against creditors made voidable by statute. 2 Bl. Com., 296 ; 2 Min. Insts., c. XX. 1585. 27 Eliz., c. 4. Fraudulent conveyances of lands as against purchasers made voidable by statute. 2 Bl. Com., 296. 1601. 43 Eliz., c. 4. Vague and indefinite charities allowed to be valid by statute — a statute declaratory of the common law. 2Bl.Com., 376 ; 2 Min. Insts., 0. X, XIX ; celebrated case of Vidal vs. Girard's Ex'ors, 2 How., 194, et seq. 1603. Stuart Dynasty. — Reign of James I., 24th March. 1624. 21 Jac. I, c. 16. First general statute of limita- tions in England. 3 Bl. Com., 188, et seq.; Id., 306, et seq.; 2 Min. Insts., c. XVII. 1625. Charles' I.'s reign, 27th March. 1628. 3 Car. I, c. 1. The celebrated statute known as " The Petition of Right" stating in positive terms the principal rights of the English people, to which the King assented with great reservation. This statute first drew the line of battle between prerogative and liberty. 1 Bl. Com., 128 ; 1 Min. lusts., 60 ; 1 Hal. Const. Hist. Eng., 286-'8. 1628. 3 Car. I. Coke's 1st Institute printed — a Com- mentary on Littleton's Tenures. 1 Hargr. Co. Lit. Pref., XXIII to 13th edition; 1 Min. Insts., XXXIII. 1640. 16 Car. I., c. 1. Statute to provide for triennial parliaments. 2 Hal. Const. Hist. Eng., 72-'3. 1649. 23 Car. I. January 30th, Charles I. beheaded. 1654. Cromwell Dynasty. Cromwell, Oliver. 9th January. 1658. Cromwell, Richard. 13th September. 1660. Stuart Dynasty.— Charles II. 29th May. Charles II. 26 HISTORICAL SUMMARY. A. D. is regarded as having succeeded his father, January 30th, 1649 ; the regnal years are counted accordingly, giving the first year of his reign, "12 Car. II." 1660. 12 Car. II., c. 34. Tenure in chivalry abolished with its train of inconvenient incidents, and all oppressive feudal tenures, retaining only the socage tenure and three others. 2 Bl. Com., 77 ; 1 Min. Insts., XXXIV. 1664. 16 Car. II., c. 1. Statute to repeal the act provid- ing triennial parliaments. 2 Hal. Const. Hist. Eng., 244-'5. 1678. 29 Car. II., c. 3. Statute of Frauds and Perjuries passed, making it necessary for certain transac- tions to be in writing to prevent frauds, and in certain cases requiring solemn authentication besides being in writing, e. g. (1) Conveyances of lands. (2j Contracts for the sale or lease of lands, and some other contracts. (3) Wills of lands. 2 Min. Insts., c. XIX. 1680. 31 Car. II., c. 2. .^Celebrated " Habeas Corpus Act" passed, providing for the subject the benefit oi this great writ. 2 Bl. Com., 135 et seq.; Bac. Abr. Habeas Corpus, (B) ; 1 Min. Insts., XXXIV. 1685. Reign of James II, 6th February. .1689. Orange and Stuart Dynasty. — Reign of William and Mary,-13th February. 1689. 1 Wm. and Mar. The Great Revolution effected under the auspices and by the instrumentality of William, Prince of Orange. James II. is de- throned for bad management of the government, and Mary, his daughter, the wife of the Prince of Orange, in connexion with the said Prince, were called by the twoHouses of Parliament to the throne vacated by James, and upon conditions expressly and entirely consonant with the ancient liberties HISTORICAL SUMMARY. 27 A. D. of England, again asserted afresh in the famous declaration of "Bill of Rights." 3 Hal. Const, Hist. Eng., 62 et seq. 1692. 3 and 4 Wm. and M., c. 14. Statute of Fraudu- lent demsesproviding that devisees of lands should take subject to the decedent's debts, in manner very similar to heirs. 2 Bl. Com., 378 ; 1 Min. Insts.; XXXIV. 1694. 6 Wm. and M., c. 2. Triennial Parliaments again established by statute. 1 Bl. Com., 189 ; 1 Min. Insts., XXXIV. 1694. Orange Dynasty. — William. III.'s Reign, 28th Decem- ber. The regnal years are estimated from the year William and Mary came to the throne in 1689. 1695. 7 Wm. Ill, c. 3. Counsel are allowed persons in- dicted for treason, by statute. 4 Bl. Com., 356 ; Minor "s Synopsis of Criml. Law, 245. 1696. 8 and 9 Wm. III., c. 11. In actions on bonds with collateral condition, the statute allows seve- ral breaches of the condition to be assigned, and judgment be given for the penalty as at common law, but said judgment to be discharged by what- ever damages a jury assessed for the breaches. Bac. Abr.Oblig'n, (F) ; 1 Min. Insts., XXV. 1700. 12 and 13 Wm. III., c. 2. Famous " Act of Settle- ment " passed, whereby the Crown of Great Bri- tain was settled upon the Princess Sophia, of Brunswic, and the heirs of her body, being Pro- testants, provided the Princess Anne, Mary's sis- ter, (Mary herself being now dead without issue) should fail to have issue ; containing and set- ting forth some new provisions for more perfectly making sure certain rights touching the religion, laws and the liberties of the people, which the stat- ute declares- to be "the birthright of the people 28 HIS*ORICAL SUMMARY. A. D. of England." 1 Bl. Com., 128; 3 Hal. Const. Hist. Eng., 134 et seq.; 1 Min. Insts., XXXV. 1700. 12 and 13 Wm. III., c. 2. Tenure of offices of Judges declared by statute to be dwring good be- havior, instead of during the King's pleasure; but their commissions were still liable to be vacated by the Oroivn's demise. This statute is a part of the "Act, of Settlement." 1 Bl. Com., 267-8; 3 Hal. Const. Eng. Law, 135, U2r-'3 ; IMin. Insts., XXXV. 1702. Stuart Dynasty. — Reign of Anne, 8th March. 1705. 3 and 4 Anne, c. 9. Promissory notes made pay- able to order, or bearer, and for a certain sum, and payable unconditionally, are put on the footing of bills of exchange and made assignable by statute, as they were not at common law. 2 Bl. Com., 467; 1 Min. Insts., XXXV. 1706. 4 and 5 Anne, c. 16, §21. Collateral Warranties by any ancestor, not having the inheritance in possession, made void as against the heir, by stat- ute. 2 Min. Insts., c. XX; 2 Bl. Com., 303. 1706. 4 and 5 Anne, c. 16, §§ 12, 13. In actions on money-bonds with a penalty, the statute declares that judgment shall be entered for the penalty, but to be discharged by obligor's paying the principal sum, with interest. 3 Bl. Com., 435; 1 Min. Insts., XXXV. 1706. 4 and 5 Anne, c. 16, §§ 4, 5. As many pleas as may be necessary allowed the defendant by statute. 3 Bl. Com., 308; 1 Min. Insts., XXXV. 1706. 4 and 5 Anne, c. 16. Joint tenants and tenants in common accountable to one another for re- ceiving more than their share of the profits of the common estate — coparceners not included in the statute, as they could compel partition. 2 Bl. Com., 183 and n. (14): 3 do., 227-8; 3 Th. Co. HISTORICAL SUMMARY. 29 A. D. Lit., 245, n. (26); do., 346, n. (15); 1 Sto. Eq., §446. 1707. 5 Anne, c. 8. The Union with Scotland consum- mated by statute. 1 Bl. Com., 95. 1714. Brunswic Dynasty. — Eeign of Geo. I., 1st August. 1714. 1 Geo. I., c. 38. Act to make the parliaments last for seven years — parliament having been elected under the trienyiial Act. Provision for Septennial Parliaments. 1 Bl. Com., 189; 3 Hal. Const. Hist. Eng., 171 et seq.; 1 Min. Insts., XXXVI. 1727. George II., 11th June. 1734. 20 Geo. II., c. 30. Counsel in Parliamentary im- peachments for treasons allowed by statute. 4 Bl. Com., 856; Min. Syn. Criml. Law, 245. 1752. 24 Geo. II., c. 23. The Julian Calendar corrected — " the style " changed by statute — the method of Pope Gregory XIII., in 1552, adopted. 2 Mijj. Insts., c. IX. 1760. Reign of Geo. Ill, 25th October. 1760. 1 Geo. III., c. 23. Tenure of Judge's offices to be during good behavior, and commission to continue without regard to the demise of the King. 1. Bl. Com., 268. 1765. 5 Geo. III. Stamp duties imposed upon the American Colonies by statute. 1766. 6 Geo. III., c. 12. Stamp duty act repealed but power to tax reserved. 1 Bl. Com., 109. 1767. 7 Geo. III. Internal taxation of the colonies at- tempted by statute, imposing duties on glass, pa- per,, tea, etc. 1770. 10 Geo. III. Duties on the colonists abolished, except on tea, by statute. 1773. 13 Geo. III. Cargoes of tea belonging to the East India Company destroyed in Boston harbor. 1774. 14 Geo. III. First Continental Congress assem- bled at Philadelphia, Sept. 5. 30 HISTORICAL SUMMARY. A. D. 1776. 16 Geo. III., July 4. Declaration of the Indepen- dence of the Colonies by Congress. 1783. September 3. Great Britain acknowledges the Independence of the United States, and a treaty of peace and of boundary is negotiated at Paris. 1800. 39 and 40 Geo. III. The Legislative Union be- tween Great Britain and Ireland declared by statute. 1 Bl. Com., 104 and n. (15). 1817. 57 Geo. III. Treason defined with greater minute- ness and strictness by statute. 3 Hal. Const. Hist. Eng., 114 and seq.; 1 Min. Insts., XXXIX. 1819. 59 Geo. III., c. 46. Trial by wager of battel abol- ished in England by statute. 3 Step. Com., 582, n.(u). 1820. Reign of Geo. IV., c. 14. Lord Tenterden's Act de- claring that no promise by words only shall stop the » bar of the Statute of Limitations, unless the promise is in writing, signed by the party to be charged, &c. SSteph, Com., 555; Chit. Cont.,818; 1 Min. Insts., XXXIX. 1830. Reign of William IV., 26th June. 1832. 2 Wm. IV. Representation in Parliament re- formed by statute. 2 Steph. Com., 379. 1834. 3 and 4 Wm. IV., c. 27 and 74. The ancient cove- nant real, including all warranties, abolished by statute ; and also all real actions. 2 Min. Insts., cXX; Rawle's Cov. of Title, 24. 1834. 3 and 4 Wm. IV., c. 42. Trial by wager of law abolished in England by statute. 3 Steph. Com., 525. 1834. 3 and 4 Wm. IV. Statute in connexion with the Rules of Court of Hilary term, 1834, changing and reforming the rules of pleading : (1). Instead of general issues, substituting special pleas. (2). Leav- ing off needtes/orms. Steph. PL, 158, and first App., Ivi. HISTORICAL SUMMARY. . 31 A. D. 1834. 3and4Wm.IV.,c.l06. Common Law Canons of descent modified by statute. 2 Min. Insts., c. XIV. 1837. 6 and 7 "Wni. IV., c. 114. Counsel allowed by statute in all criminal proceedings. 4 Steph. Com., 426; Min. Syn. Criml. Law, 245. 1837. Reign of Victoria, 20 June. 1837. 7 Wm. IV., and I Vic, c. 26. Ceremonies nec- essary to the execution of wills modified by statute. "Wms. Real Prop., 187 et seq.; 1 Min. Insts., XL. 1845, 8 and 9 Vic, c. 106. Statute of Grants passed declaring that lands as to the immediate free- hold thereof shall lie in grant as well as in livery. SECTION II. DATA CONNECTED WITH IMPORTANT EVENTS IN THE JUDICIAL HISTORY OF NORTH CAROLINA AND OE THE UNITED STATES. 1660. First permanent settlement in North Carolina by emigrants from Virginia. 1663. March 24. King Char. IL granted to Edward, Earl of Clarendon and others, as Lords Proprietors, all the country from the Atlantic to the Pacific between the 31st and 36th parallels of North latitude. 1663. George Drummond was appointed by Gov. Berkley, of Virginia, in pursuance of instructions from the Lords Proprietors, the first Governor of the colony, then known as the county of Albemarle. 1667. First Constitution was given the colony. Under it the "Grand Assembly of the County of Albemarle" met in 1666 or 1667, and was composed of the Gov- ernor, a council of twelve, one-half chosen by the 32 HISTORICAL SUMMARY. A. D. Governor, and the other half by the Assembly, and twelve delegates chosen by the freeholders. Two years later, " The Fundamental Constitutions of Carolina," a production of John Locke, went into effect, but worked badly, and about twenty-four years later was abrogated. 1729. Last General Assembly held under the proprietary government met at Edenton 27th November. 1734. First General Assembly under the Royal Government met at Edenton. George Burrington appointed first Royal Governor 1730, and followed successively till 1776 by Gabriel Johnston, Mathew Rowan, Arthur Dobbs, William Tryon and Josiah Martin. 1752. A collection of all the public Acts of Assembly of the Province of North Carolina printed ; revised by com- missioners appointed by act of Assembly of 1746; printed by James Davis, the first public printer, and the said publication was the first book printed in North Carolina. 1774. Last session of the General Assembly under the Royal Government, held at Newberne 2d March : it met again in April, 1775, but was dissolved by the gov- ernor. 1775. May 20th. Mecklenburg Declaration of Independ- ence signed. In 1774-5 Deputies had been sent to the Continental Congress. 1776. The Council of Safety direct that the Declaration of Independence of 1876 be proclaimed at Halifax, Au- gust 1. December 18th, a Congress of the representa- tives of the freemen of North Carolina assembled at Halifax for the purpose of establishing a constitution or form of government for the State. 1778. An act was passed " That all such statutes, and such parts of the common law, as were heretofore in force and use within this territory, and all the acts of the late General Assemblies thereof, or so much of the HISTORICAL SUMMARY. 38 A. D. said statutes, common law, and acts of Assembly, as are not destructive of, repugnant to, or inconsistent with, the freedom and independence of this State, and which have not otherwise been provided for, not abrogated, repealed, expired or obsolete, are here- by declared to be in full force in this State." 1789. " Iredell's Revisal " printed and approved in every respect by an act passed in 1791. 1803. Fran cais Xavier Martin was appointed by resolution of the General Assembly to collect and revise the public acts passed since the publication of Judge Ire- dell's Revisal ; the Revisal was prepared and ap- proved by the succeeding legislature. 1821. The " Revised Code," or " New Revisal," prepared under authority of act of the General Assembly of 1817, by Chief Justice Taylor, Judge Potter and Bartlett Yancey, published, containing a revision and consolidation of the public acts, and parts of acts of the General Assembly hitherto passed, and specifying those statutes and parts of statutes of Great Britain, which are in force within this State. 1836. " The Revised Statutes " published, having been pre- pared under act of Assembly by Gov. Iredell, Hon. Wm. H. Battle and Frederick Nash, mce Gavin Hogg. The plan of revision was to digest into one act the statute laws relating to one subject, to alter improper phraseology, to insert into the body of the statute such new matter as seemed proper, and to incorporate such British statutes as were in force. 1854. " The Revised Code of North Carolina " published. Hon. B. F. Moore, Hon. R. M. Saunders and Hon. Asa Biggs were appointed commissioners for revision. Their report says, they " departed in one respect very essentially from the course pursued by former com- missioners; they not only compiled and brought together the different acts and parts of acts on the 3 34 HISTOKICAL SUMMARY. A. D. same subjects, but they consolidated them, by fusing them together, and giving them the character of a single enactment ; and as to a great many, and indeed most of the acts, they expunged the verbiage, where it was merely cumbersome and imparted no aid in ascertaining the meaning of the law." 1873. Battle's Revisal of the Public Statutes of North Caro- lina adopted by the General Assembly at the session of 1872-'3. DECLARATION OF RIGHTS, COMSTITUTIONS, &G. 1776. A Declaration of Rights made by the Representatives of the Freemen of the State of North Carolina, Dec. 17th. On the 18th day of December the Constitution or Form of Government, agreed to and resolved upon by theXRepresentatives of the Freemen of the State of North Carolina, elected and chosen for that particular purpose, in Congress assembled, at Halifax, R. Cas- well, President. 1835. Amendments proposed by a Convention of Delegates of the people of North Carolina, 11th July, and rati- fied by the people on the second Monday of Novem- ber, 1835. Nathaniel. Macon, President. 1868. Constitution of the State of North Carolina, ratified by the people, April 21st, 22d and 23d, 1868. 1875. Amended Constitution of the State of North Carolina went into effect. 1784. A prevalent concern for a revisal of the Articles of Confederation prevailed, and the formation of a Gov- ernment deemed indispensable, instead of a Confedera- tion. 1786. Sept. 11. A Convention of delegates from Virginia, HISTORICAL SUMMARY. 35 A. D. Delaware, Pennsylvania, New Jersey and New York, assemble at Annapolis, Md. It recommended a Con- vention of all the States, to assemble at Philadelphia, in May, 1787, "to devise such further provisions as shall appear to them to be necessary to render the constitution of the Federal Government adequate to the exigencies of the Union." 5 Ell. Deb., 115-'16 ; 1 Min. Insts., XXXVII. 1787. May 14. On this day was to assemble by appoint- ment the Convention to " devise such further provis- ions as shall appear to be necessary to render the Constitution of the Federal Government adequate to the exigencies of the Union." A majority of the Thir- teen — seven — did not assemble till 25 May. 1787. May 25. The Convention was organized and George Washington was its President. Delegates were pres- ent from Massachusetts, New York, New Jersey, Del- aware, Pennsylvania, Virginia, North Carolina, South Carolina and Georgia. Detegates from Con- necticut and Maryland came May 28, and July 23 from New Hampshire. 1 Min. Insts., XXXVIII. 1787. iSept. 17. The Convention completed its work of the Federal Constitution, and the same was reported to the Congress of the Confederation. 1 Min. Insts., XXXVIII. 1787. Sept. 28. The Constitution is ordered by the Con- gress of the Confederation to be transmitted " to the several Legislatures, in order to be submitted to a Convention of delegates chosen in each State by the people thereof, in conformity to the resolves of the Conven- tion." 1 Sto. Const., §277; 1 Min. Insts., XXXVIII. 1788. Sept. 13. Eleven out of the twelve States which took part in the formation of the Constitution ratified it by their Conventions — North Carolina dissenting. The first Wednesday in January, 1789, is designated by the Congress of the Confederation for choosing 36 HISTORICAL SUMMARY. A. D. electors for president ; the first Wednesday in Febru- ary, 1789, f oy the electors to assemble to vote for Pres- ident; and the first Wednesday in March, 1789, at the then seat of Congress in New Tork, as the time and place for beginning proceedings under the Con- stitution. 1 Sto. Const., §278; 1 Min. Insts., XXXVIII. 1789. -March 4. The day for the organization of the new- Government. There was no quorum of the two houses convened till April 6— so doubtful was deemed the new experiment. 1 Min. Insts., XXXVIII. 1789. April 6. A quorum of the two houses of Congress as- sembled—the votes for President counted, and Gene- ral George Washington was unaniTnously elected Pres- ident. 1789. April 30'. General Washington is sworn into office, and the Government of the United States then went fully into operation in all departments. 1 Min. Insts., XXXVIII. 1789. Sept. 24. Judiciary act passed, establishing the judi- cial department of the United States Government, in the main as at present. 1789. Nov. 21., North Carolina ratified the Constitution of the United States. 1790. December. Philadelphia becomes the seat of Gov- ernment instead of New York. 1 Sto. Laws of U. S., 10. 1800. Nov. 17. The seat of the Federal Government estab- lished permanently on the Potomac, at Washington City. 1 Sto. Laws of U. S., 796. BOOK THE FIRST. INTRODUCTION. LECTURE I. INTRODUCTION. What is law? A rule of action. What is municipal law ? A rule of civil conduct prescribed by the supreme power in a State commanding what is right and prohibit- ing what is wrong. The legislators are the judges of what is right, and therefore the definition should be in the last part, commanding what they think is right, and prohibiting what they think is wrong." What is municipal derived from ? Municipium a walled town, because such towns were allowed certain privileges under Roman Emperors. "Objections to Blackstone's definition : (1.) It ascribes laws to the supreme power in a State. Accordirg to the just theory of government, as propounded by Montesquieu, neither of the three departments, Executive, Legislative, nor .Judicial, can be supreme without destroying liberty. Montesq. Sp. Laws, B. XI, c. 6. The legislative department is simply the law-making power. 1 Minor's Insts. Com. and Stat. Law, 23. (2.) The latter clause of the definition commanding, &c., is either su- perfluous or erroneous. If right and wrong are referred to the municipal law itself, then whatever it commands is right, and what it prohibits is wrong, and in that case the clause is insignificant tautology. But if right and -wrong are to be referred to the law of God, as demonstrated by reason, or by revelation, then the clause is erroneous, or at lea,&t deficient; for though the municipal law may seldom or never command -whiLt is wrong, yet in multitudes of instances it forbids what, apart from the prohibition, is right : that is, not wrong. 1 Bl. Com., 44, « 5 ; 1 Min. Insts., 23. A preferable definition of municipal law is, a rule of civil conduct pre- scribed by the law-making power in a State. 1 Kent's Com., 447 ; 1 Min. Insts., 23. A rule is permanent, uniform and universal, not fluctuating nor tran- sient like an order; hence, private legislative acts do not conform to the proper idea of a law, and are to be deprecated. A rule is coercive, not advisory; it commands and does not depend.on assent. 1 Bl. Com., 44. Municipal law is a rule of civil conduct; that is, conduct as a citizen, not moral conduct, and conduct here does not refer to opinion or faith. 1 Bl. Com., 45; 1 Min. Insts., 23. The word ^^ prescribed" in the definition indicates that retrospective 40' ©F THE EIGHTS "WHICH RELATE TO THINGS REAL. What does the municipal law of England include ? (1.) The acts of Parliament; (2) the common law; (3) and special customs. What does the municipal law of North Carolina include ? (1) The common law, so far as consistent with the genius of a free people ; (2) the State Constitution; (3) the acts of the Legislature ; (4) the Constitution of the United States; and (5), the acts of Congress.' What is the origin of the common law ? The law with regard to real property, originated from the feudal system which was introduced into England by the Northern or Continental Nations ; and that regulating personal property, from the Civil or Canon Law,, modified to suit the English. Eome, after the Emperors, was governed by Popes, hence under the latter the law of Rome was called canon or eccle- siastical instead of civil law. Could a man alien land at common law ? No, not before 18 Ed. I., A. D. 1290, without license from the lord, but the laws do not fully correspond with the definition of a law. They are sometimes void and are never favored ; nor in construing a law can a retro-active effect be allowed, unless it be in express terms retro-active. 1 Bl. Com., 45-'6; Potter's Dwar. Stats., 162-'3 and seq, and n (9); 1 Min. Insts., 24. An ex-post facto law is one which makes an act punishable in a manner in which it was not punishable when committed ; or which changes the rules of evidence so that less or different testimony is required to convict. Fletcher vs. Peck, 6 Or., 87 ; Cummings vs. Missouri, 4 Wall., 277 ; U. S. Const., Art. I, §,3:, 1 ; Federalist Nos. 44 and 84; 2 Sto. Const., §§ 1373, 1345. Laws impairing the obligation of contracts prohibited to the States ; U. S. Const., Art. I, § X, 1 ; Hepburn vs. Griswold, S Wall., 60-'3 ; Legal Tender cases, 12 Wall., 457 ; Gunn vs. Barry, 15 Wall., 610. Retro- spective laws touching civil remedies, see Bronson vs. McKinzie et als. ; 1 How., 311 ; 2 How., 645 ; 4 Wall., 548. * Treaties made under the authority of the United States, as well as the Constitution of the United States, and the laws made in pursuance thereof, are a part of the supreme law of the land, anything in the Con- stitution or laws of any State to the contrary notwithstanding. U. S. Const., Art. VI, § 2. QUIA EMPTOEES — DEVISE — ELEGIT. 41 statute of 18 Ed. I., Quia Emptores tenarum gave the tenant the right to alien and took away the right of subinfeudation — a compromise between lord and tenant. Quia Emptores means " whereas purchasers," and therefore it was not al-» lowed a tenant to devise at that time. 2 Bl. Com., 289. Could a man devise land at common law ? No, not till 32 Hen. VIII., explained by 34 Hen. VIII., A. D. 1541-'8. 2 Bl. Com., 290, 375. Because a devise was considered at common law a species of alienation, and the tenant could not originally alien since he might alien to the King's enemy. What became of a man's personal property at his death in case he died intestate ? The King, as parens pai/rise, had. a right to seize it, and afterwards he granted the right to- the, ordinary pro saluti animae, and because the ordinary was supposed of better conscience than a layman. 2 Bl. Com., 494. Bj'^ 31 Ed. III., c. 11, in case of intestacy, the ordinary shall depute the nearest and most lawful friends of the de- ceased to administer his goods; which administrators are put on the same footing, with regard to suits and accounting, as executors appointed by will. "Next and most lawful friend" of the intestate is construed to be " next of blood," or "kin." 2 Bl. Com., 496. By 21 Hen. VIII., the ordinary might ap- point either the widow or next of kin, or both, to administer on the intestate's estate. 2 Bl. Com., 496. Was a man's real estate liable for debt at common law ? No, not till statute of Elegit 13 Ed. I., which gave the creditor one-half of the debtor's land to be retained until out of the rents and profits the debt should be satisfied. The same year, by Statute Merchant, the whole of the merchant's lands might be taken in satisfaction of his debts, the law be- ing framed for the benefit of trade and commerce. 2 Bl. Com., 289. HoTv was it ascertained when the debt would be satisfied under the provisions of Statute of Elegit? The sheriff caused the land to be appraised at its full extended value, by a jury summoned for the purpose.- Does the^ 42 OF THE RIGHTS WHICH RELATE TO THINGS REAL. sheriff in this case act in a ministerial or a judicial capacity ? In a judicial capacity, because he is to decide as to the eligi- bility of the jurors, &c., and therefore the duties cannot be done by deputy. 2 Bl. Com., 289. So it is when he sum- mons a jury of inquest, or to assign dower, or assess damages done by a' mill-pond. By what process could a man's personal property be taken? By a fieri fadas, usually called fi. fa." Suppose 5,11 a man's personal property wa,s gone, what remedy was there at common law? The creditor could origi- nally take the debtor's body and have hiip. imprisoned forever in the debtor's prison : sometimes by giving band •certain bounds were allowed afterwards to be marked off for him in England, and so was it here at one time, but now in England a man can get out of prison after twenty days, if he swears he has not more than forty shillings, and in North Carolina he can give security for his appearance at the next term of court and then take the insolvent debtor's oath, but the creditor can take issue if he thinks the prop- erty is secreted. 1 Hayw., 598 ; 5 Ire., 192 ; 5 Coke, 92 ; ■Comyn's Digest, Execution, c. 5. What is the difference between a bankrupt and an insol- vent debtor ? Taking the insolvent oath releases a man's person only, but does not exempt future acquisitions of property, while bankruptcy in effect liquidates all claims present and prospective. By what writ is a man's body taken for debt ? Capias ad satisfaciendum, commonly called What did 18 Ed. I, give rise to ? (1,) A rent charge by breaking up tenures on which rent service was dependent, and (2) express warranty instead of implied for the same reason. In a grant to what estate does this apply ? To an estate in fee simple only. An estate to A and his heirs, of °In full : Quod fieri facias de bonis et cafalUs~tha.t you cause to be made out of the goods and .chattels. Bouv. L. Die, 2 vol., 585. STATUTE OF QUIA EMPTORES — REVERSION — RENT. 43 whom does the feoffee hold ? Of the feoffor's lord. An estate to A and the heirs of his body, of whom does A hold ? Of the feoffor, because the feoffor has the reversion and he is bound to implied warranty, and a rent reserved by him is a rent service.* An estate to A for life, remainder to B and his heirs, of whom does A hold ? Of the feoffor's lord, but not so if B's estate had been granted the next day, for then B's estate would have been a reversion instead of a remainder, and A would have held of B, the assignee of the reversion, and. rent service would have been an incident of the reversion. A makes a lease for twenty years reserving rent, marries and dies ; now his widow could have dower because posses- sion of the tenant for years is A's possession, but what Would become of the rent ? A third would go to the widow and two-thirds to the heir, for each has a reversion in that pro- portion in the lands. Whitlock's case, 8 Co., 71a; 1 Tuck. Com., 23-'4, B. II; 2 Bl. Com., 176; 4 Kent's Com., 355-'6.; 2 Minor's Institutes Com. and Stat. Law, 356. How are rents divided ? Into rent service, rent charge and rent seek. A grant of the reversion without special reservation- passed rent as incident. 2 Bl. Com., 176. How might a rent service be changed into a rent seek -? By a grant of the reversion reserving the rent because the right of distress passed as incident to the reversion." *18 Ed. I., Statute of quia emptores terrarum, Ai D. 1290, provided that free alienation of all fee simple lands not held of the CroWn, was permit- ted without consent of the lord; but the practice of subinfeudation was abolished ; and it was prescribed that the lands aliened should thence- forth be held, not of the grantor as before they had been, but of the chief lord ofthefee^ by the same services whereby the grantor had held. But the license was not at this tithe extended to the King's tenants in capite. 2 Bl. Com., 289; 2 Minor's In8titutes> 566. ' A rent service is reserved upon a grant of lands, when a reversion exists in the grantor. 1 Th. Co. Lit., 443-'4; Gilb. Rents, 9, 13; Bac. Abr. Eents, (a.) A rent seek — reditus siccus — is a ri^M to a certain profit issuing peri- 44 OF THE RIGHTS WHICH RELATE TO THINGfS EEAL. What duty in the lord corresponded to distress ? Im- plied warranty. What was a rent charge? It existed where there was no tenure and depended on a clause in the deed reserving the right of distress.' How might a rent charge be converted into a rent seek ? By aliening the rent simply for the right of distress will not pass with the rent. What remedy did a man have who had a rent seek ? He might sue on the contract, but could, not distrein. What other division of rents are there, and define them ? A rent with a fine, a rack-rent and a fee-farm rent. A rack, rent was said to be a rent near the full value of the tene- ment, but was really not literally so, for the tenant was ehtir tied to one- third for the expenses of the farm, one-third for his labor and paid over the other third. A rent with a fine was where the full value of the tenements was at first paid and a nominal rent, as a barley-corn, reserved in order to keep the reversion, and for this barley-corn the reversioner would sometimes distrein for fear of losing the reversion and its incidents. A fee-farm rent is a rent of at least one- fourth the "value of the tenements. Why was the tenant in tail in making leases undefr Stat, of 32 Henry VIII., obliged.-to reserve a^ rack-rent ? Because by rent with a fine he might in effect disinherit the issue. Besides there was odioally out of lands and tenements corporeal; for -which the lands are not charged with a distress, either of common right or by express stipu- lation. 2 Bl. Com., 42 ; 1 Th. Co. Lit., 448 ; Id. 442 n (D) ; G-Ub. Kenta, 15, 38 ; Bac. Abr. Rents (A) 3. Rent seek can be charged on land by a writ of assize, and not distreined for of common right — hence is styled a dry rent. Gilb. Rents, 15, 100, 106 ; 2 Min. Insts., 40. 'A rent-charge is a righi to a certain profit Issmng periodically out of land^and tenements corporeal to secure which the land is specially charged with a distress, usually by the terms of the grant, and not. as in case of rent'service, of common right. 2 Bl. Com., 42 ; 1 Th. Co. Lit. 445-'6 • 2 Min. Insts., 38. INCORPOREAL HEREDITAMENTS — RENTS. 45 quit-rent so-called, because the tenant by payment was quit or free from other services.* «The deflnition of a rent : "A rigM to a certain profit \isaing periodi- cally, out of lands and tenements corporeal in retribution — reditus — for the land that passes." Gilb. Rents, 9 ; 1 Th. Co. Lit., 442; 2 Min. Insts., 32. Hence a rent is a right and not the fruits of the reservation. The reservation must bring something to the grantor not belonging to or in Am before, to be a. profit; hence trees reserved would not be a rent. And the rent must be certain or capable of being made so. Gilb. Rents, 10; 1 Th. Co. Lit., 440-'l ; 2 Min. Insts., 33. The rent must issue tvova. period to period — not necessarily from year to year. 2 Th. Co. Lit., 414. It must be out of lands and tenements corporeal, for incorporeal things could not be distreined, nor could a writ of assize be had, for the recog- nitors could not have a view of them, nor were they intended tor private profii, but created and allowed for the public good. Gilb. Rents, 21-33", 1 Th. Co. Lit., 442; 3 Min. Insts., 34. It must be in return or retribution — reditus ; hence must be reserved to the grajitor of the land. A reservation to a stranger is not a good rent, and is void besides as against public policy, since such practice at common law tended to maintenance; also chosea in action at common law were not assignable. Gilb. Rents, 54; 1 Th. Ca Lit., 442; Bac. Abr. Rents, (G). The several sorts of rents according to their original nature., says Prof. Jno. B. Minor, 2 Min. Insts., 35, are, rents proper — that is, rents rc«ey«ed on the one side; and rents improper — that is, rents granted on the other. Rents reserved or proper, are rents reserved upon a grant of lands and corresponding to the definition supra. Had the designation rent never been otherwise applied it would have saved much confusion of thought which must of course result from the use of the same word to signify very different things. Rents improper, or rents granted, is where a certain sum, payable pe- riodically, is granted, issuing out of the grantor's lands. Because this transaction resembled a rent in several particulars (e. g., in stipulating for the payment of a sum certain, payable periodically, and issuing out 9f lands and tenememts), it was very unhappily so named although it wanted the most characteristic attribute of a rent, and that whence it de- rives its name, viz., the being a retribution or return — reditus — for the land tha,t passes. This discrimination between rents reserved and rents granted, is incomparably the most important connected with the subject, and affords a cine, which in general, suffices to guide the student through whatever intricacies belong to it. 46 OF THE EIGHTS WHICH RELATE TO THINGS REAL. What was included under corporeal hereditaments ? Land only. What was the difference between purchasing where there was an incumbent and where the living was vacant? In the former case the purchase was lawful, but in the latter, simony. 2 Bl. Com., 21, et seq. Donative advowsons no lon- ger exist on account of there being no established church. 2 Bl. Com., 23. The bishop was called the ordinary, because there were several under oue archbishop or metropolitan. How does it happen that any lands now in England are exempt from tithes ? Tithes were originally in the hands of the clergy and they could not pay to themselves, and when Hen. VIII. dissolved the monasteries, he claimed that the lands should still be exempt in order to get a better price for them. 2 Bl. Com., 31-'2. ■ Difference between common appendant and appurtenant? Common appendant is confined to the manor in which the tenant is resident and extends only to commonable beasts (or such as are necessary to plough or manure the lands,) but common appurtenant extends to other beasts or other manors} How may common appurtenant arise ? By a division of a manor between two daughters, and then the tenants in one have common in the other half. Levant and Couchani, or the right to keep only what a man can support, winter and summer, obtain also in common appendant. In North Carolina we have generally common because of vicinage. Ways, or the right thereto, arise by grant, prescription, or '' In addition to the above there are these distinctions : Appendant means annexed to the lands by prescription ; appurtenant, by grant or prescription. Common of pasture appendant is confined to arable land alone, and has connexion with feudal tenures; coumon of pasture ap- purtenant may be annexed to any sort of land, and has no necessary connexion with tenure. 1 Th. Co. Lit., 206 ; 2 Bl. Com., 33 ; 2 Min. Insts., 10 ; 1 Th. Co. Lit., 228 («) 6—227 (?i) S ; Conlam vs. Stock, 15 East., 108. INCORPOREAL HEREDITAMENTS — WAYS — FRANCHISES, &C. 47 necessity} They are either public or private. Private ways are carriage or cart-ways, bridle, horse or drift ways and foot ways. 1 Th. Co. Lit., 233-'4 and n (B. 1.) All corporations are instances of franchises.^ Corodies are allotments of victuals from religious houses. A pension is more properly applied to a sum paid by government to a certain person. This is a hereditament but not a tenement, and so of offices not concerning land.'' Difference between an annuity and a rent-charge ? An annuity is chargeable only on the person, but a rent-charge issues only out of lands. An annuity company is just the opposite of an insurance company. A grant to A and the heirs of his body of £100 per annum, what estate has A? A fee conditional and not an estate tail, for annuities are not included in the statute of De Donis, 13 Ed. I., creating en- tails the word used in that statute being "tenements." 2 Bl. Com., 40 and (n) 34; 1 Th. Co. Lit., 492. What are emblements ? The growing crops.' Suppose a ' A way may arise by reservation, e.g., A grants land to B, reserving a right of wajf over it. 2 Bl. Com., 35 (n) 28. "A right of way is the right of going over another's land." 2 Bl. Com., 35. Eespeoting who shall repair the way, see 2 Bl. Com., 35, (ra) 28; 1 Th. Co. Lit., 234 [n) D, (1) ; 2 Bl. Com., 38 ; Taylor vs. Whitehead, 2 Dougl., 749. Release of the right of way to him who has the land or the union of seisin of the fee simple in the same person that owns the right of way extinguishes it. Bac. Ahr. Release, (D) ; 2 Bl. Com., 35, (re) 28. >A franchise is a special right or privilege conferred on individuals, by grant, actual or presumed, from the government, and which otherwise they could not exercise. 2 Wash. Real Prop., 18 ; 2 Min. Insts., 28. ''An office is a right and a correspondent duty, to exercise a public or private employment, and to take the emoluments tliereto belonging. 3 Rents' Com., 454; Bac. Abr. Off., (A); 2 Min. Insts., 23. 'Emblements are the fruits of annual agricultural iuAuatry—fructus industriales^-iov the production whereof art combines annually with na- ture ; e. g., the cereals, annual roots, &c., but not clover or fruit. 2 Bl. Com., 122-'3 (n) 3 ; 1 Wash. Real Prop., 102 ; 2 Min. Insts., 92. 48 OP THE EIGHTS WHICH RELATE TO THINGS REAL. man dies while there is a growing crop, as between heir and executor or administrator, who takes them ? The executor or administrator. Suppose a man devises his land, how is it between devisee and executor? The devisee takes the crop because the devise is a species of alienation and carries the emblements, but anything to show the testator's inten- tion to the contrary carries them to the executor. 2. Bl. Com., 122 (n) 3. So according to the decision in 1860 loose plank in a loft or boards on a roof pass with a grant of the land. Rent, if due, goes to the executor, if not due, to the heir. As between heir and executor, it is not due till the termina- tion of the day, viz., midnight. Between lord and tenant, the rent is due at sundown, that they may see to count the money, and also on account of distress. If the lessor dies between sunset and midnight, the rent goes to his heir and not to his executor. Bac. Abr. Rent, (H) ; Gilb. Rents, 52 ; Chens Case, 127. "Land," according to Judge Pearson, "is the soil and all things annexed thereto, or used or considered as a part there- of" Then in a feoffment rails laid beside a fence for repairing the fence, or lumber by a house for the same purpose, will not pass with the land. Where there is a sale of land, parol evidence will be ad- mitted to prove that the vendor means to reserve the emble- ments to himself. Could a woman be endowed of a rent-charge in fee? She could, for it is a tenement, and sbe has a right to dower in all lands and tenements. 1 Th. Co. Lit., 569, 578. How may common in gross arise ? By prescription, or where there is a common appendant by granting the manor reserving the common. Common in gross is a right of com- mon which is not annexed to land at all, but to a man's person. 1 Th. Co. Lit., 228 and n. (W.) Tithes were taken in imitation of the Jewish Theocracy, where, though there were thirteen tribes with the sons of INCOEPOREAL HEREDITAMENTS — WAYS — PEANCSISES, AC. 49 Joseph, when two went over the Jordan, and the tribe of Levi was taken out for Priests, only ten were left to pay tithes. It was the parson's business to go after the tithes and not the tenant's to carry them to him."" Fish caught on the high seas and certain old mills, by custom, constitute the only instances wherin personal tithes can now be had in England. If the Legislature should enact that all deformed children shall be killed, or that Sunday shs^ll not be observed, is the act valid till repealed ? It is. Are there any special customs in North Carolina? No; for a custom is a local law, and must have existed for a time whereof the memory of man runneth not to the contrary ;. but there is a historical date to the introduction of our laws.. The privilege of backing water on another's land, or hav- ing ancient lights, is an incorporeal hereditament. In North Carolina, if a man have a ferry no man can establish an- other within two miles of him, and the owner may have one a'cre of land condemned on the opposite sid6 of the river if the party refuse to sell. If a man feed his hogs on my land so as to get them to. run on it, he is guilty of a trespass, and so if he drive them on ; but if land is not inclosed and cattle go on it of their own accord', it is common because of vicinage. In North Carolina, if a man goes oat of the public road because of bad condition of the road, he is liable for trespass but can sue the person whose duty it was to keep the road in repair ; but contra in England, because roads are kept up by the party over whose lands they pass." "Tithes are the tenth part of the increase arising from the profits of' lands; from the stock upon lands; and from the personal industry .ot the inhabitants. 2 Bl. Com., 24 et seq. Tithes were ordained for the sup- port of the clergy, and of religion before the Conquest, suooessively by Alfred, Edward the Elder, and Athelstan— A. D. 900-930. 2 Bl. Com.,. 25. "In case of a highway which is for the public, if the usual track, is im-.- passable it is for tlie general good that people be allowed to.pass in an^ 4 50 OF THE EIGHTS WHICH SELATE TO THINGS REAL. If I have a right of way over another's land and make a conveyance of my land, I must say in the deed " cum perti- nentis," &c. In North Carolina at all times the boards of trustees of ithe townships, and the boards of county commissioners, shall 'have full power and authority within their respective coun- ities to order the laying out of public roads where necessary, ito discontinue such roads, and to alter roads so as to make them more useful. Battle's Revisal, ch. 104, §1. If a lessor of rent-seek reserve a rent to him and his as- signs, or to him and his executors, it determines at his death, but if to him, his heirs and his assigns, the heir will take. And so if the word term is used and heir omitted. Gilb. Rents, 64, 65; 2 Th. Co. Lit.^ 413 and n. (K); Bac. Abr. Rents, H. An exception is a part of a thing granted and in esse." (Land is anything of a permanent substantial nature, and -embraees the soil and all things connected therewith, or used or eonsidefed as a part thereof. Tenement is anything that may be held by the feudal system. Hereditaments are .anything that may be inherited. In common because of vicinage one may inclose against .another because it is but an excuse for trespass. A party must claim a right of way over another's land .adversely for twenty j'ears in North Carolina or he will not have a good title. Battle's Rev., ch. 17, Limitations of Ac- tions, ch. II, §23, p. 148:. • other line; and it is presumerl that the party whose lands are injured must seek his redress against the overseer or other public officer whose duty it is to keep the road iti repair. 2 Bl. Cora., 36 ; Taylor v. White- head, 2 Dougl., 749 ; 2 Min. Insts., 19. °An exception differs from a reservation, the former being always a -part of the thing granted, tlie latter of a thing not in esse, but newly .created or reserved; the exception is of the whole of the part excepted ; ithe reservation may be of a right or interest in the particular part aflect- .ed by the reservation. Bouv. LawDic, vol. 1,.'551. INCDRtOUEAE HEREDITAMENTS — DOWER. 51 At common law the wife cannot be endowed unless she is over nine years of age at the death of her husband. If husband aliens before she attains that age, and she after- wards becomes nine before his death, she is entitled to dower. 1 Bl. Com., 464. TheWifeof anidiot, non compios, or person attainted of felony (but ndt of treason) shall not be endowed. 2 Bl. Com., 131. The Wife cannot be endowed of lands both given and taken in exchange : the widow may elect, after the husband's death, to be endowed of either parcel of which the husband was seized during the coverture. 1 Th. Co. Lit., 576 ; 1 Wash. Real Prop., 159 ; 1 Lom. Dig., 101; 2 Minor's Institutes, 129. In shares in canals, railroads, &c., since in its nature the property is real estate, wherever there is a proper estate of inheritance dower must attach unless otherwise provided by statute. 1 Wash. Real Prop., 167 ; 1 Th. Co. Lit., 581, n. (L).; 1 Lorn. Dig., 97 ; 2 Min. Insts., 128. The widow is endowable of fisheries, franchises, and of all incorporeal hsreditaments, except corodies and armiiities. Corodies and annuities are exceptions because they are charged on the person only, and do not cease to be personalty because by an extraordinary anomaly they have the one at- tribute of real estate of passing to the heir instead of to the personal representative. 1 Th. Co. Lit,, 583 ; 1 Wash. Real Prop., 168; 1 Bright's Hus.^and Wife, 331 ; 2. Min. Insts., 127. LECTURE II. THE FEUDAL SYSTEM. What was the feudal system ? A system devised by the Northern Continental Nations which overran Southern Europe for the purpose of dividing out their conquered lands, and of protecting them from invasion, the chief fea- ture of which was that all the lands are held mediately or immediately of the King. How were the lands divided out? The Kings granted out the lands to the generals, the generals to the colonels, the colonels to the captains, each apportioning the services as they sub-divided. What were the king, generals, colo- nels, captains, and common soldiers respectively called? The king was called sovereign ; generals, lords paramount ; colonels, mesne lords; captains, tenemts-paravail. Paravail comes from par by and avail profit. As these paid no money, how did the sovereigns, gene- rals, &c., make a support ? They let out a portion of their lands to socage tenants who paid rent. What were the lands let out to neither of the above classes called? Manors. By whom were they cultivated? By villeins and serfs. What were the ancient English tenures ? Knight-service, socage and villeinage tenures, (grand-sergeanty being only a species of knight-service, and villein-socage coming under the general name of socage.) Difference between villein- socage and pure villeinage ? The services in the former were cefdain, in the latter uncertain. What are the Modern English Tenures ? Free and com- raon soc^e, copy-holds, tenants in ancient demesne, grand sergeanty, (or at least the honorary parts,) and frankal- jnoigne, wbicb js both ancient and modern and of little im- portance. THE FEUDAL SYSTEM. 53 What do copy-holders come from ? From privileged villeinage. What class of society did pure villeins fall into? Coachmen. What is the meaning of holding in ancient dememtf The tenants occupied lands that be- longed to the crown in the time of William the Norman. They came from those holding by homage ancestral. When is the last recorded case of a villein in England ? In the time of James I. How were they emancipated ? The clergy persuaded men to manumit them expressly, and they after- wards impliedly did' so by bringing suit against, or doing some act toward them, inconsistent with their condition as villeins. What is the meaning of socage ? Blackstone says it comes from soc, a privilege, but it is from soca, a plow. 2 Bl. Com., 81. What is the meaning of scutage, or escuage ? It was Sub- stituting a payment in money for personal services in the wars, and then troops were hired with the money. It is derived from scutium, a shield, and was first levied by the statute of 5 Hen. II. Why were hired troops preferred? Because the others were compelled only to serve a certain number of days, and like our militia, could not be taken out of the country against their will. What is a manor ? It is derived from manus, a hand, sig- nifying that the lands were still in the lord's hands, or from maneo, to remain, because the lands remained after the others were granted. What were the services of a knight? Fealty, homage, doing suit to court, and attendance on wars. What were the services of a socage tenant? Fealty, doing suit to court, and rent. What were the incidents to knight service ? ,Aids, reliefs, primer seisin, wardship, marriage, fines for alienation, and escheat. What is a seignory ? A right to the feudal incidents and services. Difference between a reversion and a seignory? A seignory was the right which a man had when he had 54 OF THE RIGHTS WHICH RELATE TO THINGS REAF,. granted out the whole fee — a reversion was what was left after a grant of a particular estate, and the services were always incident to it. How long did feudal tenures continue in England ? Until the restoration, 12 Cap. II., A. D. 1660. Difference between alienation and subinfeudation ? The alienee holds of the feoffor's lord; the subinfeudee, of the feoffor. What were the services of a knight ? Stated supra. Why- did the lords object to subinfeudation ? Because it deprived them of the feudal incidents. Suppose A to be lord para- mount, and B makes a subinfeudation to C, how would A's interest be affected by it ? In case B's heirs, should fail by escheat, he would get but a barren seignory or the right to C's services, whereas before subinfeudation, he would have taken the land itself. What did the lords and commons respectively gain by 18 Ed. I., quia enmptores ? The tenants gave up their right of subinfeudation and acquired the right of alienation, which they did not have before without paying a fine. Were the King's tenants in capite included in this statute ? They were not, but were allowed to alien by stat. of 1 Ed. III., and retained the right of subinfeuda- tion till 17 Ed. II. As to the origin of rent charge and express warranty by 18 Ed. I ; refer to Lecture I. This statute gave rise to three divisions — King, Lords and Commons. The mesne lords generally lost their land by escheat, forfeiture, &c. Could the lord alien without the consent of his tenant at common law ? He could not, because the tenant's services might be transferred to his enemy, and he might not be able to distinguish lawful distress from unlawful. Attorn- ment signified a transfer or turning over. When was it abolished? Stat, of 4 Anne made it unnecessary, and 11 Geo. II. made it inoperative. Why were socage tenants excused from aid for ransoming the lord's person ? Because the service was uncertain. This aid was exacted from tenants by knight service, because it ■ THE FEUDAL SYSTEM. 55 was thought that by requiring knights to pay aids, they would be induced to fight harder, and socage tenants not belonging to the fighting men, were of course excused. What is escheat? It is the right in the lord, either on failure or corruption of the tenants' blood— ^ropier defectum sanguinis, or propter delictum tenentis — to enter and take the lands. In case of escheat for want of heirs, did the land pass from the tenant by limitation or by force of a condition'? By limitation, the heirs of the first purchaser having failed. In North Carolina lands are held by a kind of socage. The eminent domain (or demesne) is in the State, and consequently the State takes all lands that escheat propter defectum san- guinis. All the real estate which has escheated, or may escheat to the State, which has not been reduced into pos- session by the State, or the president or directors of the literary fund, shall be and is vested in the trustees of the University for the use of the University. Battle's Rev., ch. 113, §§ 11, 834. Was it by force of a condition or limi- tation that the lands passed in case of escheat propter delic^ turn tenentis (on account of corruption of tenant's blood) ? In this case the estate is ended by force of a condition in law. Suppose the tenant paravail died without heirs, leaving a widow, could the lord take her third ? He Could not, be- cause her right attached during her husband's life. Supr pose the tenant in tail dies without issue, could his wife get dower? She could, because the husband was seized of an inheritance to which issue of the marriage might by possibility succeed. Suppose the tenant paravail com- mitted felony, could his wife hold dower against the lord ? She could not. Why the difference as regards dower in case of escheat propter defectum sanguinis and propter delic- tum tenentis f Because in the latter the lord's entry for con- dition broken defeats the wife's seizin — or the seizin out of which dower must have come. Difference between escheat a»d forfeiture f E^heat grew out of the feudal system, and was a part of it ; forfeiture was 56 OF THE RIGHTS WHICH KELATE TO THINGS REAL. grafted on it by William the Conqueror, and when they con flict, forfeiture takes first as in case of felony, for a year and a day, and then escheat comes in. Was dower a part of the feudal system ? It was not, but was introduced into England by Canute the Dane, and afterwards grafted on the feudal system. What estate did the lord have as guardian ? A chattel interest. What reason was given for taking reliefs ? They were probably first applied to collaterals, just as collaterals are now taxed in taking an estate in North Carolina. When ah heir came of age, what was necessary for him to do to get his land? To sue out his oitster le main, meaning out of the hand, for which a fine was due. When the ward wished to marry, was the lord's consent necessary? At common law it was for females but not for males. Why the differ- ence? Because the female might marry the lord's enemy, but as to the males it made uo diff'erence in respect to the services, whether he married friend or foe. How was the lord's right afterwards extended to males? In a clause in Magna Charta really intended to restrain the lords, the word haeredes of the common gender was used. What evil was intended to be remedied by enacting that the heir should be married with- out disparagement ? The lords were accustomed to tender marriages which, on account of the age and low position of the person, they knew the heir would refuse, and thereby they could raise money. When a socage tenant left an heir, who was guardian ? The next relation who could in no wise inherit the land after his death. Why were other relations excluded ? Be- cause in those times it was thought they might kill him if such relation were appointed as could inherit the estate at the infant's death. Why was the guardianship given to the lord as in knight-service ? Because in socage tenure no military or other personal service being required, there was no occasion for the lord to take the profits in order to pro- vide a proper substitute for the infant tenant. THE FEUDAL SYSTEM. 57 What is primer seizin f It was a sum due from the king's tenant's in capite where the heir was of full age, and was the right the king had to take one year's profits of the lands if in immediate possession, or one-half year's profits if the Ifinds were in reversion expectant on an estate for life. Why was the term free and common socage used in the statute of 12 Car. II., A. D. 1660 ? The word "free" in con- tradistinction to "base" service, and "common" to distinguish the tenure from " special" custom. There was guardianship in chivalry and also in socage only when lands came to the heir by descent. Grandfather, father and son. Mother dies, then the grandfather, leaving the son under age as heir apparent, the lord shall have wardship {curator in the civil law) of the land, and the fa- ther the wardship {tutor in the civil law) of the body. Doc- trine above contra' when the lands are descended on the part of the father who dies living the mother. The lord may grant the wardship away and a deed is- not necessary. If a man be seized of a rent, his heir under age may choose his guardian, or the court of chancery will appoint one if the infant is too young to make a selection. An es- tate to A and the heirs of his body : next of kin on the fa- ther's or mother's side who first gets possession of his body shall be guardian; for in aequalejure melior est conditio possi- dentis — when the parties are in equal right the condition of the possessor is the better. Guardian per cause de ward is where one infant in ward- ship is entitled to be guardian of another infant ; in that case the guardian of the first is entitled to be guardian of both. Wardship was the custody of the heir's body and lands without any account of profits, provided the heir, if male, was under twenty-one, and under fourteen, if female, at th.e ancestor's death. Fines for alienation were paid by tenants in capite only. Marriage was the right which the lord had of disposing of his ward without disparagement for so much as a jury would 58 OP THE EIGHTS WHICH RELATE TO THINGS REAL. assess, or any one bona fide would give for it. Tenant makes a gift in tail, donee makes a feoffment in fee and dies, donor ^hall have wardship of his heir; and if the feoffee die the brd shall have wardship of his heir. If the disseizee dies the lord shall have wardship, but if the disseizor then dies he shall have wardship of his heir and lose that of the for- mer. A relief was 100s. for a knight's fee. Relief, ward- ship, marriage and escheat were not abolished by statute of 12 Car. II., A. D. 1660. The tenant makes a feoffment and dies, the heir within age recovers by entry or action ; in this case the 4ord shall have wardship if there has been no laches in the heir. The guardian shall not have the marriage of the ward but once. The remedy for disparagement was en- try. For a relief, the lord may distrain but cannot have an ac- tion of debt, but his executor or administrator can.* *References are not specially made touching the doctrines treated of in this Lecture. A brief and clear exposition of the leading doctrines touch- ing upon the Feudal System is set forth in Chap. IV, of the Second Bool: of Blackstone's Commentaries ; and in Hume's History of England, Ap- pendix II to vol. 1, the doctrines relative to the Feudal System and the Anglo-Iforraan Government and Manners, are presented in a very at- tractive and condensed manner, and reference is made thereto. For fuller insight into the doctrines concerning Guardian and Ward, so often referred to in the Lecture, see in general 1 Bl. Com., 460, et seq.; 2 Kent's Com., 217, et seq.; Bac. Abr. Guardian, ei seq.; 1 Th. Co Lit., 153 (n) 1 ; Katcliflf's Case, 3 Co. 37 b, n A ; 1 Th. Co. Lit., 168, n 14, lo7-'8, n 7 ; 2 Sto. Eq., §1351-'33 ; 2 P. Wms., 123-'4. LECTUEE III. ESTATES. ■ What is the largest estate in lands ? A fee simple. What word is necessary to be used in its creation ? The woid heirs. 2 Bl. Com., 108. A seized in fee enfeoffs B without the word hdrs, what estate has B ? An estate for his own life, because it is more beneficial to him for his own than for anoth- er's life. Suppose A has an estate for his own life only, how then ? B takes an estate pur autre vie because that is the only lawful estate A can pass, and the law will not presume wrong in him. 1 Th. Co. Lit., 620 ; 2 Bl. Com., 120. Is it proper to say of a tenant in fee simple that he is seized in his demesne of fee ? No, but it should be said that he is seized in his demesne as of fee. 2 Bl. Com., 105. How many estates of inheritauce were there? Four — three at common law, namely : (1.) Fee simple ; (2.) Base or qualified fee ; (3.) Fee conditional ; and by statute, (4.) Fee tail. 2 Bl. Com., 107, et seq. The wife cannot be endowed at common law unless she is over nine years old at the death of her husband. 1 Bl. Com., 463. If the husband aliens before the wife attains the age of nine, and she afterwards becomes nine before his death, she is entitled to dower. 2 Bl. Com., 131. The wife of an idiot, or non compos, or person attainted of felony, but not of treason, shall be endowed of personal property. [See the doctrine stated and the change by stat- ute, 2 Bl. Com., 131.] Of what estate was fee-tail made? Fee conditional. 2 Bl. Com., 112 and seq.; 1 Th. Co. Lit., 512 and seq. What estate did the feudal barons first grant to their ten- ants ? A fee conditional (Jeudum novum) and not according to Blackstone and Butler first an estate at will and then for years, and then for life, and then in fee, for it was just as 60 OF THE RIGHTS WHICH KELATE TO THINGS REAL. • well to give the fee to the tenants as anybody else. 2 Bl. Com., 55. And afterwards, in a long course of descent, the estates became fee simple inheritable to all the heirs." What words were necessary to make fees conditional ? " Heirs," and words denoting procreation. What words are necessary to create a base or qualified fee ? Ilhe word heirs and words of qualification, as an estate to A and his heirs as long as they remain tenants of the manor of Dale. 2 Bl. Com., 55-6. A grant t6 the Cherokee Indians is the only instance of a base or qualified fee in North Car- olina. They hold their lands as long as they remain in the State, and on their removal the State takes their lands again, not by escheat, but by a sort of possibility of reverter left it. Feoffment to A and his heirs male, what estate has he ? "Hume takes the position of Blackstone and says concerning this doe- trine : — But there is a great difference, in the consequences, between the dis- tribution of a pecuniary subsistence, and the assignment of ]ands bur- dened with the condition of military service. The delivery of the former, at the weekly or annual terms of payment, still recalls the idea of a vol- untary gratuity from the prince, and reminds the soldier of the preca- rious tenure by which he holds his commission. But the attachment, naturally formed with a fixed portion of land, gradually begets the idea of something like property, and makes the possessor forget his depend- ent situation, and the condition which was at first annexed to the grant. It seems equitable that one who had cultivated and sowed a field should reap the harvest : hence fiefs wiiich were at first entirely precarious were soon made annual. A man who had employed his monej' in building, expected to reap the fruits of his labor or expense: hence they were next granted during a term of years. It would be thought hard to expel a man from his possessions who had always done his duty, and performed the conditions on which ho originally received them: hence the chieftains in a subsequent period thought themselves entitled to demand the enjoy- ment of their feudal lands during life. It was found that a man would more willingly expose himself in battle if assured that his family should inherit his possessions, and should not by his death be left in want and poverty: hence fiefs were made hereditary in families, and descended du- ring one age to the son, then to tlie grandson, next to the brothers, and afterwards to more distant relations. Hume's England, vol. 1, Appen- dix II, p. 445; Lib. Feud. lib. I., tit. I. ESTATES OF INHERITANCE — PEE CONDITIONAL. 61 A fee simple, the word "male" being surplusage. It could not be an estate for life, because the word heirs was used ; it could not be a fee conditional, because words of procreation were wanting' and as a fee simple the word was surplusage, be- cause this -w&sfeudum antiquum and could not be restricted to particular heirs. Why was it not considered surplusage in a grant of a fee conditional ? Because it was a,feudum nmmm, i. e., it can be told who is first purchaser. At common law, an estate to A and the heirs male of his body, he has a son, the son marries and has a daughter and dies : could she in- herit? No. 1 Th. Co. Lit., 508 et seq.; 1 Prest. Est., 477 et seq. A has an estate in fee conditional and aliens before birth of issue to B, what estate has B ? A base or qualified fee, determinable on failure of A's issue. Why could not A's heir enter on B ? Because he was estopped by the deed of his ancestor and the heir could not claim a greater estate than the ancestor had, which was a fee determinable. The donor or his heir could enter on failure of A's issue, by title paramount, because the condition was broken. What rights did the birth of issue give the donee in fees conditional at common law? (1.) The right to alien in fee simple ; (2.) To charge with incumbrances — rents, com- mons, &c.; (3.) To forfeit for treason. 1 Th. Co. Lit., 508-'9 ; 2 Bl. Com., Ill, and n (17) ; 1 Prest. Ests., 417 et seq. The reason for the doctrine last stated is, that the interest of the donor was the only one which the law specially protected, and his chances for a reversion were rendered very remote by the birth of issue. How did the tenants in fee condi- tional usually change the nature of their estates after issue born ? They aliened the estates and then took them back in fee simple. 2 Bl. Com., llO-'ll n (17) ; 1 Th. Co. Lit., 508--9 ; 1 Prest. Est, 477. What did the statute de donis, 13 Ed. I., enact ? That the donee should not alien so as to bar the issue, but that the tenements should at all events go to the heir, if there was 62 OB* THE RIGHTS WHICH EELATE TO THIlJGS REAL. any, and if not should revert to the donor. Was the estate of the tenant in tail liable to forfeiture ? No, the judges held not, because forfeiture was a species of alienation, and the statute was made to provide against alienation ; but the statute of 26 Hen. VIII., A. D. 1535, made estates tail for- feitable. 2 Bl.- Com., 118. Why could not he, like the tenant in fee conditional, alien for twenty years ? Because the tenant in fee conditional, on the birth of issue, had a right to make a feoffment, and the less right (to lease for a term) was included in the greater, but the tenant in tail was restrained from all alienation by the terms of the statute de donis. 2 BL Com., 112 ; 1 Th. Co. Lit., 512 et seq. What statute authorized the tenant in tail to make a lease bind- ing after his death ? Stat, of 32 Hen. VIII., A. D. 1541. What are the nine requisites to such leases ? ° Why was it required that the lease should be effected by deed indented ?* Because if a deed-poll were used there "(I.) The lease must be by indenture — not by deed-poll or by parol ; (2.) It must begin from the making, or the day of making, and not at any greater distance of time ; (3.) Old leases must be surrendered or within one year of expiring ; (4.) Must be for twenty-one years or three lives and not for both ; (5.) The lease may be for a shorter time than for twen- ty-one years or three lives ; (6.) Tlie lease must be of corporeal beredita- ments; (7.) Lease must be of lands and tenements, most commonly letten for twenty years ; (8.) Most usual rent for twenty years past must be reserved ; (9.) Must not be without impeachment for waste. 2 Bl, Com., 319-'20. * A deed indented is a deed inter partes, where the parties mutually stipulate, on opposite sides. A deed indebted, or indenture, is so called because originally all deeds inter partes, where tlie parties mutually stip- ulated, were indented or toothed, like a saw, on the edge ; a practice which is accounted for thus: Formerly, deeds being more concise than tbey have since become, it was usual to write both parts (each party hav- ing a cOTpy— apart, as it was called), on the same piece of parchment, with some words or letters of the alphabet written between them, through which the parchment was cut, either in straight or Indented line, in such a manner as to leave half the word on one part and half on the other. But for many generations past, in ordinary ttansactions, indent' ing only is used, or rather cutting the parchment or paper in a ioaving ESTATES OP INHERITANCE — FEE- TAIL-PLEASES. 63 would be but one copy, and the lessee would have that, and therefore the heir would not know what the covenants in the deed were and could not sue the lessee on them. Why must the lease be only of lands and tenements ? Because the heir could not distrain an incorporeal heredita- ment. Why must the lease be of lands most usually letten ? Because otherwise the mansion house might be leased. Why reserve the usual rent ? Because if the tenant i,n tail were not compelled to reserve the usual rent (rack) he might reserve a rent with a fine, and in effect disinherit the issue. What object had Parliament in view in passing the statute? The protection of husbandry; for the lessee would make greater improvements if secure for twenty-one years. Who were included in the provisions of the statute beside the tenant in tail ? The husband seized in fee in right of his wife, and the pars®n seized in fee in right of his churcli. 2, Bl. Com., 319-'20. A tenant hk tail enfeoffs B, what estate has B ? He is tenant pur autre vie, and his heirs, if he dies during the life of A, take as purchasers and as special occupants. 1 Th. Co. Lit., 511-'12-'13 d seq. Is B's wife entitled to dower ?' She is not. line on the top or side, without cutting through any letters at all ; and it seems now to serve little other purpose than to give name to the spe- cies of deed. Indeed the hetter opinion is, that it is the deed's being in- ter paries^ that is, containing mutual stipulations between the parties, and not its having its top or side indented, which constitutes an inden- ture. When the several parts of an indenture are interchangeably exe- cuted by the several parties, that part or copy which is executed by the grantor is usually styled the original, and the rest are counter-parts; though in modern times, it is most frequent for all the parties to execute every part, which renders them all originals. 2 Bl. Com., 29o-'6 ; Wms. Eeal Prop., 74-'o ; Ourrie vs. Donald, 2 Wash., 63. A deed-poll is where the stipulation is altogether on one side. Without any mutual stipulation on the other. 2 Lom. Dig., 6. It owes its designation to the fact tliat it was not indented on the edge, but smooth 2 Bl. Com., 96. 'She is not entited to dower because B was never seized at any time during the coverture of an estate of inheritance sucli as that the issue of 64 OP THE EIGHTS WHICH RELATE TO THINGS REAL. How many kinds of estates tail ? General and special tail, and both of them may be in tail male or tail female. Could a remain.der be limited after a fee simple? No ; where a man grants a fee simple nothing remains to, be granted, and the impossibility of making a limitation of a fee simple upon, another is inherent in the nature of things. This is the doctrine at common law.* the marriage might by possibility inherit it, as heir to the husband. 1 Th. Co. Lit., 569-'78. The miseiiiefs of estates tail, in brief, were: (1). That children were rendered insubordinate because they knew they could not be set aside as heirs ; (2). Farmers or lessees were ousted of their leases, the lands going at the tenants' death to the issue ^er formam doni; (3). Creditors were defrauded of their debts, for tlie lands were limited to the issue by the statute, and to charge them with debts would have frustrated the legisla^ tive intent; (4). Treasons were encouraged, as estates tail were not liable- to forfeiture longer than for the tenant's life ; (5), Public prosperity was checked on account of the inalienability of lands. 2 Bl. Com., 116. Experience has demonstrated that the prosperity of a community depends much upon the freedom with which property may be transferred from hand to hand. Any obstructions to such transfer are, therefore, hindrances to the general well-being. Hence to make any considerable proportion of the property of a country by law inalienable, whether un- der the pretext of conforming to the will of him who granted it or of se- curing a support for families, will be found to exert a demoralizing in- fluence upon society, to paralyze its energies and to destroy its thrift. 2 Minor's Insts. Com. and Stat. Law, 82. Quaere if the argument above does not plead strongly against home- stead exemptions ! Efforts made in England to defeat estates tail : (1.) Taltarum's Case, A. D. 1473, making them barrable by common recovery; (2.) Statute of 26 Hen. VIII. making them forfeitable for high treason ; (3.) Statutes of 32 Hen. VIII,, c. 28 and 36, A. D. 1541, the first making valid certain leases by the tenant in tail, and the second making a fine duly levied a complete bar to the estate tail ; (4.) Statute of charitable uses, 43 Eliz., making an appointment to a charitable use, by the tenant in tail, valid without fine or recovery ; (5.) Made subject to bankruptcy by statute of 21 Jac. I; (6.) Statute of 3 and 4 Wm. IV., A. D. 1833, allowed estates tail to be conveyed by simple deed. Wms'. Real Prop., 46 ; 2 Bl. Com., 115-'16 ; 1 Th. Co. Lit., 449, n P. 'For the substitution of another estate for a fee simple, where the fee simple is future and contingent and never vests, see 1 Ld. Bay., 203- 6 T. ESTATES OF INHERITANCE — FEE-TAIL. 65 Could a remainder be limited after a fee conditional ? No, it was thought that a fee conditional might, by possibility, last forever. Could a- remainder be limited after an estate tail ? Yes, for by force of the statute De Bonis, two estates were created, an estate tail and a reversion. How could an estate tail be barred ? (1.) By fine with proclamation and five years' non- cldim ; (2.) By a common recovery, and (3.) By lineal war- ranty with assets descending. 2 Bl. Com., 116 ; Wms. on Real Prop., 44. When were recoveries first declared a bar ?' By the decision in Taltarum's case, 12 Ed. IV., A. D. 1473. How were fines made a bar ? By statute of 4 Hen. VII., explained by 32 Hen. VIII, A. D. 1541. 2 Bl. Com., 118. "Why were the two statutes made ? Because the statute of De Bonis expressly said that fines should not be a bar, and as it was said very covertly in 4 Hen. VII., that they should, the judges hesitated to make them a bar till 32 Hen. VIII. was passed. The Stat of 26 Hen. VIII., made estates tail forfeitable for treason. Statute of 33 Hen. VIII. made them liable for debts of record and specialty due the king. 43 Elizabeth made an appointment of them to chari- table uses good, and 21 Jac. I. made them liable for the debts of a bankrupt. 2 Bl. Com., 118 et seq. Does the statute Be Bonis extend to all hereditaments ? No. Give an instance ? Annuities are not included under the statute, for the word " tenement " is used in it. 1 Th. Co. Lit., 512 et seq.; 2 Bt. Com., 112. Before the statute of Be Bonis, art estate to A and the heirs of his body on his present wife begotten, his wife has issue, a daughter; he marries a second time, has issue, a son ; will the second wife be entitled to dower on his death ? She will, because by birth of issue he acquires a right to . charge with incumbrances. 1 Th. Co. Lit., 508-9 ; 2 Bl. Com., Ill and n (17.) In the case above, who would in- herit, the son or the daughter ? The daughter in preference^ R., 30; Haw. Abr. 36, n (H) ; 2 Th. Co. Lit., 87, n (L), 27, 768, Butler's n II ; Fearne Rem, 399 et seq., and n (d), 5 66 OP THE RIGHTS WHICH RELATE TO THINGS REAL. Suppose the daughter should die, would the son take ? He would, because by birth of issue the course of descent was enlarged so as to make all the donee's issue inheritable. 1 Th. Co. Lit., 508-'9, et seq.; 2 Bl. Com., Ill n. (17.) Suppose the tenant in tail dies without issue, is his wife dowable ? Yes, for she might have had issue capable of inheriting. • 1 Th. Co. Lit, 560 and ns. (E) and (F) ; Id., 582 n. (M) ; 4 Kents' Com., 39; 1 Lom. Dig., 105; 2 Mn. Insts., 129. Suppose the tenant in tail has six sons and six daughters, how would the estate go ? First to the eldest son and his issue, then to the second son and his issue, through the sons; and then to the daughters, or their representatives, altogether, by the first four canons of descent, the other three canons being merely to find out the first purchaser, who is known in estates tail, and being therefore not applicable in this case. An estate to A and the heirs of his body ; he marries and has issue, a son and a daughter; his wife dies and he marries again and has issue, a son ; suppose the first son should enter and die, who would inherit ? The second son, for he is heir of the first purchaser. Suppose A has a fee simple, how then ? The sister would take in exclusion of the half blood, for possessio fratris de simplici feodo facit sororem esse haeredem — commonly called " possessio fratris." Co. Lit, 15 a ; 7 Term, 386 ; Lit , § 8 ; Wils., 516 ; 2 Bl. Com., 224-'7-'8 and n. (28.) Give a fee simple and an estate tail an even start, which will probably last longer ? An estate tail, for four reasons : (1.) It can go to the half-blood ; (2.) It was not, till 26 Henry VIII., A. D. 1536, forfeitable for treason ; (3.) It could not be aliened save by fine or recovery, and they were ex- pensive ; (4 ) Chiefly because the heir did not claim as in fee simple from the person last seized, but could go back to the first purchaser or tenant to whom the estate was given. ■ Give the estates from the highest to the lowest, in their order ?— DIFFERENT CLASSES OF ESTATES. 67 I. ^Freehold Estates of Inheritance : (1.) Fee simple — existed at common law ; (2.) Fee base or qualified — existed at common law ; (3.) Fee conditional — existed at common law ; (4.) Fee tail — created by statute De Bonis, 13 Ed, I. II. Freehold Estates not of Inheritance; (1.) Tenant in tail after possibility of issue extinct; (2.) Tenant in dower ; (3.) Tenant by the curtesy ; (4.) Tenant for life ; (5.) Tenant 'pwr autre vie. III. Estates Less than Freehold : (1.) Tenant by statute merchant; (2.) Tenant by statute staple; (3.) Tenant by statute Elegit; (4.) Guardian in chivalry ; (5.) Tenant for years ; (6.) Tenant from year to year ; (7.) Tenant at will ; (8.) Tenant by sufiferance. Tenant at will is not entitled to emblements where he de- termines the estate ; — contra, where the lessor determines the estate. 1 Th. Co. Lit., 638 and 640; 1 Lom. Dig., 190. The doctrine is that emblements are allowed to all ten- ants who know not the end of their term, and whose estates are determined withovi their default, except tenants by suffer- ance, who are in no case entitled to emblements, as they have no rightful possession, being only n/)t trespassers. 2 Bl. Com., 146; 1 Wash. Real Prop., 103; 2 Min. Insts., 94. ■ Why place tenant in tail after possibility of issue extinct before all other tenants for life? Because he was not liable for waste. Why was he not impeachable for waste? Be- cause as he once had an estate of inheritance he was not considered liable at common law, and he was not included in the stati*e of Marlbridge, 52 Hen. III., A. D. 1268. 2 Bl. Com.,124-'5,n. (6> 68 OP THE BIGHTS WHICH RELATE TO THINGS REAL. , What is waste ?^ Destruction to the inheritance. Feoff- ment to A for life, remainder to B for life, remainder to C in fee, what remedy has C if A commits waste ? He cannot enter on him nor bring an action of waste, but he may bring an action on the case in the nature of an action for waste. Har- grave says a court of equity will interfere by injunction. C could have an action of waste if B's estate was for years. 3 Th. Co. Lit., 245, 246 n. (2) ; M,241 n. (M); 16 M. and W., 262. Was the tenant for life liable for waste at common law ? No, for his estate is conventional and the parties were expect- ed to provide for waste in the deed. 3 Th. Co. Lit., 241, n. (M); 2 Bl. Com., 282, and seq. Who were liable for waste at common law ? (1.) The ten- ant by the curtesy; (2.) Tenant in dower; and (3.) Guardian in chivalry, because these estates were created by the act of law, and the law always provides a remedy to protect its own crea- tions. 2 Bl. Com., 282; 3 Th. Co. Lit., 247; Bac. Abr. Waste, H. What statute made tenants for life or years liable for waste ? Statute of Marlbridge, 52 Hen. III., A. D. 1268, and of Gloucester, 6 Ed. I., A. D; 1278. These statutes made tenants for life or years equally liable as tenants in curtesy, dower, and guardians in chivalry, who were liable at com- mon law. 2 Reeve's Hist. Eug. Law, 73, 184; 2 Bl. Com., 283-'4; 2Min. Insts., 101. Statute of 6 Anne enacted that where a house was burned the tenant should not be liable, unless it was proved to be from negligence, but the act does not defeat any agreement between the landlord and tenant. 2 Bl. Com., 281 and n. BWaste is any permanent injury to the infieritance, not occasioned by tlie act of God, or of a public enemy. It may be voluntary, e. g., taking a roof off a liouse, to its permanent injury ; or permissive, e. g., allowing the roof to remain olf ; or equMahle, e. g., destruction of ornamental trees. There is such a thing as humorous waste recognized in chan- cery. Vane «s. Ld. Bernard, 2 Vern., 738, A. D, 1716; 3 Th. Co. Lit., 236 and n. (F) : 2 Bl. Com., 281-J2.. FREEHOLDS NOT OF INHERITANCE. 69 (21). Blackstone says that for the negligence of servants the master is not liable, but the servant is. Suppose a ten- ant for years in North Carolina has a mill on the premises leased, and it is swept away by a freshet, is he bound to re- build ? He is, as the statute of Anne does not save him. Burning a house, whether by negligence or mischance, is waste at common law. 3 Th. Co. Lit., 233, and n. (A); Id., 235 and n. (C) ; Bac. Abr. Waste, (C) 5 ; 2 Min. Insts., 530. One coparcener commits waste, could another have an action against her? No, for they have the right of parti-, tion and could divide at any time. The remedj' between tenants in common was, by West. II., 13 Ed. I., that the tenant doing waste, should, on partition, take the place wasted. Accordingly, there occurs a peculiar case in North Carolina, where two tenants in common, one un- der age, and the elder during his minority, cut down all the timber on a four hundred acre tract, and moreover wear out the land. The younger brother brought am action of waste, and there was no suitable remedy ; for to have taken the place wasted would have been a poor compensation. He should have brought an action of account. Darden v. Cow.- per, 7 Jones, 210. What is a woman entitled to for dower? One-third of all the lands and tenements of which the husband was seized in fee simple or fee tail at any time during the coverture, and which any issue she might have had might by possi- bility have inherited as heir to the husband. 1 Th. Co. Lit., 569, 578. Neither livery nor writing is necessary in assignment of dower. 1. Th. Co. Lit., 592, and n. (A, 1). The husband is seized in fee and dies without heirs, is the wife entitled to dower ? She is — definition mpra. Was the wife of a felon entitled to dower? No, not at common law, but see the provisions of 1 Ed. VI., and 5 and 6 Ed. VI., 2 Bl. Com., 253, where 1 Ed. VI. made wife of a traitor and felon dowable, but 5 and 6 Ed. VI. denied dower as to traitors. The theory was that forfeiture came in 70 OF THE EIGHTS WHICH RELATE TO THINGS KEAL. superior or paramount to dower at comnjon law. See also 2 Bl. Com., 136. What are the requisites for dower ? Marriage, seizin and death of the husband. What for curtesy ? Marriage, seizin, issue inheritable born alive, and death of the wife. What is the difference in the seizin in the two cases ? For curtesy it must bS seizin in deed, for the husband is able to make the seizin actual always, but for dower either seizin in deed or jm. law is sufficient, for the wife cannot force her husband always to make it seizin in deed. 1 Th. Co. Lit., 574. The husband takes the whole land, the wife one-third ; the husband's seizin is seizin in deed, the wife's either in deed or in law. The husband must have issue, the wife onlj' possibility of issue.'' " Curtesy defined. When a man takes a wife seized during the caverture of an estate of inheritance., legal or equitable., such as that the issue of the marriage may, by possibility, inherit it as heir to the wife.^ has issue by her, bom alive, and the, wife dies, the husband surviving has an estate in the land for his life which is called an estate by the mrtesy. 2 Bl. Com., 126 ; 1 Th. Co. lit., 556, 561, 577-'S ; 2 Min. Insts , 103. Dower defined: "Where a woman marries a man seized at any time during t%e coverture of an estate of inheritance, such as that the issue of the mar. riage may, by possibility, inherit it as heir to the husband, and the hus- band dies, the wife surviving is entitled to one-third for her life as tenant in dower. 1 Th. Co. Lit., 369, 578. The marriage required m both curtesy and dower, is one which is neither void per se nor actually avoided ab initio by divorce. The maxim in dower is, ubi nullum matrimonium, ibi nulla dos. 1 Th. Co. Lit., 557, a. (B) ; Id., 569, 571-'2, and n. (0) ; 1 Bl. Com., 436, et seq-. The seizin in deed referred to as necessary for curtesy, means a pos- session of th% freehold actually, by t\m pedis- positio of one's self, or one's tenant, or by construction' of law, as in case of a grant of lands from the commonwealth, by conveyance under the statute of uses, or by devise, (supposing no adverse occvpancy by some one else,) in oontradistinction to the seizin in law, which exists in the heir, after the descent of lands upon him before actual entry bj' himself or his tenant. 2 Bl. Com., 127 ; 4 Kent's Com., 29, 30; Barwick's case, 5 Co., 94; 1 Th. Co. Lit., 558, and n. (6); 2 do., 177, 179-'80 ; 2 Min. Insts., 107. The seizin for either dower or curtesy must be sole, for the consort of a iaint tenant is not entitled to. dower or curtesy at common law, because FREEHOLDS NOT OF INHERITANCE — DOWER. 71 A man is disseized, marries and dies without entry; is his wife entitled to dower ? No, because the husband was not actually seized during the coverture. 1 Th. Co. Lit., 559. A enfeoffs B on condition and marries, the condition is broken, and A dies before entry; is his wife dowable? No, the husband had but a bare right, and of that she is not dowable. 1 Th. Co. Lit., 559 ; 2 Min. Insts., 109. Suppose in the last case that the heir enters, can the widow claim dower against him ? No. See the reference supra. Give an instance of seizin in law? A marries, lands de- scend to him and he dies before entry ; his wife is entitled to dower ; for he has seizin in law, and that is sufficient for dower. 1 Th. Co. Lit., 574. What was the husband called on the birth of issue ? Ten- ant by the curtesy initiate. What upon the death of the wife? Tenant by the curtesy consummate. 2 Bl. Com., 128; 1 Th. Co. Lit., 563, n. (H). Was the common law right of dower of feudal origin? No, it originated in Denmark under Sweyn, and was brought to England by Canute. [It seems to have originated amongst the Germans. The Feudists recognized it in the maxim non uxor marito, sed uxori maritus affert. The usage was for the husband and oldest son to go to war, whilst the wife and younger sons tilled the land, and raised provisions for the army. Hence, as she had the third part in tml, upon her husband's death she was allowed a third part of the feud during her life, for the maintenance of herself and the of the right of survivorship. 1 Th. Co. Lit., 564, 745-6; 2 Min. Insts., 109, 121. At common law, equitable seizin was not suflBoientfor dower, although curtesy was allowed in trust estates. 2 Bl. Com., 137 n. (9) ; 2 Min. Insts., 109. During the wife's life time, and after the hirth of issue, the husband is tenant by the curtesy initiate ; after her death he is tenant by the curtesy consummate. 2 Bl. Com., 128 ; 1 Tli. Co. Lit., 563 n. (H). The natural, not the civil, death of the husband consummates the wife's title to dower, 1 Th. Co. Lit., 569, 580; 1 Bl. Com., 132-'3; 2 Min. Insts., 133. 72 OP THE RIGHTS WHICH RELATE TO THINGS REAL. younger children. The Saxons appear to have first intro- duced it into England, and the Normans to have regulated it according to the usages of Normandy. Bac. Abr. Dower ; 1 Th. Co. Lit., 567, n. (A) ; 2 Min. Insts., 118.— Ed.] Was curtesy of feudal origin ? Yes, by the feudal law when it was seen that the tenant was able to perform the services, and was raising up children to inherit the feud, he was permitted to retain the land. What were the different kinds of dower? (1.) Dower at the common law or common dower; (2.) Dower ad osiium Ecclesiae; (3.) Dower ex Assensu Patris; (4.) Dower by the custom of particular places; (5.) and Dower de la phis belle} What is jointure ? Soon after the introduction of uses, in the latter part of the reign of Edw. III., abmd A. D. 1370, they prevailed so extensively that forasmuch as a widow was not dowable of an use, expectant husbands were re- ' Common dower has been defined. Dower ad ostium ecclesiae was where a man of full age, seized in fee simple, after marriage solemnized with a woman at the door of the church, endows his wife of some certain quantity, by metes and bounds, of his lands ; the whole, half, or other lesser part. Dower ex assensu patris was assigned like dower ad ostium ecclesiae, except that it was by the husband as heir apparent of a living ancestor, with the assent of such ancestor, instead of being himself the proprietor. The incidents are the same. 2 Bl. Com., 132, etseq.; 1 Th. Co. Lit , 594, 596-'7, 600-'l. Dower by the custom of particular places allowed the widow, by the local law, to have one-half, one-fourtli, or even the whole of the husbands lands. Dower de la plus belle, belongs exclusively to a state of feudality. It occurred where a husband died seized of chivalry and socage lands, leaving his son and heir under 14. The lord of the chivalry lands enters as guar- dian in chivalry upon the chivalry lands, and the widow as guardian in socage, takes possession of the residue held in socage ; and she then brings a writ of dower against the guardian in chivalry, to be endowed of one-third of the chivalry lands. It was a privilege of the guardian in dhivalry to have the widow endowed de la plus belle — out of the fairest portion of the socage lands — to the full extent of her dower in all the lands instead of getting any dower out of the chivalry lands. 1 Th. Co. Lit. 603 ; 2 Jlin. Insts., 134. ESTATES NOT OF INHERITANCE — DOWER BARRED. 73 quired to make some special provision for their wives. This was commonly done by revoking the existing uses of a portion of their lands, (as they alwayS' reserved the power to do) and limiting them anew to the husband himself, until marriage, then jointly to himself and wife during coverture, re- mainder to the survivor for life. Hence the provision was '', styled a jointure. The statute of uses, 27 Hen. VIII., or- dained that such as had the use of lands should, to all in- tents and purposes, be reputed to be absolutely seized and possessed of the soil itself. In consequence of the legal seizin thus devolved on their husbands, all the then wives of Eng- land would have had a double provision, namely, their jointure and their dower, had not the same statute provided that a. jointure, provided it had certain attributes, should con- stitute a hair to the widow's claim to dower. 2 Bl. Com., 137- '8 ; 2 Min. Insts., 153.J Is the widow barred by jointure made before marriage ? She is. Is she by jointure made after marriage ? No.^ In how many ways may dower be barred or forfeited ? (1.) By elopement; (2.) Living with an adulterer; (3.) By divorce ; (4.) By treason ; (5.) By being an alien ; J Requisites of jointure in order to prevent dower by the Stat, of 27 Hen. Viri.: (1.) Must be an estate of freehold in lands or tenements ; (2.) Must take effect immediately at the husband's death, and be for the life of the wife at least; (3.) Must be made to herself and not to another in trust for her ; (4.) Must be particularly expressed to be in satisfaction of her whole dower, and be made before marriage. 2 BI. Com., 138 ; 1 Th. Co. Lit., 611 ; 2 Miu. Insts., 153. ^ State of the law previous to the statute of uses, 27 Hen. VIII. : Dower cannot be barred hy contract with the wife before marriage, because no right can be barred before it accrues. Gilb. uses, 147 ; Vernon's case, 4 Co., 16; 2 Min. Insts., 152. Dower was not barrable after marriage : (1.) Because the wife is not sui juris; (2.) Because no freehold can be barred by a collateral satisfac- tion. Bac. Abr, Dower, (F); Vernon's case supra; 2 Min. Insts., 152. 74 OF THE RIGHTS WHICH RELATE TO THINGS REAL. (6.) By detaining title deeds; (7.) By alienation ; (8.) By levying a fine or suffering a recovery ; (9.) By jointure.' Estate to A and the heirs female, of his body, he has a son and a daughter, will the daughter take ? She will by descent, it being an estate tail, female. Suppose it were to B for life, remainder to the heirs female of A ; the daughter- would not take ; for being a purchaser she must be both heir and female, and the son is the heir — note the diversity. Descent cast would be color of title. 2 Bl. Com., 196-97; 3 do., 176; 2 Th. Co. Lit., 153, n. (A). Suppose the lessor leases with covenants and the lessee assigns and his assignee assigns ; in case the covenants are broken, on whom could the lessor have recourse? On the lessee on account of privity of contract, and on the last assignee on account of privity of estate." 'Also: (10.) By recovery of land by title paramount to that of the hus- band. (11.) By the death of the husband before the wife attains the age of nine. (12.) Assignment of outstanding terms attendant upon the in- heritance. (13.) Widow after the husband's death, releasing to him who ought to assign. 2 Minor's Institutes Com. and Stat. Law, 142. "■ Covenants which do not run with the land are such as do not affect the nature, quality or value of the thing conveyed, independently of collateral circumstances, e. g., covenants to build a fence on land other than that demised, or to pay a collateral sum of money (other than rent) to the lessor. 10 East., 130; Spencer's case, 5 Co., 16 b; Bac. Abr. Covenant (E), 3 ; 1 Sm. L. Cass, 92-'6. Covenants whicli run with the land are tliose which affect the nature, quality, or value of the thing conveyed, wliere there is a privity of estate between the contracting parties, e. g., covenant to pay rent — repair— be answerable for title. Covenants of this description pass with the lands, and are binding on, and in favor of, the assignee, although assigns be not expressly named ; but it should be observed that the liability of the assignee is confined to the period of his occupancy, or at least of his in- terest in the land, whilst that of the lessee himself continues indefinitely, being expressly undertalcen. 2 Minor's Insts., 640 ; Bac. Abr. Covenant (E), 3, 4 ; 2 Th. Co. Lit., ,325, n. (G 3) ; Spencer's case, 3 Co.. 16 b ; 1 Sm. L. C, 92-'6 ; 10 East., 130. FREEHOLDS NOT OF INHERITANCE. 75 Where there is a mortgage in fee after marriage, the wife of the mortgagor and mortgagee would both bring their writs for dower against the heir of the mortgagee." An estate to A for life, remainder to B for life, remainder to A's heirs : A dies ; his wife is not entitled to dower unless B died during A's life." In eviction the evictor holds without consent of the lord ; in disseisin the disseizor holds with his consent. Bouv. Law Die, 484, 543. In North Carolina, seven years adverse possession under color of title, and twenty years adverse possession under known and visi- ble boundaries without color of title, make a good title. Bat- tle's Revisal, Limitations of Actions, ch. II, §§20, 23, 147. Possession must be open — adverse — uninterrupted, and the lands inclosed, and it is not necessary to live on the land, " Where a mortgage or deed of trust is made by the husband before marriage, or with the wife's consent afterwards, the general principle is > that if the equity of redemption is not foreclosed in the husband's life time, so that at his death it still subsists as an equitable interest in the Zawds, dower may be had therein. 2 Min. Insts., 122. But if the equity of redemption supra were foreclosed in the husband's lifetime, the land sold, and a surplus after the payment of the debt secured by the lien remained, which surplus is the measure of the value of the equity of redemption, at common law there would be no dower therein, because by the foreclosure it became personalty, as if by relation to the time before marriage, when the lien was created. 2 Min. Insts., 122. The widow of a trustee or mortgagee is not entitled to dower, as the husband is not seized beneficially. 2 Bl. Com., 137, n. (30) ; 1 Th. Uo. Lit., 576, n. (25) ; 2 Min. Insts., 126. ° It is a doctrine applicable to dower as weU as to curtesy, that the con- sort must have at some time during the coverture : (1.) The immediate estate of freehold in possession ; and (2.) The first estate of inheritance, such as that the issue born of the marriage may, by possibility, inherit it as heir to the consort ; (3.) Without any intermediate vested estate of free- hold. ITh. Co.Lit.,560, ns. (E) and (F) ; M, 582n. (M); 4Kent'sCom., 39; 2 Min. Insts., 129. In the case in the text while B's estate lasts, there is an intermediate vested estate of freehold — hence B must die before A that A's wife may be entitled to dower. 76 OF THE BIGHTS WHICH RELATE TO THINGS REAL, 'but merely inclosing one acre and cultivating it will do ; but making a hog-pen and feeding hogs for seven years will not do. As 12 Car. II., A. D. 1660, did away with knight- service, and turned all tenures into free and common socage, there has been no case of a disseizin since that time. If A run a fence a yard or two over the line on my land and cultivate the same, this is not adverse possession, but contra if he runs the fence two or three hundred yards. 1 Th. Co. Lit., 4 and 5. An execution to sell a man's property will not include his choses in action^ An estate to a man who has a wife and to a woman who has a husband, and the heirs of their two bodies ; they have an estate tail on account of the possibility ; but contra if lim- ited to two men and two women, i. e., to two husbands and their wives; also if to one man and two women or to one wo- man and two men, this being a possibility upon a possibil- ity. Fearne's Rem., 250 ; 1 Th. Co. Lit., 128, n. (F) ; Chalm- ley's Case, 2 Co., 51 b ; Wms'. Real Prop., 253, and n. (2) ; 2 Min. Insts., 355. Tenant by the curtesy initiate cannot be punished for waste, neither can a vicar ; because of a life estate in his own right in the former case, and of a fee in right of his church in the latter.' p At common law a fi. fa. did not anthorize a sheriff to seize bank bills, checks or promissory notes ; but it is otherwise now by Stat. 1 and 2 Vic. , and 3 and 4 Vic; so in many of the United States. 2 Va. Cas., 246 ; 1 Bail. S. C, 39 ; 14 Conn., 99 ; C. C. P., Tit. XI, §361 ; PhUlips v. Treze- vant, 70 N. C, 176 ; Hutchinson v. Symons, 67 N. C, 156. "•Upon diligent search the doctrine that the tenant by the curtesy ini- tiate is not subject to waste is not found stated ; but on the contrary, as he came into possession of his estate by act of the law, and has not an estate of inheritance, the tenant by the curtesy is liable for waste at com- mon law. 2 Bl. Com., 282; 3 Th. Co. Lit, 247 ; Bac. Abr. Waste, H.; 2 Min. Insts., 546. Quaere: if there is a distinction between tenant by the curtesy initiate, and tenant by the curtesy conswmmatt. FKEEHOLDS NOT OF INHEEITANCE — DOWEK. 77 If the tenant in fee tail general make a feoffment in fee and take back an estate in special tail, or an estate in fee, has issue, and the wife dies, he marries again, and then dies, second wife cannot have dower. The issue are in by force of the entail. The husband makes a lease for life reserving a rent to him and his heirs ; the wife cannot be endowed of the rent because it is no estate of inheritance, nor of the reversion because it is to be enjoyed after the particular estate of free- hold.' If the lease had been for years the wife would have had dower of the reversion, and if an estate tail she would have had dower in the rent. 1 Th. Co. Lit., 560, ns. (E) and T ; 2 Min. Insts., Ill ; 1 Lorn. Dig., 82. As against the heir the wife is entitled to dower accord- ing to value at the time of assignment; as against the hus- band's feoffee, according to the value during the husband's seizin, because the heir is only bound to warrant as it was at the time of feoffment." The tenant in dower can only recover damages in a writ . of dower unde nihil habet* " Tout temps prist " (ready at all times) is a good plea to bar the wife of her damages, be- cause the heir holds by title. A man seized in fee makes a feoffment in fee and takes "■ One of the requisites of the estate which the consort must have to be entitled to dower or curtesy, is that the consort must have, at some time during the coverture, the immediate estate of freehold in possession. Hence the wife cannot be endowed of the land in the example above. 1 Th. Co. Lit., 582-'3; Id., 559-'60, and n. (10) ; 1 Bright 'sHus. and Wife, 339 ; 2 Min. Insts., 129. ' Dower is valued as against a purchaser from the husband in his life- time, as at the time of purchase, because that value was the measure of the purchaser''s recovery from the husband's estate upon his covenants of title. 2 Bl. Com., 132, n. (24); 1 Th. Co. Lit., 583, n. (43) ; 2 Min. Insti- tutes, 135. 'Stat, of Merton, 20 Hen. III., allowed damages for detention when the husband died sefoedand no dower had been assigned her in that tract, 1 Th. Co. Lit., 585 n. (R); 2 Min. Insts., 139. 78 OF THE RIGHTS WHICH RELATE TO THINGS HEAL. back an estate tail; the wife has her election out of which she shall be endowed. 1 Th. Co. Lit., 569, 578. In case the marriage is voidable by divorce, yet if the hus- band die before divorce, the wife shall be endowed. 1 Th. Co. Lit., 557, n (B) ; Id., 669-'71-'72 and n. (C). The wife is not entitled to dower until the husband is naturally dead, and not when dvilly dead. 1 Th. Co. Lit., 569-'80; 1 Bl. Com., 132-'3. In dower ad ostium ecclesiae, the man must be seized in fee and of full age. 1 Th. Co. Lit., 594-'6-'7, 600-'l ; 2 Bl. Com., 132. In dower ex assensu patris, the father of the heir apparent must be seized in fee, and the wife ought to have a deed from him. References ui supra, A man-cannot devise lands in frank-marriage, neither could a cestui que use, before the statute of 27 Hen. VIII. , make a gift in frank-marriage, because donees must hold of the donor. 2 Bl. Com., 115; 1 Th. Co. Lit., 521, et seq. In the first case this is of course impossible ; and also in the second, because the reversion was in the feoffees. An assignment of dower must be ahsohxte and not condi- tionaly^ If assignment is made by a wrong-doer who came to the estate by the covin of the widow, the dis- seizee shall avoid it ; but if there is no covin, and it is not prejudicial to the heir, it is good ; but the rent assigned will not bind the disseizee. 1 Th. Co. Lit., 606, 591, n. (z); 2 Min. Insts., 137. If one of two joint tenants assign a rent to the wife of the feoffor in lieu of dower, the other is not bound thereby, because he was not compelled so to do by law. 2 Bl. Com. 183, n. (13); 1 Th. Co. Lit., 748. If the heir assign the widow dower of fee simple lands of which her husband died seized in lieu of all dower, the feoffees of the husband can take advantage of this assign- " In equity, conditional allotment, if agreed to, is valid. 1 Bright's H. and W., 379; 1 Lom. Dig., 114; 2 Min. Insts., 138. PKEEHOLDS NOT OP INHERITANCE — DOWER. 79 ment ; but contra, if the assignment is made by one of the feoffees. Neither writing nor livery is necessary in assignment of dower.^ Rent granted by parol out of the same lands of which the wife is dowable, is a bar ; but contra if granted out of other lands at common law ; but it is a bar in equity. 2 Minor's Institutes, 138 ; 1 Lorn. Dig., 114. If the guardian dies the wife has an action against the guardian's executor or administrator for dower. 'Dower does not pass by assignment, but by intendment of law. It is not a conveyance. 1 Th. Co. Lit., 592, and n. (A, 1). LECTURE IV. ESTATES CONTINUED. With regard to ihe' quantity of interest, liow many kinds of estates ? Estates oi freehold and less than freehold."' What is a freehold ? Such an interest in lands as passes by livery of seizin, or in incorporeal hereditaments, by what is equiv- alent thereto." Can a tenant for years be a freeholder ? No, he has only the right to occupy the lands for a term which is of determinate duration. 2 Bl. Com., 144 ; 1 Th. Co. Lit., 530-'31. If a -man agree to pay rent for a room by the month the tenancy is from month to month, and it will require two weeks' notice to oust him in analogy to the six months' notice required in case of tenant from year to year. 2 Bl. Com., 147, n. (8) ; 1 Th. Co. Lit., 648, n. (T.) How many kinds of livery of seizin ? Two, livery in deed and livery in law. 2 Th. Co. Lit., 339 ; 2 Bl. Com., 315, n. (28.) When was livery in law used ? When the feoffor was afraid to go on the lands on account of a disseizor, and con- sequently made livery in view or in sight of the lands where the disseizor could not harm him. Did livery in law pass an absolute or qualified estate ? A qualified estate, it being good if the feoffee enters during the feoffor's life. 2 Bl. Com., 316. Suppose a disseizor dies seized, what effect has it on the disseizee? It tolls his entry. 2 Bl. Com., 196-'7. How "Blackstone adds "conditions" under this head; see "Analysis of Book II." "Another definition is, that a, freehold is an estate of indeterminate du- ration^ other than an estate at will, or hy sufferance : e. g., an estate in fee simple, an estate /or life, an estate until W. returns from Europe, an estate durante viduitate, an estate during coverture. Bract. Fol. 27 • 1 Xh. Co. Lit., 621, n. (C); 2 Min. Insts., 71. ESTATES LESS THAN FREEHOLD, &C. 81 did they prevent the descent cast from tolling entry ? The disseisee took his neighbors and made annual claim as near the premises as he could safely go. 2 Bl. Com., 316 ; 3 Id., 175 ; 2 Min. Insts., 503. Was a lease for years made by deed at common law ? No ; but 29 Oar. II., Statute of " Frauds and Perjuries," re- quires that a lease shall be made in writing, (not necessarily a deed) except terms of not more than three years f wherever a rent of at least two-thirds of its value is reserved. Chit. Cont., 300, et seq.; Crosby vs. Wadesworth, 6 East.,. 6.02 ; Wadding- ton vs. Bristow, 2 Bas. and P., 452 ; Evans vs. Roberts, 5 B. and Cr., (11 E. C. L.) 829. Leases for years, at common law, were made by parol agreement, and when, after the Statute of 29 Car. II., writing- was used, it was only necessary for the lessor to sign. 2 BL Com., 144; 1 Th. Co. Lit., 530-'31. Livery of seisin could only be made in one way, namely, by delivering a clod (or its equivalent) in the name of the seisin — there must have been a corporeal tradition of the lands. 2 Bl. Com., 314-'15, 288 ; 2 Th. Co. Lit., 334, 347-'8, 350-'57, and n. (B). In North Carolina, in addition to the above exception in the statute of 29 Car. II., allowing terms not exceeding three years to be leased hj parol as at common law, we have a statute providing that all leases, and contracts for leasing, land for the purpose of digging for gold or other minerals,, or of mining generally, of whatever duration, and all other leases and contracts for leasing lands, exceeding in duration three years from the making thereof, shall be void unless put in writing and signed by the party to be charged, there- with, or by some other person by him thereto lawfully au- thorized. It seems that all leases of mines, even for six- months, shall be made in writing, and it is a question whether the statute extends to coal mines, the statute being made for- gold and copper mines. Battle's Revisal, Landlord and Tea- ant, ch. 64, § 2, 552-'3. 6 • 82 OF THE EIGHTS WHICH RELATE TO THINGS REAL, What was necessary at common law to perfect a lease for years? JEhtry of the lessee. 2 Bl. Com., 144, 314 -'15; 1 Th. Co. Lit., 630-'^2. What interest did the lessee have be- fore entry ? An interesse termini, which was assignable. For the difference between "term" and "time," see 2 Bl. Com." Term is the interest, time is the limitation. In making a feoffment at common law, was a deed neces- sary ? No ; livery in the presence of witnesses was thought to give sufficient notoriety. Why then was a deed ever used ? To refresh the memory of witnesses. 2 Bl. Com., ,311. Deed was required by Stat, of Frauds, 29 Car. II. Is a tenant in dower a freeholder ? Yes.* From whom does she get the freehold? From the heir.° Suppose he refuses to assign it, how then ? She brings her writ of right of dower and the sheriff assigns it.* Does the widow take one-third by metes and bounds or one-third in value? The "= The word term does not merely signify tiie time specified in tiie lease, but the estate also, and interest that passes by that lease ; and therefore the /term may expire during the continuance of the time, as by surrender, iorfeiture or the lilce. 2 Bl. Com., 145 ; S Pick. Mass., 339. ^Because she has an estate of indeterminate duration. 1 Th. Co. Lit., >621, and n. (C). "Dower should be assigned by the tenant of the freehold, whether the rightful tenant or not, and none can assign it unless he be the teuant of ttoe freehold, dower being itself an estate of freehold. Tlie tenant of the freehold is for the most part the husband's heir or devisee, who, if an infant or non compos, maj' act by guardian or next friend, but it is con- ceivable that he may be an alienee, or even a disseisor. 1 Th. Co. Lit., «06, 591, n. (Z); 2 Min. Insts., 187. 'Where a part in the same trad has been assigned, the common law writ of right of dower is applicable to recover the other part without dam- ages. When no dower has been assigned her in that tract, whereof her husband died seized, the other common law writ— writ of dower unde nihil habet — was available to the widow, and she could recover damages for the detention by 20 Hen. III., Statute Merton. This last was one of the mixed actions. 1 Th. Co. Lit., 585, n. (E). FREEHOLDS KOT OP INHERITANCE— DOWER. 83 matter is discussed in Coke' without ^ decided opinion either way, but the North Carolina Supreme Court has decided it to be one-third in value. 63 K C, 231;; Ba4;tle's Rev., Widows, ch. 117, §2, 839. It is usual, however, to vmke it ; 1 Bright ''s Hus. and Wife, 389 ; 3 Min. Insts., 129, FREEHOLDS NOT OP INHEailTANCE — DOWER. S5 would, subject to the mortgage," and ^he might call on the personal representatives of A to pay one-third of the money and in that way get the possession. Suppose there were no personal assets, what resort had sh (7) ; 2 Min. Instsl, 551. In case of a tenant for years in qedione firmae, before the action of ejectment was used, he could take his suit into equity and compel " specific performance " of the contract, and in that way recover the land. Ad. Eq., 78-92 ; 3 Reeves' Hist. Eng. Law, 390-'91. A manor is leased (which at ihe time is worth $20 per annum) until $100 be paid, is an estate for life, if livery is made determinable upon the payment of $100 ; but if a rent of $20 per annum is reserved it is an estate for five years, It must be remembered that a freehold is an estate of indef- inite duration. 2 Bl. Com., 120. If a tenant for life in remainder disseize the tenant for life, he has a fee simple ; but upon the death of the tenant for life, only a life estate, as the law remits the disseizor to his legal estate. Suppose the husband deriving lands by descent, from the ancestor dies vdihout endowing the ancestor's widow, himself leaving a widow and both widows come to be endowed, how is dower assigned ? If the ancestor's widow be first endowed,, it determines the husband's seizin ab initio and his widow can have dower of only two-thirds; but if the husband's widow- 7 98 OF THE BIGHTS WHICH RELATE TO THINGS REAL. be endowed first she shall have it 0/ the whole. In the latter case, however, it seems that the ancestor's widow may per- haps recover of the husband's one-third of what the latter has obtained, although if she does, and the husband's widow survives, she may re-enter upon the third originally assign- ed her, because, says Coke, she had it in an estate for the term of h&- life, and the estate for the life of the ancestor's widow is lesser in the eye of the law, as to her, than the es- tate for her own life. 1 Th. Co. Lit., 575, and n. (F) ; 1 Bright's Hus. and Wife, 352; IWash. Real Prop., 209, etseq.; 2 Min. Insts., 131. Suppose the husband having derived his estate by purchase from the ancestor, endows the ancestor's widow and dies, living the ancestor's widow, himself leaving a widow, how then ? In this case the husband's seizin under his convey- ance in the life of the ancestor before the title of dower of the ancestor's widow was consummate, is not avoided ; and so he having been seized, during the coverture of the whole land his widow (as he is supposed married before the ancestor's ■death) is entitled to be endowed of one-third of the whole, but without encroaching upon the part already assigned to the widow of the ancestor. 1 Th.'.Co. Lit., 574r-'§, and ns. (E) and (F) ; Bustard's Case, 4 Co. 122 ; 1 Bright's Hus. and Wife, 358-'4 ; 1 Wash. Real Prop., 210 et seq.; 2 Min. Insts., 131." ^ Effect upon curtesy or dower ef the determination of the consort's estate. The general dedrine. If the consort's estate expires by the regular efflux of the period origi- nally marked out lor its duration, leaving the previous seizin of the con- sort unimpaired, curtesy and dower are prolongations of the consort's estate, amiexed by law; and notwithstanding that estate, according to its ostensible terms, has expired, yet (supposing the subject matter thereof to remain in existence,) curtesy and dower are still to be enjoyed therein. But if the consort's estate is determined in such a manner as not only to put an end to the consort's previous seism, but to defeat and annul it as from the beginnmg, or if the subject of the consort's estate ceases to exist. PSEEHOLDS NOT OF INHERITANCE. W the prolongatipn cannot take place, and curtesy and dower are then denied. 1 Th. Co. Lit., 561, and ns. (1& and Q) ; Id. 565, and n. (L) ; Paine's case, 8 Co., 34 a ; 2 Miu. Insts., 113. Illustrative examples ; (1.) Estate in fee iim/ple^ and a total failure of Tieirs. Here the consort's estate at common law is at an end by the lirah- tation attached to it, hy the regular ^ux of the period originally assigned for its duration. In such a case, the husband is entitled to curtesy and the widow to dower. 1 Bright's Bus. and Wife, 348 ; 2 Min. Insts., 113. See the same doctrine apply on failure of heirs in an estate taU. 1 Th. Co. Lit., 561, and ns. (13 and G) ; Id, 565, and n. (L)-; Paine'scase, 8t!o.-, 34 a. See also, conflicting opinions upon the doctrine as applied to fees, base or qualified, 4 Kent's Com., 49 ; Seymor's case, lO'Co., 96 a ; 3 Co.-> 84 a, n. (A) ; 2 ^in. Insts. 114. LECTURE VI. USES AND TEUSTS. What is a use ? It is a trnst or confidence which is not issuing out of lands, but as a thing collateral annexed in privity to the estate and to the person touching the land, so that the cestui que use shall take the profits, and that the terre-tenant shall make estates according to his direction, Sanders on Uses and Trusts, vol. 1, 3. Who has the legal estate ? The terre-tenani. To whom does the lord look for his services ? To the terre-tenant. Sanders on Uses and Trusts, 67. Suppose the terre-tenant does not give the cestui que use the profits, where does he go for his remedy ? He brings the terre-tenant into chancery by subpoena. 1 Spence's Eq. Jur., 443-'4, 436-7 ; 2 Bl. Com., 327, et seq.; Sanders on Uses and Trusts, 5-6. Who introduced uses into England ? The ecclesiastics, who obtained the idea from the Roman law. 2 Bl. Com., 328, 271-2 ; 1 Spence's Eq. Jur., 440, 439 ; 3 Reeve's Hist. Eng Law, 176, etseq.; 2 Min. Insts., 177. From what class of men were the Chancellors taken? The clergy ? What other things, did the ecclesiastics introduce into England ? Terms for years and common recoveries. 2 Bl. Com., 270-'l ; 1 Steph. Com., 423 ; 2 Reeve's Hist. Eng. Law, 154. For what purposes did the ecclesiastics introduce uses? To evade the statutes of mortmain. 2 Bl. Com., 328, 271-2. How did they answer the purpose ? The lord, for alienation in mortmain, could only enter on a person seized of the land, and in that case they only had a right to the profits. 1 Spence's Eq. Jur., 439-'40 ; 2.Reeve's Hist. Eng-JLaw, 176, et seq.; 2 Min. Insts.,, 177- QUALIFICATIONS OF INTEREST — USES. 101 How did common recoveries answer the purpose ? The statute of 7 Ed. I. extended only to "gifts and comvefyances," or where lands were given to, or purchased hy them ; i. e., the ecclesiastics, and by common recoveries they only acquired lands to which they were supposed to have a previous right. 2 Bl. Com., 271. The statute of 13 Ed. I. directed that in such case of com- mon recovery, a jury shall try the true right of the de- mandants or plaintiffs to the land, and if the religious house or corporation be found to have it, they shall still recover seizin, otherwise it shall be -forfeited to the immediate or next lord of the fee and finally to the king. 2 Bl. Com., 271. The statute of 15 Rich. II. made uses unalienable to the clergy, the statute enacting that, lands which had been pur- chased to uses should be amortised, that is, conveyed in mortmain by license from the crown, or else be aliened to some other use. 2 Bl. Com., 271-2 ; Burrill's Law 'Diction- ary, Amortise. When do we first hear of uses being used in England by other persons than the ecclesiastics ? In the time of Ricli. II. What circumstances brought them into use? During the civil controversies between the houses of York and Lan- caster, A. D. 1399-1485, persons were constantly made liable to conviction for treason, and uses were not like legal estates subject to forfeiture. '2 Bl. Com., 329 ; 1 Spence's Eq. Jur., 443-'4. Suppose a use to A and his heirs, did it descend accord- ing to the common law? It did. 2 Bl. Com., 330-'31 ; 1 Spence's Eq. Jur., 441-2, 446, et seq. Could A sell his use without a license ? He could ; be- cause there was no tenure, and the same feudal reason did not exist to prevent alienation, namely, that he would alien to the lord's enemy, since the feoffee to uses, not the cestui que use, was bound for the services. What became of the land in case the cestui que use died without heirs ? The feoffee had it absolutely, because there was no one to bring him into court by a mbpcena. 102 OF THE EIGHTS WHICH REI,ATE TO THINGS KBAL. What conveyance 'was used in selling a use ? A simple declaration — no writing was necessary. But the statute of 29 Car. II. declares that all creations or dedaratiom of trusts shall be Tmnifested or proved by some writing, or be void, Sanders on Uses and Trusts, 219. Could a use be devised? It could. 2 Bl. Com., SSO-'Sl.. Why could the use be devised and the land not? Because the law looked only to the terre-tenant, and prevented him from devising for feudal reasons, but took no notice of the use. Eef. supra. Was the use liable for debt under the statute of elegit ? It was not, because the law courfetlooked no farther than to, the legal owner, and hence had no process by which, to reach and subject the use. 2 Bl. Com., 330-'31. But. the use was made liable for debt by the statutes of 50 Ed. III., 2 Rich. II., and 19 Hen. VI. 2 Bl. Com. 332. Was the widow entitled to dower in the use ? She was not, nor the husband to curtesy ; because neither could be said to be seized. 1 Spence's Eq. Jur., 441-2, 446 ; 2 BL Com., 330-'31. Suppose the feoffee to uses dies, and the land passes to. his heir, was he bound, like the feoffee, to yield up the profits ? At first he was not thought to be ; but afterwards it was set> tied that he was by statute in the reign of Hen. YI. 2 Bl. Com., 300. Was the widow of the feoffee bound to perform the trust ? She was not; because she was not a party to the trust, but came in by act of law. 2 Bl. Com., 300. How did they manage to prevent the feoffee's wife from taking advantage of this? By injunction against the wife, prohibiting her from setting up any claim to dower. As to feoffee's estate, see Sanders on Uses and Trusts, 67. Suppose the terre-tenant was in debt, could, the land be extended for his debts? It could; but the creditor could, be brought into chancery as in the other, case of tenant in dower. Ref. last supra; Bacon on Uses, 312. QUALIFICATIONS OF INTEREST — USES. 103 Suppose the terre-tenant was convicted of treason, what became of the land ? It was forfeited ; as the King came in by title paramount there was no privity — hence he could not be required to perform the trust. 2 Bl. Com., 300. Did the chancellors, interfere in this case? No. How incase the estate escheated ? The chancellors did not interfere and the lords took the legal estate discharged of the trust, be- cause they were not parties to the trust but came in by act of law. 2 Bl. Com., 300. What evils enumerated by Blackstone caused Parliament to pass 27 Hen. VIII.? (1.) He who had cause to sue for land knew not against whom to bring his action, or who was the pwner of it ; (2.) The wife was defrauded of her thirds ; (8.) The nusband of his curtesy ; (4.) The lord of his ward- ship, heroit-relief and escheat ; (5.) The creditor of his ex- tent of debt ; (6.) The poor tenant of his lease. 2 Bl. Com. 332. What was the general provision of 1 Rich. III., c. 1 ? It was enacted that the cestui qu/& use might alien the estate with- out consent of the tenant, and without enfeoffing with livery of seizin ; the estate then passed by declaration by a kind of parliamentary magic. Saunders on Uses and Trusts, vol. 1,21. Why was 1 Eich. III. necessary or expedient ? Becauise there might be collusion between the terre-tenant, and the cestui que use. Suppose A seized to the use of B, B might convey his nse to C and get his pay, and A might convey his legal estate to D. If D took with notice the chancellor would make him a trustee ; and if not, he would hold the estate discharged, but either C or D must be defrauded. So 1 Eich. Ill provided that when B conveyed his use the legal estate should pass."' *The Stat, of 1 Bich. III.,, c. 1, was evidently intended for the benefit of purchasers, by giving the eestui que use an alienable power over the possession, as well as the use. But the intention of the legislature was 104 OF THE EIGHTS WHICH RELATE TO THINGS REAL. A seized to the use of B makes a feoffment to C, as a gene- ral rule is C bound to pay the profits to B ? ■ He is not, gen- erally, because the use is collateral to the land, and it is only when C takes with notice, or without consideration, that he is bound to answer to the cestui que use. 2 Bl. Com., 330. What was the third section of 1, Eich. III.? It provided that where Rich. III., formerly Duke of Gloucester, was seized to uses jointly with others, the other feoffees should thenceforth be sole seized; and where he was sole seized, the legal estate should pass to the cestui que use. 2 Bl. Com., 333 ; 1 Spence's Eq. Jur., 463-4. Why was Rich. III. often made feoffee to uses ? On account of his deformity, it was sup- posed he would not be much in the wars, but on coming to the crown in A. D. 1483, as the law then stood, he would have held the lands discharged of the use but for the statute supra. Sanders on Uses and Trusts, 57. What did statute of 27 Hen. VIII. enact ? Where any per- son or persons shall be seized of lands, &c., to the use, trust, or confidence, of any other person or persons, or body politic the person or corporation entitled to the use should thence- forth stand and be seized of the land of and in like estates as they before had in the use, and the estate of the person so seized to uses, shall be deemed to be in him, or them, that have the use in such quality, manner, form and condition, as they before had in the use. 2 Bl. Com., 333. frustrated ; for the statute did not deprive the feoffees of the power of alienation ; and consequently if they aliened the land for a valuable con- sideration, and without notice, previous to any disposition made by the cestui que use pursuant to the statute, such alienation disabled the cestui que use from exercising the power which the statute meant to afford him. Besides this inconvenience, there was a still greater produced by the statute ; for it often occasioned a liind of double handed proceeding, or fraud, both in the feoffees and cestui que use. Tlie feoffees had a power over the possession by the common law, and the cestui que use by the statute. They often colluded, and by making secret and different feoff- ments, they purpos^y defeated each other's alienation, with a view to deceive purchasers. Banders on Uses and Trusts, 21-'2. QUALIFICATIONS OF INTEREST — USES. 105 Why was it that " body politic " was put in the second branch, as being capable of taking a use, and not in the first ? Because corporations could not be " seized" to uses, as the lands would be forfeitable under the statutes of mortmain, though they could be cestuis gwe use if they had license, or their charters permitted. Sanders on Uses and Trusts, 58. A makes a feoffment to B and his heirs to the use of C for life, what becomes of the balance of the legal estate ? A use is raised to C for life, and the remainder of the use re- sults to A ; the statute of 27 Hen. VIII. executes them ac- cordingly for life to C and remainder in fee to A. 1 Spence's Eq. Jur., 510-'ll ; Fonb. Eq., B. II, c. 5, n. (a) ; 2 Sto. Eq., 1002; 2 Min. Insts., 189. A makes a feoffment to B and his heirs to the use of C after the expiration of ten years, how does the statute exe- cute the use ? It results first to A who takes a determinable fee for ten years, and the remainder is executed immediately in C. 2 Th. Co. Lit., 581 ; 2 Sto. Eq., §1198^ §1201 ; Sanders on Uses and Trusts, 60. Would A's wife be entitled to dower if he die during the ten years f She would for the remainder of the tefn years un- expired, and then the estate goes to C. But see 4 Kent's Com., 49 ; Seymor's case, 10 Co., 96 a ; 2 Plowd., 557 ; 1 Prest. Ests., 441, 431 ; 2 Min. Insts., 114. Was the statute of uses, 27 Hen. VIII., which was intend- ed to abolish uses, construed liberally or strictly? Very slridly. How many cases were decided not to be within its provi- sions ? — (1.) Where a use was limited on a use. (2.) Where a use was limited on a term for years. (3.) Where it is necessg,ry that the trustee have the legal es- tate in order to perform the trust. 2 Th. Co. Lit., 593, n. (C) ; 2 Wash, Eeal Prop., 161 ; 2 Bl. Com., 335, 336 and n. (52). (4.) In case of constructive trusts, as where a man purchases 106 OF THE RIGHTS WHICH RELATE TO THINGS REAL. land with another's money, equity will make him a trustee. This is not the case unless the owner of the money had in- structed the other party to buy ; in that case the court will order that he convey to the other party.' Give an instance of a me upon a vse ? An estate to A and his heirs, to the use of B and his heirs, to the use of 0. Why did the judges say the statute would not execute the use to C ? They thought it would be absurd to convey the legal estate to B and then take it immediately out of him. 2 Wash. Real Prop., 161. An instance of a trust declared upon a term for years is, where A possessed a term for twenty years, and assigns it to B for the use of C. The statute will not operate in that case, because the word " sdzed" was used in the statute and a ten- ant for years is only possessed. 2 Bl. Com.,, 336, and n. (52.) ;, 2 Th. Co. Lit., 593, n. (C) ; 2 Min. Insts., 187. A feoffment to A and his heirs for the use of B for ten. ^Direct Trusts. These are uses, which for various reasoas,.or without reason, have been held to be not executed by the statute of uses ; and which, therefore, are still cognizable in e%uUy only,, as- trusts* 2 Th. Co* Lit., 593, n. (p). The intent) oi the Stat, of 27 Hen. VIII. was undoubtedly to do away wholly with the separation between the legal: and beneficial ownership of lands, and to abolish uses and trusts altogether ; but some scruples purely technical, some founded on considerations ot general convenience, and others again growing, not unreasonably out of the phraseology of the Stat, itself, led the Judges to constructions which, instead of diminishing the power of the court of chancery over landed estates, tended rather to- increase it. 2 Bl. Com., 335, and n. (52); 2 Min. Insts., 186. The cases of direct trusts are the following :. (1.) A use upon a use. 2 Wash. Eeal Prop., 161. (2.) Trusts, such as before 27 Hen. VIII. would have been deemed special trusts. 2 Bl. Com., 336, 335, n. (52). (3.) Uses declared upon the possession of a term for years. 2 Bl. Com., 336, and n. (52) ; 2 Th. Co. Lit., 593, n. (Oi.; 2 Min. Insts., 187. Indirect Trusts. Trusts are said to be indirect when they arise from- the evident intention of the parties, or the nature of the transaction,, although without any express declaration of trust. They are divided into three classes, known as resulUng, implied and constructive trusts, all enforceaWe QUALIFICATIONS OF INTEREST — USES AND TRUSTS. 107 years, remainder' to. the use of C and Ms heirs, will the stat- Uite execute the use in B ? It will ; the use being served out of A's seizin. Sanders on Uses and Trusts, 107, 90 et seq. Suppose C wished to sell his remainder, what conveyance would he use ? A. feoffment. A makes a feoffment to B and his heirs to the use of C for ten years, what effect has it ? A use is raised to for ten years and the remainder of the use, not disposed of, re- sults to A. Sanders on Uses and Trusts, 97 ; 2 Sto., §1202. The statute takes the estate to C for ten years, and brings back the legal estate ficom B to A for the remainder. in equity, and are not within the English Stat, of frauds, 29 Car. 11., c. 3, §7. BesuUing and implied truste include such interests as arise iroia presumed intention. Constructive trusts, on the other hand, depend on conclusions of law, independently of contract or intent, are commonly imposed in invitum, and embraee every trust arising by operation of law, which is neither implied nor resulting. 1 Spence's E.q. Jur.., 508, etseq.; 2 Sto.Eq.i § 1195, and seq.; Cook i>. Fountain, 3 Swanst.^ 585 ;; 2 Min. Insts., 188. Instances of remlting trusts :; (1.) Where a conveyance is made of land (as by feoffment) without any eonsiderationy or any declaration of uses. 2 Th. Co. Lit., 581 ; 2 Sto. Eq,. § 1198, 1201 ;, 2 Min.Iinsts., 189. (2.) Where a conveyance is made of land to a trustee, and a trust is declared as to part, the conveyance being silent as to tKe residue. Refer- ences supra. (3.) Where a conveyance of land is made upon such trusts as shall be appointed, and there is a default of appointment. Clere's case, 6 Co., 17 ; a Sto. Eq., §1199;. 2 Min. Insts., 190. (4.) Where land is conveyed on particular trusts which fail of taking effect. Beferences supra^. (fi.), Where a conveyance has been made of land, and the purchase money is. still unpaid. 2. Sto. Eq., § 1217 ; 2 Min. Insts., 190. Implied trusts are as foUovre : (1.) Trusts arising out of the equitable con- version of land Into money, and money into land. 2 Sto. Eq., § 1212 and .seq.; 2 Min. Insts., 191. (2.) Trusts arising where land is conveyed to one (A), whilst the conside- ration is paid by amther (B). 2 Sto. Eq., § 1201 . (3.) Trusts arising from the conveyance of land to one partner, the land having been paid for wi1]i pairtnerski/p fvmds, 2 Sto. E.q., § 1307,. and seq.; a Min, Insts.^ 1921. 108 OF THE RIGHTS WHICH RELATE TO THINGS REAL. Give an instance of the third exception ? Where an es- tate is given to a trustee to pay over the profits to a feme covert; here, if the statute executes the use, the legal estate would be made subject to the husband's control, and to cur- tesy in case of the wife's death. 2 Th. Co. Lit., 593, n. (C) ; 1 Spence's Eq. Jur., 446, 448; 1 Prest. Est., 144; 1 Steph. Com., 343; 2 Bl. Com., 336, n. (52). So a feofifment to the trustees of the University is of this class. Difierence between a use and a trust since the statute of 27 Hen. VIII.? "A trust" includes the estate not execute by the statvie of 27 Hen. VIII.; "a use" that executed by it. 2 Bl. Com., 835, and n. (52) ; 2 "Wash. Real Prop., 161 ; 2 Th. Co. Lit., 593, n. (C). What was the difference between a use and a trust before the statute ? A use was general, a trust spedai. According to Sanders on Uses and Trusts, a trust was where both the possession and the right to the profits passed out of the grantor; as where A enfeo£fe B to the intent that he should enfeoff C or re-enfeoff him, A. Sanders on Uses and Trusts, 3. An estate to A and his heirs in trust for B and his heirs, will the statute execute it jjust as well ? It will. (4.) Trusts arising from joint purchase and joint conveyance, made by and to several persons, and the purchase money is paid bff one only, or beyond proportion. 2 Min. Insts., i93. Oonslructime trusts occur in the cases following among others : (1.) Where a conveyance of land is made to one who is a trustee in his personal capacity, but the land is paid for with the trustmoney. 2 Sto. Eq., §1210; 2 Min. Insts., 193. (2.) Where a renewal of a lease is obtained in his own name by a trustee, or other person standing in a confidential relation. 1 Wh. and Td. L. C, 48, 54, Keech v. Sandford. (3.) Where fraud has been perpetrated in obtaining a conveyance. 2 Sto. Eq., §1265; 2 Wh. and Tud., L. C, 593, (Pt. 1). (4.) Where purchases of outstanding claims upon ap estate, or of the estate itself, are made by trustees, or by some of the tenants thereof, con- nected by, privity of estate with >p^rs©nB having an interest therein. 2 Sto. Eq., §1261 ; 2 Min. Insts., 194. QUALIFICATION OF INTEEBST — TRUSTS. 109 How does it happen that trusts differed so much frora uses before the statute ? On account of the change of chancel- lors from ecclesiastical to lay. Cardinal Woolsey was the las't ecclesiastical and Sir Thomas Moore the first lay chan- cellor. Could a trust be devised ? It could. Sanders on Uses and Trusts, 285. Was the widow entitled to dower in a trust ? She was not ; it happened in the first case to be decided that way. The statute of 3 and 4 Wm. IV. gives dower in a trust estate ; so does our statute in North Carolina. Like- wise in an equity of redemption." Is the husband entitled to curtesy in a trust ? He is. See note to last doctrine. "Was a trust liable for debt after 27 Hen. VIII.? It was " Upon the first introduction of equitable estates about A. D. 1370, (Ed., Ill), the law courts lield, very unadvisedly, that as curtesy and dower were legal estates, neither of them could exist in the newly invented interests of which those courts had as yet declined to take any cognizance. Equitable estates, however, proved so convenient, and made such progress amongst the people, that ere long the courts of law found themselves constrained indirectly to acknowledge their existence, although to this day they are left almost exclusively to the control of the covHs of equity, where they originated. Thus, by degrees, they were admitted to be subject to the same general rules, and to the same charges^ as legal estates, descending like them, and like them subject to debts. The courts of equity^ which hitherto had followed the lout, now thought it time to retrace their steps, and would doubtless have attached both dower and, curtesy to equitable in- heritances f but as to dower, a diflSculty (insurmountable without the aid of the legislature) intervened. In pursuance of the original determina- tion that dower could not be had in such estates, many persons had bought lands without requiring the relinquishment of dower by the ven- dor's wives, and if the doctrine were now changed, the titles of all' such purchasers would be shaken to the extent of such dower. In respect to curtesy, no- such embarrassment arose, for no purchaser would or could have taken a, conveyance from a married woman, without her husband's concurrence, whether he were entitled to curtesy or not. Sweetapple v. Bindon,. 2 Vern., 536 ; Watts et ah. v. Ball, 1 P. "Wms., 108 ; Cosborne v. Scarfe and als., 1 Atk., 603 ; 2 Bl; Com., 127, n. (9) ; 3 Min. Insts., 110. 110 OP THE EIGHTS WHICH IlELATE! TO THINGS HEAL. in equity. Sanders on Uses and Trusts, 285, 289-'90. By process from a court of equity, a man might sell the trust, and satisfy his debt, and then pay the remainder over to the cestui que trust. The Stat, of 29 Car., II., made a trust ex- tendable for debt. Sand, on U. and Tr., 290. What was the use of making that statute ? It gave the courts of law jurisdiction. Were all kinds of trusts included in that statute? No; constructive trusts and mixed trusts were not — mixed as where A is trustee for B and C together. Our act of 1812 in North Carolina made trusts liable to be sold for debt, but did not extend to constructive or mixed trusts, so that in these cases the remedy for debt is still with the courts of equity in North Carolina. [But now distinction between actions at law and mUsin equity is abolished. Battle's Rev., 146. — Ed]. Battle's Rev. Execu- tions, ch. 44, § 4, 390. A daughter purchases a tract of land for $75, but the mother furnishes $50 of the money, which made the daugh- ter a trustee for her as to two-thirds ; (Sanders on Uses and Trusts, 352) a creditor of the mother levied on the land under our statute au'd sold. The creditor should have gone into equity, as it was a constructive trust, «.nd by a process of that court have sold the trust in the two-thirds. Was a trust estate forfeitable for treason ? It was mad'd so for the treason of the cestui que trust by Stat, of 33 Hen. VIII., but a trust estate did not escheat, because there was no tenure. Sanders on Uses and Trusts, 291, 308. Since 27 Hen. VIII., A makes a feofifeient to B and his heirs, what is the effect ? Since there is no consideration^ the use will not pass out of A, and the statute carries the estate immediately back, so that it has no effect at all. 2 Bl. Com. 330, n. (49) ; Cane ■c. Halford, 3 Ves., 667. In how many ways may a use be raised or created ? By declaration and consideration. Sanders on Uses and Trusts, 59. By declaration where a man parts with the whole estate QUALIFICATIONS OF INTEREST— TRUSTS. Ill and declares the uses as where A enfeoffs B to use of 0. Or, by consideration, where A does not part with the whole estate, as where he bargains and sells to B and raises a use which the statute executes. So in case of covenants to stand seized to uses, and uses which arise by implication. Trusts could be made to arise at first by parol agreement, but 29 Car., II. made it necessary for them to be evidenced .and proved by writing. Sand, on U. and Tr., 219, LECTUEE VII. USES — POWERS — CONDITIONAL LIMITATIONS — EXECUTORY DEVISES. What is the definition of a resulting use ? It is so much .of the use as is undisposed of and results back to the feoffor. Sanders on Uses and Trusts, 60, 61, 96, 143. A feoffment to A to sell lands and pay off debts, is it a use or a trust ? It is a trust not executed by the statute of 27 Hen. VIII. 2 Bl. Com., 336-'35, n. (52) ; 2 Min. Insts., 187 ; San. on Uses and Trusts, 253 et seq. Suppose there is an ex- cess in A's hands after paying off the debts, what becomes of it ? It comes back to the feoffor as a resulting use, as no more of the use is in A than enough to, accomplish the spe- cific purpose of paying debts, 1 Spence's- Eq. Jur., 510, et seq.; Fonb. Eq., B. II, c. 5, §1, n. (a). In ho-W many ways may a use be created ? By declara- tion or by consideration. What is necessary in a bargain and sale ? A pecuniary consideration.^ What is an agreement without a consideration called ? Nujdum pactum. Smith's Cont., 87. What is the difference between a covenant and a simple contract ? A covenant must be signed, sealed and dfilivered. A simple contract may be made mthout writing or in wriiing but without seeding. Smith's Cont. 5, 26. Could a use be made without a simple contract ? It could. What was necessary ? A consideration — uses were raised by declaration or consideration. Sand. Us. and Tr., 59. Is a coveaant good in a court of law without a considera- *A bargain and sale is a contract by which one agrees for any valuable consideration to stand seized o£ his lands to the use of another. Lord C. B. Gilbert insists that the consideration must be money. See Gilb. Uses, 187, andn. (10); Id., 95, n. (5); 2 Th. Co. Lit., 578, n. (B); Id., 461, n. Q) ; 2 Min. Insts., 730. QUALIFICATIONS OF INTEREST, &C. 113 tion ? It is ; the court of law will not go behind the seal. 2 "Wash. Eeal Prop., 652; 2 Min. Insts., 690 ; Smith Cont., 11. Will a court of equity consider a covenant without a con- sideration binding ? It will not without a valuable consider- ation. Adams' Eq., 78, 92, 98. What did the statute of uses, 27 Hen. VIII., give rise to ? Covenant to stand seized to uses, bargain and sale, jointure, lease and release, and powers of appointment. 2 Th. Co. Lit., 578, n. (B) ; Id., 461, n. (Q) ; Id., 580, n. (B) ; Id., 573, n. (A) ; Gilb. Uses, 6 et seq.; Id., 456, n. (4) ; Sand. Us. and Tr., vol. 1, 53, et seq. Could a use be raised by bargain and sale before the stat- ute? It could. Why, then, is it called a new conveyance? Because, since the statute of 27 Hen. VIII., when the use is raised by the bargain, the statute carries also the legal es- tate to the conveyance. 1 Sand. Us. and Tr., 53. So in covenants to stand seized, when the use is raised by a good consideration, (natural love and affection,) the statute of uses carries the legal estate. 1 Sand. Us. and Tr., 96. Does the statute of 27 Hen. VIII. mention bargain and sale ? Yes ; it provides that they shall not enure to pass an estate ai inheritance ov freehold, unless by deed indented and inrolled within six months from the date, in one of the courts of record at Westminster, or with the custos rotvlorum of the county where the lands lay, for the sake of notoriety.* Was the same provision made with regard to covenants to stand seized ? It was not, because these conveyances were void against creditors by statute. What statute made them void as to creditors? Statute of 13 Eliz.; and 27 Eliz. made them voidable as to subsequent purchasers for a valuable consideration.' " To this day this is the only general statute of registry in England. 2. Th. Co. Lit., 579, n. (B); Glib. Uses, 200, 520; Wms. Ileal Prop., 423. 'The denunciation of the Stat, of 13 Eliz., c. 5, was levelled against all gifts, grants, &c., devised of fraud with intent to delay, hinder and de- fraud creditors and others ottheii just and lawful actions, suits, debts» 8 114 OF THE EIGHTS WHICH RELATE TO THINGS REAL. Did the statute of inrollments apply to terms for years? No ; it extended only io freeholds. 2 Bl. Com., 339; 2 Th. Co. Lit., 579, n. (B). To what did that omission give rise ? Lease and release. 2 Bl. Com., 339. How was that done ? A bargain and sale for valuable consideration was made for a year by the tenant of the freehold to the lessee or bar- gainee ; this, without any inrollment, makes the bargainor stand seized to the use of the bargainee, and vests in the bargainee the use of the term for a year ; the statute carries the legal estate to the use, and then the bargainor releases to the bargainee. 2 Bl. Com., 339. Was a release known at common law? It was, being one of the secondary conveyances. 2 Bl. Com., 325. What is the difference between a lease and release at the common law and a lease and release after the statute ? At common damages, &c., leaving it to be determined in each case, according to the ■facts, whether the m«»mossession is executed according to the Jimitation of «the uses ; tllat as a new use will arise upon the birth of A's son, so as to precede the limitation to B, so upon that event a seizin, co-extensive with the estate in use, limited to the son, wtll vest in J. S. for the purpose of flerving at; and ttiat until the contingency happens, J. S. has a mere possibility of seizin, which may never become actually vested in him. 1 Sand. Uses and Trusts, llO-'ll. 'Powers are either appendant or in gross, or altogether collateral; ap- pendant, when the exercise of them is in the first instance to interfere •with, and to a^certain extent, to supercede the estate of the donee of such power; in gross, when they do not commence until the determination of the estate of the donee ; and collateral, when the donee ha^s no estate at all in the property which is the subject of the power. A power reserved to a tenant for life, to make leases in possession, is appendant; for by the exercise of it, the term created by it necesearily 118 OF THE EIGHTS WHICH RELATE TO THINGS EEAt. Suppose in a will there is a dii-ection to the executors to sell the land, what kind of power is it? A naked powier. Suppose a devise to executors to seU and pay debts f It is a power coupled with an interest. What is the chief difference between the two cases ? In the former the power must be strictly followed ; if one of the executors die the other can- not sell. In the latter case, if one die the land goes to the other by survivorship, and he can sell. 2 Th. Co. Lit., 588, et seq., notes; 1 P. Wms., 700; Tud. L. Cas., 306. Suppose a man devised land to his wife with a power to divide by deed or will among as many children as she sees proper, she purchases a negro from one of the children and agrees to give that one a double portion of the land, and ac- cordingly in a will does so, is it a valid execution of the power ? It is not ; because she has no authority to make bargains with regard to the land. Sanderlin v. Thomson, 2 Dev. Eq., 539 ; Stroud v. Morrow, 7 Jones, 463 ; McDowell v. White, 68 N. C. E., 65 ; Young v. Young, 68 N. C. R., 309 ; 2 Th. Co. Lit., 587, n. (B). Who would get the land when the execution of the power was proved to be invalid ? It would go to the children according to the canons in North Carolina. Phifer v. Phifer, 6 Ire. Eq., 155. Suppose a man devises land to his wife for life, with a power to appoint to his child or such of his children as she thinks proper, she appoints to the daughters and their heirs and if any of them should die without heirs, to the heirs of the others, and if all the daughters die without heirs, then precedes the estate of the tenant for life, to whom it is reserved. A power to a tenant for life in jainture is SLTpower in gro^s ^ for the jointure created by it must necessarily take efEeet after the death of theparficutartetia.nt. Where an estate is limited to the use of A for life, with remainders over to other persons, and with a power oJ revocation and new appointment reserved to A, this power is both appendant and collateral It is appen- dant as to the estate for the life of A, and collateral as to the estates in remainder. So if the use had been limited to A for life, with remainder to B in tail, with remainder to A in fee, with a power of revocation and new appointment reserved to A, the power would be appendant as to the estate for the life of A and his remainder in fee, but collateral t» the POWERS— EXECUTORY LIMITATIONS. 119 to the sons with the same limitations, is it a valid execution o^the power ? It is not ; because she had only a power of selection and not to fetter the estate in this way. Little v. Bennett, 5 Jones Eq., 156. Suppose a devise to the wife for life with power to appoint among devisor's children, she appoints to the son, remain- der to his son (not in esse at the death of the devisor) for life, remainder to his grand-children, is the appointment good ? It is not, as the appointment dates back to the execution of the deed ; or, as in this case, to the death of the devisor, and no estate can be made which will not take effect in a life or lives in being, the utmost period of gestation, and twenty-one years thereafter to prevent perpetuities. 2 Bl. Com., 174, n. (4) ; 2 Sand., 90, et seq.; Fearne's Rem., 429, and n. (f ), 444, n. (a) ; Little V. Bennett, 5 Jones Eq„ 156. This is called a special power or power of selection. Suppose it had been left her to dispose of to whom she pleases; she is not then restrained by limit of perpetuity, as she has absolute ownership and may take the whole herself or give it to another. 2 Sand., Us. and Tr., 91, et seq. This is called a, general power or power of owiiership. A feoffment to A and his heirs, remainder to B and his heirs, is the remainder good ? No ; because the whole es- tate passed out by the feoffment to A. 2 Bl. Com., 164 ; 2 Th. Co. Lit., 126, and n. (B); Fearne's Rem., 12. Suppose, before the statute of uses, a feoffment to the use of A and his heirs, but if B comes from Rome to the use of B and his heirs, is it good ? It is ; because when B notified the feoffee the use was transferred according to the original declaration to him. The use was created without livery and may be defeated hj force of a condition. At common law, a feoffment to A and his heirs, but if B returned from Rome to the use of B and his heirs, was this a good limitation ? It was not ; because none but the feoffor or his heirs could enter for condition broken, but that would defeat the livery on which B's estate depended ; and besides, a remainder must await the determination and not take ef- 12Q OF THE RIGHTS WHICH RELATE TO THINGS EEAL. feet in derogation of, the particular estate. 2 Th. Co. Lit., 99, n. (W), 2, 768, Butler's note (11). • Since the statute of uses, feoffment to the use of A and his heirs, but if B returns from Rome, to the use of B and his heirs, how does it operate ? The limitation is good ; on B's return, there is possibility of seizin in the feoffees — scintilla juris — which serves his use when it springs up. 1 Th. Co. Lit., 505, n. (W) ; 1 Sand. Us. Tr., 102-'8-'52, 142. How do you explain the sdniilla juris 9 In the first in- stance, A took the use subject to the possibility of B's return, and the statute executed the legal estate in A in like man- ner,fonn and condition as he before had in the use ; i. e., it gives him a fee determinable on B's return. 2 Th. Co. Lit., 87, n. (L, 2), 768, Butlers note II. What is B's interest called ? A conditional limitation. What is the difference between a conditional limitation and a contingent remainder ? The former takes effect in dero- gation of the particular estate ; the latter awaits its determi- nation. 2 Th. Co. Lit., 136, n. (F). Can a conditional limitation be defeated in any way? It cannot by warranty or common I'ecovery; and by fine only when there is five years non-claim, and no purchaser would risk that. There is but one way possible by which it may be defeated : By the joint feoffment of the feoffee and the first cestui que use. 2 Bl. Com., 174, n. (21) ; Fearne's Rem., 429, and n. (f ), 444, n. (a) ; 2 Wash. Real Prop., 357. Hence the necessity for a rule against perpetuities. What rule was adopted ? That every executory limita- tion, whether of real or of personal estate, in order to be valid, must vest in interest, if at all, vdthin a life or lives in be- ing, and the utmost period of gestation, and twenty-one years there- after? ' The period was adopted by analogy to the utmost period during which, at common law, land could be kept inalienable by way of remainder. Thus, in marriage settlements, (where the effort is to preserve the estate as long as possible within the limits of one or two families,) the estate may be limited to husband and wife during their joint lives, remainder EXECUTORY LIMITATIONS. 121 What is the diflference between a conditional limitation, and an executory devise ? The only difference is, that the latter is a will, and it is not necessary to appoint a trustee ; but the estate may be limited immediately to the person himself.'' to the survivor for life, remainder to the first and other sons of the mar- riage successively in tail, remainder to the daughters in tail, remainder in fee to H's right heirs, and until the first person to whom a remainder in tail is limited comes of age, the land is incapable of being aliened in fee simple. And as that person may, at the death of H, be en ventre sa mere, the time in such case would be prolonged for a period of gestation, making the utmost period of inalienability of the inheritance at common law, one or more lives in being, the limit of gestation, and twenty-one years afterwards, which has, therefore, for more than a century, consti- tuted the '^ rule against perpetuities," in respect to lands, and afortiari as to chattels. Long v. Blackall, 7 Tr. R., 101 ; 2 Bl. Com., 174, n. (21) ; Fearne's Kem., 444, n. (A) ; Howard id. Duke of Norfolk, 2 Swanst., 454. "Distinctions between conditional limitations a,n& executory limitations, and contingent remainders. A conditional limitation partakes of the nature both of an estate on condition and remainder, the first estate, even though a freehold, being liable to determine, without entry of the grantor or his heirs, upon the happening or not happening of the event indicated, and the subsequent estate taking its place. Conditional limitations could not exist at com- mon law. They arise only out of certain conveyances, owing their ex- istence to statutes, the effect of which is to dispense with livery of seizin. These conveyances are those growing out of the statutes of wills, of uses and by 8 and 9 Vict., c. 106, of grahts. 2 Th. Co. Lit., 768, Butler's Note, II; 2 Bl. Com., 155 ; 2 Th. Co. Lit, 87, n. (L, 2). An executory limitation is such a limitation of a future estate or interest in lands, as is contrary to the rules of limitation in conveyances at common law, but is practicable under the statute of uses, of wills, and of grants, by reason of their dispensing with actual livery of seizin. Fearne's Eem., 386, and n. (6) ; Id. 382, n. (A) ; Id. 10 and seq., and n. (H). It follows from this definition that if a future interest is so limited under these statutes or otherwise, that it can take efiect as a remainder, it cannot he an executory limitation. Fearne's Eem., 385, n. (B) ; Purefoy «. Rogers, 3 Sand., 388, and note. A contingent remainder is a remainder limited to an uncertain person, or on an uncertain event, or so limited to a certain person, and on a cer- tain event, as not to possess the present capacity to take effect in posses- 122 OF THE EIGHTS WHICH EELATK TO THINGS REAL. As the testator is inops consilii, the law allowed him to limit his estate in any way it could be done by the most approved conveyance. 2 Bl. Com., 381. sion, should the possession become vacant. Fearne's Kem., 116-'17 ; 2 Bl. Com., 169, n. (10). Differences between executory limitations and contingent remainders. (1.) The existence of a preceding estate. In an executory limitation, no preceding estate is needed ; the estate, though a freehold (since no livery of seizin is required,) may gyring up at any future period not too remote. And if there be a preceding estate, it is not necessary that the executory limitation should vest, when such preceding estate determines. To a contingent remainder, on the other hand, a preceding estate, is by the definition thereof, indispensable, and its determination before the remainder is ready to vest, is, at common law, fatal thereto. Fearne's Eem., 399, 400, et seq., and n. (d) ; Id. 382, n. (a), 416, n. (a), 418 ; 2 Wash. Real Prop., 356 ; 2 Min. lusts., 374. (2.) The proper subject of executory limitations, and of contingent remainders respectively. Executory limitations relate to both real and personal property, and are governed by the same general rules, whatever the subject. Contin- gent remainders originally existed in lands only. But this difference has in modern times virtually ceased to exist, contingent remainders being allowed in chattels with scarcely less freedom than freehold estates in lands. 2 Bl. Com., 398, 174-'5 ; Fearne's Kem., 5, n. (c), 401, n. (e), 416, n. (a), 418 ; 2 Min. Insts., 375. (3.) The modes of creating executory limitations and contingent re- mainders, respectively. Executory limitations can be created only by conveyances operating under the statutes of uses, of wills, and of grants, whereby livery of seizin is dispensed with, and not by conveyances operating at common law. Contingent remainders may be created by either class of convey- ance. Fearne's Rem., 416, n. (a); 2 Min. Insts., 375. (4.) Difference between executory limitations, and contingent remain- ders, in respect to liability to be barred or destroyed. Executory limitations are incapable of being barred by alienation, or any other act, or by any omission of the persons seized of the preceding estate ; because the title of the executory devisee or grantee is not through or a.s privy to the intermediate talser, but quite independent of him ; nor are such executory limitations affected by a recovery suffered by the first talier, because the supposed recompense, which is the principal ground for the operative effect of a recovery, cannot consistently be presumed to extend to the future devisee or grantee, whose title is independent of such first talcer's ; nor are they liable to merger when the defeasible EXECUTORY LiMITATIONS. 128 What notion was adopted in order to supply a trustee or seizin for the devisee ? The heir was considered seized for his use of the land, and the executor or administrator of the personal property.' estate and the future limitations become vested in the same person. Con- tingent remainders, on the other hand, may be destroyed at common law, by fine or recovery, by merger of the particular estate, or by any dis- placement thereof. And this in England is stated to be the great essential difference. Fearne's Rem., 416, n. (a), 418; Hargr. Law Tr., 518 ; 2 Wash. Real Prop., 356 ; 2 Min. Insts., 375. (5.) Difference in respect to liability to dower and curtesy. According to the better opinion, executory limitations, (that is, as to the first or defeasible estate, supposing it to be an inheritance,) are liable to curtesy and dower, which are not defeated by its actual determination)! But no remainder, whether contingent or vested, if it comes after a free- hold, admits of dower or curtesy. 2 Wash. Real Prop., 374; 2 Min. Insts., 376. (6.) Applicability of the rule in Shelley's Case to executory limitations and to limitations in the nature of contingent remainders, respectively. The rule in Shelley's Case is not applicable to executory limitations, as we have seen that it is in the case of nominal contingent remainders, ap- parently because the limitation to the ancestor and the heirs are not parts of the same estate, but are distinct and independent dispositions of the subject. Fearne's Rem., 276 ; 2 Min. Institutes, 375-'6. ' It is a rule that whenever there is an executory devise of real estate, and the freehold is not in the meantime disposed of, the freehold and inheritance descend to the testator's heir. And so, where a preceding estate is limited, with an executory devise over of the land, the interme- diate profits between the determination of the first estate, and the vesting of the limitation over, will go to the heir at law, if not otherwise disposed of. Fearne's Rem., 537 ; Hopkins v. Hopkins, Cas. Temp. Talbot, 51-'2. Where there is no residuary devise, or other particular disposition of it, it seems that personal property and its profitSf^&iwe&n the testator's death and the vesting of the executory estate, or between the determina- tion of the first limitation and a vesting of a subsequent one, will accu- mulate for the benefit of the person next to take by virtue of the limita- tions. Thus, where a testator bequeathed personalty to. the first son of A when he should attain twenty-one, and A had no son at the testator's death, Lord Hardwicke held that the profits of the property should accu- mulate until A's son, who might be afterwards born, attained his age of twenty-one, and then pass to him. Fearne's Rem., 546-'7 ; Bullock v. Stones, 2 Ves. Sen., 321 ; Studholme v. Hodgson, 3 P. Wms., 300 ; 2 Min. Insts., 389. 124 OF THE EIGHTS WHICH RELATE TO THINGS REAL. In what way, then, might a conditional limitation be de- feated ? By joint feoffment of the feoffee and the first cestui ■que use. Fearne's Rem., 416, n. (a), 418 ; Ha?. Law Tr., 518, el seq.; 2 Wash. Eeal Prop., 356 ; 2 Min. Insts., 375. Suppose a feoffment to A and his heirs to the use of B and his heirs, but if C returns from Rome then to the use of C and his heirs ; here, if A and B join in a feoffment, it destroys the seizin on which C's estate is dependant. Suppose D had entered on A and disseized him, and C returns from Rome, could C en- ter on D? He could, according to law; for if A entered, the estate was immediately executed in C and the law al- lowed C to enter himself. Suppose D had died andthe des- cent cast on his son .E, and-C returns from Rome, what was his remedy ? His only remedy was to make A bring an action against E, and on A's recovering the land the statute carried it immediately to C. Note the difference between a right of action and a right of entry. Suppose, in the first case, C, on his return, finds that D had taken with notice, what is his remedy ? He brings A, B and D into chancery, and if it appear either from D's acknowledgment, or from proof, that he took with notice, equity makes him a trustee, 1 Sand. Us. and Tr., 389. Feoffment to A and his heirs for the use of B for life, and then to any of his daughters that marry or attain the age of twenty-one years, how does it operate in the first place ? The use is executed in B for life, and until one of the daugh- ters marry or attain the age of twenty-one the remainder results to ihe feoffor. Upon the marriage of one of the daughters it springs up to her also ; so on the marriage of a second'; then it shifts to the others as the contingency arises. This example illustrates the difference between a springing use, a shifting use and a resulting use. Gilb. Uses, (6), n. (A) ; 2 Th. Co. Lit., 578, n. (A) ; Gilb. Uses, 152, and seq., n. (5); Sand. Us. and Tr., 60, 61, 96-'9, 108, 145, 149-'50, 158. In the first instance, the use is limited subject to all these con- tingences ; the statute executes the use out of A's seizin, EXECUTOEY LIMITATIONS; 125- namely, the scintilla juris. The doctrine of scintilla juris is very convenient ; if wanted, it is in the feoffee, if not it. is not. th,ere. What reason is there for a freehold estate to support a corir tingmt remainder, when none is required to support & future use ? In case of a contingent remainder, the freehold must be in some one to perform the feudal services ; but before the statute, in case of uses, the lord looked to the feoffee to perform the feudal services. 2 Bl. Com., 168, n*. (9) ; Fearne's Eem., 281. In the common case of a merchant about to become in- solvent, and who assigns his accounts for the benefit of cer- tain creditors in preference to others, what is the process ? The merchant makes over his estate to a trustee, who, of course, is bound to sell in his (assignor's) name ; for at com- mon law accounts are not assignable ; and then he makes a declaration of trust for these preferred creditors. In case there is more than enough to satisfy the claims of these creditors, how do the other creditors reach it ? They reach it through a court of equity, for being a mixed trust (name- ly, a part going to the preferred creditors to satisfy their claims, and the rest resulting to the grantor, or, in this case, resulting to the merchant,) it cannot be assets in a court of law, under statute of 29 Car. II., or our act of 1811, as neither of them extend to mixed or constructive trusts. A makes d feoffment to B to the use of C for ten years, and if D return from Kome during the term, remainder to D in fee ; is it a good limitation ? It is ; the same requisites were not required in limiting a use as in remainders at com- mon law. In this case a freehold is not required to support th^ conditional limitation because, before the statute, the lord could look to the feoffee to perform the services, and the statute executed it in the same plight. Fearne's Rem., 395, et seq., and n. (d) ; Id., 382, and n. (a) ;. Id., 894, et seq.; 1 Th. Co. Lit., 646, n.. (C). Before the statute of 29 Car, II., a trust could be raised 126 OF THE EIGHTS WHICH RELATE TO THINGS REAL. by deed, simple writing, or word of mouth. After the stat- ute, it must be evidenced by some writing, signed by some person capable of declaring a trust. There is one exception in case of a resulting trust." Greenl'f Ev., § 266. A trust could not be extended under an degit ; but the chancellor rather improved on that by sequestering the profits, i. e., allowing the creditor to take the profits, when, by so doing the debt would be satisfied within a reasonable time ; and when such was not the case they sold the land and discharged the debt with the proceeds, and repaid the surplus to the debtor. 1 Sand. Us. and Tr., 255, et seq., and notes. ^ The statute does not require that tlie trust be created by writiiig, hut only that it be manifested and proved by writing, plainly meaning that there should be evidence in imiMiig, proving that there was a trust, and whafthe trust Was. BemlUtig trusts, or those which arise by implication ot law, are specially excepted from the operation of the statute. Trusts of this sort, says Lord Hardwicke, arise in three cases ; (1.) Where the estate is purchased in the name of one person, but the money paid for it is the property of another ; (2.) Where a conveyance is made in trust, declared only as to part, and the residue remains undisposed of, nothing being declared respecting it ; and (3.) In cases of fraud. All other divis' ions seem reducible to these three heads. Greenl'f. Ev., §266, 312. LECTURE VIII. CONDITIONS. A condition is a qualification annexed to an estate where- by it is to arise, or is to he defeated. 2 Th. Co. Lit., 2 ; Bac. Abr. Conditions. An estate cannot be created by force of a condition, be- cause livery of seizin was always necessary to create an es- tate at common law. Conditions are divided into : (1.) Express conditions, or conditions in deed ; and (2.) Implied conditions, or condi- tions in law. 2 Bl. Com., 152 ; do., 154, n. (5). Express conditions are divided into : (1.) Conditions pre- cedent, 2 Bl. Com., 154 ; and (2.) Conditions subsequent. 2 Th. Co. Lit., 1, n. (A), 4, 5. Give an example of an express condition ? An estate to A and his heirs on condition that A pay five hundred dol- lars ^er month. 1 Bl. Com., 151, n. (2); 2 Th. Co. Lit., 4, and seq. Oive an example of a condition in law ? All men hold their land on the implied condition that they will not com- mit treason ; or a tenant for life holds his estate on the im- plied condition that he will not make a feoffment in fee. 2 Bl. Com., 153. For implied condition broken, he who holds the- next vested estate may enter ; but only the feoffor or his heirs can enter for express condition broken. 2 Bl. Com ., 154, n. (5). It was necessary that the feoffor or his heirs enter for express condition broken, because it was a mere right they had, and was not assignable at common law, since it was thought that the assignment of rights would encourage litiga- tion. 2 Th. Co. Lit., 89, et seq., n. (M, 2). Entry for condi- tion broken, by the feoffor or his heirs, was necessary, be- cause the estate had been created by livery of seizin, and it 128 OF THE EIGHTS WHICH RELATE TO THINGS REAL. required some ad equally solemn to defeat it. 2 Bl. Com., 155 ; 2 Th. Co. Lit.,, 3, 4, 87-'8, 95-7 ; Pennant's Case, 3 Co., 65, a. An estate to A and his heirs in fee, to be void provided B returns from Eome; A naarries, B returns from Rome and A dies, shall his wife have dower ? Yes ; A was seized of an estate of inheritance during coverture, but her dower is sub- ject to be defeated by entry of the feoffor. 1 Wash. Real Prop., 208 ; 4 Kent's Com., 49 ; 1 Bright's H. and W., 349- '50. If B had returned from Rome before A's marriage, and before entry of the feoffor A marries, she would have her dower in the same way. A executes a bond to B, in which he binds himself to pay to B one thousand dollars in six months, and if he does not pay the sum in the time specified B might enter upon and enjoy A's estate forever ; A does not pay the bond, can B enter? No; because this would be passing an estate by force of a condition, and without livery of seizin. Feoffment to A and his heirs to be void on condition that B returns from Rome, A aliens to C, without notice-, for a valuable consideration, then B returns from Rome, can the feofifor or his heirs enter on C ? They can ; because the con- dition runs with the land. 2 Th. Co.. Lit.,. 325, n. (G, 3) ; Spencer's Case, 5 Co., 15 b. A lease to B for ten years provided that if, after a month's notice at any time, the lessee should not pay the rent then the lease to be void. In this case no entry was required • because there wa^ no livery of seizin, but a lease is a mere contract between the parties, which begins and ends without ceremony. 2 Th. Co.. Lit., 87-'8 ; 2 Min. Insts., 165. A makes a lease to B for ten years, upon condition that if, at any time upon a months' notice, the rent shall not be paid, it shall be lawful for A to enter and defeat the estate. Entry will be necessary in this case, because expressly stip- ulated for. 2 Bl. Com., 155 ; 2 Th. Co. Lit., 3, 4, 87-'8,,95 QUALIFICATIONS OF INTEREST— CONDITIONS. 1291 m to 97 ; Pennant's Case, 3 Co., 65 a ; Lampet's Case, 10 Co., 48 b; Shulenburgu Harriman, 21 Wal., 63. An estate to A for life, on condition that he pay five hun- dred dollars, remainder to B in fee, who would enter for condition broken ? The feoffor ; the remainder limited after an estate on express condition is void, because the entry of the feoffor defeats the seizin of the estate on which the re- mainder is dependent. 2 Th. Co. Lit., 97, 99, n. (W, 2), 768,. Butler's n. II. An estate to A for life, remainder to B in fee, A makes a feoffment in fee or commits waste, who would enter? B- would enter. For an implied condition broken he wliphas- the next vested estate in reversion or remainder must enter. Implied conditions occur in certain instances, where the law teicitly implies a ctfhdition, which is not expressed in words.. 2 Bl. Com., 152 ; 2 Th. Co. Lit. 2, 3, 113 and seq, A condition differs from a remainder, in that it may defeat the particular estate, while a remainder awaits its determd- nation. Bac. Abr. Conditions ; 2 Th. Co. Lit., 2; 2 Bl. Com.,, 165. An express condition differs from a conditional limitation, ia. that none but the feoffor or his heirs can enter for condition broken in case of express eondition ; whereas, no entry is nec- essary to defeat an estete in case of a conditional limitation. ■ 2 Th. Co. Lit., 97, 99, n. (W, 2), 768, Butler's note, II; Do.,. 87, n. (L, 2), Butler's note, II. An estate to A for life, or during life or widowhood, is a limitation, and expires by the words of the deed withput en- try." *By conditions ira law, in the ordinary use of language would be meant, conditions implied by law. Tliese conditions are naturally and properly said to be implied,' or tacitly annexed to, the estates to which they belong, (as that grantee will make proper use of a franchise or forfeit it by abiise or neglect;) but in the case in the text, no condition can, without some violence, be considereH as implied or' tacitly annexed, and it tends to confusion of thought to treat it as a condition at all. The case contem-- plated is wliere an estate is limited to one until a certain event happens ; . 9 130 OP THE EIGHTS WHICH RELATE TO THINGS KEA/L. An estate to A and his heirs, but if B retara from Rome to be void ; A dies ; A's wife is entitled to dower, subject to be defeated by t!ie entry of the feoffor. 4 Kent's 'Com., 49 ; 1 Wash. Real Prop., 208. An estate to A and his heirs until B returns from Rome. Dower will not be allowed A's wife in this case, because A's ■estate is ended on the return of B, by the wording of the •deed, without entry.* Feoffment to A for life.; A makes an estate to B in fee.; feoffor dies before entry for forfeiture, is his wife entitled to 'dower ? She is not dowable, because her husband was not .seiaed during the coverture." A wife of a mortgagee is entitled to dower subject to be •defeated by repaynlent of the money.* In case of a mortgage in fee, at the mortgagee's death the OT wTiild a certain state of things continues; ot during an intermediate period. Hence, although it is Littleton who denominates it a condition .in kuB, it is deemed a more correct designation to style it a limitation, tor which there is much sanction oi authoritj . 2 Bl. Com., 155 ; 2 Th. Co. Lit., 87, u. (L, 2), 120, and seq. ■"If the consorc's estate expires by the regular efflux of theperiod origi- nally marked out for itsduration, leaving the p?-«toot(« seizinot the consort unimpaired, dower and curtesy are prolongations of the consort's estate, annexed by force of law; but if the consort's estate is determined in such a manner as to defea.t and annul the consorfs seisin as from the beginning, so that, in contemplation of law, the consort was neuer seized during the ■coveiiure, or if the subject of the consorfs estate ceases to exist, dower and curtesy are denied. 1 Th. Co. Lit., {561, n. (13) and (G) ; Id. 565, and n. (L) ; Paine's Case, 8 Co., 34 a ; 1 Wash. .Keal Prop., 312 ; 2 Min. Insti- tutes, 132. " It is a doctrine applicable to dower, as well as to curtesy, that the consort must have at sometime during the coverture, (1.) The Jmmedictte estate of freehold in possession; and (2.) The ;firai estate of inheritance, such as that the issue born of the marriage may, by 'possibility, inherit it as heir to the consort; (3.) Without any.intermediatewesieti estate of free- hold. 1 Th. Co. Lit., 560, n. (E) and (F); Id., 583, n.^(M); 4 Kent's Com., 39; 2 Min. Insts., 129. ■•The widow of a trustee or mortgagee is not entitled to dower, the husband not being seized beneficially. See 2 Bl. Com., 137, n. (SO); 1 Th. Co. Lit., fi76, n. (25); 2 Min. Insts.. 126. See aho. Weir e. Tate, 4 «itJAririCATIOKS OP INTEREST — CONDITIONS. 131 land goes to the heir, but the personal representdtives re- ceive the money. The equity of redemption on the raoft- gagor's -death went to his heir, but the personal representa- tives were bound to pay the money and the heir might com- pel them to do so. 4 Kent's Com., 429, d seq. What is the difference between a trust and an equity of redemption ? A trust is a right in equity which does not follow the land when sold.for a valuable consideration with- out notice. 2 Sto. Eq., §1124-5. An equity of redemption is in the nature of a condition which runs with the land and binds it under all circumstances. 2 Th. Co. Lit., 40, n. (Z) ; Howard v. Harris, 1 Vern., 190 ; S. C. Wh. and Td. Ld. Cas., (P. II), 416, 430, etseq.; 2 V'crn., 402 ; 7 Ves., 273. Is an equity of redemption subject to an execution of debt ? It is not, Sanders says, but is subject to forfeiture by 3S Hen. "VIII. Sand. Us. and Tr., 290-91. An equity of re- demption, and the legal right of redemption, in lands, tene- ments, rents or other hereditaments, are liable to execution in North Carolina. Bat. Rev., ch. 44, §5, p. 391. A man makes three different mortgages to A, B, and C ; the mortgaged estate is not sufficient to satisfy the three claims, how can C have his claim preferred ? By buying in the first mortgage to A j for then he stands in A's place, and upon the doctrine that equities being equal he who has the legal estate has the rigM to be preferred, C obtains prefer- ence in this case. This is called tacking a mortgage^ whereby the second mortgagee's claim is squeezed out, and the doc- trine is founded upon uon-interference between equal equities. Adams' Eq., 163-5. Suppose C, the third mortgagee, had lent his money vMh ■notice of the second mortgage, would he be allowed to buy in the first and then have both redeemed before the second? He would not ; but if he had notice after the loan of the money, but before the couTeyance, he would be allowed to " tack" — for, halving gotten iii*o a difficulty, the law allowed 132 OP THE RIGHTS WHICH RELATE TO THINGS REAL. him to extricate himself in the best way he could. Adams' Eq., 163-'5 ; 2 Bl. Com., 159, n. (8). A has an estate worth one thousand dollars and mort- gages it to B for five hundred dollars, and then mortgages to B another estate, worth one hundred dollars, for five hun- dred dollars, can he redeem the first estate without at the same time redeeming the second ? No ; a court of equity- will compel him to redeem both or neither. Coote on Mort- g-ages, 483, 491 ; 2 Ves. Jun., 372-'6; 2 Vern., 207 ; Adams' Eq., 165. Suppose the heir of the mortgagor pays off the money and redeems the estate, could he go against the representatives of the mortgagor for the money ? Yes ; for the personal property is the primary fund for the payment of debts. 1 Sto. Eq , §571. Suppose A dies owing one thousand dollars by specialty, (for which the heir is bound) and another one thousand dol- lars by simple contract: now if the specialty creditor shq^ld receive the whole of his debt out of the personal property, thereby exhausting it, would the simple contract creditor have any relief? Yes, in equity, he would. The court of equity would decree that the simple contract creditor should receive so much of the real estate (which was bound for specialty debts) as the specialty creditor had received out of the personal property. This is called " mcurshoMing assets;" but though assets may be thus marshalled against the heir they cannot against the demsee, even since the statute of 3 and 4 Wjca. and M., for he is the object of the devisor's favor, Adams' Eq., 272; Williams v. Washington, 1 Dev. Ch'y, R., 187. For what debts of the ancestor is the heir bound ? For specialty debts in which he is mentioned. 2 Th. Co. Lit., 185-6, n. (A). The lands in the heirs' hands are also bound for debts of record. 2 Bl. Com., 201, n. (2) ; Id., 243-'4. In conveyances executed, as feoffments, if a subsequent con- d'ition be impossible at the time of.makirig, or afterwards becomes so by the act of God, or by the act of the feoffor, or QUALIFICATIONS OF INTEfefeST — CONDITIONS. 133 is contrary to law, or is repugnant to the estate granted, then the condition is void and the estate absolute. 2 Bl. Com., 156-7 ; 2 Th. Co. Lit., 18, and n. (K), 22-'3 and n. (n). Suppose an impossible precedent condition is annejced to an estate? It is an invariable principle of the common law that conditi'Ons precedent must be performed before the estate can vest. 2 Th. Co. Lit., 18, n. (K), 22-'3, and n. (n); 2 Min. Insts., 241. Suppose an illegal precedent condition is annexed to an es- tate ? The estate cannot vest at common law in any case of condition precedent, unless the condition be complied with ; and when the condition is illegal, public policy will not per- mit one to derive a benefit from an illegal act So that even though the condition were performed, still the estate could not take effect It is void, therefore, whether the condition is performed or not 2 Th. Co. Lit., 22 ; Id., 24, n. (P) ;■ 2 ' Min. Insts., 249. An estate to A in fee, provided he does not marry ; the condition is void, because against the policy of the law, as it discourages marriages. An estate to A in fee, provided he does not marry a certain woman, B ; this condition is good, because it is not deemed unreasonably restrictive of mar- riage.* ' Marriage broeao^e conditions invariably Invalidate all londs to which they are annexed, and if annexed to estates^ when precedent, the estate cannot talie effect, and when subsequent, the estate cannot he defeated. 2 Th. Co. Lit., 24, n. (P); 1 Pars. Cont. 5064 2 Min. Insts., 285. Conditions in restraint of marriage annexed to legacies and devises. Marriage is an institution of such importance to the well being and happiness, and evea to the continuance of society, that it is impossible for any system of law to regard resti'aints tending materially to affect its ■ freedom without disapprobation. The civil and canon law deem avy .clogs whatsoever upon the perfect freedom of marriage inexpedient, and invalidate all conditions which restrict it in any manner. The common law, on the other hand, holds it to be illegal to prohibit marriage alto- gether, or even to impose restrictions upon it for an unreasonable period, or subject t.o unreasonable terms; but it does not condemn conditions 134 OF THE BIGHTS WHICH EELATE TO THINGS REAL. An estate to a physician, provided he does not practice his profession anywhere, the condition is void, and the estate absolute ; but a condition annexed to an estate given him, whereby he is not to practice in a certain county, is good. The general doctrine is that all conditions in restraint of trade, (which the law much favors), if nothing more appears, ■^hereby marriage is moderately and reasonably restrained in respect of time, place, iDerson, coaseiit of guardian, &c. Tlie blending of these discordant views of policy, in a very inharmo- ' nious and irregular manner, has made a strange patch-work of the law, as administered in the English courts and our own, touching the subject of the annexation of conditions restraining marriage to legacies. Lega- cies, payable out of the personalty only, were originally cognizable In England in the eodesiastiaal courts alone, which, being regulated by the principles of the civil and canon law, esteemed all conditiom in restraint of marriage to be opposed to the well being of society, and void. Hence, when the court of chancery, at a later period, assumed a concurrent ju- risdiction to enforce the payment of legacies, upon the ground of the TRUSTS involved, it adopted /or the most part, hat not wholly, the doctrines and rules it found prevailing upon the subject in the ecclesiastical courts, it being manifestly undesirable that the subject should have a different measure of justice, according as he happened to sue in^^one or the other tribunal. The ecclesiastical courts, however, never possessed any juris- diction over the devises af lands^ nor over legacies, charged to be paid, in whole or in part, out of the pi-oeeeds of lands, these subjects having been, from their origin, in the statute of wills (32 and 34 Hen. VIH.) cognizable exclusively in the court of chancery. As to devises, therefore, and legacies charged wholly or in part on lands, the court of chancery was free to adopt, and did adopt, its own (that is, the common law) max- ims touching conditions in restraint of marriage, holding such as pro- hibited mari'iage altogether, or restricted it unreasonably, to be void, whilst those which imposed only wholesome restraints in i-espect of time, place, person, and consent of guardian, &c., were deemed valid. Tlie doctrines of the court of chancery, therefore, in respect to such conditions, when annexed to devises, and to legacies chained on lands, are uniform and easily intelligible. The complexity is in respect of leg- acies charged on personalty alone ; and in them it grows out of the fact that the court of chancery did not, as to tbein, adopt wholly the rules which it found prevailing in the ecclesiastical courts, nor without a cer- tain regard to the principles of the common law. On the contrary, when- ever it discovered that tlie testator's intention was fixid. to make th^ QUALIFICATIONS OF INTEREST — CONDITIONS. 135 are illegal. If the restraint have reference to a limited space, or is to- endure for a reasonable and limited time only, it is not illegal. 2 Par. Cont., 253 ; 2 Th. Co. Lit., 24, n. (P) ; 2 Min. Insts., 244. An estate to A in fee, on condition that he shall not enfeoff any one; this condition is void, as repugnant to the nature of the estate, — for among the incidents which the law gene- rally attaches to fee simple estates is unlimited power of alien- ation. 4 Kent's Com., 131 ; 2 Min. Insts., 250. So an estate tail conveyed to A on condition that he shall not suffer a recovery, or levy a fine, after the statute, the condition respecting marriage indispensable to tlie enjoyment of his bounty, and that otherwise he designed the gift to go over to some one else, the condition prevailed, unless it was entirely prohibitory of marriage, when the common law held it to be void. Henee, in all cases of legacies given upon condition affecting liberty of marriage, the most important inquiry is, whether the legacy be payable out of the real, or out of the personal estate j and the next most impor- tant point to be observed is, whether it is given over to some one else if the condition be not complied with. 1 Sto. Eq., §283, and seq.; Scott «. Tyler, 2 Bro. C. C, 431 ; S. C. 2 Wh, and Tud. L. Cas., (Pt. 1), 266, and seq. ; Garbut v. Hilton, 1 Atk., 381 ; 2 Min. Insts. , 247. Diversity between conditions in restraint of marriage and limitations. A limitation, marking as it does, the term of duration of the estate, beyond which it cannot last, is never void. A condition, on the other hand, which cuts the «state short, and prematurely determines it, is valid or void according to the principles above indicated. Thus, a " devise to A until she marries, and then the land to pass to Z," is a limitation, and good ; whilst a " devise to A for life, on condition that if she marries, the land shall pass to Z," is a condition, and because it absolutely prohibits marriage, is void. Seott v. Tyler, 2 Wh.and Tud., (Pt. 1), 331. Diversity in case of persons who have been married. Conditions restraining persons widowed from marrying again, are sustained as valid by the current of autliority — they have had a chance. 3 Min Insts., 247. Conditions in restraint of marriage annexed to devises of lands, and to legacies charged on lands. (1.) Condition precedent. The' condition, however restrictive of mar- riage, must be complied with, or the estate cannot vest. 1 Th. Co. Lit., 19, n. (K) ; Scot* v. Tyler, 2 Wh. and Tud. L. C, (Pt. 1), 318 ; 2 Min, Insts., 247- 136 OF THE EIGHTS WHICH EELATE TO THINGS REAL. condition is void ; — because the right to suffer a recovery, or levy a fine, was considered as incident to an estate tail, just as the right to alien after the birth of issue was inseparably incident to the estate of tenant in fee conditional before the statute de donis. 1 Th. Co. Lit , 30, 31 ; 2 Min. Insts., 252. An estate for life or years, however, may be so restrained by a condition that it cannot be assigned ; because the feoffor or lessor, having the reversion, has sufficient interest to select his tenants. Dumpor's Case, 4 Co., 119 ; S. C. 1 Smith's L. Cas., 74, 80, and seq. The difference between a condition in a deed conveying land and a condition in a bond is, that the one is executed, the other is executory.^ (2.) Condition subsequent. The validity of a condition subsequent de- pends on whether it is unreasonably restrictive of marriage or not, ac- cording to the principles of the common law. Thus, where a testator gave certain property to his daughter, but declared that as in consequence of a nervous debility, she was unfit for the control of herself, his will was that she should not marry, and th it if she did, the gift sliould be void, the condition was held to be invalid, ancT the estate absolute. Morley v. Keynolson, 2 Hare, (24 E. C.) 570, 579 ; Scott v. Tyler, 2 Wh. and Tud. L. C, (Ft. 1), 319; 1 Th. Co Lit., 19, n. (K); 1 Sto. Eq., §288. Conditions in restraint of marriage annexed to legacies charged on per- sonalty, when in default of the observance of the condition, the legacy is given over to some one else: — The condition, whether precedent or subsequent, must be. complied with, unless it be unreasonably restrictive of marriage, in which case it is wholly void, and the legacy is absolute. Scott v. Tyler, supra^ 2 Min. Insts., 248. When in default of the observance of the condition, the legacy is not given over: — Where the condition is precedent, if unreasonably restrictive of mar- riage, the condition is void, and the legacy is absolute; otherwise the condition must be observed. Where the condition is subsequent, it is inoperative in any event to defeat the legacy. 1 Sto. Eq.,-§388, §290; Scott V. Tyler, supra; 2 Th. Co. Lit., 19, n. (K) ; S. C. Wh. and Tud. L. C, 266. ^Impossible conditions annexed to bonds. (1.) Conditions impossible when the bond was made. The obligation is QUALIFICATIONS OF INTEREST — CONDITIONS. 137 single, that is, it is absolute and without condition. 2 Th. Co. Lit., 22 ; Bac. Abr. Conditions, (n). (2.) Conditions whioli become impossible after the bond is made, by the act of Ood, of the Law, or of the Obligee. The obligation in this case is saved, for the bond being executory, no advantage can properly be taken of it, until there be a default in the obligor; and no default can be imputed to him for not performing a condition which has become impossible in the manner supposed. Keferences supra. Conditions which become im- possible by act of the obligor. The bond is single and without condition. The obligor may not take advantage of his own wrong. Bae. Abr. Cond. (n) ; 2 Min. Insts., 243. Qucere. Can a condition be annexed to an estate whereby it may be reduced in quantity ? Numerous definitions of a condition will be found in Bouv. Law Die, " Condition," but none of them contemplate the idea of reducing the quantity of interest in an estate by force of a condition. LECTURE IX, REMAINDERS. Definition of a remainder ? It is a portion of an estate expectant on the determination of a particular estate, created by the same conveyance, at the same time." The word rem- nant will not do, because it includes all that is left. How many rules apply to all remainders? Three : — (1.) There must be a particular estate to support the re- mainder. (2.) Tlie particular estate and the remainder must pass out of the grantor at the same time. (3.) Tlie remainder must await the determination of the particular estate. The reason for the first rule is, that there can be no re- mainder without a particular estate, and especially because no freehold can be limited to take effect infuturo. The rea- son for the second rule is, that if the remainder does not pass out of the grantor at the same time as the particular estate, it is an assignment of the reversion. The third rule serves to distinguish remainders from con- ditional limitations, which take effect in derogation of a par- ticular estate. 'Another definition : A remainder is what is left of an estate in lands after a. preceding part of the same estate has been disposed of , whose regu- lar expiration the remainder must await. 2 Th. Co. Lit., 126 ; Fearne's Kem., 3, ii..(C); 2 Bl. Com., 164; 2 Min. Insts., 331. Growing out of this definition, it is seen that there must be : (1.) A precedent particular estate whose regular determination the remain- der must await; (2.) The remainder must be created by the same con- veyance and at the same time as the particular estate ; (3.) The re- mainder must vest in right during the continuance of the particular estate, or eo instanti that it determines ; and (4.) No remainder can be limited after a fee simple. 2 Bl. Com., 165, etseq.; Feai-ne's Rem., 249- '61; 2 Th. Co. Lit, 127-'34-'35-'7, and iis, (1 and K) ; Fearne, 307-'S, 373, 12; 2 Th. Co. Lit., 126, n. (B), 505, andn. (W); 2 Min. lusts., 336. ESTATES IN EXPECTANCY — EEMAINDEES. 139 How many rules are there for contingent remainders? Three :— (1.) The remainder must vest during the continuance of the particular estate, or m instanti that it determines. (2.) If the remainder is a freehold, the particular estate must be a freehold. (3.) The possibility must not be too remote. That is to say, there must not be but one event upon which the limi- tation is made ; — no reference is here made to time. Fearne's Rem., 116-17, 216-'18; 2 Bl. Com., 169, n. (10).° Why must the particular estate be a freehold where there is a contingent remainder? Because there must be always some one in esse to perform the feudal services and to an- swer a praecipe from a stranger. Fearne's Rem., 281 ; 2 Bl. Com., 168, n. (9). Difference between a remainder and a reversion ? A re- mainder is always for the benefit of a third party — a thing granted ; a reversion, for the grantor — a thing reserved.'' ■= Definition of a vested remainder. A vested remainder is a remainder limited to a certain person, and on a certain event, so as to possess a present capacity to take effect in possession, slioiild the possession become vacant ; e. g., lease for life to A, remainder to Z for life ; Z's remainder may never take effect in possession, because Z may die before A, but being capable of taking effect in possession, if tlie possession were to fall by the death of A, it is a vested remainder. Fearne's Bern., 216 ; 2 Bl. Com., 169, n. (10). But a contingent remaindieris a remainder limited to an uncertain per- son, or on an uncertain event, or so limited to a certain person, and on a certain event, as not to possess the preseiit capacity to take effect in pos- session, should the possession become vacant; e. g., lease for life to A, remainder after the death of W to Z in fee ; although the remainder is limited to a certain person (Z), and on a certain event (W's death,) yet because it lacks the present capacity to take effect in possession, it is contin' gent and not vested. Fearne's Rem., 2ie-'18, 116-'17 ; 2 Bl. Com., 169, n. (10). " A reversion, also, arises by the act of law, whereas a remainder arises by the act of the parties. ] Th. Co. Lit., 138 ; 2 Bl. Com., 175 ; 2 Min. Insts., 365. 140 OF THE EIGHTS WHICH RELATE TO THINGS HEAL. An estate to A for life, remainder to B and his heirs, of whom does A hold after statute of quia emptores, 18 Ed. I. ? Of the feoffor's lord. 1 Th. Co. Lit., 444-'48 ; Gilb. on Rents, 14-16. Suppose the estate of B had been granted after the particular estate, of whom would A hold then ? Of B, in that case, who is the assignee of the reversion. An estate to A for life ; he is sued ; whom does he vouch ? The reversioner. Upon what warranty ? The implied war- ranty incident to the tenure. 3 Bl. Com., 300-'l. An estate to A for life, remainder to B and his heirs, what must A do if suit is brought against him ? He may pray B in aid, and both together must vouch the feoffor's lord. Note the difference between praying in aid and vouching. 2 Th. Co. Lit., 252-'3, n. (K) ; 2 Bl. Coin.; 300-'l ; 2 Th. Co. Lit. 250, ns. D and F, 256 ; Noke's Case, 4 Co., 806. How many kinds of remainders ? (1.) Vested, and (2) Con- tingent, What is a vested remainder ? A present vested estate to be enjoyed in possession in futuro. See note "c," supra, p. 139. What is a contingent remainder ? An interest limited to take effect on an event or condition which may never hap- pen or be performed, or which may not happen or be per- formed, till after the determination of the particular estate See note "c," supra, p. 139. What is the difference between an estate, an interest, and a right ? An interest is the right of entry not adversely with- held ; an estate is a vested interest; and a right is a mere power of bringing an action when the possession is adversely with- held. See Bouv. Law Die, vol. I, 484 ; do., 539; do., 733, et seq. The difference between estate and property, is that estate includes choses in action. What is the widow's claim to dower called, an estate, in- terest, or right ? An interest ; but if the heir sets up an ad- verse claim it becomes a mere right. Can she sell the dower before it is laid off? She cannot; because no interest, ex- ESTATES IN EXPECTANCY — EEMAINDEKS. 141 cept the interesse termini of the tenant for years before entry, was assignable at common law. 2 Bl. Com., 290 and n. 6. How does a contingent remainder become vested ? By the happening of the contingency upon which the estate is to vest. Why must it be during the continuance of the par- ticular estate ? From the nature of the .remainder and be- cause otherwise there would be an interest without a tenant to the freehold. 2 Bl. Com., 168 ; Fearne's Rem., 307-8; 2 Th. Co. Lit., 137 and ns. (1) and K ; M, 128 ; 2 Min. Insts., 335. Give an instance of a remainder vesting eo instanti that the particular estate determines ? An estate to A for life of B, remainder to the heirs of B ; here A's estate ends at B's death, and B's heirs being capable of taking as soon as he dies the remaijnder takes effect eo instanti the particular es- tate determines. What is Fearne^s division of cgntingent remainders? Three limited to take effect upon an uncertain event, and one limited to an uncertain person." ' The several classes of contingent remainders : (1,.) Where the remainder depends entirely upon a contingent determi- nation of the preceding estate itself ; e. g,, grant to A until Z returns from abroad and after such return of Z, remainder to W in fee. Fearne's Rem., 5, and n. (d); Boraston's Case, 3 Co., 20 a. (2.) Where some uncertain event, connected with and collateral to, the determination of the preceding estate is, by the nature of the limitation, to precede the remainder ; e. g., grant of lands to A for life, and if Z die before A, remainder to W for life ; here the event of Z's dying before A does not in the least affect the determination of the particular estate, nevertheless it must precede and give effect to W's remainder. (3.) Where it is limited to take effect upon an event which' must happen some time or other, but may not happen during the continuance of the particular estate ; e. g., grant to A for life, remainder, after the death of W, to Z in fee ; where the event is certain (W's death,) and the person cer- tain, (Z), but W's death may not happen till after the determination of A's particular estate by Iris death, and because, also, there is want of present capacity to take effect in possession, the remainder is contingent. Fearne's Rem., 8 ; Boraston's Case, 3 Co., 20 a. Exception : Where there is a practical ceHainty that the event will occur 142 OF THE EIGHTS 'WHICH RELATE TO THINGS REAL. Can a man sell a vested remainder ? He can ; and -de- vise it by 32 Hen. VIH. Fearne's Rem., 365. By what conveyance did it pass ? By a grant, when limited after a freehold ; and by a feoffment, if limited after an estate for years. How did a reversion pass ? By a grant and at- tornment of the particular tenant. 2 Bl. Com., 175, el seq.; during the continuance of the particular estate, the remainder is con- sldered vested ; e. g., grant to A for one hundred years, if Z shall so long live, remainder, after the death of Z, to W in fee. Pearne, 21-'2. (4.) Where it is limited to a person not ascertained, or not in being, at the time such limitation is made ; e. g., grant to A for life, remainder to Z's heirs; the heirs are not ascertained for nemo est haeres viventis. Fearne 9 ; Boraston's Case, 3 Co., 20 ; 3 Minor's Institutes, 340. Exceptions : (1.) Remainders limited to the heirs of the grantor: e. g., grant to Z for life, remainder to the heirs of the grantor — the limitation is not a remainder, but the grantor takes his old reversion. Pi-arne's Rem., 50-'l; 3Th. Co. Lit., 142, 128, n. (E); 2 Min. Insts., 341; Chudleigh'g Case, 1 Co., 130 a; Bingham'* Case, 3 Co., 91 b. (2.) Remainders limited to the heirs of a living person, but with some qualification annexed, which designates the individuals intended; e. g., grant to Z for life, remainder to Ws heirs now living — the remainder is vested. Fearne's Rem, 290; 2 T.h. Co. Lit., 128, n. (E); 2 Minor's In- stitutes, 341. (3.) Remainders limited to the heirs of the taker of the particular estate (being an estate of freehold ;) e. g., grant to A for the life of Z, remain- der to Ah heirs. The so-called remainder to A's heirs is not a remainder but is part of the estate of A, the ancestor. This is the famous rule of law known as the rule in Shelley's Case. The precise, terms of the rule: Wherever the ancestor, by any gift or conveyance, takes an estate of free- hold in lands or tenements, and in the same gift or conveyance, an estate is afterwards limited by way of remainder, either mediately or imme- diately to his heirs, or to the heirs of his body, the words " heirs," or "heirs cff the body," are wor(\s of limitation of tlie estate, carrying the inheri- tance to the ancestor and not words of purchase, creating a contingent remainder in the heirs. 2 Th. Co. Lit., 143 ; Pcarne's Rem., 39, 28, n. (1) ; Shelley's Case, 1 Co., 194 a, 106 b, n. (1, 5), Tliomas' Ed.; 2 Min. Insts., 341-'2. Circumstances necessary to concur in order to the operation of the rule in Shelley 'sCaae: (1.) There must be an estate of freehold in the ancestor. 2Th. .Co. lit., ,390 and n. (K, I); Fearne's Rem., 33, 35 et seq.; 2 Min. Insts., 342. (2.) The ancestor must take the estate of freehold by, or in consequence ESTATES IN EXPECTANCY — EEMAINDEES. 143 1 Th. Co. Lit, 138, d seq. Why was attornment necessary in that case, and not in the case of passing a remainder? Because there was tenure in the case of a reversion. Is a contingent remainder assignable ? No ; because it is a species of gambling.* Will a contingent remainder des- cend: ? It mil; because the heir takes gratuitously. Could it be devised ? It was not permitted formerly, because a de- vise was considered a rnode of conveyance ; but afterwards it was permitted, taken in the light of descent only, mark- ing out a new heir. Where the person was uncertain it could not be assigned, devised, or descend. Fearne's Rem., 364-'5; 2Min. Insts.,362. What is the rule for distinguishing vested from contingent remainders'? Suppose the particular estate ended, if the re- of, the same assurance which contahis the limitation to his heirs. Shelley's Case, 1 Co., 106 b, n. (l,-5), Thomas' Ed ; 2 Miu. lusts., 342. (3.) The interest limited to the ancestor and to his heirs, must be of the same quality— both legal or both equitable. Pcarne 52-'8-'9 and n. (il). (4.) The words "lieirs" or "heirs of the body," must be used in a tecA- nical sense, as importing a class of persons to take indefinitely in succes- sion. Fearne, 210 and n. (a).; 2 Min. Insts., 343. Reasons and Policy of the rule in Shelley's Case: (1.) To prevent the lord from being deprived of the feudal incidents of wardship and marriage, as these could be claimed when the heir tool{ by descent. 1 Th. Co. Lit., 151, a. (1); 2 Th. Co. Lit., 143, n. 1 ; 2 Min. Insts., 344. (2.) To prevent the inheritance from being in abeyance, as it was sup- posed it would be during the ancestor's life, if the limitation to the heirs were construed to be a remainder. 2 Th. Co. Lit., 143, n. P. (3.) To prevent the non- alienability of the inheritance dui-ing the an- cestor's lifetime. 2 Th. Co. Lit., 143, n. P ; 2 Min. Insts., 844. (4.) To prevent the marked distinctions between descent and purchase, and to prevent title by descent from being stripped of its proper inci- dents, e. g., liability to debts, and disguised with the qualities of a pur- chase. 2 Th. Co. Lit., 151, n. P ; Hargr. Law Tracts, 489, 531 ; 2 Min, Insts. 345, 'As a contingent remainder is a mere i-ight, except in equity, it cannot at common law be transferred before the contingency otherwise than by es- toppel, as by matter of record, or deed indented. Fearne's Bern,, 365. 144 OP THE KIGHTS WHICH RELATE TO THINGS REAL. mainder-man could now take, it is vested. See note "c," page 139, supra. An estate to A for life, remainder to B for life, is B's remainder vested or contingent ? Vested ; and the reason will be found in the application of the princi- ple last above stated.*^ Give an instance of a strict settlement ? An estate to A for life, remainder to B and his heirs during the life of A to support contingent remainders, remainder to A's first son in tail, remainder to all the daughters as jdint-tenants. The limit to prevent perpetuities was, for a life or lives in heing^ and the utmost period of gestation, and twenty-one years thereafter, the time at which the oldest son could suffer a common re- covery.'' See the rule discussed, 2 Bl. Com., 174, and n. (21) • Fearue's Rem., 429, n. (f), 444 n. (a); 2 Wash. Real Prop.' 357 ; 3 Min. Insts,, 376. Suppose, in the case abcve, A's eldest son wished to pass the land by suffering a recovery, how would he proceed ? The action would be brought against A, the tenant of the freehold ; he would pray his son in aid, add they would both vouch the common vouchee. Suppose the son wished to pass his estate without affecting A's life estate ? A would enfeoff B for his own life, on condition that he should pay $10,000, (or some condition that he could not perform), and make B tenant to the praecipe, and then B, praying the son in aid, would suffer a recovery, and on B's failing to perform the condition A would enter on him for his former estate. Can a vested remainder, after a life estate, be defeated ? eThe remainder in tlie example cited is vested, because it has a present capacity to take effect in possession ii the particular estate were at an end. See note "c" 139, supra. " A fuller example : An estate limited to H. and W. during their joint lives, remainder to the survivor for life, remainder to the first and other sons of the marriage successively in tail, remainder to the daughters in tail, remainder in fee to H's heirs. Until the first person, to whom a remainder in tail is limited, comes of age, the land is incapable of being aliened in fee simple. 2 Bl. Com., 174, n. (21) ,- Fearne'S Rem., 444, n. (a); 2 Swanst., 454, 2 Min. Inst., 337. !i ESTATES IN EXPECTANCY — BEMAINDERS. 145 No. If the tenant for life makes a feoffment, levies a fine, or suffers a recovery, it is a forfeiture and the remainder- man enters. 2 Bl. Com., 274-'5. Could a vested remainder, after an estate tail, be defeated by the tenant in tail ? It can if the tenant in tail suffers a recovery, or levies a fine, with five years non-claim, or in one case if he aliens with warranty. 2 Bl. Com., 117 ; Id. 357 d seq.; Wms'. Real Prop., 43-'4. In what case would warranty bar the remainder-man ? Where he happens to. be heir, the warranty falling on him would be a bar. 2 BL. Com., 303-'4. Can a contingent remainder, after a life estate, be defeat- ed ? It can in three ways, namely : (1.) By forfeiture of the- particular estate ; (2.) By surrender of the same ; and (3.) By the particular tenant entering a monastery.' 2 Bl. Com.,. 171 ; Fearne's Eem., 316 ; 2 Bl. Com., 274 ; 2 Th. Co. Lit.,, 138, n. (K) ; Fearne's Rem., 304. - Give an example of a remainder where the person is cer- tain but the event uncertain ? Estate to A for life, and if • C return from Rome during A's life, remainder to B. Feoffment to A for life, remainder to the heirs of A, how do the heirs take? By descent according to the rule in Shelley's Case. What was the reason for adopting the rule in Shelley's . case ? To prevent frauds. See note mpra. The lord might have been defrauded' of his feudal incidents, the husband of ' Method whereby the destruction of contingent remainders is prevent- ed ? It is by the intervention ol an estate to trustees, for the residue of the period of the particular tenant's estate, and until the remainder is ready to vest in interest ; e. g,, an estate to A for life, remainder, in case A's estate should come to an end., or be in any wise destroyed before the sub- sequent remainder is ready to vest in interest to a trustee, Z and his heirs, until the contingent remainder is ready to vest in interest, remainder to B's unborn son. This method was invented by Sir Orlando Bridge- man and others during the time of the civil wars, A. D. 1643 to 1660. 2 Bl. Com., 171-'2 ; Fearne's Rem., 326, et seq.; 2 Th. Co. Lit., 137, n.. (K) ; 2 Minor's Institutes, 364. 10 146 OF THE KIGHTS WHICH RELATE TO THINGS REAL, his curtesy, and the wife of her dower, if the heir had taken by purchase. An estate to A for life, remainder to B for life, remainder to the heirs of A, what estate does A take ? A life estate, and a fee simple expectant on the determination of B's «state^ the re- mainder in the last case, to "A's heirs," is "mediately" lim- ited under the rule in Shelley's case. Lewis Bawle's Case, 11 Co., 80 a; Fearne's Rem., 30, 33 ; 2 Th. Co. Lit., 143, n. P ; 2 RoUe's Abr., 418. A's wife would not get dower unless E died during A's life.J What are the words of the rule in Shelley's case ? When "the ancestor, by any gift or conveyance, takes an estate of freehold, and in the same gift or conveyance an estate is limited, either smediately, or immediately, to his heirs, or the heirs of his body, in fee simple or fee tail, the words "heirs" or "heirs of his body," are construed as words of limitaiion and not words of purchase. See the rule stated in note su- pra in this lecture. Suppose A has a fee-simple and devises to his h«ir, how does the heir take? By descent, because such dispositions would give rise to frauds were the heir allowed to take as purchaser.'' 2 Th. Co. Lit., 646, n. (B) ; 2 Min. Insts., 94i 'Because as long as B's estate lasts, there would be an intermediate vested estate of freehold. 1 Th. Co. Lit., 560, and ns.^andF)5 Id., ■582, n. (M) ; 4 Kent's Com., 39 ; 2 Min. Insts., 129. , Suppose the subject of the limitation is a term for years, or any other chat- tel interest, does the rule in Shelley's Case apply ? It does, nearly as in case ■of freeholds, in analogy thereto. As where a term for 100 years Is given to A for life, and then to A's heirs; generally these latter words are con- strued to be words of limitation, and the whole property vests in A. A less circumstance, however, is allowed to show that the heirs were intended to take a,& purchasers, in case of chattels. Fearne's Rem., 492, and seq., and n. (a); 2 Min. Insts., 348. " DiflFerence between the acquisition of title by descent and by purchase: (1.) By purchase, the estate acquires a new inheritable quality. The land l)y purchase becomes descendible to the owner's blood in g&neral, as a feud ot indefinite antiquity ; whereby it becomes inheritable to his heirs gene- •iral, flret of the paternal, and then of the maternal line ; whereas, land ESTATES IN EXPECTANCY— EEMAINDEES. 147 If a man could make his heir a purchaser he would en- able him to take his estate discharged of debts of record, (such as judgments and recognizances) and debts oi specialty where- in the heirs are expressly bound. Suppose A has two daughters and devises his lands to them, the one to take the upper and the other the lower half of his tract, how would they take ? By purchase ; be- cause under the devise they take in ssveralty, whereas by des- cent they would have been coparceners. 2 Th. Co. Lit., 646, n. (B) ; 2 Bl. Com., 187. The same doctrine would apply when a devise is made to them as joint tenants.' Suppose a disseizor makes an estate for life, remainder to the disseizee, would the disseizee be remitted ? He woiftld-; it not being necessary that the disseizee should be present, or a party to the deed, when the remainder was limited to hiin."" taken by descent mn, at common law, pass to those heirs only who are of blood of the first purchaser, % Bl. Com., 201 ; Id., 343 ; 2 Th. Co. Lit, 185-'6, n. (A; ; 2 Min. Insts., 451. 1(2 J Where land is taken by purchatse, the taker is not subjected, at common law, to liability /oy te ancestor's or predecessor's (Ze5fe, as in case (A deseetit. An estate taken hy decent subjects the heir at common law to pay (so far as the value of the land extends,) all the debts of the ancestor due by any eontract qf record, or by any contract of specialty, that is, under seal, which expressly binds the heirs. WTien the lands come hy purchase, it is not charged with the preceding owner's debts, except in so far as it may- be subject to mortgage or ^'udgment, &c. 2 Bl. Com., 201, n, (2) ; Id., 343=-'4^ 2 Th. Co> Lit., 185-»6, n. (A); 2 Min. Insts., 451-'2. ' The test by which the applicability of the doctrine may be determined in any particular case, is-fo ■strike-out the devise to the heir, and if he would still take the-same interest as the will gives him, the devise is void) hence, in order that the doctrine may apply that a devise to the testatt)r''s heir to takeiniike manner as he would take as heir is void, the devisee must be the «ole heir to the lauds devised. 2 Th. Co. Lit., 64G, n. (B); 2 Bl. Com., 187 ? 1 Steph. Com., 319; 1 Th. Oo. Lit., 678, et seq.; 2 Bl. Com,, 180; 2 Min. Inst., 944. . >°When one having a right to lands is out of possession, and afterwards the frediold is cast upon him by some defective title, and he enters 'hy 148 OP THE EIGHTS WHICH EEL ATE TO THINGS EEAL, What does retainer mean ? Retainer in personal prop- erty corresponds to remitter in real property, and means the right which the executor has, since he is unable to sue himself, to pay off a debt due him from the testator before others of equal dignity. 3 Bl. Com., 190 ; Bouv. Law Die, Adm'r. vol. 1, 85. Suppose a man has only two daughters and wills his es- tate in lands to them and their heirs, do they take by pur- chase or by descent ? As purchasers ; they take an estate in joint tenancy, because the law presumes the testator's inten- tion in making a will was to give them a different estate from that they would' have taken by descent, namely, an estate in coparcenary. 2 Th. Co. Lit., 646, n. (B) ; 2 Min. Insts., 944. A right of entry, but not a right of action, will support a contingent remainder : therefore, if A be tenant for life, re- mainder to B if C return from Rome during A's life, and D • disseize A, then during the life of D the remainder is good ; but if D die and descent is cast on his heir it is not good, though A might revive it if he brings an action and recovers from D's heir before C's return from Rome. Fearne's Rem., ch. 3, and 281 ; 2 Bl. Com., 168, n. (9) ; 2 Min. Insts., 353. A remainder or reversion may be granted, reserving rent on account of the possibility of its coming into possession. In case of contingent remainders, a posthumous child is, by 10 and 11 Wm. III., entitled to mesne profits from the time of the ancestor's death, but not so in the case of descent of real estate ; but the heir is entitled under like circumstances in the case of personalty." The wife whose lands are aliened by the husband during coverture, has, in 'North Carolina, seven years after his death virtue of that title, the law remits him to his ancient and more certain right, and by an equitable fiction, supposes him to have gained possessicm under it. 3 Bl. Com., 190 ; Comyns Dig., Kemitter. "See a clear exposition of the doctrine in the text, 2 BL.Com,, 170, n, {1»). ESTATES IN EXPECTANCY — KEMAINDEES. 149 in which to recover. Infants and femes covert have three years allowed them in North Carolina, after disability is removed, where the seven years would otherwise be a bar ; as where she has a right to recover, and marries, and the husband fails to hring the suit. Limitations to Actions, Battle's Revisal. The same statute allows strangers one year. Contingent remainders cannot be assigned ; but equity would make the party attempting to conyey make a good conveyance, if it became vested, or refund the money. Fearne's Rem., 362-'64, et seq.; 2 Min. Insts., 362. A seized in fee enfeoffs B for life ; B dies ; A has only a seizin in law before entry, but after entry a seizin in deed. 2 El. Com., 315-'16; 2 Th. Co. Lit., 335-'7-'8 ; 2 Min. Insts., 674. An estate to A for life, remainder to B and his heirs; if A dies unmarried is this a good contingent remainder ? Yes.; because the condition is not annexed to the particular estate (making it, therefore, unnecessary for the grantor to enter for condition broken) but to the remainder. Fearne's Rem., 6, et seq.; Boraston's case, 3 Co., 20 (a) ; 2 Min. Insts., 339. In case of a vested remainder, after a term for years, who performs the services ? The remainderman. Fearne's Rem., 3, n. (c) ; 2 Th. Co. Lit., 127 ; 2 Bl. Com., 166. A contingent remainder and an interesse termini are in- terests. . Reversions will descend ; may be devised and assigned." ° A reversion is the remnant of an estate continuing in the grantor un- disposed of, after the grant of a part of his interest. It differs from a remainder. It arises by act of law; a remainder by act of the parties. It is the remnant lef c in the grantor ; a remainder is the remnant of the whole estate disposed of and goes to a third person, after the determina- tion of the particular estate, 2 Bl. Com., 175; 1 Th. Co. Lit., 138; 2 Min. Insts., 365. Incidents to the reversion arefeaUy and rent. Fealty is merely the outward token and recognition of the relation of landlord and tenant ; it is an inseparable incident, whilst rent is an usual but not an inseparable incident to the reversion. 2 Bl, Com., 176 ; 4 Kent's Com., 355-'6; 2 Min. Insts., 366. 150 OF THE EIGHTS WHICH EELATE TO THINGS EBAL. 4 and 5 Anne, A. D. 1706, made ' attornments no longer necessary, except in case of a seigniory, and by 11 Geo. II., A. D. 1738, the attornment of any tenant affects the posses- sion of any lands only when made with consent of the land- lord or by direction of a court of justice. 2 Bl. Com., 290. Can a fee simple or a freehold be in abeyance ? A fee simple may be ; but a freehold cannot.'' Eeversions and remainders further distinguished : (1.) Fealty and rent do not, as of course, attach themselves to a remain- der, whilst they do to a reversion, the former inseparably, the latter gene- rally. (2.) A remainder is a new estate, acquired by purchase, and passes in the line of the new piircJiaser; a reversion at common law descends like the old in7ieritance, and keeping to the blood of the same first purchaser. 2 Bl. Com., 176, 243 ; 2 Min. Insts., 367. (3.) The remainderman is not liable for the general debts of the grantor, from whom he derived it, without a specific charge/ a reversioner must pay the ancestor's debts to the extent of the value of his reversion ; e. g., at common law the ancestor's debts of record, and specialty debts, bind- ing the heirs expressly. 2 Th. Co. Lit.,* 152, n. (R) ; 2 Min. Insts., 367. 'In a grant to John for life, and afterwards to the heirs ot Bichard, the inheritance is granted plainly neither to John nor Richard, nor can it vest in the heirs of Richard till his death, nam nemo haeres viventis; it remains therefore, according to Littleton and the earlier writers, including Black- stone, in waiting or abeyance during the life of Richard. 2 Bl. Com., 107 ; 3 Th. Co. Lit., 102-'3 ; 2 Min. lasts., 75. Fearne considers that the inheritance can in no case be said to be in abeyance, but that it remains in the grantor, or in the case of a will in the devisor^s heirs, until the contingency occurs on which it is to vest. 2 Bl. Com., 107, n. (8) ; Fearne's Rem., 351-'60-'63 ; 2 Min. Insts., 75. The freehold is never admitted, at least by the act of the party, to be in abeyance: (1.) Because if it were allowed, there would be none to ren- der the military services ; (2.) Because there would be none to sue for the title during such abeyance. 2 Bl. Com., 107, n. '(7) ; 3 Th. Co. Lit., n. (G) ; 2 Min. Insts., 75. LECTURE X. JOINT-TENANTS, TENANTS IN COMMON, AND IN COPARCENARY. Is the wife of a joint-tenant entitled to dower ? No ; the right of survivorship attaches before the right of dower, and, even though the estate is taken during coverture, the former right attaches in the very act of making a conveyance, the latter after it is made. 1 Th. Co. Lit., 691, n. (L), 789, n. (T) ; 2 Min. Insts., 438. Were joint-tenants liable for waste at common law ? No ; because estates in joint-tenancy were created by the act of the parties, and they might have inserted a clause restraining waste. Soof tenants in common ; but both may have an action of -waste by West. IL, 13 Ed. I, A. D. 1285. 3 Th. Co. Lit., 346, n. (15) ; 1 Sto. Eq., §466; 2 Min. Insts., 408^'9; 2 Bl. Com.,* 183 and n. (14) ; Id., 3, 227-'8 ; 3 Th. Co. Lit., 245, n. (26). What is the difference in the remedy given by West. II to tenants in common and joint tenants, and that given by Marlbridge, 52 Hen. III., and Gloucester 6 Ed. I., against a tenant for life ? The remedy of a tenant in common or joint tenant under West II. was to compel partition, and on partition the tenant committing waste had the place wasted assigned him, while the statute of 6 Ed. I., (Gloucester), A. D. 1278, and Marlbridg*, 52 Hen. III., A. D. 1268, gave the place wasted and treble damages." In case of one joint tenant or tenant in common (although "Stat. West. II., 13 Ed. I., A. D. 1385, provided that theactlon of waste should be given to one tenant in common of the inheritance against an- other, who makes waste in the common estate, the equity of which stat- ute was held to extend to joint tenants, hut not to coparceners, because co-parceners could guard against such injury by compelling partition, which was not allowed joint tenants and tenants in common at common law. 2 Bl. Com., 183, and n. (14); 3 Bl. Com., 227-'8; 3 Th. Co. Lit., 245, n. (26) ; Id., 346, and n. (15) ; 1 Sto. Eq., §466 ; 2 Min. Insts., 408-'9. 152 OF THE EIGHTS WHICH RELATE TO THINGS REAL. in other cases neither could compel partition till 31 and 32 Hen. VIII.), West. II. gave the other tenant a right to compel partition, and assigned him the place wasted, or made him give security to commit no more waste in the fu- ture. How are joint tenants seized ? By the whole and not by the half— per tout et non per my. Blackstone says per my et per touf' — by the half or moiety and by all. They convey to each other by release only." Can a joint tenant devise ? No ; because the right of sur- vivorship, attaching by force of the original conveyance, came in superior. 2 Bl. Com., 185-'6 and n. 18; 1 Th. Co. Lit., 752 and seg., 759, 755 and n. (U); 2 Min. Insts., 412. , Some authorities allow both to attach at the same moment; .but survivorship an instant sooner. ' If one joint tenant in fee make a lease for life and dies, . how does it affect the jointure ? It severs it, if the lessee survives the lessor ; but if the lessor survives the lessee it does not. 2 Bl. Com., 186 ; 1 Th. Co. Lit., 760-'64, 754 et seq.; 2 Min. Insts., 412. Suppose one joint tenant makes a lease for j'^ears ? It is no severance; for the tenants still hold the reversion jointly, and the rent is incident to the reversion in this case. Coke says the lease operates a postponement, and gives no rent. '"My," used by Blackstone, was doubtless meant for mie. Per mie et per tout, would be a seizin, " by nothing and by the whole," whereas per my etper tout, " by the moiety and by the whole," would not express the kind of seizin in joint tenancy. Lord Coke speaks of the way in which joint tenants are seized in these terms : Et sic totum tenet, et nihil tenet, soil, totum conjtmctim, et nihil per se separatim; that is to say, they are seized, in brief, hy the whole jointly — hy nothing separately. Murray v. Hall, 7 Man Gr. and S. (62 E. C. Law) 455, n. (a); 2 Bl. Com., 1S2; 1 §teph. Com., 314-'5, and n. (M). " No conveyance operating by livery of seizin would be proper, because each tenant is seized of the whole. The release operates by way ot pass- ing an estate, — de mitter Vestate. 2 Th. Co. Lit., 514; Id., 1, 765, and n. (E) ; Gilb. Tenures, 73-"4 ; 2 Min. lasts., 407. NUMBEK AND CONNEXION OP TENANTS. 153 2 Th. Co. Lit., 734, d seq.; 2 Bl. Com., 182, n. (11); 5 B. and Aid., (7 Eng. Com. Law,) 850. Survivorship applies to bonds ; as where one of two joint obligors dies the whole debt survives to the other. There is no jus accrescendi among merchants, or stock on afarm.^ A release to one joint-obligor enures to both of them by- privity of estate. Bac. Abr., Oblig., D ; Bac. Abr., Release, (A). Gates v. Pollock, 5 Jones, 344 ; Smithwick v. "Ward, 7 Jones, 64; Carrier v. Jones, et al., 68 N. C. R., 127 ; Winston V. Dalby, 64 N. C, 299 ; Bledsoe v. Nixon, 68 N. C, 521. So of tenants in common, if one buy an outstanding title it enures to his companion and he may force him to pay for it pro rata. 2 Bl. Com., 182, et seq.; 2 Th. Co. Lit., 378, et seq; 1 Id., 374, n. (D). However, a release to one of two who committed an assault does not enure to both ; for the law allows no privity among wrong-doers. How many kinds of release ? Five : — (1.) By way of enlarging an estate. (2.) By way of passing an estate. (3.) Bj wa.y oi passing a right. . (4.) By way of extinguishment. (5.) By way of entry and feoffment. In release by way of enlargement there must be privity ; also in release by way of passing an estate. But in release * (1.) In case of a trust coupled with an interest, jus aecresoendi holds, but does not apply in case of a bare trust or authority. (2.) Jus accrescendi applies to joint estates in "chattels generally, but not to capital or stock in trade, the maxim being, jus accrescendi enter mer- catores pro beneflcio commercii, locumnon habet. 1 Th. Co. Lit., 738, and n. (1) ; 3 do. 297 ; 2 Min. Insts . 410. In case of partnership, the chattels in possession are to be distributed between the survivor and the personal representative of the deceased partner ; but chases in action of the partnership do survive — and the rem- edy is to be prosecuted in the name of the survivor. Sto. Parsh., 342 ; Buckley v. Barber, 6 Ex., 177 ; 2 Min. Insts., 410. , 154 OF THE RIGHTS "WHICH RELATE TO THINGS REAL. by way of passing a right, there can be no privity ; but the releasee must have a freehold in deed or in law.° How are parceners seized ? Each is entitled to the whole of a distinct moity, and not as joint tenants are, to the whole jointly and to nothing separately. 2 Bl. Com., 188;lSteph., 320 ; 1 Th. Co. Lit., 683 and n. (E) ; Id., 789 ; 2 Min. Insts., 437. They convey to each other by release or feoffment. Ref- erences supra. Can a man and a woman be parceners? Yes, as when there is a surviving son of a daughter at the fa- ther's death. 2 Bl. Com., 188 ; 1 Steph. Com., 320. Release to one wrong-doer does not enure to both as in release by way of entry and feoffment. 2 Th. Co. Lit., 465. If a disseizee release to one of two joint disseizors, it operates as if he had entered on one and enfeoffed the other ; but if he release to two joint feoffees of a disseizor it enures to both, because they both come in by the same title, and if one re- lease to bring an action against his co-tenant, he is estopped ■^ Release enuring by way ot passing arigli is where the hare right passes, of which the most frequent instance is that of release of the dis- seizee to the disseizor. 2 Th. Co. Lit., 459, 464, and n. (W) ; Gilb. Ten., 54. The instances of release operating by way of passing a right: (1.) Re- lease by disseizee to disseizor; (2.) Release by disseizee to one of two joint disseizors— this embraces Blackstone's fifth class, (as stated in the text) and is properly ranked under this kind of releases, by way of passing a right. 2 Th. Co. Lit., 465; (3.) Release by disseizee to one of two joint feoffees of disseizor. In this case the release enures to both, whereas, in the last case (2) it enured to only one. 2 Th. Co. Lit., 465-'6, and n. (2). Release enuring by way of passing an estate ; e. g., release by one joint tenant to the other. Gilb. Ten., 72 ; 2 Th. Co. Lit., 514, n. (T, 3). Release enuring by way of enlarging an estate; e. g., where the reversioner, having the inheritance, releases all his right and interest in the lands to the person who has the particular estate. 2 Th. Co. Lit., 499, n. (Z, 2) ; 2 Min. Insts., 710. Release by way of extinguishment — where the release destroys the right without passing it to the releasee; e.g., where the releasee is not in possession. 2 Th. Co. Lit., 389, et seq.; Id., 493, and n. (R, 3) ; or where the releasee cannot take what to him is released without a manifest incongruity, as where the landlord releases rent to his tenant who cannot at once receive NUMBER AND CONNEXION OF TENANTS. 155 by that title relying on the release. 2 Th. Co. Lit., 465-6, n. (2). It is simply an extinguishment of the disseizee's right. What is the fifth wiity ? The unity of person where lands are. given jointly to the husband and wife. Our stat- ute in North Carolina, taking away survivorship, did not ex- tend to this ease; so we have this case of joint tenants. Co-parceners had a partition at common law, and because they had a right to partition they were allowed no action of waste. 2 Bl. Com., 188 ; 2 Min. Insts., 436-7. They had an. action of account because the estate was created by law, and when the law creates an estate, it always gives a remedy when the estate is injured. 4 Kent's Com., 366, n. (d) ; 2 Com. Dig., Ch'y, (2, A 1) 495 ; Eq. Cas., 32. Joint tenants and tenants in common have no action of account at common law, unless one was bailiff for the other, but 4 and 5 Anne gave joint tenants and tenants in common an action of account. 3 Co. Lit., 346, n. (15) ; 1 Sto. Eq., § 446 ; 2 Min. Insts., 409 ; 2 Bl. Com., 183 and n. (14) ; 3 do., 22^^'8 ; 3 Th. Co. Lit.," 245, n. (26). Statute of 32 Hen. VIII. gave both also a right of parti- tion.* If one parcener aliens his interest how does it affect the estate ? The alienee and the other parcener hold as tenants in common.^ At common law had the remaining parcener a right to compel partition? She had; having done noth- ing to forfeit it, but the alienee could not in such a case till 32 Hen. VIIL A and B make a bond to C for $500 ; A dies leaving a large personal estate; B, the survivor, is insolvent; against 'Joint tenants and tenants in common were first subjected to compul- sory partition by Stats of 31 Hen. VIII., and 32 Hen. VIII., wiiich were followed by others afterwards. 2 Bl. Com., 185 ; 2 Min. Insts., 415. B The doctrine in the text is true, and if there were several parceners, the alienee would be tenant in common as to them, but they (the par- ceners) would still hold in parcenary among themselves. A lease for life does not, as in joint tenancy, sever the estate in coparcenary. 1 Th. Go. Lit., 754-'5, and n. (U) ; 2 Min. Insts., 438. 156 OF THE EIGHTS WHICH RELATE TO THINGS ilEAL. whom can C bring his action? Against B only, because the debt survives to him.'' In North Carolina this is different ; by statute all bonds are construed several and joint. Bat- tle's Revisal, 155, 63. Feoffment to A and B, man and wife, and to C, how are they seized and what quantity of interest has each ? They are joint tenants, A and B holding one moiety, (because they are one person in law,) and C the other. 1 Th. Co. Lit., 739-'40 ; 1 Steph. Com., 315. Feoffment to A, B, and C, A being a feme sole ; and A and B marry after, instead of before, the feoffment, how do the parties take the estate then ? As joint tenants. Upon the birth of issue, B becomes seized of one-third as tenant by the curtesy in the right of his child, with regard to which one-third, B and C are tenants in com- mon. References last supra. A devises his estate to his two daughters, they being the only children, how do they take ? By purchase as joint tenants, it being presumed that the devisor meant to give a different estate from what the law would allow them. 2 Th. Co. Lit., 646, n. (B) ; 2 Min. Insts., 944. How are 'tenants in common seized ? Each is entitled to an individual portion of the whole, because each has a sev- eral freehold — per my et non per tovi. They pass their estate by feoffment only. 1 Th. Co. Lit., 788-'9.' An estate to A and B, both men, and the heirs of their bodies, what interest or estate have they? They are joint tenants for life, with several inheritances in tail. The same doctrine applies if the estate had been limited to two women. 2 Bl. Com., 181, Ti. (5); 1 Steph. Com., 313-'14; 1 Th. Co. Lit., 741-3 ; Wiscot's Case, 2 Co., 60 b. An estate to A and '' Where the principal debtor dies and the survivors are his sureties, then the doctrine in the text does not apply. For this and the doctrine in the text, see Bac. Abr. Oblig., (D), 4 ; 3 Min. Insts., 751. ' One tenant in common can convey to the other by conveyance under the Stat, of Uses. 2 Min. Insts., 431. NUMBER AND CONNEXION OF TENANTS. 157 B, man and wife, how do they hold ? As joint tenants for life. Difference between joint tenants and partners? Among joint tenants the doctrine oijtis accrescendi, or survivorship, obtains; but not so among partners. Sto. Pars'h. 342 ; Buck- ley vs. Barber, 6 Ex., 181 ; 2 Min. Insts., 410. A joint tenant might alien his interest ; but if one of two partners alien, the alienee gets nothing till the business of the firm is wound up, and then if anything is left, he, the alienee, gets his share. Was joint tenancy, or tenancy in common, favored in law ? Until the abolition of military tenures joint tenancy was fa- vored, because it did not divide the services.^ There is joint tenancy in personal property ; as if a horse is given to two, there is Jtts accrescendi 2 Bl. Com., 399 ; Id.,. 399, n. (12). If $100 is given by will equally to be divided between the legatees, they take as tenants in common ;,. but if given by deed, they take as joint tenants. 2 Bl., Com., 180, n. (4) ; 1 Th. Co. Lit., 773, n. (42) ; 2 Minorfs: Insts., 401. Residuary legatees and executors are joint tenants, unless the testator uses some expression that will make them teur ants in common. If lands are given to two women, and the heirs of their two bodies begotten, and one of them take a husband, have issue and die, the husband shall be tenant by the curtesy; but if the estate were limited to two men, the wife could not have dower, because survivor- ' But for more than a century p^st the courts laid hold of every availa- ble expression to construe estates given to a plurality of tenants as tenancies in common. Though this innovation began in equity, and in refer- ence to wills, yet it has long prevailed in the courts of common law as well, and the doctrine extends to deeds as well as to wilM, Hence, such expressions as "equally to be divided," "share and share alike," "re- spectively between and amongst them," will, according to this modern construction, convert into a tenancy in com/mon what would once have_ been a^omi tewmey. 2-Bl. Com., 180, n, (4) ; 1 Th. Co, Lit., 763, n. (42) ; 2 Min. Insts., 401. 158 OF THE EIGHTS WHICH RELATE TO THINGS EEAL. ship would come in first. 2 Bl. Com., 181 and n. (5) ; 1 Steph. Com., 313-'14; 1 Th. Co. Lit., 741-'3 ; Wiscot's Case, 2 Co., 60 b. Since 29 Car. II. a deed is necessary in all cases of parti- tion, and it must be perfected by livery of seizin. Black- stone thinks a devise to two to hold jointly and severally makes a joint tenancy ; but Christian thinks it wotild be a tenancy in common. LECTURE XI, DESCENT. How many kinds of descent ? By special custom, by the common law, and by the statute de donis, 13 Ed. I.* How many rules or canons apply to fee simple lands ? •Seven. 2 Bl. Com., 240. The first canon is altered in North Carolina, the second abolished, the third modified, and the fourth unchanged. How many apply to estates tail ? The four first, the others being mere rules to find out ■^ho was the . first purchaser, and he is always known in estates tail. 2 Bl. Com., 220. Is it possible for a man to inherit lands from his son at common law ? Where a man marries a cousin who has lands, and by her has a son, and upon her death the son in- herits them, if the son die and there are no nearer relations on the part of the mother the father can take as cousin to his son, but not as father. A has a son and daughter by one wife, and a son by an- other ; A dies ; the eldest son enters and dies ; who gets the land ? The sister ; and this illustrates the doctrine of possessio fratris facet sorwem esse haeredem. 2 Bl. Com., 227-8, and n. (28). Suppose in .this case the eldest son had not entered, who would take ? The brother, as heir to the father, who was the last person seized in deed. Reference supra, If the brother had made a lease for years and died the sister would have been heir. Reference supra. Suppose, in the case * Descent, or hereditary succession, is the title wliereby one, on the death of his ancestor, acquires the ancestor's estate in real property by right of representation as his heir at law. An heir, therefore, is that per- son of the kindred of a decedent, upon whom the law casts the estate in real property immediately on the death of such decedent, and such estate is called the inheritance. 2 Bl. Com., 201. 160 OP THE EIGHTS WHICH RELATE TO THINGS EEAL. above, the eldest son died before entry, would the widow get dower ? She would ; because only a seizin in law, and not in deed, is required for dower. 1 Th. Co. Lit., 574 ; 2 Min. Insts., 121. So in that case the wife would get dower though the heir of the eldest son could not inherit. The reception of rent by the elder brother of a freehold will not sufl&ce for a possessio fratris, nor will the doctrine apply as to reversions, remainders, and executory devises. 2 Bl. Com., 228, notes. A man dies leaving money and other personal property, and leaving three sisters. A, B and C, his nearest kin ; A dies, leaving three children, B leaving two, and C is still living, how will the property be divided ? Per stirpes, and not, according to the general rule, per capita. 2 Bl. Com., 217-8; Just. Insts., Ill, 1, 6. When one' is in a nearer de- gree than the rest, to make them equal,, the- estate must be distributed p^ stirpes. A is seized in fee and has two sons, B and C ; B commits felony and is attainted ; then A dies; will the estate descend to the younger son ? It will not, the law having respect to the elder son, who would have been heir. 2 Bl. Com., 254. A owns land in England, he has a son born in France, and afterwards another born in England, will the alien son impede the descent to the native ? He will not. 2 Bl. Com., 255. . The father being an alien has two sons native born ; the eldest purchases lands and dies ; will the other inherit the land ? He will, it being an immediate descent. 2 Bl. Com., 226, 255. The father being attainted has two sons; one pur- chases lands and dies ; will the other inherit ? He will ; for they might have traced their inheritable blood through the mother. Feoffment to A and the heirs female of his body ; A dies leaving a son and a daughter ; would the latter take ? She would. Suppose it were to A for life, remainder to the heirs female of the body of B, B dies leaving a son and a daugh- ter, would she take ? No ; because when she takes by pur- chase she must be both heir and female. OP TITLE BY DESCENT. 161 A dies leaving land and has a maternal uncle and a pa- ternal grand-uncle, which will inherit ? The latter, by the seventh canon. The statute of 11 and 12 Wm. III. enacted that all natu- ral born subjects might make out their descent from any of their ancestors, although the father from whom they de- rived theij; title was an alien ; but by 25 Geo. II. the person must be able to take as heir at the death of the person last, seized, except in case of a daughter of an alien, who shall: give way to an after-born son, or divide with an after-bora sister." 2 Bl. Com., 251-'2. '' Lineal consanguinity is the relationship which subsists between persons- of whom one is descended tZiV«c% from the otTier ; collateral consanguinity- is that relationship which subsists between persons,, who are descended' from the common ancestor, but not one from the other. In the direct or lineal line, every generation, reckoning either upwards, or downwards, constitutes a degree, and this mode of reckoning degrees in a direct line universally obtains, as well in the civil as in the canon and; common law. The canon law reckons from the common ancestor down to the more remote party, which the common law also adopts. The civil law reckons- from one party up to the common ancestor, and then down to the other. 2 Bl. Com., 206-'7. Primary Canons of descent, applicable to linjcal kindred, as heirs: Canon I Inheritances shall lineally descend to the issue of the person, who last died actually seized in infinitum, but shall never lineaUy ascend. 2- Bl. Com,, 207. Canon II. The male issue shall be admitted before the female. 2 Bl; Com., 212. Canon III. Where there are two or more males in equal degree the eldest only sha.ll inherit; but the females ail together. 2 Bl. Com., 214. Canon IV. The lineal descendants, in infinitum, of any person deceased, . shall represent their ancestor; that is, shall stand in the same place as the person himself would have done, had he been living. 3 Bl. Comj, 217. Primary canons of descent applicable to collateral kindred as heirs : Canon V. On failure of lineal descendants, or issue of the person last seized, the inheritance shall descend to his collateral relations, being of: 11 162 OF THE EIGHTS WHICH RELATE TO THINGS EEAL. the blood of the first purchaser, subject to Caaons 11, III and IV. 2 BL Com., 220. ' Secondary Canons of descent at Common Law: Canon VI. The collateral heir of the person last seized must be his next collateral kinsman of the whole blood. 2 Bl. Com., 224, et seq. Canon VII. In collateral inheritances the male stock shall be preferred to tJte female (that is, kindred derived from the blood of the male ancestors, however remote, shall be admitted before those from the blood of the fe- male, however near), unless where the lands have in fact descended from a female, 2 Bl, Com., 234, et seq. LECTURE XII. PURCHASE. How many modes of losing and acquiring a,n estate? Two : By Descent and by Purchase. 2 Bl. Com., 243 ; Id., 201, a. (2) ; 2 Th. Co. Lit. How many modes of title by purchase? Five: Escheat, Occ'upancy, Prescription, Fot- feiture, and Alienation. When does occupancy take place ? When a man has an estate par mdre me and dies during the life of the cestui que vie. 2 BL Com., 258-'9. When is it special occupancy ? When the estate p&r autre me is given to a man and his heirs, the heir takes by purchase as special occupant.* Is the wife, of the tenant ^per avAre vie endowable? She is not.* Is the law unchanged With regard to common occu- pancy ? No ; 29 Car. II. made the estate liable to the debts of the occupant and made it also devisable." Statute of 14 Geo. IL enacted that the residue of such estate pwr autre vie, after payment of debts, should go in course of distribution like a chattel interest. 2 Bl. Com., 260-'l. " Where an estate ^wr at^re vie is limited to tiie grantee and Ms heirs' Xe, g., grant to A and his heits for life of ^ and the grantee dies, living Z, the heir of the tenant, in ofder to avoid the mischiefs incident to com- mon occupancy, is allowed at common law to enter and hold possession, not indeed as heir, for the estate is not one of inheritance, but as special occupant, t Bl. Com., 259. ■"Because the husband is not seiised at any UttK during the coverture of an estate of irikerStance, such as that the issue of the marriage may, by possibility, inherit as heir to the husband. 1 Th. Co, Lit., 569, 578. • " Mr. Christian observes that the meaning of 29 Car. II., c. 3, is, that every estate pwr autre vie, whether there is a special occupant or not, may be devised like other estates in lands, by a will attested with three witnesses. If not devised, and there is aspecial occupant, then it is assets in the heirs hands by descent 5 if there is no special occupant, then it passes like persoaal property to executors and administrators, and shall be assets in their hands. 2 Bl. Com., 260, n. (1). Blackstone in the text states the doctrine somewhat different. 2 Bl. Com.', 260. 164 OP THE EIGHTS WHICH RELATE TO THINGS REAL. Special occupancy still exists with what modification?" The heir now takes subject to the ancestor's specialty debts. Give an instance of prescription ? Where a man claims; that he and those whos& estate he holds have used imme^ morially to pass over another's grounds. What is the dif- ference between jpresmj>fcn and custom f Custom is local; prescription personal, and presupposes a grant, and conse- quently a grantor, a grantee, and a thing granted. In cus- tom there can be no grantee.* What length of time gives title by prescription, when the possession has been adverse, honest and uninterrupted 7 Time, such as the memory of man — whether by the proper knowledge of any man living, or by record, or by sufficient matter of writing — runneth not to tJie contrary. 2 Bl. Com., 262 ; 2 Th. Co. Lit., 198. An instance of prescription in North Carolina is, where a man claims that he, and those whose estate he hath, have been accustomed to back water, as in case of a mill-dam, on another man's grounds. A prescription relating to an incorporeal right annexed to land, must always be laid in him that' is tenant of the fee. A prescription cannot be, for a thing which cannot arise from grant. What is to arise by matter of record cannot be pre- scribed for. When one prescribes in a que estate nothing is included in the claim bat things-appendant or appurtenant to the lands; but if he prescribe in hmsdfand his ancestors he may claim whatsoever lies, in grant, whether appurtenant, appendant or in gross. One must not prescribe for that which is of common right. . A prescriptive right is liable to * Custom Is properly a local law, owing its force and effect to immemo- rial continuance in ascertain local district, and is applicable in general terms to all persons and affairs in the district whicli are within the pur- view and scope of the custom. IBl. Com., 74,' et seq.; 1 Min. Insts., 33, Prescription, on the other handj is a source of private title to properly; or, as it is expressed by Blacfestone-, merely a personal usage, 2 BL Com., 26% TITLE BY PURCHASE — ALIENATION. 165 be extinguished by unity of seizin. 2 Bl. Com., 264, d seq.; Bac. Abr. €ommon, (A) ; 2 Th. Co. Lit., 200. Forfeiture, being a .Saxon custom, came in before escheat ; when thiey conflicted in case of treason, forever ; and in case of felony, for a yearand a day. 4 Bl. Com., 381-85 ; 4 Steph. Com., 447-'50-'l. How many modes of alienation, or how many common assurances? Four: (1.) By matter in pais; (2.) By matter of record ; (3.) By special custom ; (4.) By devisa 2 'Bl. Com., 294. How many modes by matter of record ? Four : (1.) By private acts of parliament; (2.) By King's grants ; ^8.) By fines ; (4.) By common recoveries. How many kinds of alienation by deed ? Eleven. Six Primary, namely: (1.) Feoffment ; (2.) Gift; (3.) Grant; (4.) Lease ; (5.) Exchange ; (6.) Partition, Five Secondary, namely: (7.) Release; (8.) Confirmation; (9.) Surrender; (10.) Assignment ; (11.) and Defeasance. Why are the latter called secondary ? Because they sup- pose some prior transaction touching the same subject be- tween the same parties, or by one of them ; or, as Blackstone says, they presuppose some other conveyance precedent, and only serve to enlarge, confirm, alter, restrain, restore, or transfer the interest granted by such original conveyance. 2 Bl. Com., 324 ; 2 Min. Insts., 706. Gift might be included under feoffment and assignment,and is not properly a conveyance, but a transfer of all ones interest by some one of all the other conveyances. Is writing nec- essary in a feoffment ? No ; livevy of seizin produces sufii- cient notoriety. A feoffment, says Coke, properly betokeneth a conveyance in fee — donatio feudi.^ "A feoflfnlent is derived from ttie verb enteoS, feoffare, or enfeudari, to give one a feud ^ and therefore, feoffment is properly donatio feudi. It is the most ancient method of conveyance, the most solemn and public, and therefore the most easily remembered and proven by the public. It as applied to corporeal property alone, and properly passes a fee. 2 Th. Go. Lit, 332-'53 ; Id., 622 ; 2 Bl. Cam., 310. 166 OF' TBDE EIGHTS WHICH RELATE TO THINGS EEAL. In how many ways could delivery of the possession be made ? By livery in deed and livery in law. 2 Th. Co. Lit., 335-'46,- 2 Bl. Com., 315-16. Could livery in law be made by attorney ? No ; though livery in deed could, and the feoffee must enter during feoffor's life, or keep up his right by continual claim. What estates are conveyed by gift ? Estates tail.*" How do you make an estate for life ? By feoffment, the usual term, a lease for life, meaning by feoffment. "Writing is not necessary for a gift. What is a gift in frank-marriage ? A gift in lands to advance a female relation in marriage ; so called because it is a free gift without rent, or other service but fealty, till the fourth degree between the donor and do- nee. The word fmnh-marriagef ex vi termini, supplies words of descent and procreation, and the tenants take in special tail. 2 Bl. Com., 115; 1 Th. Co. Lit, 521, et seq. What is hotch-pot ? Where an ancestor, seized of lands in fee simple, gives an estate in frank- marriage to one of two or more daughters, and dies seized of the remnant, the donee in frank-marriage must throw the estate into the common pile before she can get a share of the lands descending in fee simple. 1 Th. Co. Lit., 720, et seq.; 2 Bl. Com., 190-'91. Suppose a man has two daughters, and gives one an es- tate in frank-marriage ■„ she refuses, on his death, to put her lands into hotch-pot, whereby the other sister takes the other lands in fee — ^now, on the death of the tenant in frank-mar- riage without heirs, does the other sister claim that she held the reversion as heir to her father's fee simple lands ? No ; the law gives the tenant in frank-marriage the fee simple expectant to make her equal. 1 Th. Co. Lit., 720, et seq.; 2 Bl. Com., 190-'91. What doctrine now in our ,law is analogous to hotch-pot, making it important to u^iderstand it? The doctrine in re- gard to the distribution of personal property. Suppose a man has two sons, sends one to college' and keeps the other 'Operative words, do aud dedL TITLE BY PUKCHASE — ORIGINAL CONVEYANCES. 167 at the plow, is the expense of education considered an ad- vancefiaent? No; the father has a right to discriminate, and the rule is that anything given to start one in life is considered an advancement.^ Toomer v. Toomer, 2 Hay., 368, (563) and 275, (573) ; S. C. 1 Murph., 93 ; Jones v. Spaight, 2 Murph., 89 ; do. 150 ; Norwood v. Branch, 2 Car. L. R., 598, (400); Johnson v. Johnson, 4 Ired. Eq., 9; Jer- kins V. Mitchell, 4 Jones Eq., 207 ; Dixon v. Coward, 4 Jones' Eq., 254. How would it be in case of a gift of a horse to a son or daughter while living with the father ? It would not be an advancement. See references to note "g" on this page. How would be the case of a gift of beds, &c., to a daughter on marriage ? This would be an advancement. (Cases same as last.) Is the value at the time of the gift or at the time of the father's death estimated ? At the time of the gift in analogy to frank-marriage, where the estate was valued at the time of the gift, later improvements not being counted. Refer- ences above. A lease for years is a simple contract. What has the les- see on the making of a lease ? An interesse termini. Was writing necessary ? Not at common law, but by statute of 29 Car. II. writing was necessary for a lease for a greater time than three years."" «na son were sent to college to obtain a professional education, it might be held in this case an advancement. On this and the doctrine in the text, see Hume v. Edwards, 3 Atk., 452 ; Edwards ». Freeman, 2 P. Wms., 444 ; Kireudbright v. Kircudbright, 8 Ves,, 51 ; Smith v. Smith, 5 Ves., 721 ; 2 Min. Insts., 444 '5. "Principal provisions of 29 Car. 11. : (1.) Conveyances of lands were provided for in §§1, 2 and 3, by enact- ing substantially that all conveyances, of every description, of lands, tenements, and hereditaments, for a term exceeding three years, should have the effect of estates at will only, unless they were by deed or note in writing, signed by the grantor or by his agent, authorized by writing. (2.) Executory contracts for the sale of lands were provided for in §4, enacting that no action shall be brought whereby to charge any person 168 OF THE RIGHTS WHICH RELATE TO THINGS REAL. What is an exchange ? A mutual grant of equal interests in lands. Is livery of seizin necessary ? No ; because there was sufficient notoriety without it. Is warranty implied as an incident to exchange ? Yes ; and an exchange must be of lands equal in quantity of interest.' What is a partition ? It is the division of an estate by joint-tenants, tenants in common, or co-parceners ; the last of whom could be constrained to make partition at common law.-i 2 Bl. Com., 324. What warranty is there? An im- plied warranty that if the tenant is evicted, the others are to be responsible, except that in the case of coparceners the share of the tenant evicted is to be deducted ; if there are two daughters, one-half would be deducted ; if three, one- third, etc. Is a consideration necessary in a feoffment ? No ; it was upon " any contract or sale of lands, tenements or hereditaments, orany interest in or concerning them, unless the agreement, or some memoran- dum or note thereof shall be in writing, and slpied by the party to he charged, or some other person by him thereunto lawfully authorized. (3.) Wills of lands, provided for in § 5, substantially the same as our statute in North Carolina. Bat. Rev., ch. 119, § 1, p. 847. ' Five things are necessary at common law to an exchange : (1.) That the estates given he equal. (2.) That the word excambium — exchange — be used. (3.) That there be an execution by entry or claim in the life of the parties. (4.) That if it be things that lie in grant the exchange must be by deed. (5.) If lands are in several counties, there must be a deed indented, or if the things lie in grant, there must be a deed, though they be in one county. 2 Th. Co. Lit., 446 ; 2 Min, Insts., 704. J As between joint-tenants and tenants in common, a partition is a conveyance; and in case of joint-tenants, must, at common law, be evi- denced by a deed, livery of seizin being as to them mutually impractica- ble ; in case of tenants in common, it must be evidenced by livery of seizin, in case ot freeholds — if less than freehold, the estate, it is thought, can be conveyed by tenants in common, by parol 2 Bl. Com., 324 ; 2 Min. Insts., 705. A partition between coparceners is not a conveyance; for it makes no degree in deducing the title, and therefore may, at com- mon law, be made by parol. 2 Min. Insts., 705. TITLE BY PURCHASE — ORIGINAL CONVEYANCES. 169 considered sufficient to take the tenant's place in rendering services to the lord ; but 13 Eliz. made feoffments without consideration void against creditors, and 27 Eliz. made them void against subsequent purchasers for a valuable considera- tion without notice ; but a feoffment is still good as between the parties, even without a valuable consideration. Twyne's Case, 3 Rep., 82 ; Sexton v. Wheaton, 1 Am. Led. C, 85 ; Barret's Case, 6 Co., 92, a and b ; 9 East., 59 ; 2 Bro. C. C, 148. Is a consideration necessary in a bargain and sale ? Yes; in order to raise the use. Gilb. on Uses, 187, et seq.; 2 Bl. Com., 338. What is a release ? A conveyance of a man's rights, or the discharge of a man's rights, in lands and tenements to another who has some former estate in possession. 2 Bl. Com., 324. Give the case of a release to one of the joint feoffees of a disseizor, by disseizee, where the release enures to both feoffees. " What is a surrender? A yielding up an estate for life, or years, to him that has the immediate reversion or remain- der ; or it is the yielding up the possession to him who has the outstanding right. 2 Bl. Com., 828 ; 2 Th. Co. Lit., 357. An estate to A for life, remainder to B for life, remainder to C in fee ; can A surrender to C ? No ; a surrender must be * Where A, a disseisee, releases to one of two joint feoffees of Jiis dis- seizor. In this case the release enures to both the feoffees, for they come in hy the notorious act of feoffment with livery, which, being made by one in possession, confers a title prima facie legal, and the possession thus acquired must be defeated by an act of equal notoriety, before the title can be altered. 2 Th. Co. Lit., 465-''6, and n. (Z). Jfote the difference between this case and a release by the disseizee, to one of two joint dis- seizors. Here the disseizor to whom the release was made, was before the release, seized as a joint-tenant always is, of the whole and every part of the premises, but it was wrongful. Upon the making of the release, his seizin becomes rightful of tlie whole and every part of the land which necessarily excludes the wrongful seizin of his companion. Hence, Black- stone makes of this the fifth sort of release, styling it a release by entry and feoffment. 2 Bl. Com., 325. It operates, however, only to pass a right, and Lyttleton and Coke so class it. 2 Th. Co. Lit., 465 ; 2 Min. Insts., 708. 170 OP THE EIGHTS WHICH EELATE TO THINGS KEAL. made to aa immediate remainderman or reversioner. 2 Th. Co. Lit., 554, n. (D) ; 2 Plowd., 541; 2 Min. Insts., 714. Could A, in the last case, surrender to B ? It is a point disputed — it being held that a man can surrender only to an- other having a greater estate. 2 Th. Co. Lit., 552, n. (B) ; Id., 511, n. (Q, 3) ; 2 Bl. Com., 326. Is the word " heirs " necessary in a release by way of pass- ing an estate or right ? No ; because the parties are not in by the release, but by the feudal contract which passes an inheritance to all of them, and the release only discharges the right or pretension of one of them. Gilb. Ten., 72 ; 2 Th. Co. Lit., 514, n. (T, 3). The word heirs is also unnec- essary in exchange, surrender, fines, and devises in certain cases. What is a confirmation ? A conveyance of an estate or right in esse, whereby the particular estate is increased, or a voidable estate made sure and unavoidable. 2 Bl. Com., 225-'6. Give an example: A tenant for life makes a lease for 20 j'ears ; if the reversioner confirms during A's life the lease is good after his death, which, otherwise, would not be the case.' 2 Th. Co. Lit., 558 ; 2 Bl. Com., 225-6. Suppose a tenant for life makes a lease for ten years and dies during the time, will acceptance of rent by the rever- sioner be an implied confirmation ? No ; the estate being void by the life tenant's death cannot be confirmed. 2 Th. Co. Lit., 516 and n. (A). Suppose a tenant in tail makes a lease for thirty years and dies, what effect has acceptance of rent by the reversioner ? It is an implied confirmation ; because the lease by the tenant in tail was only voidable. 2 Th. Co. Lit., 516, et seq. In case a tenant 'The requisites of a coiiflrmation : (1.) There must lt>e competent par- ties; (2.) There must be in the confirmee a precedent rightful or wrong- ful estate in his own or in anothers right ; (3.) There must be in the conflrmor an estate of his own, out of which the confirmation must enure;- Sheps. Touch., 312 ; (4.) There must be a deed even at common law, as there was no msible or notorious possession accompanying it. TITLE BY PURCHASE— ALIENATION — CONDITIONS. 171 for life makes a lease for years and dies during the term, will acceptance of rent by the" reversioner have any effect at all ? Yes ; it will make the lessee a tenant from year to year. What is an assignment of lands? A transfer or making over to another of all a man's right in any estate — usually applied to an estate for life or years. 2 Bl. Com., 326-'7. It may be used, however, to convey any estate as well as for life or years. What is a defeasance? A collateral deed, made at the same time as a feoffment or other conveyance, containing certain conditions, upon the performance of which the estate then created may be defeated. 2 Bl. Com., 327 ; 2 Th. Co- Lit., 122-'3, n. (0, 3). Difference between a condition and a defeasance ? A con- dition is contained in the deed passing the land; the defeasance is a collateral deed. Ship. Touchs., 3&6, et seq.; 2 Min. Insts. 725. Suppose a man enfeoffs another and the day after the feoffee executes a deed of defeasance, paaking the estate void on a certain condition, can the feoffor or his heirs enter for condition broken ? No ; by the feoffment the whole in- terest passed, and a condition, in order to defeat livery, must be made with it. 2 Th. Co. Lit., 122-'3 and n. (0, 3) ; 2 Bl. Com., 327. If the feoffor were allowed to enter it would be creating an estate by force of a condition without livery. Suppose a man binds himself in a bond to pay $500, and the next day the obligor executes a deed of defeasance that if he furniah^ horse the bond shall be void ; it is good in that case, as it would be in case of a term for years. Ref- erences supra. Difference between a condition in deed and a condition m law ? In the former, none but the feoffor or his heirs can enter for condition broken ; in the latter, he who has the next estate in reversion or remainder." \ "Limitations differ from conditions in tiiis : A limitation marks the utmost Ume of continuance of an estate ; a condition marks some event, 172 OP THE EIGHTS WHICH RELATE TO THINGS EEAL. A. limitation expires by force of the words used at its crea- tion, and a condition acts in derogation of an estate. Estate to A for life on condition that he pays $500, the limit of A's estate is for life, he holds on the implied condition not to make a greater estate than he has, and on the express con- dition to pay which, if it happens in the course of that time, is to defeat the estate. Thus, .in case of a grant to Z "■ untW'' Wis married, the estate may endure until that event, but no longer ; and then it terminates of itself, without any entry on the part of the grantor or his heirs ; and the words appoint- ing this to be the time of continuance are called the limitation, from their ascertaining the boundary of the estate. But if the grant were to Z for life, '■^ prmnded thaV if W married, Z's estate should cease, Vs, freehold, is not prematurely determined before his death by the mere occurrence of Ws marriage, but there must be, as we have seen, also an entry by the grantor or his heirs, in order to defeat Z's estate. It is manifest, there- fore, that whUst there can be no limitation over in the last case of the condition, in the case of limitation, a remainder may be limited to talse effect after the first estate comes to an end. -That is, a grant to Z until W is married, with remainder to B, is good ; but a grant to Z for life provided that if W marry, Z's estate shall cease and be void, and then remainder to K, is of none effect in respect of B's remainder, which will be defeated by the entry of the grantor or his heirs, in order to determine Z's estate. 3 Th. Co. Lit., 87, n. (L, 3) ; 3 Min. Insts., 331. It may be well here to distinguish further between conditions in deed, and conditions in law, (or limitations), and conditional limitations. Condi- tional limitations could not exist at common law. They arise out of certain conveyances, owing their existence to statutes, the effect of which is to dispense with livery of seizin. These conveyances are those growing out of statutes of wills, of uses, and of grants, (8 and 9 Vict.) 3 Th. Co. Lit., 768 ; Butler's note, II; 3 Min. Insts., 338. Conditional limitations were not £;ood at common law, because, in order to give effect to the condition the grantor or his heirs must re-enter, and thus being restored to his or their original estate or seizin, will avoid as much the subsequent limitation as the immediate estate. 3 Th. Co. Lit., 97, 99, n. (W, 3), 768 ; Butler's note, II. Thus, in case of enfeoffment to A and his heirs, on condition that if A does not marry Z in ten years, then the land shall go to W, the only way in which A's estate can, at common law, be terminated in case of a breach of the condition, is by the re-entry of the feoffor or his heirs, who, upon entering, would be seized of the same estate as they had before the feoffment, which, of course, could not be without destroying the limitation to W, as well as the estate TITLE BY PURCHASE — CONVEYANCES OE RECORD. 173 How many modes of acquiring title by matter of record ? Four : (1.) Private acts of Parliament ; (2.) King's grants ; (3.) Fines ; and (4.) Common recoveries. What is a common recovery ? See 2 Bl. Com., 357, et seq." What kind of an action was brought ? A prsecipe quod red- dot, or writ of entry in the past. 2 Bl. Com., 357-8. Why of A. 2 Th. Co. Lit., 97-'8, 99, n. (W, 3), 768, Butler's note, H; 3 Min. Insts., 332. The subsequent estate is void as a remai/nder in tlie ease above, because by the definitive idea of a remainder, it must not take eifect in derogation of the preceding estate, but must await its regular expiration. 2 Th. Co. Lit., 136, n. (F); 3 Min. Insts., 382. The reason why the subsequent estate, although void at common law, is valid under the statutes of Uses, Wills and' Grants is, because under these statutes no actual livery of seizin is required to create a freehold, and therefore no corresponding notoriety of entry is necessary to determine it. Consequently, the first estate is determined by the mere happening of the event, and no entry of the grantor or his heii's being requisite, there is no reason why the interest thereupon, limited to the subsequent party, may not take effect. Thus, in a devise by will to A and his heirs, on condition that if A does not marry Z within ten years, the land shall go to W and his heirs, upon A's failure to marry Z according to the condi- tion, his estate in fee is immedietely terminated, without any entry on the part of the devisor's heirs, and the subsequent limitation in favor of W, in fee, forthwith takes. eflEect 3 Th. Co. Lit., 87, n. (L, 2), 768, . But- ler's note, II ; 2 Min. Insts., 233. "A common recovery Is a coHusive suit, instituted by the intended grantee against the intended grantor, in which the land in question is supposed to be recovered by the grantee. Common recoveries were invented by the ecclesiastics, being one of their several very ingenious devices to evade the statutes of mortmain, introduced by them about A. D. 1279, immediately after, the statute of 7 Edw. I, The sharp witted inventors derived little benefit from it, the Parliament having with unwonted promptness, by statute of 18 Ed. I., A. D. 1385, embraced coUusive re- coveries within the statutes oi.mortmain; and this method of conveyance seems to have been much-neglected for almost, two hundred years, when in Taltan^m's Case, 12 Ed- W., A. D. 1473, it was first employed to ia/r estates tail, and the remainders and reversions dependent thereon, and was 174 OP THE RIGHTS WHICH RELATE TO THINGS REAL. is it called a common recovery ? To distinguish it from a real recovery where there was no fiction. Give the process when the tenant in tail suffers a recovery? See note "n" supra. In what case did the judges allow estates tail to be barred by common recovery? Taltarura's Case, 12 Ed. IV. 2 Bl. Com., 357. Why did the judges allow it to bar estates tail and remainders? On account of the supposed recompense." Whom does a recovery bind? Parties and privies. What is meant by privies in this case ? Privies in blood, as the heir ; and privies in estate, as the reversioner, — both are bound by a recov- ery. Would a common law recovery bar an executory devise, or a conditional limitation ? No ; as the parties to these limitations are straiigers and not^nmes; hence the ne- cessity of the rule against perpetuities.*" The limit is a life thus awakened to fresh life and energy. 3 Bl. Cora., 357 ; 3 Mhior's In- stitutes, 903. The proceedings in common recoveries are : (1.) The writ of Prmipe quod reddat, (2.) The appearance of the tenant, in obedience to the mandate of the writ, and his eoueher of a pretended vendor to warranty. (3.) The appearance of the vouchee and his undertaking to defend the title. (4) Leave to demandant to imparl (confer) with the vouchee, and the voucTiee's default. (5.) Judgment for the land in question against the tenant, and for the latter owr agcdnsltJie wiLchee. 2 Min. Insts., 904; 3 Bl. Com., 357- '8, ^ seq. ° The efficacy of a common recovery as a mode of conveyance was due also to the apparent «Mjt and judgment, which seemed to ascertain the property to belong to the demandant, the intended grantee, which suit and judgment were assumed to be in iniiitwm, and collusion was not al- lowed to be shown. p A perpetuity may be defined to be a future limitation, restraining the owner of the estate from aliening the fee simple of the property, dis- charged of such future use or estate, before the event is determined or the period arrived, when such future use or estate is to arise. Sanders on Uses and Trusts, Vol. 1, p. 204. TITLE BY PURCHASE — CONVEYANCES OF RECORD — DEEDS. 175 or lives in being, the utmost period of gestation, and twenty-oneyears thereafter^ What is a fine ? An acknowledgment of a feoffment, on record, or the composition of a suit either real or fictitious, whereby the lands are acknowledged to be the right of one of the parties.' What writ was used in a fine ? A writ of cove- nant real. Whom did fines bar at common law before 4 Hen. VII. and 32 Hen, VIII.? Only parties, but since that time parties, privies and strangers. The force and efiect of a fine at common law is owing to the apparent suit and judgment therein, and, in the case of married women, to the privy examination also. But the statute de donis, 13 Ed. I., ex- pressly declared that estates tail should not be barred by any fine. Hence it was not until 4 Hen. VII., and especially 32 Hen. VIII., (after estates had been determined to be aliena- ble by common recoveries,) that a fine became adequate to bar estates tail, and remainders and reversions dependent thereon. 2 Bl. Com., 554-'5. How does a fine differ from a recovery ? In common re- covery there is an actual judgment given ; in fines, a com- position is effected. 2 Bl. Com., 348-'9, 357. Since fines at common law bound only the parties and feoflfments did the same, why and for what were they used ? Where a woman was under coverture it was the only way by which she could pass the title to her land, and hence it was used to pass land freed from her claims to dower. 2 Bl. Com., 554r-'5. In North Carolina, our statute says a bargain and sale with a private examination shall have the force of a fine in passing the wife's lands. Battle's Revisal, §33, 593. 1 The proceedings and steps in a fine : (1.) Tiie writ of prcecipe quod reddat. 2 Bl. Com., 350. (3.) Tiie Licentia Concordandl, or leave to agree the suit. 3 Bl. Com., 350. (3.) The concord or agreement itself, after leave obtained. (4.) The note of the fine. (5.) The foot of the fine, or oonclusion of it. 3 Bl. Com., 353. 176 OF THE EIGHTS WHICH RELATE TO THINGS REAL. A fine bars the parties and privies in blood (as the heir) immediately, but by 4 Hen. VII. it requires five years non- claim to bar privies in estate, remaindermen, reversioners and strangers, as one who has an executory devise. 2 Bl. Com., 554-5. In case of a remainderman or reversioner, when does the fine begin to run ? From the time there is failure of issue in tail, and not from the time it is levied, because the right of entry does not accrue till the issue is extinct ; but in case of an executory devise the right accrues immediately when the fine is levied, except as to /ernes cowr^, infants, persons beyond sea, and prisoners, for as to these it does not begin till disabilities are removed. 2 Bl. Com., 357, n. 18 ; 2 Ld. Raym., 728; 3 Burr, 707; 7 Tr. Rep., 226. Which is the stronger conveyance, fines or recoveries ? A fine ; because it bars an executory devise, or conditional limitation, or in short, strangers. 2 Bl. Com., 356. Sup- pose a remainderman holds an estate after an estate tail, can he suffer a recovery ? No ; but a tenant of the free hold could suffer a recovery, because a suit could only be brought against such tenant. 2 Bl. Com., 357 and n. 18. How many kinds of fines ? Four : (1.) Where there is an acknowledgment of the right of the cognizee to the land, as derived by previous gift from the cognizor ; (2.) Where there is an acknowledgment of the right merely, without mention- ing the previous^ gift of the cognizor; (3.) Where the cognizor, in. order to put an end to disputes, though he acknowl- edges no precedent right, yet grants the cognizee an estate denovo; (4.) Where the cognizor recognizes the previous right of the cognizee, and the latter thereupon grants back again to the cognizor, or, perhaps, to a stranger some other estate oj: interest in the premises. 2 Bl. Com., 352-3 ; 2 Min. Insts., 902. What is a deed ? A writing on paper or parchment, seal- ed, and delivered.' Is a consideration necessary in a common ' There are deeds indented, and deed-poll, A deed indented, or an inden- TITLE BY PURCHASE — OONVEYANCES OE RECORD— DEEDS. 17T law deed? No ; Blaekstone confra. In what conveyances is a consideration necessary ? Those operating under the stat- ute of uses. In the premises an estate is given to A. and his heirs ; habendum, to A and the heirs of his body ; what estate has A ? A fee tail. In the premises an estate is given to A and the heirs of his body ; habendum, to A and his heirs ; how then ? A takes an estate tail and a fee simple expectant. Blackstone says A takes an estate tail in both cases. 2 Bl. Com., 298 ; 2 Th. Co. Lit., 241 ; Shep. Touchs., 52, 75.. In deeds indented all the deeds were original, because all were executed by both parties, and it was only of deeds poll that there were counterparts. Which would be used in the- sale of a negro? A deed poll, and it should be written in the third person. What kind of deed would be used for the sale of a tract- of land ? Deed indented. Was indenture necessary in a. bargain and sale ? Yes ; because 27 Hen. VIII. said it (the- conveyance by bargain and sale) must be by deed indented and inrolled within six months. 2 Th. Co. Lit., 579, n. (B) - Gilb. Uses, 200, 520 ; Wms'. Real Prop., 423. In North Carolina, indenture is unnecessary in our bar- gain and sale, and the word is generally inserted as matter ture, is so called, because originally all deeds inter partes, where the par- ties mutually stipulated, were indented or toothed, like a saw on the edge.. 2 Min. Insts., 588. A deed poll is where the stipulation is altogether on one side, without any mutual stipulation on the other. 2 Min. Insts., 589. The requisites of a deed are: (1.) Competent parties; (3.) A lawfuL subject matter; (3.) A consideration not open to legal objection; (4. Written or printed on paper or parchment ; (5 )Matter legally and orderly- set out; (6.) Reading the deed ; (7.) Sealing and probably signing; (8.) Delivery. 3 Bl. Com., 396 ; 3 Min. Inst., 589. The orderly part of a deed are : (1.) The premises; (3.) Thehabendum; (3.) The tenendum ; (4.) The reddendum; (5.) The conditions; (6.) The- warranty; (7.) The covenants; and (8.) The conclusion. 3 Bl. Comi,, 298 ; 2 Min. Insts., 639. 12 178 OF THE EIGHTS WHICH RELATE TO THINGS REAL. of form ; but we require registration in lieu of inrollment. In Nof th Carolina, a man is " beyond seas " when he is out of the State. If the wife levy a fine of land given her by her husband or his ancestors, for jointure, it does not bar the heirs claiming by force of such entail ; but contra if the husband joins, or after his death the heir or person etotitled to the next estate of inheritance in either a fine or recovery. Same is the case when the reversion is in the crown. LECTURE Xni. WARRANTY. What is warranty ? Warranty is a covenant red annex- ed to an estate in lands by the warrantor, whereby he binds himself and his heirs to warrant the same, and either upon vouclier or by judgment in writ of wartantid chartse, to yield other lands equal in value to those of which the tenant iS evicted by title paramount, or else it may be used by way oirebvMer 2 Th. Co. Lit., 245, '249 and n. (D), 250, n. (F) ; 2 Bl. Com., 300 ; Williamson v, Codrington, 1 Ves. Sen., 51. Suppose the warranty be made by a third party, what is it called? Guaranty.* Smith's Mer. Law, 552. Guaranty will not descend like warranty. Why is warranty called a covenant real ? To distinguish it from a personal covenant in which damages are recover- ed ; but in a covenant real lands are reserved and recovered. 2 Bl. Com., 304 ; 2 Min. Insts., 638. How many sorts of warranty? Two: En^ess and implied. 2 Th. Co. Lit., 252-3 and n. (K), 250 ; 2 Bl. Com., 300-'l. Express warranty is made by words of a deed, but implied is annexed by law. 2 Th. Co. Lit, 256 ; Noke's Case, 4 Co., 80 b ; 1 Ves. Sen., 511. From what is it implied ? On ac- count of tenure ; and the implication arises Whenever there is a reversion in the grantor and the land is held of him. The doctrine applied even to fee simples at common law. References supra. There is also an implied warranty in eocchanges, in parti- tions, and in case of a grant by the words dedi et concessi. 2 Bl. Com., 323 ; 2 Th. Co. Lit., 448, n. (G) ; 2 Bl. Com., 300 ; * Guaranty is an undertaking to answer for another's liability, and col- lateral tliereto. Bouv. Law Die., 664. It is distinguished from suretyship in being a secondary, while that, it a primary, obligation ; or guaranty is an undertal^ing that the debtor shall pay ; suretyship, that the debt shall be paid. Bouv. Law Die. 18b OF THE RIGHTS WHICH RELATE TO THINGS REAL, 2 Th. Co. Lit., 252-3 and n. (K) ; but in the last case for the grantor's life only. What corresponding benefit does the reversioner have for the implied warranty ? The right to distrein. 3 Bl. Com., 6 and n. 8 ; 2 Bl. Com., ch. II. The statute of 18 Ed. I., quia emptores, gave rise to express warranty by destroying tenure. 2 Th. Co. Lit, 252-'3 and n. (K), How many kinds of express warranty ? Three: Lineal, Collateral, and Warranty commencing by Disseizin.*' Give an instance of collateral warranty ? Where the ten- ant by the curtesy alien* the lands he has in, right of his wife, and the warranty descends oa his eldest son, the son could enter during the father's life; And why was it allow- ed that the warranty should rebut him after his father's death ? Because it was presumed, as he did not enter daring his father's life, that he received some equivalent. 2 Bl. Com., 301-'2.; 2 Th. Co. Lit., 274, 294-'5. How would the warranty be used in this instance ? By way of rebutter. What is the difference between warranties binding and re- butting ? It binds the heir to yield other lands of equal value when the heir is named in the warranty, and assets have de- scended.' ivom the warranting ancestor ; it rebuts him from setting up a claim himself whether the warranty be collate- ral or lineal, and whether the heir actually derived any her- itage from the warranting ancestor or not, 2 BL Com^ 302, 242, 244 and. ns. ; 2 Th. Co. Lit., 186, n, (H). What are the rules as to when warranty binds and rebuts ? It binds the heir only when assets descend from the warranting ancestor ;. ^ Lineal warranty means warranty that descends in the same line with the land warranted, that is, in the same line that the land would have descended in, had it not been sold. Collateral warranty means warranty that descends not in the same line with the land warranted, but from a different ancestor. Warranty com- mendng by disseizin is where the very conveyance to which the warran- ty is annexed immediately follows a disseizin,.or itself operates as such,. 3 Bl, COBt.r SOl-'S,, ALIENATION — WARRANTY. 181 and at common law it rebutted the heir in all cases except warranty commencing by disseizin. References supra. What is warranty commencing by disseizin ? When the conveyance to which the warranty annexed immediately follows a disseizin, or itself operates as such. 2 Bl. Com., 302 ; 2 Th. Co. Lit., 297 and n. (2). Suppose the son makes the father tenant for life of lands which he has purchased, and the father makes a feoffment in fee with warranty, what sort of warranty is it? Collateral. 2 Bl. Com., 301-'2; 2 Th. Co. Lit, 274 Suppose the father had been tenant for years, what then ? Warranty commencing by disseizin ; because the father was not seized of the freehold. 2 Bl. Com., 302 ; 2 Th. Co. Lit., 297 and n. (2), 302. In what instance is the common law changed in regard to collateral warranty rebutting ? The statute of 6 Ed. I., A. D. 1278, enacted that the warranty of the father, tenant by the curtesy of his wife's lands, should not rebut the heir, unless assets descended from ihe father. 2 Bl. Com., 302 ; Bac. Abr. Warranty, (1). Statute of 11 Hen. VII., A. D. 1496, enacted that if a ten- ant in dower alien in fee with warranty, and die, such war- ranty does not bar the heir who is also the husband's helT, and claims the lands as such, unless assets descended 'from the mother. 2 BL Com., 303 ; 2 Th. Co. Lit., 272. Statute of 4 and 5 Anne, A. D. 1706, enacted that all war- ranties of any tenant for life should be void against those in remainder or reversion ; and all collateral warranties of any ancestor not having an estate of inheritance in possession should be void against the heir." 2 Bl. Com., 303 ; Bac. Abr., Warranty, (1). What is the only instance of a collateral warranty by an ancestor having an estate of inheritance in possession (though assets descend) rebutting the heir ? Where a ten- * 3 and 4 Wm. IV., A.D. 1834, abolished all warranties (that is, the ancient covenant real,) with all real actions. Eawle's Gov. of Title, 24 ; Wms. Beal PM>p., 4fl8-'9. 182 or THE EIGHTS WHICH RELATE TO' THINGS REAI.. ant in tail aliens with warranty, and the warranty falls on a remainderman who happens to he heir. 2 'Bl. Com., 303. By the combined effect of these statutes collateral warranty has now in England no effect in rebutting, except in the last case, and as estates tail immediately upon 'vesting are turned into fee simples in North Carolina, it has, in no case, any effect here. In what case are assets required in order to rebut the heir in lineal warranty ? The heir of the tenant in tail is not rebutted unless assets descend. 2 Th. Co. Lit., 186, n. (A) ; 2 Bl. Com., 302, 242, 244 and ns. As 4 and 5 Anne included all tenants for life, it was held after that statute, that warranty, even with assets, by tenant by the curtesy, did not rebut the heir. The reason for ex- cepting the case with assets at all was, that if the heir recov- ered the estate and had assets too, the alienee of the father could recover the assets, and it prevented circuity of action to let the alienee keep the land. Bac. Abr., Warranty, (1). Suppose a man devises land to one of his two daughters. A, and if A dies without heirs of her body then to B, the other daughter ; A aliens with warranty and dies without issue, does the warranty rebut B? It does. not;, because A had only a dekrminable fee and Bhad an eooecutory devise, which, being in the nature of a condition^ is stronger than the war- ranty. See Spruill v. Leary, 13 Ire., 225, overruled by My- ers V. Craig, Busb., 169. So, if a devise had been made to trustees for A, and if she died without issue, to B, here B would have had a condi- tional limitation, which is stronger than warranty. 2 Bl. Com., 155 ; 2 Th. Co. Lit., 87, n. (L, 2), 768, Butler's note II. Myers v. Craig, Busb., 169. Suppose, in either case supra, B had died first, and then A after aliening had died without issue, leaving C, her cou- sin, her heir, would C be rebutted by the warranty ? She would ;, because both fees centered in A on B's death, name- ly, the determinable fee, and the conditional limitation or devise as the case may be. References supra. ALIENATION — WAKRANTY. 183 So it will be seen that the influence of collateral warranty in rebutting extends to one case only in England, and to none in North Carolina. Therefore, rebutter takes effect here in lineal warranty only. At what time must a man avail himself of voucher on warranty ? When he is impleaded in a real action. 2 Th. Co. Lit., 304, and n. (G, 2) ; 2 Min. Insts., 637; What lands are bound in this case ? All the lands which the warrantor has when judgment is rendered, because the action relates to land ; but the time of judgment in case of debts is at the time of voucher. 2 Th. Co. Lit., 186, n. (A) ; 2 Bl. Com., 302, 242, 244. Suppose a man suspected that another had a better title than he had, was he forced to stand and see the warrantor dispose of all his lands ? No ; he could bring his writ of warrantia chartse and get judgment on the warrantor's land from the time it was rendered, but in this way that it made the judg- ment on the voucher relate back to the time of judgment rendered in the writ of warrantia chartse. 2 Th. Co. Lit., 303 -'4, n. (G, 2). In what other case is warrantia chartse used ? In a posses- sory action, when voucher could not be used. 2 Th. Co. Lit., 303-'4, n. (G, 2). Can a man vouch in an action of ejectment ? No ; he can vouch only in real actions — ejectment is a mixed one. How are warranties now, covenants real or personal? Covenants personal. The judges determined to consider them in that light, owing to the action of ejectment being substituted for real actions. 2 Bl. Com., 304. Upon what ground did the judges feel authorized to consider the war- ranty as a personal instead of a real covenant ? Because it gave better security than the other, as a man could, in case of a personal covenant, either take the personal property with a fi. fa. (fieri facias), the body of the warrantor with a ca. sa. {capias ad satisfaciendum), or half of his lands with a a Writ of elegit. References swpra. 184 OP THE EIGHTS WHICH RELATE TO THINGS KBAL. What modern covenant is made with the same word " warrant" — which formerly made the warranty ? The cov- enant of quiet enjoyment. 2 Th. Co. Lit., 250, et seq., and ns. (D)and(F); 2 Bl. Com., 301. When can a man bring his action against the warrantor on his covenant of quiet enjoyment ? When he is evicted by title paramount, or there has been a disturbance of the pos- session, Rawle's Gov. Title, 210-11, and seq.; 2 Miu. Insts., 643. Suppose a man has simply a covenant of quiet enjoyment and suspects some other man has a better title, what can he do? His only chance is to induce the warrantor to buy in the title, though he cannot compel him, and if he buys it in himself he is estopped from bringing suit against the warran- tor for money, though he would be paying twice for the land. What covenant is inserted in modern conveyances to meet the case ? The " covenant of seizin." What does a man stip- ulate in a covenant of seizin ? He covenants that he is law- fully seized. 2 Th. Co. Lit., 325, n. (G, 3). Suppose A makes a feoffment to B, using both the cove- nants of seizin and quiet enjoyment, and B enfeoffs C, using the same, can C sue A on the covenant of seizin ? No ; this covenant, if broken at all, was broken at the time of A's feoffment to B, and B cannot assign to C his right of action, for at common law choses in action were not assignable. 2 Min. Insts., 569 ; 2 Bl. Com., 290, and n. (6). Suppose, in that case, B had died, would the right to sue A go to his ex- ecutor or to his heir ? To his heir ; though in conformity to principles the court should have determined that the ex- ecutor ought to have it. As between devisee and executor there is an old principle which gives it to the executor. In England, there is also the covenant of "further assu- rance," whereby the warrantor binds himself to do anything which any man learned in the law will advise, which applies to the case where the tenant in tail makes a feoffment and ALIENATION — WARRANTY. 185 the covenant forces him to levy a fine or suffer a recovery.* 2Th.Co.Lit., 325,n. (G, 3). A makes a feoffment to B with warranty, (covenant of quiet enjoyment,) B enfeoffs C with warranty, and C enfeoffs D without warranty ; how many and whom can D sue ? Both A and B ; because the covenant of quiet enjoyment runs with the land.° Suppose A sold to B for $500 ; B to C for $1,000 ; to D for $1,500 ; D sues A, how much can he recover ? Only $500. Why ? Because by voucher originally a man could only get lands of equal value to those that the warrantor had, and the case of damages was determined by analogy. 2 Bl. Com., 304; 2 Th. Co. Lit., 245, 249, and n. (D), 250, n. (F) ; 1 Ves. Sen'r, 516. A sells to B for $500 ; B to C for $1,000 ; C to D for $250; if D sue A what damages does he recover ? $250 only. So, if he sue him in the name of B he gets only $250. Markland v. Crump, 1 Dev. Bat. (Law), 94. Suppose D chooses to sue A and he proves insolvent, can he afterwards have recourse on B ? No ; because he has given B no chance to defend his title. Suppose A holds in fee simple at common law and en- feoffs B with warranty ; B enfeoffs C with warranty, whom would vouch? He could vouch A or B — and the lord ■■The usual covenants of title express in England : (1.) That the grantor Is seized in fee simple of the land. 2 Th. Co. Lit., 325, n. (G, 3). (3.) That the grantor has good right and full power to convey the land in fee simple. Reference supra. (3.) That the grantee, his heirs and assigns, shall have, hold and enjoy the premises granted, without eviction or disturbance. Ref. supra. (4.) That the lands are /rue from all eneumhranees, Ref. supra. (5.) That the grantor and his heirs will make all such further assurances of the lands as shall be reasonably required by the grantee, his heirs, or assigns. 3 Min. Insts., 643. " Covenants which run with the land are those which affect the nature, quality, or value of the thing conveyed, where there is a privity oj estate between the contracting parties, as covenant to repair, pay rent, &c. Bac. Abr. Gov. (E) 3, 4; 2 Th, Co. Lit., 325. 186 OP THE RIGHTS WHICH RELATE TO THINGS REAL. of the fee if evicted by title parammini and only then. 2 Bl. Com., 289 ; 1 Th. Co. Lit., 448, 444. What is the difference between general and special war- ranty ? In the former the warrantor warrants against the ads of all persons whatsoever ; in the latter against himself and heirs. 2 Th. Co. Lit., 325, n. (G, 3) ; 2 Sugd. Vend., 450-'51 ; 2 Min. Insts., 649. Suppose a feoffment to A for life, with warranty to him and his heirs, can the heir vouch ? He cannot ; because warranty is a mere accessory, and cannot be larger than the estate to which it is annexed. Suppose the tenant for life makes a feoffment in fee with a warranty, is the heir bound? He is, so far as .he has assets. 2 Bl. Com., 302, 242, 244 ; 2 Th. Co. Lit., 186, n. (A). Suppose he conveys by bargain and sale, is the heir bound ? He is ; for notwithstanding a bargain and sale passes no greater estate than, a man has, it binds the heir to warranty for all he professes to have. A sells a horse to B, and B is afterwards forced to give up the horse to C who has a better title ; has B any remedy against A ? Yes ; there is an implied warranty of title in all sales of personal property, because the doctrine of per- sonal property was taken from the civil law. Smith's Mer- cantile Law, 630. If A had sold the horse to B by a bill of sale while he was in possession there would be no implied warranty. In old warranty, when the tenant was impleaded, if he failed to avouch the lord and fought it out by himself, after judgment he could not recover from the lord ; but in modern warranty, even after judgment, he could if he had given the warrantor notice;, he could also recover costs, but not with- out notice. The records will be evidence as to whether the warrantor had notice. This is in analogy to the old cove- nant real where the tenant vouched the warrantor. If, before the statute of quia emptores, 18 Ed. I., the tenant" made a feoffment with express warranty, feoffee could have recovered from the feoffor on an express warranty, and from the ALIENATION — WARRANTY. 187 lord on an implied warranty. 2 Bl. Com., 300 ; 2 Th. Co. Lit., 252-'3, and n. (K) ; 1 Th.Co. Lit.,444-'48 ; Gilb. Rents, 14-16. A makes a feoffment in fee with warranty to B ; B makes an estate tail to C ; A's warranty does not run with this es- tate. Spencer's case, 5 Co., 16 b ; Bac. Abr. Gov., (E, 3). Feoffment by A to B, with "covenant of quiet enjoyment;". B enfeoffs C for life ; C cannot, when evicted, sue A, al- though the covenant runs with the land ; but he can recover from B. 2 Bl. Com., 290, n. (6) ; 2 Min. Insts., 569. Same in the case of a widow to whose husband a feoffment has been made with warranty ; but she can recover her dower by going into equity. A makes a feoffment in fee to B ; B enfeoffs C for life ; C can use B's name and sue A, and out of damages recovered reclaim the value of his life estate. Covenant of further assurance is used when the wife fails to join her husband in a deed. ' A covenant of seizin does not pass with the estate and is not as- signable by the parties, because it is a chose in action. 2 Bl. Com., 290, n. (6). But the heir of the covenantee can sue on this covenant, because he takes by act of law in analogy to the assignees of a bankrupt ; and so of a covenant of further assurance, but covenant of quiet enjoyment passes with the land like the old covenant real. The warrantor in a deed, or endorser on a note, must have an interest before they can be made liable by any other than the one to whom the immediate warranty or endorsement is made. Smith's Mer. Law, 292. , If A makes a feoffment to B on condition, B enfeoffs C with warranty, A enters for condition broken, C has a writ warrantia charise. 2 Th. Co. Lit., 303-'4, n. (G, 2). Voucher was only used when there was an action of law pending. In covenant of seizin you can bring an. action before you are impleaded, if you show a defect in the warrantor's title — quia timet. Can you assign the warranty and keep the 188 OF THE RIGHTS WHICH RELATE TO THINGS REAL. land ? You cannot. Warranty by B to A and his assigns, the assignee must vouch during the life of B. But if to A, his heirs and assigns, he can vouch after B is dead. 2 Th. Co_ Lit., 325, n. (G, 3); 2 Sugd. Vend., 450-'51. In a warranty^ the warrantee recovered lands ; a covenantee recovered damages. 2 Bl. Com., 300; 7d, 304; 2Th. Co. Lit., 245- '49-'50 and notes. The consideration paid is the measure of damages, when the land improves or deteriorates in value. A has a judg- ment against B in one county; he sends an "exemplifica- tion " of record to another county ; all B's lands in that county are bound. LECTURE XIV. DEVISE. How many modes of acquiring title to estates ? Two ; by descent and by purchase. What is the definition of descent ? Descent, or hereditary succession, is the title whereby a man, on the death of his ancestor, acquires his estate by right of representation as his heir at law. 2 Bl. Com., 201. Defini- tion of purchase ? The acquisition of an estate by any other means than by descent. 2 Bl. Com., 241. The popular meaning of purchase is the acquisition of a thing by paying a price. Could a man devise lands at common law ? No. 2 Bl. Com., 374, d seq.; 2 Th. Co. Lit., 636, n. (2). What statute gave the power, and what did it provide ? Statute of 32 Hen. VIII. gave a man power to devise all his socage lands and two-thirds of those held in chivdb'y, that is, fee simple lands, and when statute of 12 Car. II. abolished military tenures, all lands were included. 2 Bl. Com., 375 ; 2 Th. Go. Lit,, 636, d seq., ns. (2), and (4). Can a man devise a remainder? He can. Fearne's Rem., 364-6; 2 Minor's Insts., 362. A man devises to A all the lands he may have at his death, will after purchased land pass to A ? They will not; because the statute says those " having an estate of inheri- tance," or " that all persons seized in fee simple (with certain exceptions) might by will and testament in writing, devise to any other person," &c., and especially because devise was a species of conveyance, and the will could only pass what the devisor had at the time it was executed. Bac. Abr. Wills, (H), 1 ; 2 Am. L. C, 668, d seq. What chattels are bequeathable ? All chattels to which the testator may be entitled to at hie death,, except that if he is 190 OF THE EIGHTS WHICH RELATE TO THINGS REAL. a married man he cannot by will deprive the wife of her paraphernalia (apparel and ornaments.) 2 Bl. Com., 436. From whom does the devisee take lands ? Immediately from the devisor. From whom does the legatee get chattels bequeathed ? From the executor. 2 Bl. Com., 512. Suppose the heir refuses to let the devisee take the lands, what remedy has he ? He brings a writ of ejectment against the heir. In what court ? Court of common pleas — a court of law- Suppose the executor refuses to allow the legatee his leg- acy, how-does the legatee proceed ? He brings a suit against him in the ecclesiastical court. 1 Sto. Eq., § 283, d seq.; Scott V. Tyler, 2 Bro. C. C, 431 ; S. C. 2 Wh. and Tud. L. C. (Pt. I), 266 and seq.; Garbut v. Hilton, 1 Atk., 381. From what law was obtained the law regulating wills of chattels? From the civil or ecclesiastical law. See the references supra. Difference between a will and a testament? In a will proper, an executor is appointed ; but a will is a "testament" without such appointment. Suppose A makes a will and testament and appoints an executor, and he refuses to act, what is done ? The ordina- ry appoints an administrator after 31 Edw. III., and he is called an " administrator with the will annexed." If he makes his will and testament without appointing an execu- tor at all, the administrator is called administrator " cum testamenio annexo." " After an executor pays the debts and legacies, what be- comes of the balance in his hands ? He had a right to keep it unless there were a residuary legatee named in the will. "The word devise (from French deviser, to speak,) means a gift by will of real property; whilst the words legacy and bequest both signify a gift by will of chattels. Hence, devisee means one to whom real property is devised, and legatee one to whom personal property is bequeathed. 2 Th. Co. Lit., 636, 646. A will is a declaration made in due form of law, of a man's mind, or last will of what he would have to be done witji his estate after his death. The word testament is synonymous with it, the two words being indis- nriminatpliT iicpil in nvtv ^a.\xr Har* A>ir "Willo A - *> Min Tne*-o QAY ALIENATION — DEVISE. 191 2 Bl. Com.j 515. By statutes of 22 and 23 Car. II., explained by 29 Car. II., it is enacted that the surplusage of intestates' estates, except of /ernes covert, which are left as at common law, shall go in course of distribution. 2 Bl. Com., 515-'16. Devise to an eldest son and his heirs, how does he take ? By descent, as he gets the same estate the law would have given him. 2 Th. Co. Lit., 646, n. (B) ; 2 Min. Insts., 944. Why was this rule adopted ? Because if he takes by purchase, it defrauds specialty creditors, and releases the estate from all debts of record, and besides, in feudal times, the lord would have been deprived of feudal incidents. References supra. Suppose a man devise a tract of land to his friend A, and then makes a feoffment in fee, and takes it back in fee; will it pass to A, the devisee, or to the heir ? To the heir, because the testator changes the estate and takes back another.'' Suppose in a case as the above, the devisor makes an estate tail, will the reversion pass to the devisee ? or if the estate tail determines during the devisor's life, will the whole fee pass to the devisee ? No ; it goes to the heir. See note " b," p. mfra. Suppose the devisor makes an estate for years, does the devisee or heir take ? In this case the devisee, because the possession of the lessee is the possession of the "■In 'Kngliind implied revocations of wills arose not out of the terms of the statute of frauds, 29 Car. II., but' in spite of very positive provisions in that statute to the contrary, out of the construction of the courts of chancery. The courts, both of law and equity, from the time of the en- actment of the statute of wills, 32 and 34 Hen. YIII., had assimilated wills of lands to conveyances, and were, therefore, by that construction, obliged to consider them as em-bracing not such lands as the testator might own at Ms death, (as was the construction of wills and chattels,) but such only as he possessed at the date of the will. Hence, if at any time after making the will, he sold the lands then owned by him, the will could no longer be applicable to them, although he should after- wards re-acquire them and die seized thereof. And so, any alteration of the testator's estate, after the making of the will, would have in like manner the effect to defeat the will, at least j?ro ianto, that is, to the ex- tent of the alteration. Lawson v. Morrison, 2 Am. L. 0,, 668, et seq. ; Bac. Abr. Wills, (H), 1 ; 2 Min. Insts., 927. 1&2 OF THE RIGHTS WHICH RELATE TO THINGS REAL. devisor. 1 Wash. KeaJ Prop., 366, d seq.; Blight's lessee v. Rochester, 7 Wheat, 548 ; Walton v. Waterhouse, 2 Saund., 418, n. (1). As a general rule, where the devisor parts with the freehold, it is an implied revocation of the devise. 2 Amb. L. C, 668, et seq.; Bac. Abr. Wills, (H), 1 ; 2 Min. Insts., 927. Suppose the devisor after making the devise, makes a feoff- ment in fee on condition and enters for condition broken, who takes ?" The h«ir, it was decided, although the devisor by entry was possessed of his old estase. Note "b" last supra. Do the judges construe the statute of devises strictly? They do as to what a man can pass by it, though in the de- vise itself technical terms were not required on the ground of the devisor being inops consHii. 2 Bl.. Com., 381 ; 2 Min. Insts., 962. Statute of 32 Hen. VIII. required that a devise should be in writing only. 2 Bl. Com., 376. What statute required more solemnities ? Statute ©f 29 Car. II. required that the will should be signed by the demsor and subscribed by three credible witnesses in his presence." What is the difference between the signing of the devisor and the witnesses ? The signature of the devisor in any part of the devise was held good ; but with regard to the signature of witnesses the word "subscribed" was used.* What did the judges consider was meant by his (the °29 Car. II. directs that all devises of lands and tenements shall not only be in writing, but signed by the testator, or some other person in his presence, and by his express direction ; and be subscribed in his presence by three or four credible witnesses. 2 Bl. Com., 376. * The statute 29 Car. II., §5, did not prescribe where the signature should be placed, and soon after the enactment of the statute it was de- termined in the great ease of Lemayne v. Stanley, (3 Lev. 1,) that it was immaterial, if the name were written by the testator himself, or by liis direction and in his presence, where it appeared, whether at the top or bottom, or in the margin. This decision (made 33 Car. n., A. D. 1682,) was often regretted, but never directly overruled until it was done by statute in England. It was agreed that the object in requiring the testator's signature was ALIENATION — DEVISE. 193 devisor's) presence ? Any where within his view, so that he could see if he would.^ Where a woman sat in a carriage and looked through a window into an office where the de- vise was signed, it was considered good. Casson v. Dade, 1 Bro. 0. C, 99 ; 2 Min. Insts.,919. What did the judges construe " credible " to mean ? Com- peient.' Suppose a man makes a devise and one of his three two fold, namely : (1.) To connect hm, with the paper; and (2.) To afford proof of the finality, or comphtion of the testamentary intent. It was admitted also, that the first object was satisfactorily attained by the tes- tator's signature occurring anywhere in the paper. But it was insisted that the second object was wholly frustrated by allowing the signature to be anywhere else but at the end; and in response to the suggestion that the finality of the testamentary intent was proved by the attestation of the subscribing witnesses, it was said that the statute designed two safeguards, the attestation of the witnesses and the sigrMture also, and that the courts thwarted the design of the legislature when they dispensed with either. 2 Bl. Com., 376-'7, and n. (9) ;, 2 Min. Insts., 913-'14. " The idea of presence requires the attestation to occur within the range of the testator's vision, and within a reasonable degree of proximity, in case of one who has the faculty of sight. 1 Kedf. on Wills, 54, 57-'8 ; 2 Min. Insts., 918. To be in the same room with the testator, when witness subsci-ibes the will, is prima fade to be in his presence ; which, however, may be re- pelled by proof that the testator was so situated relatively to the witness that he could not see the act of attestation, and could not, without help, place himself in a position to see. If he could see, or could, without help, place himself in a position to see, it is immaterial whether he really did- see m- not. 1 Redf. Wills, 245 ; 2 Min. Insts., 919. An attestation not made in the same room is prima facie not an attes- tation in his presence. But this also may be repelled by showing that from the position actually occupied by the testator he could plainly see the act of attestation. 1 Redf. Wills, 246 ; Coleman's Case, 3 Curt., (7 Eng. Ec, R.) 225 ; 2 Salk., 688 ; 3 do. 395 ; 1 M. and S., 294 ; 3 Russ.,. (3 Eng. Ch.) 441. f The common lav^ rejects as incompetent the testimony of : (1.) Parties . (2.) Persons deficient in understanding ; (3.) Persons wanting in religious belief; (4.) PersonsconvictedofOT/flsmoM« offences, who have been neither pardoned nor punished ; (5.) Persons interested in favor of their interest.. IGreenl. Ev., §§327to430. 13 194 OF THE EIGHTS WHICH RELATE TO THINGS REAL. witnesses is infamous, and, therefore, incapable of bearing testimony, would the devise be good ? No ; because that witness is incompetent. Bac. Abr. Wills, (D), 3 ; Wyndham V. Chetwynd, 1 Burr., 414; 5 Bar. and Aid. (7 E. C. L.), 589. Suppose one of three witnesses denies the signature, would the others be sufficient to establish the devise? Yes; for though the witness refuse he is still competent. Suppose a legacy were given to a subscribing witness, would he be competent? Not under the statute of 29 Car. II.; but 25 ■Geo. II. made legacies to witnesses void, and made juries the judges as to the credibility of creditors. 2 Bl. Com., 378. A man devises a tract of land to A, and his personal prop- erty to B, what estate does A take ? Only a life estate ; though he would have tak(fn more if there had been any- thing in the devise to indicate such intention on the part of the d«visor. 2 Th. Co. Lit., 497, et seq., and notes ; 2 Bl. Com., 108, n. (11) ; 2 Min. Insts., 968. Why were the courts more favorable in their construction 'Of wills than deeds ? Because the testator was considered inops consiLii? 2 Bl. Com., 108 and notes. In England, if a man devised land to his wifecan she also take dower ? She can, unless the devise is expressly stated to be in satisfaction of dower, that being one of the requi- sites of jointure. 2 Bl. Com., 137-8 ; Id., 138 and n. (33); 2 Th. Co. Lit., 612 and ns., 114, 115 ; 1 Bright's Hus. and Wife, 447, €< seg. What is the statute of jointure, and why made ? The statute of 27 Hen. VIII , and it was made because the «Less regard is had to the technical rules of limitation in wills than in deeds inter vivos, and otiier instruments, because for the most part a man puts off making his will until the last moment, when he often cannot ob- tain the aid of counsel, or as the phrase is, when he is inops comilii. Hence, if any material advantage is to be derived from the right of devise, a liberal construction must be indulged, and notwithstanding It tends to uncertainty and litigation, the rigorous requirements of technical phra- seology must be relaxed in respect of wills. 2 Bl. Com., 381 ; 2 Minor's Insts., 962. ALIENATION— toEVlSB. 195 statute of uses made the same year, had transferi^d the legal estate to the cestui que use, and would have given the wife a right to both dower and jointure, but for the statute of joint- ure. 2 Bl. Com., 137-'8. In North Carolina a wife was only endowed of what her husband was seized at his death formerly ; but now by statute the common law is in force. Battle's Revisal, ch. 117, 839. Suppose in North Carolina a man devises land to his wife, can she take both dower and the land devised ? She can- not, on account of our statute. Battle's Revisal, ch. 117, §§ 2 and 6, p. 839. A man can devise land to his wife, but note e converso that a woman cannot devise to her husband, because she is sm6 potestate mri at the time, nor can she make a testament of chattels without the husband's license. 2 Bl. Com., 498. The statute of 3 and 4 Wm. and M. enacted that a devise of land by a tenant having power to devise, should be void against specialty creditors, and that they might maintain a joint action against the heir and devisee. 2 Bl. Com., 378. There are two exceptions to this, however, namely : (1.) A devise to raise portions for younger children ; and (2.) -For the payment of debts where all the -debts are provided for." 2 Bl. Com., 378, and note&, ^ Wills of chattels could be made at common law, and were not re- quired to be in vyriting) but might be in all cases verbal or nuncupative. 2 Bl. Com., 500, etseq,; Wms'. Pars. Prop., 413, etseq. The statute otjrauds and perjuries, 29 Car. 11., §§ 19, 20, A. D. 1678, enacted that veirbal or ntmcupStive wUls of chattels exceeding 30 £, should be valid in onlif three cases, viz : in case of : (1.) Mariners at sea; •(2.) Soldiers in actval service; (3.) Persons in extremis. The ebvocation op wtSiLS. Wills of all kinds are in their nature revoca- ble or ambulatory, and cannot, by the most express words, be made oth- erwise. Originally in England, even wills of lands might have been 'revoked hy words only, the statutes of wills, 32 and 34 Hen. VIII., being silent as to revocations. Lawson v. Morrison, ^tals., 2 Amb. L. C, 643, The statute of frauds, however, 29 Car. II, % 6, provided against the mischief which would have ensued, had the omission continued, by en- acting that no devise in writing should be revoked except » (I,) By some 196 OF THE EIGHTS WHICH RELATE TO THINGS REAL, other will, eodieil, or writing j or (2.) By burning, tearing, cancelling, or obliteraUng the same by the testator, or in his presence and by his direction. But to these modes of revocation the courts of chancery added, by con- struction and implication, two others, namely : (1.) By a subsequent change of estate on the part of the testator; (2.) And by a subsequent mar- riage and birth of a child, and in this case the courts hold the circum- stance to afford a presumption merely, which may be repelled by other circumstances, or by declarations to the contrary. Bac. Abr. WUls, H ; 2Min. Insts., 922. EEPUBiiiCATiON OF WILLS. Prior to the statute of 29 Car. II, (which in terms put the republication of wills on the same footing as their execu- tion,) any act or expression was sufScient to set up even a revoked will not physically destroyed, which showed an intention to treat the will as a valid and subsisting instrument. Thus, in that state of the law, the subsequent verbal " allowance " of a will was held a sufficient republica- tion to pass after-acquired lands ; as was also a parol declaration that after-acquired lands should go with others previously devised. Eepubli- cation, apart from and prior to the statute of frauds, was in fact the con- verse of a revocation, and like it, was open to the whole range of parol evidence. Beckford ®. Parnecott, 2 Cro. (Eliz.) 493 ; Barnes ». Crowe, 1 ^fes. Jun., 497 ;j Lawson «. Morrison, 2 Am. L. C, 674, e< seq.; 2 Min. Insts., 931. Peobate op wills. The probate of a will is the official proof, made be- fore the proper and appointed tribunal, of the due execution of the will, ascertaining it to be the true, genuine and lawful expression of the last wishes of the deceased in respect to his property ;, whereupon, it is ordered to be recorded as and for the last will of the decedent, and the original is deposited and preserved in the clerk's office of the court of probate. 2 Bl. Com., 508 ; 2 Min. Insts., 932. How WILLS MAY BE VOID, TH0U6H ESEOUTED IN DUE FOKM. 1. Where the devise is to the testator^s heir, to take, and he would take as heir. 2 Th. Co. Lit., 646, n. (B) ; 2 Min. Insts., 944. 2. Where the person to whom, or the object for which the devise is made, is not sufficiently designated or ascertained; e. g., devise " to the Baptist Association that for common meets at P." is void for uncertainty of persons designed to be benefited, the association not being incorpora- ted. Baptist Association «. Hart, 4 Wheat., 372. And devise "/w the benefit of the trade of the town of A," is void for the uncertainty of ob- ject. Wheeler ». Smith, et als., 9 How., 55 ; 3 Min. Insts., 945. 3. Where fraud or force has been used with the testator, so that his will has not been fully exercised. 1 Redf . Wills, 524-'5, et seq. 4. Where the devise would result in injury to the rights of third per- sons— e. g., creditors of the testator. 5. Where the devise is too remote; e. g., devise to A in fee simple, and upon failure of heirs at any future time, to Z in fee^is-void for remote- ALIENATION — DEVISE — CONSTRUCTION. 197 ness as to the limitation to Z, for tiie limitation must be made to take effect within the period of a life or lines in being, and ten months, (the period of gestation,) and twenty-one years afterwards. 2 Bl. Com., 174, n. (21) ; Fearne's Bem., 429, and n. (f), 444, n. (a) ; 7 Tr. Bep., 100 ; 10 Bing. E. 0. L., 140. 6. Where the devisee dies before the testator. Here at common law the devise lapses. The share of one of several tenants in common who is a devisee, and who dies before his testator, lapses ; but where the devise is to several persons jointly, and one of them dies in the testator's lifetime, his share does not lapse, but survives; for although such joint devisees are not joint-tenants until tlie testator's death, j'et the gift to tliem is a gift pur mie et pur tout {per totum et per nihil; scilicet per totum conjunctim, etper nihil separatim,) and so if one should die, whereby, as he has noth- ing separately, his interest ceases to exist, the other or others are entitled to the whole as at first, but with no one to share it with them. Humphrey V. Tayleur, 1 Ambl., 138 ; 2 Min. Insts., 947. An examination op the rules of law bespecting the admission OP extbinsic evidence in aid of the interpretation op wills. Sir James Wigram has digested his examination of the subject into se««ra propositions, which, with the exceptions and qualifications thereto, he establishes and illustrates successively by abundance of cases. These propositions are as follows : I. A testator is always presumed to use the words in which he expresses himself according to their strict and primary acceptation, unless from the context of the will it appears that he has used them in a different sense, in which case the sense in which lie thus appears to have used them will be the sense in which they are to be construed. Wigrara's Essay, 15, 16. n. Where there is nothing in the context of a will from which it is apparent that a testator has used the words in which he has expressed himself in any other than their strict and primary sense ; and where his words, so interpreted, are sensible with reference to extrinsic circumstances, it is an inflexible rule of construction that the words of the will shall be interpreted in their strict and primary sense, and in no other, althougli they may be capable of some popular or secondary interpretation, and although the most conclusive evidence of intention to use them in such popular or secondary sense be tendered. Wigram 's Essay, 17, et seq. III. Where there is nothing in the context of a will from which it is ap- parent that the testator has used the words in which he has expressed himself in any other than their strict and primary sense, but his words 60 interpreted are insensible with reference to extrinsic circumstances, a court of law may look into the extrinsic circumstances of the case to see whether the meaning of the words be sensible in any popular or secon- dary sense of which, with reference to these circumstances, they are capable. Wigram's Essay, 42, et seq. IV. Where the characters in which a will is written are difficult to be de- 198 OF THE EIGHTS WHICH RELATE TO THINGS REAL. ciphered, or the language ol the will is not understood by the court,' the evidence of persons skilled in deciphering writing, or who understand the language in which the will is written, is admissible to declare what the characters are, or to inform the court of the proper meaning of the words. Wig. Es., 48. V. For the purpose of determining the object of the testator's bounty, or the subject of disposition, or the quantity of interest intended to be given by his will, a court may inquire into every material fact relating to the person who claims to be interested under the will, and to the prop- erty which is claimed as the subject of disposition, and to the circum- stances of the testator, and oi his family and affairs, for the purpose of enabling the court to identify the person or thing intended by the testa- tor, or to determine the quantity of interest he has given by his will. VI. Where the words of a will, aided by evidence of the material facts of the case, are insufficient to determine the testator's meaning, no evi- dence will be admissible to prove what the testator intended, and the will (except in certain special cases, see Prop. VII,) will be void for un- certainty. Wig. Es., 83, et. seq. VII. Notwithstanding the rule of law which makes a will void for un- certainty, where the words, aided by evidence of the material facts of the case, are insuflBoient to determine the testator's meaning, courts of law in certain special cases admit extrinsic evidence of intention to make cer- tain the person or thing intended, where the description in the wiU is insufficient for the purpose ; e. g., where the object of a testator's bounty, or the subject of disposition (i. e., the person or thing intended) is de- scribed in terms which are applicable indifferently to more than one per. son or thing, evidence is admissible to prove which of the persons or things so described was intended by the testator. Wig. Es., 101, et seq. LECTURE XV. ESTOPPEL. What is estoppel ? It is that which shutteth a man's mouth from speaking the truth." How many kinds of estoppel ? Three, namely : (1.) By matter of record ; (2.) By deed; (3.) By matter in pais. 1 Chit. PL, 603 (e) ; Com. Dig., Estoppel. Suppose A sells B's land to C, and gives him ,a deed for the same ; A then purchases the land from B ; is A forever estopped from claiming the land? Yes ; by his own deed. Smith's Cont., 16, et seq.; 1 Greenl'f Ev., § 23. Suppose C is afterwards evicted by title paramount to A's, could he re- cover from A ? Yes ; upon his own deed ; for A is bound by his own stipulations therein. Smith's Cont., 5, etseq. Suppose a son makes a deed of his father's land, and the father dies leaving him the property, is the son estopped from claiming the land ? Yes ; but had the son stated in the deed that he expected the father to will him the land, it would have been an estoppel against an estoppel, and the matter would have been left at large ; for by saying that " he expected the father to will him the land " it was equiv- alent to saying that the land was not his, which estopped the purchaser ; but by conveying it he acts as the owner of it, by which he estopped himself. What is an estoppel against an estoppel ? It is when, in the same deed, the same thing is asserted one way, and then another, which always leaves the matter at large. Co. Lit., 352, a, et seq. The case last above is an instance. "A man is said to be estopped when he has done some act, which the policy of the law will not permit him to gainsay] or deny. 1 Greenl'f. Ev., §32. A preclusion, in law, which prevents a man from alleging or denying a fact in consequence of his own previous act, allegation or de- nial of a contrary tenor. Stephen Plead., 239. 200 OF THE EIGHTS WHICH RELATE TO THINGS REAL. A has a life estate and makes a feoffment in fee to B ; if A should afterwards purchase the land will it work an es- toppel ? No ; for estoppel cannot possibly happen where part of the estate is actually passed by the deed. Estoppel must be of the whole and not of a part. A lessee for life of B makes a lease for years and purchases the reversion, would he, in that case, be estopped ? Yes. Suppose A lease to B a tract of land for ten years, and B finds the land belongs to C ; if B buys it from C and then refuses to pay A rent, is B estopped ? Yes ; for he is com- pelled to gay a rent until A surrenders, or the time expires, and B then recovers the land from him. 1 Greenl'f Ev., § 23. Suppose A borrows a knife from B and afterwards finds out that the knife belongs to C ; B applies for the knife, is A bound to give it up to him? Yes; for he is estopped from saying that it is his because he got the knife from B and is bound to return it to him. The two last cases are es- toppels in pais. Bouv. Law Die, Estoppel. Rules governing the doctrine of estoppel : — (1.) Every estoppel ought to be reciprocal — i. e., bind both parties ; hence a stranger cannot take advantage of, or be bound by an estoppel. (2.) Every estoppel must be certain to every intent and not be taken by argument or inference. (3.) Every estoppel ought to be a precise affirmation of that which makes the estoppel, and not be spoken imper- sonally. Neither does a recital conclude. (4 ) A matter alleged that is neither traversable nor ma- terial shall not estop. (5/) Regularly, a man shall not be concluded by accep- tance, or the like, before the title accrued. (6.) An estoppel against an estoppel doth set the matter at large. (7.) Matter alleged by way of supposal, in court, shall not conclude after non-suit; contra after judgment given. (8.) "When the verity is apparent in the same record, then ESTOPPEL. 201 the adverse party shall not be estopped to take advantage of the truth. (9.) Where the record of estoppel runs to the disability or legitimation of the person, there all strangers shall take benefit of the record. See Comyn's Dig., Estoppel ; Co. Lit., 352 and 252, a." '■ The law of estoppel is not so unjust or absurd as it has been too much the custom to represent it. Its foundation is laid in the obligation which every man is under to speak and act according to the truth of the case, and in bhe policy of the law to prevent the great mischiefs resulting from uncertainty, confusion, and want of confidence in the intercourse of men, if theywerepermittedtodeny that which they have deliberately and sol- emnly asserted and received as true. If it be a recital of facts in a deed, there is implied a solemn engagement that the facts are so as they are recited. The doctrine of estoppels has, however, been guarded with great strictness; not because the party enforcing it necessarily wishes to exclude the truth — for it is rather to be supposed that that Is true which the opposite party has already solemnly recited, — but because the estoppel may exclude the truth. Hence, estoppels must be certain to every intent ; for no one shall be denied setting up the truth, unless it is in plain and clear contra- diction to his former allegations and acts. In regard to recitals in deeds, the general rule is that all parties to a deed are bound by the recitals therein, which operates as an estoppel, working on the interest in the land, if it be a deed of conveyance and binding both parties and privies — privies in blood, privies in estate, and privies in law. Between such parties and privies, the deed or other mat- ter recited needs not, at any time, be otherwise proved, the recital of it in the subsequent deed being conclusive. It is not offered as secondary, but as primary evidence, which cannot be averred against, and which forms a muniment of title. Thus, a recital of a lease, in a deed of release, is con- clusive evidence of the existence of the lease against the parties, and all others claiming under them in privity of estate. Thus, also, a grantor is, in general, estopped by his deed from denying that he had any title in the thing granted. But this rule does not apply to a grantor acting officially, as a public agent or trustee. A covenant of warranty also estops the grantor from setting up an after acquired title against the grantee, for it is a perpetually operating covenant ; but he is not thus estopped by a covenant that he is seized in fee and has good right to convey ; for any seizin in fact, though by wrong, is suflS- cient to satisfy this covenant, its import being merely this, that he has the seizin in fact at the time of conveyance, and thereby is qualified to transfer the estate to the grantee. Nor is a, feme covert estopped, by 202 OF THE EIGHTS WHICH RELATE TO THINGS HEAL. her deed of conveyance, from claiming the land by a title subsequently acquired ; for she cannot bind herself personally by any covenant. Neither is one who has purchased land in his own name for the benefit of another, which he has afterwards conveyed by deed to his employer, es- topped by such deed, from claiming the land by an elder and after-ac- quired title. Nor is the heir estopped from questioning the validity of his ancestor's deed, as a fraud against an express statute. The grantee, or lessee, in a deed-poll, is not, in general, estopped from gainsaying anything mentioned in the deed ; for it is the deed of the grantor or les- sor only ; yet if such grantee or lessee claims title under the deed, he is thereby estopped to deny the title of the grantor. It was an early rule of feudal policy that the tenant should not be per- mitted to deny the title of the lord, from whom he had received*investi- ture, and whose liegeman he had become ; but, as long as that relation existed, the title of the lord was conclusively presumed against the tenant to be perfect and valid. And though the feudal reasons of the rule have long since ceased, yet other reasons of public policy have arisen in their place, thereby preserving the rule in its original vigor. A tenant, there- fore, by indenture, is not permitted, at this day, to deny the title of his lessor, while the relation thus created subsists. It is the essence of the contract, under such claims, that the paramount ownership of the lessor shall be acknowledged during the continuance of the lease, and that pos- session shall be surrendered at its expiration. He could not controvert this title without breaking the faith which he had pledged. But this doctrine does not apply with the same force and to the same extent between other parties, such as releasor and releasee, where the latter has not received possession from the former. In such cases, where the party already in possession of the land, under a claim of title by deed, purchases peace and quietness of enjoyment, by the mere extinction of a hostile claim by a release, without covenants of title, he is not estopped from denying the validity of the title, which he has thus far extinguished. Neither is this rule applied in the case of a lease already expired ; provided the tenant has either quitted the possession, or has submitted to the title of a new landlord ; nor is it applied to the case of a tenant, who has been ousted or evicted by a title paramount ; or who has been drawn into the con- tract by the fraud or misrepresentation of the lessor, and has, in fact, derived no benefit from the possession of the land. Nor is a defendant in ejectment estopped from showing that the party, under whom the lessor claims, had no title when he conveyed to the lessor, although the defendant himself claims from the same party, if it be by a subsequent conveyance. This rule in regard to the conclusive effect of recitals in deeds is re- stricted to the recital of things in particular, as being in existence at the time of the execution of the deed ; and does not extend to the mention ESTOPPEL. 203 of things in general terms. Therefore, if one be bound in a bond, con- ditioned to perform the covenants in a certain indenture, or to pay the money mentioned in a certain recognizance, he shall not be permitted to say that there was no such indenture or recognizance. But if the bond be conditioned that the obligor shall perform all the agreements set down by A, or carry away all the marl in a certain close, he is not estopped by this general condition from saying that no agreement was set down by A., or that there was no marl in the close. Neither does this doctrine apply to that which is mere description in the deed, and not an essential averment : such as the quantity of land ; its nature, whether arable or meadow ; the number of tons in a vessel chartered by the ton ; or the lilie ; — for these are but incidental and collateral to the principal thing, and may be supposed not to have received the deliberate attention of the parties. 1 Greenl'f Ev., §22-§36. Whether the recital of the payment of the consideration money in a deed or conveyance estops the party from denying it, or belongs to the exceptions — and therefore made open to opposing proof — is a point not clearly agreed. In England the recftal is regarded as conclusive evidence of payment, binding the parties by estoppel. 5 B. and Aid., 606 : 2 B. and Aid., 544. The doctrine in North Carolina is that the recital of pay- ment is conclusive. Brocljet v. Foscue, 1 Hawks, 64 ; Spiers v. Clay, 4 Hawks, 32 ; Jones v. Sasser, 1 Dev. and Bat., 452. Doctrine in different States, see Greenl'f Ev., §26, n. (1). LECTURE XVI. REMITTER. What is remitter ? Remitter is where he who hath the true property, or Jms proprietaiis, in lands, but is out of pos- session thereof, and hath no right to enter without recover- ing possession in action, hath afterwards the freehold cast upon him by some subsequent, and of course, defective title. In this case he is remitted, or sent back, by operation of law, to his ancient and more certain title. 2 Bl. Com., 20. What reason is there for its use ? The same reason that applies to retainer in personal property, whereby the execu- tor cannot, without an apparent absurdity, commence a suit against himself as a representative of the deceased, to recover that which is due to him in his own private capacity ; but having the whole personal estate in his hands, so much as is sufficient to answer his own demand, is, by operation of law, applied to that particular purpose. Else by being made ex- ecutor he would be put in a worse condition than all the rest of the world besides. So, in remitter, where one having the right to the property in lands, but is out of possession, has a defective title cast upon him, he is allowed to be in as of his old estate, since being in possession he cannot sue himself, and therefore the law places him in the same posi- tion that he would have been in had he sued and recovered. 2 Bl. Com., 20. Is this any advantage to the heir ? Yes ; because by re- mitter he may avoid all the charges which encumber the defective title. Must the person remitted come to the estate by ad of law? Yes; for if he obtain possession by his own act he is not remitted. 2 Bl. Com., 20. A tenant in tail makes a feoffment in fee to B, afterwards disseizes B and dies, will his heirs be remitted ? Yes ; be- cause they acquire the tortious fee by act of law : i. e., by • REMITTER. 205 descent. 2 Bl. Com., 20. Had A died without disseizing B and his heirs had disseized B, would they have been re- mitted ? No ; the estate must have come to them by act of law, not their own act. 2 Bl. Com., 20. In case of a disseizin, if the heir of the disseizor leaves the disseizee his heir, the disseizee being remitted, does he take subject to dower of the disseizor's wife, or the dower of the widow of the disseizor's heir ? No. See 2 Min. Insts., 132, and references next infra. Had the heir of the disseizor made feoffment to the disseizee, would he be remitted ? No ; but would take subject to the widow's dower. 2 Bl. Com., 20-1 ; 1 Th. Co. Lit., 561, and ns. 13 and (G) ; Id., 565, and n. (L) ; Paine's Case, 8 Co., 34 a ; 1 Wash. Real Prop., 812. If A, a tenant in fee, is disseized by B, and after descent cast the heir of B, makes a feoffment to C for life, remainder to A in "fee, is A remitted ? Yes ; because he was not a party to the deed. The law has cast the estate upon him, and even before he accepted it the lord would look to him as owner of the inheritance, for the feudal services. 2 Bl. Com., 20. Suppose the tenant in tail makes a feoffment in fee to the use of his issue, being within age, and dies, will his is- sue be remitted ? No ; because 27 Hen. VIII., statute of uses, transfers the legal estate to the use in the same manner, form, and condition, as the cedui que use, before had in the use. 1 Sp. Eq. Jur., 463; Gilb. Uses, 356, n. (21). Can the issue be remitted when they come of age ? Yes ; by waiving such estate, and bringing their: formedon against the feoffees. Sup- pose the issue above accept such estate and die, will their is- sue be remitted ? Yes ; because an estate in fee simple de- scends to them. In case where the heir of the disseizor makes a feoffment to the disseizee, does the disseizee take subject to dower ? Yes; because by accepting the feoffment he admitted the legal title to be in the heir of the disseizor, and is estopped 206 REMITTER. "* from denying it. 1 Wash. Real Prop., 464 ; Greenl'f Ev., §22, §23. Remitter and retainer are the only two instances of reme- dies for private wrongs which are effected by the mere opera- Uon of law. There can be no remitter to a right for which the party has no remedy by action ; as if the issue in tail be barred by the fine or warranty of his ancestor, and the freehold is af- terwards cast upon him, he shall not be remitted to his es- tate tail ; for the operation of the remitter is exactly the same after the union of the two rights, as that of a real ac- tion would have been before it. As, therefore, the issue in tail could not, by any action, have recovered his ancient es- tate, he shall not recover it by remitter. 2 Bl, Com., 20. BOOK THE SECOND. THE RIGHTS WHICH RELATE TO THINGS PERSONAL Book II LECTURE I. PERSONAL PROPERTY.' What is the meaning of estate, and from what is it de- rived ? It is derived from statvs, signifying standing, and means the condition or circumstance in which the owner stands with regard to his property. 2 Bl. Com., 104. Which has the broader signification, estate or property ?' Estate, as it includes property and choses in action} What is chattel derived from ? Catalla — meaning in its- primary sense cattle, or animals rather. 2 Bl. Com., 385. Blackstone uses it in its secondary sense." Why are both the terms " goods and chattels " used in a fieri facias ? Chat- tel is used in its primary sense, denoting animals, and goods- is used to denote things inanimate. How many kinds of personal property ? Two : choses in possession and choses in action. 2 Bl. Com., 388. " Personal property is the right or interest which a man has in things personal ; or it is the right or interest less than a freehold which a man has in realty, or any right or interest which he has in things movable. Bouv. Law Die., Personal Prop. ''The words "personal property," as used in the Code, include money,, goods, chattels, things in action, and evidences of debt ; and the word property includes property real and personal. Bat. Rev., 339. Hence, property, under our statute. Includes choses in action, " Catalla — cattle — in its secondary sense was applied to all movables, in general. 2 Bl. Com., 385. Chattels are real or personal. Chattels real are such as concern the realty, as a term for years. Chattels per- sonal are cattle, stuff, fowls, &c. The terms "goods and chattels," in- clude chases in action as well as those in possession. The term " chattels ' ' is more comprehensive than "goods," and will include animate as well as inanimate property. The term "goods" wiU not include fixtures j. but the word " effects " may embrace the same. 2.B1, Com., 383, n. (1).. 14 210 THE EIGHTS WHICH EELATE TO THINGS PEESONAI,. What is the division of things in action ? Two : those arising from contract, and those arising from tort. 2 Bl. Com., 397. Is there any tenure in personal property ? There is not. Could an estate be limited . over in it ? It could not at common law ; but could by way of a use or executory be- quest.* An estate in a library to A in trust for B for life, lemainder to C, is the remainder good? It is. 2 Bl. 'Com., 398. An estate in the same to A and his heirs, in trust for B and the heirs of his body ; the remainder in trust for C ; is the remainder good .? It is not. B takes the Tvhole interest, because C's remainder could not be barred ; .and hence the limitation would tend to a perpetuity. There- fore the law vests in B .at once the entire dominion of goods, heing analogous to the fee simple which a tenant in tail may .acquire in a real estate. 2 Bl. Com., 398 ; 1 P. Wms., 290. ^ A gift of a term for years, or of any other chattel, after a previous ■disposition for life, or infleed for any time, was formerly void, because it ■was thought that, being by many accidents subject to be lost, destroyed ■or otherwise Impaired, and the exigences of trade, moreover, requiring a iree circulation thereof, it would tend to quarrels and strifes, and to ob- struct the freedom of commerce, if such limitations in remainder were generally tdlerated and allowed. But yet, in process of time, in last wills, •such limitations of chattels in remainder, even after a life estate therein, were permitted; though originally, that indulgence was shown only •when the ttse merely of the chattels, and not the chattels themselves, was given to the first taker ; the property being supposed to continue all the :time in the executor of the testator. That distinction, however, as also the distinction between such limitations 6^ will and by deed, have long been disregarded, and remainders, both by deed and by will, have, for more than a hundred years past, been as freely allowed in case of terms ior years, and of other chattels, as in case of freehold estates in lands, with two qualifications only, namely : 1st, That the things given shall not be such as are consumed in the use, (in which case the first taker be- comes the absolute owner of the subject); and 2d, That even in England, and much more with us, an estate-tail to the first taker carries with it tlie fee-simple. 2 Bl. uom., 398 ; Id. 174-'5 ; 2 Kent's Cora., 352 ; 2 Th. Co. Lit., 646, n. (C), Estates in tail are converted into fee aimpU estates in North Carolina. Rev. Code, 269, § 1. EXECUTORY LIMITATIONS. 211 A library in trust to A and his heirs in trust for B for life ; remainder to C for life, and then to such son of B as shall attain the age of twenty-one years ; B dies without heirs ; C dies ; what becomes of the books ? A holds them in trust for the grantor^ since the grantor has the resulting trust.' In case of bequests of chattels, if the testator appointed a trustee of chattels, he was seised or possessed to the use of the legatee ; but if the testator did not appoint a trustee, the law made the personal representatives trustees, as, in real estate, it made the heir. 3 P. Wms., 300 ; Fearne's Rem,, 537, 546-7 ; Bullock v. Stones, 2 Ves. Sen., 521. What name is given such limitations by will of personal property ? Execidory bequests, corresponding to executory de- vises in the disposition of real estate. Can all kinds of personal property be limited over by way of use or will ? No ; things which are necessarily consumed by the nse — such as whiskey, sugar, wheat, corn, &c., — cannot be so limited over. Fearne's Rem., 402, et seq.; 2 Bl. Com., 398, 174-'5 ; 2 Kent's Com,, 352 ; 2 Th. Co. Lit., 606, n. (C). A man wills that his wife, an old lady, shall select among his milch cows, and hold for her life, then the cow shall go to her daughter ; she selects one j afterwards the cow has a calf; the old lady dies ; what becomes of the calf ? Therep" resentatives of the mother take it j the iaa,xim partus sequitur ventrem ' meaning that the increase goes to the person who, ' When a voluntary disposition of property by deed or will is made t6 a, person as trustee, and the trust is not declared at all, or is in^ectually declared, or d/oes not ea^lend to the whole interest giten to the trustee, or it Jails either wholly/ or in part by lapse or o^rwise, the interest so undisposed of will be held by the trustee, not for his own benefit, but as a resulting trust for the donor himself^ or for his heir at law or next of kin, according to the nature of the estate. 1 Dev. Eq,, 493 ; 2 Dev. Eq., 255; 6Ired, Eq., 137 5 1 Atk. Ch., 188; 10 "Ves. Ch., 527; 3 Sim. Ch., 638 ; 6 Har« Ch., 148 ^ 8 Pet., 326 5 1 Rop, Leg., 627 ; 10 Hare Ch., J«l. 'The offspring follows the mother, because the male is frequently un- known, and because the dam, during pregnancy, is useless to the pro- prietor, and as her owner is the loser by her pregnancy, he ought to be the gainer by her brood. 2 Bl. Com., 380, 212 THE EIGHTS WHICH RELATE TO THINGS PEESONAL. for the time being, has the property, 2 Bl. Com., 405. Smp- pose A lets B have a cow to milk ; the cow has a calf; then as B has her for a specified purpose only, A takes the calf. In personal property there are joint tenants, tenants in common, and severalty, but no co-parceners, because per- sonal property does not descend from the ancestor to the heir, which is necessary to constitute co-parceners. 2 BL Com., 399. The doctrine otjus accrescendi does not hold either in re- spect of stock on a farm or in case of joint stock among mer- chants.s 2 Bl. Com., 399. With, respect to quantity of interest, we divide personal prop- erty into absolute &nA. bailment}' What does the word bailment mean, and from what de- rived ?. Bailment is derived from bailJer, to deliver ; and it is the delivery of goods to another in trust, upon contract express or implied, that he will faithfully execute the trust. 2 Bl. Com., 368. How. many kinds of bailments? (1.) Bailment for the benefit of the bailor, and then, the bailee is liable only for gross negligence, as where aman on request takes a bundle from another to carry to a certain place without. reward. (2.) Bailment for. the benefit of the bailee, in which. case the bailee is liable for slightest negligence, as where one borrows a. ^ The rule is, that all property of what nature soever, bought with the cash and for the purposes of a trading partnersMp concern, mast in equity be looked upon as personal, and that, as there can be no survivorship in it, a partner's share will, on Ms death, pass to his personal representa- tive, for whose benefit the surviving partners, or their trustees, will hold it ; since in this case, the jus accrescendi talces place in law. Smith's Mer. Law, 224. There is survivorship as to remecties or ch'oses in action. Sm. Mer, Law, 223, and notes. ^ Absolute property is where a man hath solely and exclusively the right, and also the occupation, of any movable chattels, so that they can- not be transferred from him, or cease to be bis, without his own act or default. 2 Bl. Com,, 388, QUANTITY OF INTEREST — ^BAILMENT. 213 horse from another. (3.) Bailment for the benefit of both bailor and bailee ; in this case the bailee is bound to use or- dinary diligence, as where a merchant hires a man to haul a load of goods to a certain place. In the civil law there were six kinds of bailment, but they may all be reduced to these three. What exceptions are there to these rules ? To the last there are two : Inn-keepers and common-carriers.' Upon what grounds were they held liable as insurers ? They held ■out inducements to persons to patronize them. 2 Bl. Com., 451, and notes ; Sm. Mer. Law, 359, et seq. What exception is there to this exception, or when are inn-keepers and com- mon carriers not liable ? They are not liable for the acts of God and the King's enemies. 2 Bl. Com., 451, n. (21), § 5. What other exceptions are there to the rules sitpra f There is an exception to the first rule, where a man interferes and takes upon himself to deliver anything safely. Coggs v. Bar- nard, 2 Ld. Raymond, 909. In this case, Barnard ^under- took, without pay, to deliver a cask of wine ; and in taking it off the wagon it burst open and he lyas held liable for the damage. This act of the bailee is seemingly for the benefit of the bailor alone without consideration to the bailee, but there is a special trust retposed in the bailee which is the consideration. What kind of neglect will make railroads liable ? They are common-carriers and are therefore bound to insure against anything but the act of God and th-e King's enemies.'' ' A common carrier is one who undertakes for hire to transport the goods of such as choose to employ him from place to place. 1 Sal. , 249 ; Sm. Mer. Law, 359. An innkeeper is the keeper of a common inn for the lodging and en- tertainment of travellers and passengers, their horses and attendants, for a reasonable compensation. Bac. Abr. Inns ; Sto. Bailm., §375 ; 2 Dev. and Bat., 424. •> Passenger-carriers are not held responsible as insurers of the safety of their passengers, as common carriers of goods are. But they are bound to the very highest degree of care and watchfulness in regard to all their appliances for the conduct of their business, so that as far as human fore- 2X4 THE RIGHTS -WHICH RELATE TO THINGS PERSONAL. Angell Car., 70, § 67 ; 2 Ld. Raym., 909, 918 ; 25 Eng. L. E. 595 ; 1 Dev. and Bat. 273. What is the necessity of applying to insurers where you send goods by vessel ? Insurers make the owner of goods safe against the acts of God or the King's enemy. Common carries do not insure against these risks, but only against all loss or damage during transportation from whatever cause, except the act of Ood or the public enemy. . Backhouse v. Snead, 1 Murph., 173. 2 Kent's Com., 597-'8 ; Sm. Mer. Law, 411, et seq. Is a railroad liable for an injury done to a man's per- son ? No, nor is an inn-keeper ; but only for his goods. See Lambeth v. N. C. R. R. Co., 66 N. C, 494 ; Smith and Melton, V. N. C. R. R. Co., 64 N. C, 235. But jailors are bound for the person.'' Suppose a railroad brings bacon to a man agreeably to his order, and deposits it in the depot house, and the road gives him notice to remove it, and a part of it is then stolen, is the railroad company liable ? It is not ; for when the bacon was brought to the depot and deposited the company had it no longer as common carriers ; but as they kept it without charging storage, it was for the bailor's benefit only and the company became liable only for the grossest negli- gence. 2 Kent's Com., 591, 592; Sto. Bailm., §444; Sm. Mer. Law, 362. Hilliard v. W. & W. R. R. Co., 6 Jones, 343 ; Weal V. do, 8 Jones, 482. Would a man hired after his crop is laid by to haul a load of groceries be a common carrier ? No ; those only are sight can secure the safety of passengers, there is an unquestionable right to demand it of all who enter upon the business of passenger-carriers. 2 Esp., 533 ; Kedfleld Eailw., 344, §155 ; Sto. Bailm., §591. The carrier is not excused because the passenger does not pay fare. 14 How., 483. 'The jailor (i. e., the sheriflO is liable civilly^ at common law, for the escape of any prisoner confined on civil process, unless it occur by act of God or of a public enemy. Bac. Abr., sheriff (H), 5 ; Id. (P) ,' 1 Minor's Insts., 99. The criminal liability for escapes, for the most part, is confined to the jailor himself, and does not extend to the sheriff, unless he personally participated in it. Bac. Abr. sheriff, (H), 4. BAILMENT — INN-KEEPERS. 215 common carriers who make it their business, or carry goods for hire indifferently for all persons. Bouv. Law Die, Com- mon Carriers. "Would a keeper of a private boarding house be held lia- ble as an inn-keeper ? No ; because he does not hold out inducements to the public. 2 Dev. and Bat. 427 ; 7 Ga., 296 ; 1 Morr. Tenn., 184. Suppose a regular boarder at a hotel has his horse stolen, is the landlord liable ? He is not ; but is only liable for the goods of transient customers who, as he holds out inducements to *stop with him, have no means of knowing how safe it will be to leave their goods in the hands of the inn-keeper ; but it is presumed that regular boarders stay long enough at a place to find out these things. Sto. Bailm., § 477 ; Bac. Abr. Inns, c. 5. Inn-keepers are generally liable for all goods belong- ing to the guest brought within^the inn. It is not necessary that the goods should have been in the special keeping of the inn-keeper to make him liable. This rule is founded on principles of public utility, to which all private conside- rations ought to yield. 1 Hayw., 40 ; 2 Kent's Com., 459 ; 1 Sm. Led. Cas., 47 ; 8 Co., 32 ; Neal v. Wilcox, 4 Jones, 146. In case of lawyers occupying the same room every court, the judges in North Carolina could not agree whether the inn-keeper should be responsible for the lawyer's baggage or not. Suppose a horse drover stops at a hotel, hires a lot and stable and takes charge of his horses himself, and one of them is stolen, is the inn-keeper liable ? He is not ; because the horses were not committed to his care. Jones' Bailm., 91 ; 8 Co., 32 ; 1 Hayw., 41 ; 25 Eng. Law and Eq., 91. What privilege is given to inn-keepers and common car- riers as a compensation for being held insurers? They have a lien, in the nature of a distress, on the property of their guests till they are paid.' ' The innkeeper is entitled to a just compensation for liis care and trouble in taking care of his guest and his property ; and, to enable him 216 THE EIGHTS WHICH RELATE TO THINGS PEESONAL. Could the inn-keeper and common carrier sell such prop- erty if the bill was not paid ? They could not at common law ; but 11 Geo. II. enabled them and landlords to sell the distress after a time. 3 Bl. Com., 14. In North Carolina, there is no statute ; so they can only retain and not sell. Has the landlord a lien on the goods of a regular boarder for the payment of board ? He has not ; because he is not bound to insure the regular boarder's goods. Distinctions between guest and boarder: Sto. Bailm., § 477; Bac. Abr. Inns, (C) 5 ; 2 Ala,, 377 ; 7 Cush., 424. There are four classes of persons who have a lien on prop-* erty bailed to them, namely : Inn-keepers and common car- riers, all persons who work upon the materials of the bailor to increase their value, and those who have rescued any- thing from the sea."" to obtain this, the law invests him with some peculiar privileges, giving him a lien upon the goods brought into the inn by the guest, and, it has been said, upon the person of his guest, for his compensation. 3 Barnew and Aid., 387; 8 Mod., 172; 1 Shaw., 270; 3 Mus. and W. Exc, 248; Bac. Abr. Inns, (D). It matters not if the goods belong to a third person, if he was ignorant of the fact. 3 Stark., 172 ; 12 Q. B., 197. ■"The doctrine of lien originated in certain principles of the common law, by which a party who was compelled to receive the goods of another was also entitled to retain them for his indemnity ; thus carriers and inn- keepers had, by the common law, a lien on the goods intrusted to their charge ; the rescuer of goods from the perils of the sea has, on grounds of public policy, a lien at common law, for salvage ; and it is a principle that where an individual has bestowed labor and skill in the alteration and improvement of the properties of the subject delivered to him, he has a lien on it for his charge : thus a miller and a shipwright have each alien ; so has a trainer, for the expense of keeping and training a race-horse, for he has, by his instrnction, wrought an essential improvement in the ani- mal's character and capabilities. And if the owner of a stallion receive a mare for the purpose of being covered, he has a lien on her for his charge, for she will be rendered more valuable by proving in foal. But here the rule appears to stop, and not to include cases wherein expense has been bestowed upon the object claimed to be retained, without producing any alteration in it : thus, it has been decided that a livery stable keeper has no lien for the keep of a horse, nor agistor of a horse or cow for its agist- ment. Sm. Mer. Law, 689-'90. BAILMENT — CAKRIKKS. 217 If a man steals a horse loaned to him, he is not guilty of larceny unless you can prove that he borrowed it for that purpose." If a railroad company says it will not be liable for over five dollars, unless you state the real value of your goods and the special attention of the party is called to that fact, the company is not liable for over that amount if the package is lost." "Where the offender lawfully acquired possession and qualified prop- erty in goods, under color of bailment, but with intention of stealing ' them, and privity of the bailment has been determined either by wrong- ful act of offender or by intention of parties, if he afterwards embezzle such goods, he will be guilty of larceny. East. P. C, 691, 627 ; 4 Bl. Com., 230, notes, §(3). "The doctrine that a common carrier may abridge his common law liabUity.by a special agreement, is daily acted upon in the English courts. In the United States, such contracts have elicited a great variety of judi- cial opinion. The most eminent commentators have expressed opposite views as to the present state and tendency of the decisions of this coun- try. Parson's on Cont., vol. 1, p. 703, n. (d); Wallace's note to Smith's Ld. Cas., vol. 1, 274. It has been argued on the one hand, that no stronger reasons exist for forbidding such restrictions in the case of the carrier than in the case of any other insurer of goods ; that the owner, by entering into the contract, virtually agrees, that in respect to the par- ticular transaction, the carrier is not to be regarded as in the exercise of his public employment, but as a private person, who incurs no responsi- bility beyond that of an ordinary bailee for hire, and is answerable only- for misconduct or negligence ; and that the right thus to restrict the ob- ligation is admitted in a large class of cases founded upon bills of lading and charter parties. New Jersey Steam Navigation Co. v. Merchant's Bank, 6 How., 344. It has been urged on the other side, that the law imposes on the com- mon carrier definite and absolute duties, which thereby disable him from entering into any contract in derogation of those duties ; that he should no more be permitted to vary his obligations as a public servant by con- tract, than a sheriff or other officer appointed by law ; that the legal grounds and nature of his responsibility do not, like that of an insurer, depend upon contract, and that any agreement to remit a part of his liability, for the single purpose of inducing a carrier to exercise his busi- ness of transporting goods, is without consideration, under unlawful compulsion, and opposed to general convenience and public policJ^ Wal- lace's note, cited supra; Cole v. Goodwin, 19 Wend., 281 ; Fish v. Chap- 218 THE EIGHTS WHICH RELATE TO THINGS PERSONAL. man, 2 Geor., 349. The question lias not been authoritatively deter- mined in the Supreme Court of the United States. 6 How., 344; Sm. Mer. Law, 363, and note. The carrier can malie a special contract in New York. Parsons s. Monteath, 13 Barb., 353 ; Dorr ». N. J. Steam STav. Co., 4 Sand., 136 ; Stoddard v. Long Island E. R. Co., 5 Sand., 180. The courts of Maine, Pennsylvania, South Carolina and Missouri, have recognized the same doctrine. Parker v. Flagg, 2G Maine, 181 ; Bingham v. Eogers, 6 Watts and S., 495; Adm'r of Patton v. McGrath, 1 Dudley Rep., 159; Swin- dler V. Billiard, 2 Rich., 386 ; Laing v. Calder, 8 Barr., 479. 16 Pa. St. R., 67. The American courts which have recognized the validity of these spe- cial contracts, have not so interpreted them as to protect the carrier from the consequences of his own negligence. 6 How., 344 ; 2 B. Mon., 63 ; 4 Sand., 136 ; Carr v. Lancashire, and Z. R. R. Co., 14 E. L. & B. R., 344, and the cases there collated. LECTURE II. BILLS OP EXCHANGE AND PROMISSORY NOTES. Is a right of action assignable at common law ? It is not; because it was thought that such assignment would encour- age litigation, if a man could transfer to another his right of going to law." 10 Co., 47, 48 ; 1 Cranch., 367. Was a contingent remainder assignable at common law ? It was not.* Was an executory devise assignable ? Not at law ; but a court of equity, when the contingency happened, would make a man give a good conveyance if he had attempted it before." This is what is meant by an executory devise be- ing assignable in equity. What exceptions to the general rule that a right of action is not assignable ? Covenants running with the land, bills of exchange, rights of action passing to personal representa- '^ But ill equity, from an early period, the courts have received an as- signment of a chose in action for a valuable consideration as a contract by the assignor to permit the assignee to use his name for the purpose of recovery, and consequently, enforce its specific performance, unless con- trary to public policy. 2 Ire. Eq., 54 ; 1 Wheat., 236 ; 2 Sto. C. C, 660. But courts of equity will not, any more than courts of law, give effect to such assignments when they contravene any rule of law, or of public policy ; or of a right of entry or action for land held adversely. 2 Ire. Eq., 54. ^ A contingent remainder is a mere right, and except in equity, cannot at common law be transferred before the contingency, otherwise than by estoppel, as by matter of record, or of deed indented. Fearne's Bern., 365. ° Executory limitations in all manner of property, lands and personalty, by the modern construction, are capable of being devised by will, as- signed or conveyed by deed, and of being transmitted by inheritance and succession to the devisee's or grantee's heirs or personal representatives ; although it seems that in case of the assignment of possibilities, the as- signee's remedy and protection are in equity. Fearne's Rem., 551, et seq. 220 THE RIGHTS WHICH RELATE TO THINGS PERSONAL. tives, the case of assignees in bankruptcy, and the rights of the sheriff in case of insolvency. 10 East., 130 ; Bac. Abr. Gov., E, 3, 4 ; 2 Th. Co. Lit., 325, n. (G, 3) ; Spencer's Case, 5 Co., 15 b ; Smith's Mer. Law, 288 ; 1 Sm. Ld. Cas., 92, 96, et seq.; 4 Jones, 159 ; Oowp., 375 ; 1 Wm. Sand., 216, n.; Bouv. Law Die, Bankruptcy and Insolvency. The statute of 3 and 4 Anne made promissory notes as- signable like bills of exchange, namely, by indorsement if not payable to bearer.* Statute of 32 Hen. VIII. gave the assignee of the reversion the same remedies that the assignor, lessor or his heirs might have enjoyed. Spence's Case, 5 Co., 16 ; 1 Sm. L. C, 92, 96. What is a bill of exchange ? An open letter of request from one man to another, requesting him to pay a certain sum of money to a third person on his account.' Suppose the drawee refuse to accept, has the payee an ac- tion against the drawee ? No (Sm. Mer. Law, 297i) ; but he has against the drawer, if he gives the drawer notice. Sm. Mer. Law, 32. What kind of notice is required ? Reasonable * Bills of exchange derive their peculiar properties from the custom oi merchants ; promissory notes, from statute 3 and 4 Ann.., which places them on the same footing with bills of exchange. That act was passed in consequence of the refusal of Lord Holt to concede to the cus- tom which had sprung up among merchants of treating promissory notes as negotiable, the effect which would, at a somewhat later period, prob- ably have been attributed to it. His Lordship, departing perhaps some- what from that excellent good sense which usually characterized him, treated the endeavor to uphold the negotiability of notes with some in- dignation, saying that '"it proceeded from the obstinacy and opiniona- tiveness of the merchants who were endeavoring to set the law of Lom- bard Street above the law of West. Hall." Sm. Mer. Law, 264. ° Another definition : A bill of exchange is a written order for the pay- ment of a certain sum of money unconditionally. Tlie contracts arising on a bill of exchange or promissory note, are simple contracts, although they differ from the ordinary simpleoontracts of the common law in some important particulars. In many of the States, sealed instruments, with negotiable words, are placed upon the same footing as bills of exchange and promissory notes ; e. g. , -Ohio, Iforth Carolina and Georgia. Sm. Mer. Law, 362, and n. BILLS OP EXCHANGE AND PROMISSORY NOTES. 221 notice ; which the judges construed to be on the same day if the parties hved in the same town, and by return mail if the parties lived in different towns.* A banker presenting a bill or note for his customer has the same time to give notice to his customer as if the banker were the holder for his own benefit, and the customer has the same time as if such had been the case to transmit the notice to former parties. And a person who pays a bill for the honor of the endorser holds as upon a transfer from him, and has a right to take advantage of any notice of which the person for whom he made the payment could have avail- ed himself. Sm. Mer. Law, 329. Suppose the drawee accepted, was the drawer discharged ? No; the payee might still have recourse on him if the drawee did not pay.^ 'As to the time at which the notice must be given, notice upon the very day on which a bill was presented for payment and dishonored, has been held not too soon ; but it will be too late if not given by the holder to parties who reside in the place where the presentment was made, by the expiration of the day following the refusal ; to other parties, by the post of that, or if there be no post on that, of the next post day ; each party, however," has a day for giving notice. Thus, if A draw a bill in favor of B, who endorses it to C, and the bill is refused payment on Monday, C has all Tuesday to give notice either to A or B, and if he give notice to B on that day, B has all Wednesday to give notice to A. And Sundays, days of public rest, and days to which a man's peculiar creed gives the same sanctity as that of Sunday, are excluded from the computation alto- gether. If one is forced to employ an attorney to find out residences, the attorney has a day after he has obtained the necessary information, to apprise his client thereof, and receive his directions j and in general, when it is known where a party resides,. (iwe dilligence to find him out will be sufficient. Smith's Mer. Law, 329-?30. 8 The person making the bill, called the drawer^ is said to draw upon the person to whom it is directed, and undertakes impliedly to pay the amount with certain costs if he-refuse to comply with the command. The drawee is not liable on the bill till after acceptance, and then becomes liable as principal to the extent of the terms of the acceptance ; while the drawer becomes liable to the payee and indorsees conditionally upon the failure of the acceptor to pay. The liability between indorsers and in- dorsees-ar« sublect to the same rules as those of indorsers and indorsees 222 THE EIGHTS WHICH RELATE TO THINGS PERSONA!,. How did the payee assign the bill of exchange ? By in- dorsement if not payable to bearer : in the latter case, in- dorsement was unnecessary.'' Suppose the payee or holder assigned on a different piece of paper than the bill, was it good ? It was not, and that because the merchants intro- duced the custom of indorsement. 4 Bl. Com., 469. Suppose the payee failed to give the drawer notice, and on trial proved that the drawee was insolvent, can he hold the drawer responsible ? No ; notice was a condition prece- dent, and absolutely necessary in all cases, unless the drawer knew he had no funds in the drawee's hands ; and then it was held unnecessary on the ground of fraud.' on promissory notes. Regularlj^, the drawee is the person to become ac- ceptor ; but other parties may accept under special circumstances. Bouv. Law. Die, Bill of Ex. ■" A bill or note payable to bearer, or indorsed in blank, may be trans- ferred by mere delivery. Other bills and notes, by the indorsement of the transferor's name on the instrument. Indorsements are either full or in blank ; a full indorsement is one which mentions the name of the party in whose favor it was made. An indorsement in blank, one which does not mention such name. A bill or note indorsed in blank is, as has been said, transferable by merely delivering it to the intended transferee, but one indorsed in full must be indorsed again by the person to whom it was so indorsed in fuU, in order to render it transferable to every intent, for he Who indorses to a particular person, declares his intention not to be made liable, except by that persons indorsement over. Smith's Mer. Law, 288»'9. It has long been the settled doctrine of the English and American courts, that the bona fide holder of a bill of exchange, may at any time before of after the institution of a suit against an indorser, by writing over a blank indorsement, direct that the money should be paid to a par- ticular person ; and that the holder does not thereby become an indorser. 11 Pet. Sup. Ct. Rep., 80. 'What will excuse failure to give notice: (1.) An endorser who unites with the drawer In deceiving holder, by representing that a bill will probably be accepted, when he knows that it will not, is guilty of a fraud which deprives him of the right to require notice either of non-acceptance or non-payment. 4 Ran , 553. An indorser who has transferred a note upon which nothing is due, cannot require notice. The law will not per- BILLS OP EXCHANGE AND PROMISSORY NOTES. 223 How were bills of exchange introduced ? By the Jews, for the transportation of their effects when expelled from England.^ What is the difference between foreign and inland bills of exchange? There are two points of difference, namely :" (1.) It is held necessary that a notary public should protest in case of a foreign bill ; whereas any two citizens Ijan protest in case of an inland bill. (2.) In case of a foreign bill, if mit him to derive any advantage from the fraud which ho has practiced upon the holder. Bissell ii. Bosman, 2 Dev. Eq. Rep., 162. (2.) Notice need not be given to the drawer when lie has no funds in the hands of the drawee. The indorser, however, is in all cases entitled to notice. French e. Bank of Columbia, 4 Cr., 153 ; Dickins v. Beal, 10 Pet., 671. (3.) Where the indorser of a note takes from the maker an assignment of all his property, or a sufficient portion thereof to protect himself from liability, it has been regarded as a waiver of his legal right to notice of dishonor. 5 Mass., 170; 5 Conn., 175; 5 Yerg., 300; 8 Porter, 155; 3 Denis, 16; lb. 610. But a partial indemnity does not operate to dispense with notice. Denny ». Palmer, 6 Ired., 010; 17 Wend., 489; 14 Ohio, 495 ; 1 Yerg., 199. ' Bills of exchange, it is said, were brought into general use by the Jews and Lombards, when banished for usury and other vices ; in order more easily to draw their eifeots out of France and England into those coun- tries in which they had chosen to reside. But the invention of it was a little earlier ; for the Jews were banished out of Guienne in 1287, and out of England in 1290 ; and in 1236 the \ise of paper credit was introduced into the Mogul Empire in China. 2 Bl. Com., 367. "(1.) Diversity inform. The chief diversity in form is that which makes the needful provision, that only one of the set, in which it is customary to 6xa,vf foreign Mils, in order to guard against the contingencies of trans- mission, shall stand good. An inland bill o! course needs no such pro- vision. Sm. Mer. Law, 310. (2.) Diversity in treatment by holder of bill. Both sorts of bills of exchange require presentment to the drawee, and notice of dishonor, in order to charge the drawer, or indorser thereof •, but a, foreign bill must be protested, and no otJier evidence of the dishonor can be adduced. In the case of an inland bill, on the other hand, e dishonor may be proved; not only by protest, but by any other competent and satisfactory testimony. Smith's Mer. Law, 248. 224 THE EIGHTS WHICH RELATE TO THINGS PERSONAL. protested for non-payment, the payee has 12J per cent, as damages the world over ; in case of inland bills the rate of interest in the State where the bill is drawn is taken. A bill is drawn on B, payable to C ; after the acceptance of B, and after it falls due, C assigns to D ; is D in a better condi- tion than if assigned to him before it was due ? No, in a worse ; because it is then subject to a payment in a case of set-off. Why was it subject ? Among merchants if a bill is not paid precisely when due it is a dishonored bill, and the merchants suppose the man has a rebutting account, and that is the reason why the bill is supposed not to be paid.' Suppose A, being payee, trades a bill, payable to self or order, to B without indorsement, in whose name does B bring suit ? In the name of A, the payee, to the use of him- self, because without indorsement he is presumed tO' have it in trust. What are days of grace ? Ihree days allowed the drawee after a note is due. On all. notes except those payable on demand three days of grace were allowed." Were promis- ' As to the tiine at which a bill or note may be transferred, it may be so at any time before it has become due, (nay, in one case it was held no objection that the indorsement had been made before the bill itself was drawn,) or after it had become due.. But then a person who takes a bUl after it is due,, or with notice of its hawing been dishonored by nouT-accep- tanoe,. takes it subject to all the equities with which it was encumbered while in the hands of the person from, whom he received it, for it comes, to use Lord EUenborough's words, disgraced to him ; thus, if he took it from a thief or finder, he could not recover it, inasmuch as the thief or finder could not ; and it was long thought, on the same principle, if A accepted a bill for B's accommodation, and B indorsed it overdue, the indorsee could not sue on it, inasmuch as the drawer could not do so. Sm. Mer. Law, 292-'3. " By statute of 3 and 4 Anne, any note in writing made payable to an- other person, or his orders or to hearer, for any certain sum of money, is made assignable like Mils of exchange, thereby converting it into a mer- cantile security. 2 Bl. Com., 467 ; Bac. Abr. Merchant (M), 2. It does not appear to be essential to the character either of a bill of exchange or of a promissory note, that it should be negotiable. Sto. on BiUs, § 69 ; 4 Min. Insts., 21. BILLS OF EXCHANGE AND PEOMISSORY NOTES. 225 cry notes assignable. They were made so by statute of S and 4 Anne, and notes for money only were meant by the pro- visions thereof Why was this statute passed making them assignable? Because a promissory note was like a bill of exchange at one stage, namely, after acceptance by the drawee ; and the bill being assignable at that stage, it was thought but fair that promissory notes should be so." A promissory note is a promise in writing to pay a sum of money on a certain day." A promissory note is a direct promise to pay ; a bill of exchange, a promise in the alter- " Although a promissory note, while in its original shape, bears no re- semblance to a bill, yet when indorsed, -it is exactly similar to one; for then it is an order by the indorser of the note upon the maker, to pay to- the indorsee. The indorser is, as it were, the drawer; the maker, the ac- ceptor; and the indorsee, the payee. The reader, bearing this similitude in mind, will easily be able to apply to notes the rules and decisions con- cerning bills, and nee versa. A bill of exchange operates as an undertaking from the drawer to the payee, and every subsequent holder, that the drawee^ is a person competent to accept — that is, engage to pay it; and that he will, when requested, accept, and when it becomes due, pay it. If he re- fuse to accept, the contract is brokeu, and the statute of limitations begins to run from that period, for the engagement is not a double one; first, that the drawee shall accept upon presentment for acceptance, and secondlyy pay upon presentment for payment, but single, namely, in the case of a bill payable after sight, that the drawee shall, upon the bill being pre- sented to him in a reasonable time after date, accept the same, and having- accepted, shall pay it when duly presented for payment; and in the case of a bill payable after date, that the drawee shall accept it, if it is present- ed to him before the time for payment, or if it is nek presented for accep- tance at all, then that he shall pay it when duly presented for payment. A note operates as an undertaking by the maker to the payee and every sub- sequent holder, that he will pay the money therein named, in the mode therein specified. Smith's Mer. Law, 264-5. ° A promisSftry note is ■ a written promise to pay a certain sum of money, at a future time, uneonditionaUy. 2 Bouv. L. Die., 386. There are two- principal qualities essential to the validity of a note: fi/rst, that it be paya- ble at all events, not dependant on any contingency, 20 Pick. Mass., 132, nor payable out of any particular fund. 4 Hawks, 102 ; 3 Pick., 541. Second, it is required that it be for the payment of money only, 10 Serg._ and R., 94; 4 Watts, 400, and not in bank notes, though conira in N. T. 9 Johns., 120. 15 226 THE EIGHTS WHICH RELATE TO THINGS PERSONAL. native, namely, if the drawee does not the drawer will. See notes "n" and "o" last supra. Is a seal necessary to a promissory note? It is not. Suppose there is a seal, what is it then? A bond? Does the statute of 3 and 4 Anne apply to bonds f No; it applies to promissory notes ; and a statute was necessary in North Carolina to make bonds assignable like bills of ex- change. Battle's Rev., 102. Is a consideration necessary in a promissory note ? It is, but not in a bond, because a court of law could not go be- hind the seal;'' Is it best to buy a promissory note before or after it is due ? Before ; because it is not subject to payment by set-off. Sm. Mer. Law, 292. Is it better to buy with or without indorse- ment? With indorsement; because the indorser is then liable as well as the drawer.' •' The common law securities for the payment ef money embrace : (1. ) Bonds, and (2.) Promissory notes not negotiable. Bonds are deeds (that is, writings under the maker's seal) obliging him to pay a designated sum of money to a party named. Hence, the instrument itself is termed an obligation, or a writing obligatory, the maker the obligor, and the perspn to whom the money is to be paid the obligee. 2 Bl. Com., 340; 465, and n. 36; Shepp. Touch., 56-'7-, Bac. Abr. Oblig. (c). Mercan- tile securities are: (1.) Bills of exchange, which, originally, was the only sort; and (2.) Promissory notes made negotiable by statute. 4 Minor's In- stitutes, 21. « It is proper to observe that the fact that a contract by deed does not require a consideration to support it, refers to no consideration being nec- essary for the purpose of binding the party who executes it, and render- ing him liable. It is not to be understood that a consideration may not come to be a most important ingredient in a contract by deed, as between parties claiming a benefit under that deed, and other parties having con- flicting claims upon the person executing it; e. g., deeds without conside- ration, void under 13th Eliz. Smith's Cont., 83.- * ' The indorsement of a bill is not merely a trammer of the paper, but a fresh and substantive contract. It is equivalent to a new bill drawn by the indorser upon the acceptor in favor of the indorsee. As it falls under the general rule, that the obligations of a personal contract are to be deter- mined by the law of the place of its execution, an indorser may become responsible for a much higher rate of damages and of interest, upon the dishonor of a note, than he can recover from the drawer. 6 Cranch, 321 ; BILLS OF EXCHANGE AND PEOMISSORY NOTES. 22^ As bonds are also assignable in North Carolina, suppose a man shaves a note either with or without seal, is it better to have it indorsed ? No ; since it will make the indorser liable for more than he received, it would be usury under our laws. McElwee v. Collins, 4 Dev. and Bat., 209. Where it is indorsed and expressly stated " without recourse," the indorser is not liable for payment, and the indorsee is no more liable for usury than if without indorse- ment.' What difference between remedies is there against an indorser, a surety, and a person who guarantees ? Any or all of the indorsers may be sued separately, if they have notice ; a guarantor only after the principal fails to pay ; a surety jointly with the principal.' 5 Munf. Va., 252 ; 10 Watts, Penn!, 258; 24 Pick., Mass., 252. 4 Mass-, 258; 3 Mass., 77. Story on Confl. of Laws, 363. So, although no suit can be brought in the Federal Courts against the maker of a promis- sory note by an assignee, unless the action could have been maintained, if there had been no assignment, yet as between immediate indorsee and in- dorser, being citizens and inhabitants of different States, the jurisdiction of the Federal Courts attaches as upon a distinct contract between these parties, independently of the residence of the original and remote parties t6 the instrument. Coffee ®. Planter's Bk. of Tenn,, 13 How., 8. C. R., 183. 'An indorsement may be; (1.) Qualified, which changes the legal liabili- ties of the indorser, either enlarging or restricting them; e. g., pay to A B without recourse on me; (3.) a restrictive indorsement which restrains the rights of the indorsee. Prof. S. O. Southall's notes to Sm. Mer. Law, 390. * As to indorsers see Smith's Mer. Law, 387, and note. An undertaking to answer for the debt, default or miscarriage of another, by which the surety becomes bound as the principal or original debtor is bound, means suretyship. It differs from guaranty in this, that suretyship is a primary/ obligation to see that the debt is paid, while guaranty is a dd^ lateral undertaking, essentially in the alternative to pay the debt if the debtor does not pay it. 34 Pick. Mass., 252. And accordingly a surety may be sued as a promissor to pay the debt, while a guarantor must be sued specially on his contract. 8 Pick. Mass., 423. While guaranty applies only to contracts not under ileal, and priflcipally to mereantile obHgaiions, suretyship may apply to all obligations under seal or hy parol. The subjects are, however, nearly related, and many of the principles are common to both. There must bb a principal debtor liable, 228 THE RIGHTS WHICH RELATE TO THINGS PERSONAL. Otherwise the promise becomes an original contract; and the promise being collateral, the surety must l)e bound to no greater extent than the principal. Suretyship is one of the contracts included in the Statute of Frauds, 39 Car. II, c. 3. 3 Bouv. Law Die, 563. At common law a guaranty could be made by parol; but by the statute of Frauds, 29 Car. II, c, 3, re-enacted almost in terms in several States, it is provided that " no action shall be brought whereby ta charge the de- fendant upon any special promise to answer tor the debt, default or mis- carriage of another person, * * unless the agreement upon which such action shall be brought, or some memorandum or note thereof, shall be in writing, signed by the party to be charged therewith, or by some person thereunto by him lawfully authorized." 1 Bouv. Law Die, 644. SeeN. C. Stat, corresponding, Battle's Eev., 431, § 8. Also, 13Ired., 86; Hired., 195; iJ. 398; 4 Dev., 361; 1 Dev. and B., 103. The following classes of promises have been held not within the statute and valid, though made by parol; Mnt, where there is a liability pre-existent to the new promise, but after the new promise the principal obligation ceases to exist, (as where the prin- cipal obligation is void or not enforcible, 2 M. Raym., 1085, or as where the principal debtor is discharged by the new promise being made, 3 Bing., 889 ; 8 Gray, 333 ; 8 Johns. , 376 ;) and so where the principal debt still sub- sists concurrently with the new promise, and the creditor has a double remedy. 30 Vt., 641; 1 Gray, SSl^ 5 Cash., 488. Second, if the new promise is for a liability then first incurred, it is origi- nal, if exclusive credit is given to the promissor. Browne Stat. Fr., § 195; 13 Gray, 613. Whether promises to indemnify merely come within the statute, is not wholly settled. Browne Stat. Fr., § 158; 10 Ad. and E., 453. Third, guaranties may be given for liabilities thereafter to be incurred, and will attach when the liability actually accrues. In this class the promise will be original, and not within the statute, if the credit is given to the promissor exclusively. 3 Term, 80; 1 Cowp., 237. Guaranty may be made for the tort as well as the contract of another, and then comes under the term miscarriage in the statute. 3 Barnew. and Aid., 613; 14 Pick. Mass., 174. Kent, 0. J., divides s«corerfa?y undertakings into iliree classes: Mrst. Cases in which the guaranty or promise is collateral to the princi- pal contract, but is made at the same time and becomes an essential ground of the credit given to tlie principal or direct debtor. Here there is not, and need not be, any consideration other than that moving between the creditor and original debtor. Second. Cases in which the collateral undertaking is subsequent to the creation of the debt, and was not the inducement to it, though the subsist- ing liability is the ground of the promise without any distinct and uncon- nected inducement. Here there must be some further consideration shown. BILLS OF EXCHANGE — PROMISSORY NOTES — GUARANTY. 229 having an Immediate respect to such liability; for the consideration for the original debt will not attach to this subsequent promise. Third. "When the promise to pay the debt of another arises out of some new and original consideration of benefit or harm moving between the newly contracting parties. The two firM classes of cases are within the Statute of Frauds; the Tmtis not. 8 Johns., 29; 31 Me., 459; 15 Pick., 159; lOIred.,13. A discharge of the debtor from custody, or surrender of property taken on an execution, is a good discharge of the debt. 4 Dev., 261; 11 Mees. and Wells Exch., 857; 12 B., 937. So where a purchaser of goods transfers them to atiother, who promises the vendor to pay for them, this is a substitution and an original promise. 11 Ired., 398; 7 Gush., 183-, 10 Mo., 538. The differences between mereanUle and common law securities: Common law securities are mere evidences of, and securities for debt. Mercantile securities afford a similar evidence and security; but by the custom and usage of merehants, from a very early period, they have been also employed in place of money, as supplemental to the currency. And to this latter fact, the marked diversities between the two classes of securities are due. These diversities consist in the particulars following, namely: (1.) Assignability ; (3.) Non-availability of set-ofl, or of failure of conside- ration, &c. ; (3.) Presumption of valuable consideration; and (4.) Prompt- ness and extent of remedy, (1.) Assignability. Mercantile securities are transferable from one to an- other, so as to vest a legal title.ia the transferee; such an attribute being indispensable in order to adapt them to be used like money in the payment of debts, and in other transactions of life. Common law securities are not thus transferable. At first, they were not permitted to be assigned at all, in pursuance of the maxim of the common law, that " choses in action are not assign^le.''' Bonds, &c., are assignable in North Carolina, see Battle's Rev., 102. Smith's Mer. Law, 190. (3.) Non-availability of set-off, or of failure of consideration, &c. No set-off, or failure of consideration, nor fraud in the consideration, nor any other invalidity, save one arising out of some statute (as that of gaming or usury) is available in case of mercantile securities in the hands of a sub- sequent bona fide holder for value. Innocent assignees for value, of common law securities on the other hand, are not protected, but take subject to all just discounts, not only against themselves, but against the assignor, before the defendant had notice of the assignment. This attribute of mercantile securities, as was above remarked, is obviously indispensable, in order to fit them for the purposes of currency. 4 Min. Insts., 34. (3.) Presumption cf valuaMe consideration. In mercantile securities, a valuable consideration is presumed prima facie as to the original parties, and concluskely as to subsequent Joreffl.^ holders for value. 230 THE EIGHTS WHICH RELATE TO THINGS PERSONAL. In common law securities under seal, a valuable consideration, as between the parties, is conclusively presumed from tlie solemnity of tbe instrument. If not under seal, a valuable consideration must be proved. This trait of mercantile securities is also necessary in order to make them useful as a supplement to the currency. 4 Min. Insts., 24. (4.) Promptness and extent of remedy. In case of mercantile securities, the remedy against an assignor /or valiie arises immediately upon the default of the principal debtor; and the remedy extends not against the immediate assignor only, but against any one ever so remote, and may now be prosecuted against all of the assignors in the same action, though in separate actions at common law. In common law securities, on the other hand, the remedy is against the immedioite assignor alone at common law, there being no privity of contract but with him. But against such assignor, whether immediate or remote, no suit can be brought merely upon default of payment by the principal debtor, but only when legal recourse against 7ivm has been exJiausied. 4 Min. Xnsts., 24. See N. C. Stat., Battle's Rev., 102, § 1. LECTURE III. EXECUTORS, ADMINISTRATORS, WILLS, &C. To whom does personal property go on the death of the owner ? To his personal representatives, namely, his ex- ecutors, if there is a will, and his administrators if there is no will." Could a man dispose of his personal property by will at common law ? He could dispose of all, the doctrine pars ra- tionabilis applying only in particular places.'' Could lands be disposed of by will at common law ? No ; but lands could be devised by the Statute of Wills, 32 and 34 Hen. VHI. 1 Wms'. Exor's, 1. Why the difference between personal and real estate in this respect ? The law with regard to personal property was taken from the civil law, but with regard to land from the law of feuds, the doctrine being in the latter case that there should be no alienation without consent of the lord. 2 Bl. Com., 374; 1 Sto. Eq., § 283, and seq.; S. C. 2 Wh. and Tud. L. C, (Pt. 1), 266, and seq. ' The goods of intestates belonged anciently to the king, who granted them to the prelates to be disposed of in pious uses; but, on their abuse of this trust, in the times of Popery, the legislature compelled them to delegate their power to administrators expressly provided by law. 2 Bl. Com., 494-'5-'6. * Glanvil says, that by. common law, as it stood in the reign of Henry II., a man's goods were to be divided into three equal parts; of which one went to his heirs or lineal descendants, another to his wife, and the third was at his own disposal; or, if he died without a wife, he might then dispose of one moiety, and the other went to his children; and so e converso, if he had no children, the wife was entitled to one moiety, and he might bequeath the other; but, if he died without either wife or issue, the whole was at his own disposal. The shares of the wife and children were called their reasonable parts ; and the writ de rationahiU parte honorum was given to recover them. Sir Edward Coke is of opinion that the doctrine supra ob- tained S.'o. particvAar places, by special custom, and that it was not the gene- ral law. 2 Bl. Com., 493. 232 THE EIGHTS WHICH RELATE TO THINGS PERSONAL. In case of a devise of lands, the devisee takes from the devisor ; in case of a will of personal property, the legatee takes from the executor, who is bound to pay debts before legacies. 2 Bl. Com., 513, 511. How many kinds of legacies ? Four ; (1.) General lega- cies, where a man leaves a legacy without saying out of what it shall arise. 1 Rop. Leg., 3 Ed., 170. (2.) Demon- strative, where a testator leaves a legacy to arise out of a particular fund, as by the sale of a tract of land. Wms'. Ex., 995. (3.) Specific legacies, where a testator wills a particu- lar chattel, as a horse. 3 Beav. Rolls., 349. (4.) Residuary legacies, as where a testator gave a man all that was left after payment of debts and other legacies. Bac. Abr. Leg., (1). Did general and specific legacies abate equally ? No ; specific legacies did not abate till all other funds were ex^ hausted. 2 Bl. Com., 513 ; 2 Vern. Ch., 756. Could an executor prefer one general legatee to another ? He could not ; general legacies must be paid in full, if pos- sible ; otherwise 'pro rata. Bouv. Law Die, Ex., (14). Suppose there were two who had debts of specialty against decedent's estate, or two persons having any debts of equal dignity, could the executor prefer the one to the other ? He could." If no suit was brought, he could pay all to one, as he had no legal notice of the other. See note infra. If suit was brought, he could confess judgment in favor of his favorite and plead no assets ultra as to the other.* Why this difference between creditors and legatees ? Leg- " If no suit has been commenced against an executor, and deci-ee for pay- ment of debts rendered therein, an executor will be at liberty to give a preference amongst creditors of equal degree. 2 Bl. Com., 512, n. (36.) * An executor is not allowed by negligence or collusion, to defeat spe- cialty creditors of his testator, by confessing judgments on simple contract debts, of which he had notice. 17 R, 690; 3 Lev., 115. Record debts are constructive notice. Oro. Eliz., 798; 2 Frecm., 104 ; 2 Yern , 37. EXECUTOES AND ADMINISTRATOES. 233 atees applied to a court of equity and it adopted the civil law doctrine, that " equality is equity," but creditors applied to a common law court which allowed the executor to prefer as the testator could have done. What rules of priority must executors and administrators observe in the payment of debts ? Pay — (1.) Funeral charges. (2.) Debts due the king on record or specialty. (3.) Such debts as are by particular statutes to be pre- ferred to all others. (4.) Debts of record, as judgments, statutes and recogni- zances. (5.) Debts due on special contracts. (6.) Debts on simple contracts, namely, notes unsealed and verbal promises." Suppose a man died without a will at common law, what became of his personal property ? The king took the whole as parens patriss and general trustee of the kingdom. 2 Bl. Com., 494. The doctrine as to rationabiles partes, is claimed to be confined to particular places by special custom, as ex- plained in this lecture, ante, p. 281, n " b." Afterwards the Crown, in favor of the church, invested the prelates with this branch of the prerogative, which was done because it was intended by the law that spiritual men were of better conscience than laymen, and that they had " The debts of the decedent must be paid in the following order la North Carolina: (1.) Debts which by law have a specific lien on property to an amount not exceeding the value of such property. (2.) Puneral expenses. (3.) Taxes assessed on the estate of deceased previous to his dekth. (4.) Dues to U. S. and N. 0. (5.) Judgments of any court of competent jurisdiction within this State, docketed and in force, to the extent to which they are a lien on the prop- erty of the deceased at his death. (6.) Wages due servants and laborers for a term not exceeding one year next preceding the death. (7.) All other debts and demands. Bat. Rev., 403. 234 THE RIGHTS -WHICH RELATE TO THINGS PERSONAL. more knowledge what things would conduce to the benefit of the soul of the deceased. The ordinary might, therefore, seize the goods of the intestate and keep them without wast- ing, and also might give, alien, or sell them at his will, and dispose of the money in pios usus. What was supposed to be the best thing the king or ordinary could do for the soul's repose ? By statute of West. II., the ordinary shall be bound io pay the debts of the intestate, so far as his goods will extend, in the same manner that executors were bound in case the deceased had left a will ; a use more truly pious than any requiem or mass for his soul. 2 Bl. Com., 495. The statute of 31 Edw. III., c. 11, provides that in case of intestacy, the ordinary shall depute the nearest and most lawful friends of the deceased to administer his goods, which administrators are put upon the same footing with regard to suits and to accounting as executors appointed by will. " The next and most lawful friend " of the intestate is interpreted to be the " next of blood " that is under no legal disabilities. The statute of 21 Hen. VIII., c. 5, enlarges a little more the power of the ecclesiastical judge, and permits him to grant administration either to the widow or the next of kin, or both of them, at his own discretion, and when two or more persons are in the same degree of kindred, gives the ordinary his election to accept whichever he pleases. 2 Bl. Com., 496. Was an administrator bound by a testament ? He was. Bouv. Law Die, Administration. What was he called in this case ? Administrator cum testamento annexe. Suppose an executor had been appointed and refused to act, what was he then called ? ' Administrator with the will an- nexed.* What did the administrator do at common law with the ' Where no executor is named in the will, or where the one named dies, or is incompetent, or unwilling to act, an administrator cum testamento is appointed. Willard Ex., 2 Phill., ch. 54, 310. EXECUTORS AND ADMINISTRATORS. 235 balance of the estate after the payment of debts, and in case of administration with the will annexed, after the payment of legacies ? He might have kept it until 22 and 23 Car. II., explained by 29 Car. II., enacted that the surplusage of intestates' estates (except of femes covert, which are left as at common law) shall, after the expiration of one full year from the death of the intestate, go in course of distribution. 2 Bl. Com., 515. Was a bond required of an administrator? It was not till the statute of 22 and 23 Car. 11.^ What kind of a bond was required by this statute ? A bond to distri- bute according to the statute of distributions, (22 and 23 Car. II.,) but was not intended to guarantee the payment of creditors as well as next of kin."" A statute in North Carolina extends the benefit of the administrator's bond to creditors. See note " h " below. Suppose an executor had paid all the debts, what became of the surplus ? When all the debts and particular legacies are discharged, the surplus or residuum must be paid to the residuary legatee, if any be appointed by the will, and if there be none, it was long a settled notion that it devolved to the executor's own use by virtue of his executorship. Perkins, 525. But whatever ground there might have been e The statute of 21 Hen. VIII. directs the ordinary to grant administra- tion, " taking surety of him or them to whom shall be made such commis- sion." Williams Ex., 439. '' A distinction was once taken, between next of kin and a creditor, as to the right of suing on the bond in the name of the ordinary. But the better authorities seem to have established that a creditor has a right ex debito justitice, as well as the next of kin, to sue upon the bond in the or- dinary's name. 3 Atk., 248 ; Cowp., 140 ; Wms'.^Ex., 444. In North Carolina every executor, from whom a bond is now required by law, and every administrator and collector, before letters are issued, must give a bond payable to the State, with two or more sufficient sure- ties, to be approved bj"^ the probate judge, and to be jointly and severally bound. The bond must be conditioned that such executor, administra- tor or collector shall faithfully execute the trust reposed in him as such, and obey all lavyf ul orders of the probate or other court, touching the ad- ministration of the estate committed to him. Bat. Rev., 400. 236 THE KIGHTS WHICH EELATE TO THINGS PERSONAL. formerly for this opinion, it seems now to be understood, with this restriction, that although where the executor has no legacy at all, the residuum shall in general be his own, yet where the face of the will shows a different intention, it goes to next of kin.' 2 Bl. Com., 515. What might an executor take in collecting assets ? Choses in possession and choses in action arising from contract. "With respect to such personal actions as are founded upon any obligation, contract, debt, or covenant or other duty, the general rule has been established from the earliest times that the right of action on which the testator or intestate might have sued in his lifetime, survives his death, and is trans- mitted to his executor or administrator. Wms'. Ex., 665. Therefore, it is clear that an executor or administrator shall have actions to recover debts of every description due to the deceased, either debts of records, as judgments, stat- utes or recognizances, or debts due on special contracts, or on bonds, covenants, and the like, under seal, or debts on simple contracts, as notes unsealed and promises not in wri- ting, either express or implied. It is true that no action of account lay for an executor, at common law, upon the prin- ciple that the account rested in the privity and knowledge of the testator only, but this action is since given to execu- tors by the statute of West. II., 1 Ed. I., c. 3, to executors of ' The idea that the appointment of an executor gives him every thing not disposed of by the will, is not correct. In the strongest way of put- ting the executor's right, he can only take what the testator did not mean to dispose of. 18 Ves., 354 ; 7 Ves., 228. And where a testator leaves an unfinished clause in his wUl, this is un- derstood as an indication that he intended to make a further disposition, in exclusion of any claim by his executors. Gilb. Eq. Eep. , 184 ; 2 Ves. Sen., 496. Numerous cases have fully established, as a general rule, that testamentary words of recommendation, request or confidence are im- perative, and raise a trust ; and although the testator's object fails, or is contrary to the policy of the law, or is too vaguely expressed to be capa- ble of being carried into execution, yet, as it was the intent that the executor should only take as trustee, the necessary legal consequence is, that there must be a resulting trust for the testator's next of kin. 9 Ves., 405 ; 3 Meriv., 19 ; 1 Sim. and Stu., 71 ; 14 Ves., 370. EXECUTORS AND ADMINISTKATORS. 237 executors by statute of 25 Edw. III., c. 5, and to administrators by statute of 31 Edw. HI., c. ll.J Williams' Ex'rs, 665. Actions accruing after the testator's death, may be brought in Ex'rs own name or as executor. This is true of actions for tort as trespass, or trover actions on contract, and on nego- tiable paper. 4 Jones Rep., 159 ; 19 Pick. Mass., 432 ; 4 Hill N. Y., 57 ; 3 Nev. and M., 391. "Wherever the money, when recovered, will be assets, the executor may sue as executor. 20 Wend., 668 ; 1 Pet., 686 ; 6 Blackf Ind., 120. ' But it was a principle of the common law, that if an injury was done either to the person or property of another, for which damages only could be recovered in satisfaction, the action died with the person to whom, or by whom the wrong was done. Williams' Ex., 669. But this rule has been altered by 4 Ed. III., c. 7, de bonis asporiatis in mta tesiatoris, which enacts that executors shall have actions against the trespassers, and recover damages in like manner as the decedent might have done. By an equitable construction of the statute, an execu- tor or administrator shall now have the same actions for any injury done to the personal estate of the deceased in his lifetime, whereby it has be- come less beneficial to the executor or administrator. But Ed. III. does not extend to injuries done th^ person, (for the rule was, actio personalis mo- ritur cum persona,) or to the freehold of the testator. 3 and 4 Wm. IV. allowed executors and administrators an action of trespass, or trespass on the case for an injury to real estate of any person deceased. Statute of 9 and 10 Vic, c. 93, allows them an action where the death of decedent has been the result of wrongful act, neglect, or default of another, Williams' Ex., 665, et seq. In North Carolina our statute provides that upon the death of any per- son, all demands whatsoever, and rights to prosecute or defend any action or special proceeding, existing in favor of or against such person, except as hereinafter provided, shall survive to or against the executor, administrator or collector of his estate. The following rights in action do not survive : (1.) Causes of action for libel and for slander, except slander of title. (2.) Causes of action for false imprisonment, assault and battery, or other injuries to the person where such injury does not cause the death of the injured'party. (3.) Causes of action accruing against a husband by reason of his mar- riage, for the debts of his wiffe contracted by her before marriage. (4.) Cases where the relief sought could not be enjoyed, or- granting it, would be nugatory after death. Bafc Rev:, 413, § 114. LECTURE IV. LEGACIES. Suppose A bequeaths to B a legacy of $500, to arise from the sale of a tract of land, and to C $500. Here if the testa- tor's estate is not sufficient to pay debts, B's legacy is better than C's, but if A is out of debt, and the tract of land sells for only $200, C's general legacy is better than B's demon- strative legacy." Williams' Ex'ors, 995 ; 15 Ves., 389 ; 7 Ves., 529; 4 Ves., 751. A legacy to A, if or when he attains the age of twenty- one years, will lapse in case he dies before that age, but a legacy payable at twenty-one years of age vests immediately and will not lapse. This distinction is borrowed from the civil law.*" An estate is demsed to A for life, remainder to the children of B ; when the devise is made, B has two children C and D; during A's life two more, G and H are born ; how many and which " A demonstrative legacy will not be liable to abate with general lega- cies^upon a deficiency of assets. 2 Ves. Jun., 640; 1 Kop. Leg., 169 ; Williams' Ex., 995. * Where a bequest is made to a legatee " at the age of twenty-one," or any other specified age, or, " if he attain such age," this is such a de- scription of the person who is to take, that if the legatee do not sustain the character, at that time the legacy will fail : the time when it is to he paid is attached to the legacy itself, and the condition precedent pre- vents the legacy from vesting. 5 Ves., 582 ; 12 Ves., 78 ; tb. 24. But if the legacy be to an infant, '■'■payable at tiveniy-one," the legacy is held to be vested ; the description of the legatee Is satisfied, and the other part of the direction refers to the payment only. This distinction is adopted as to personal legacies only as regulated by the civil law, not as to bequests charged on real estate. 3 Ves., 543 ; 5 Ves., 509 ; 6 Ves. , 243. If real estate be devised lo an infant and his heirs, " when and as soon as '' he should attain a certain age ; these words, it has been decided, only denote the time when the beneficial interest is to take effect in pos- session; but the Interest vests immediately upon the testator's decease. Doe ». Lea, 3 T. R., 43 ; Boraston's Case, 3 Rep. 21 ; 2 Bl. Com., 613, and n. LEGACIES. 239 ones will take the lands ? All born before A's death ; the remainder vesting in the first two, subject to be devested ; but the vesting could not be postponed beyond the determina- tion of the particular estate. 15 Ves. Ch., 589 ; 4 Kent's Com., 541-'2 ; 4 Ire. Eq., 320 ; Wms'. Ex., 1035. Suppose a legacy is bequeathed to A for life, (which could be done only by a use or executory bequest) and the re- mainder to the children of B as before, who would take? The first four. Williams' Executors, 1035. Suppose before the death of A one of the first two, C or D, died, would his personal representatives take the estate, or would the other children get it directly ? His personal rep- resentatives would take it, because on the death of the tes- tator, it vested in him. Williams' Ex., 1035, et seq. Would it vest absolutely ? No ; it would vest subject to open or devest in favor of the after-born children. This question arises when it is necessary to bring suit for the legacies, and of course to ascertain whether the personal representatives of the deceased child should be parties. Suppose an estate in land is given to A for life, and the remainder to the three children of B, namely, C, D and F, then living, and C dies during A's life, would C'sson get his portion of the lands? No; the other children, D and F, would take by survivorship. 1 Rop. Leg., 417, 3 ed.; Williams' Ex., 1045. Suppose by a will in England a chattel were bequeathed in the same way, how then ? The personal representatives would take, and after payment of debts, C's son would take under the statute of distributions, 22 and 23 Gar. II, ex- plained by 29 Car. II. Why was there survivorship in the one case and not in the other ? In the first instance, the common law courts had cognizance and proceeded on feudal principles, but in case of executory bequests the ecclesiastical courts first had jurisdic- tion, and then the courts of equity took concurrent jurisdic- tion, because the better able to enforce their decrees, and 240 THE EIGHTS WHICH RELATE TO THINGS PERSONAL. these courts were governed by the principles of the dvU law in which the doctrine oijm accrescendi did not obtain. But even now in England, in case a library is given by deed to two so that the common law courts have jurisdic- tion, there is survivorship. Williams' Ex., 1253, et seq. A legacy is a gift by last will. The term is more commonly applied to money or personal property, although sometimes used with reference to a charge upon real estate. 2 Williams' Ex., 947 ; 5 Term., 715. A demonstrative legacy is a bequest of a certain sum of money with reference to a particular fund, for payment. Williams' Exec, 995. A general legacy is one so given as not to amount to a bequest of a particu- lar thing, or money of the testator, distinguished from all others of the same kind. 1 Kop. Leg., 3d ed., 170. A specific legacy is a bequest of a specified part of the testator's per- sonal estate, distinguished from all others of the same kind. 3 Beav. Rolls., 349. Most persons are capable of becoming legatees, unless prohibited by statute, or alien enemies. Legacies to the subscribing witnesses to a will are by statute often declared void. 2 Williams' Ex., 4th Am. Ed., 906, et seq.; 19 Ves. Ch., 208 ; 1 Shars. Bl. Com , 442. Bequests to charitable uses are favored both in England and the United States. The cases are extensively collated in 2 Williams' Ex., 951, n. 1 ; 4 Kent's Com., 508 ; 2 How. U. S. R., 127 ; 4 Wheat., 1 ; 2 Ired. Eq„ 9, 210. CONSTKUCTION OP LEGACIES : (1.) The technical import of words is not to prevail over the obvious intent of the testator. 3 Term., 86 ; 11 East., 246 ; 6 Ad. and E., 16T; 7 Mees. and Well. Ex., 1, 481. (2.) Where technical words are used by the testator, or words of art, they are to have their technical import, unless it is apparent they were net intended to be used in that sense. 6 Term., 352 ; 4 Ves. Ch., 339; 4 Buss. Ch., 386, 887. (3.) The intent of the testator is to be determined:from the whole will. 1 Swanst. Ch., 28 ; 8 Term., 123 ; 3 Pet., 377. (4.) Every word shall have effect, if it can be done without defeating the general purpose of the will, which is to be carried into effect in every reasonable mode. 7 Ired. Eq., 367 ; 6 Ves., 102 ; 2 Bl. Com., 381 ; 6 Pet., 68 ; 1 Jarm. Wills, 404-'7. (5.) A will of personalty made abroad, is regulated by the lex domicilii, unless it appear that the testator had a different intent. Sto. Confl. of Laws, §§479 a, 479 m, 490-'l. Whether cumulated or repeated, where there is internal evidence of LEGACIES. 241 the intention of the testator, that intention is to be carried out. 3 Hare Ch., 620; 4 do 216 ; 3 Ves. Ch.. 462. Where tliere is no such internal evidence, the following positions of law appear established : (1.) If the same specific thing is bequeathed twice to the same legatee in the same will, or in the will and again in a codicil, in that case he can claim the benefit of only one legacy. Toller Ex., 335 ; 2 Hare, Ch., 432. (2.) Where two legacies of quantity of equal amount are bequeatlied to the same legatee in one and the same instrument, there also the second bequest is considered a mere repetition, and he shall be entitled to one legacy only. 1 Brown Ch., 30 ; 4 Ves. Ch., 75. (3.) Where two legacies of quantity of unequal amount are given to the same person in the same instrument, the one is not merged in the other, but the latter shall be regarded as cumulative, and the legatee entitled to both. 3 Hares, Ch., 620 ; 3 Br. Ch., 225. (4. ) Where two legacies are given simpliciter to the same legatee by different instruments, in that case also, the latter shall be cumulative, whether its amount be equal or unequal to the former. 17 Ves. Ch., 34 ; 4 Hare, Ch., 216 ; 1 Ch. Cas., 301 ; 1 P. Wms'. Oh., 423. In personal property there cannot be a remainder in the strict sense of the word, and therefore every future bequest of personal property, whether it be preceded or not by any particular bequest, or limited on a certain or uncertain event, js an executory bequest, and falls under the rules by which that mode of limitation is regulated. Fearne's Cont. Rem., 401, n. An executory bequest cannot be prevented or destroyed by any alteration whatsoever in the estate, out of which, or after which it is limited. 8 Co., 96 a ; 10 Id. 476. And this privilege of executory bequests, which exempts them from being barred or destroyed, is the foundation of an invariable rule, that the event on whicli an interest of this sort is permitted to take effect, is such as must happen within a life or lives in being, and twenty-one years and the fraction of one year, al- lowing for the period of gestation afterwards. Fearne's Cont Rem., 431. Legacies may be made conditional. In such case, the condition may be either precedent or subsequent : in the former case no interest vests in the legatee until the performance of the condition, and in the latter, it is liable to be defeated by the failure or non-performance of the condi- tion. 2 Williams' Exec, 1131, et seq. The right of the executor to the residue of the estate when there is no residuary legatee is well established, both at law and in equity, in Eng- land, except so far as it is controlled by statute. 2 P. Wms., 340 ; 3 Atlj. Ch., 228 ; 7 Ves. Ch., 228. But the rule has been controlled in equity by aid of slight presumptions in favor of the next of kin. 1 Br. Ch., 201 ; 14 Ves. Ch., 197; 2 Small and G., 241. The rule never obtained in this country, it is believed, to any great extent. 2 Hayw., 298 ; 9 Serg. and R. Penn., 424; 6 Mass., 153. 16 242 THE RIGHTS WHICH RELATE TO THINGS PERSONAL. This will often be presumed— i. e., presumptions in favor of next of kin — where the legatee was in possesbion of the thing at the decease of the testator, and the executor acquiesces in his right. 4 Dev., 267; 6 Piok. Mass., 126 ; 6 Call. Va., 55. Abatement.— The general pecuniary legacies are subject to abate- ment whenever the assets are insufHcient to answer the debts and spe- eiflc legacies. The abatement must be upon all pro rata. 4 Brown Ch., 349-'50 ; 13 Sim. Ch., 440 ; but a general pecuniary legatee is not bound to abate in favor of the residuary legatee. 1 Sto. Eq. Jur., §§ ooo, 575 ; Brightly Eq. Jur., 387-'S8-'89. Specific legatees must abate pro rata, wlien all the assets are exhausted except specific devises, and prove in- sufficient to pay debts. 2 Veru. Ch., 756. Ademption op Legacies.- A specific legacy is revoked by the sale or change of form of the thing bequeathed : as by converting a gold chain into a cup, or wool into (Jloth, or clotli into garments. 2 Brown Ch., 108, 112; but the change of form of a seAurity is not an ademption. 23 N"; H., 212. A demonstrative legacy is not adeemed by the sale orchange of the fund. 15 Jur., 982; 16 Jd. 1130; 10 Beav. Bolls, .547 ; 5 Barb. N. Y., 312. A legacy to a child is regarded in courts of equity as a portion for such child : Iience, when the testator, after giving such legacy, settles the child and gives a portion, it is regarded as an ademption of the legacy. And it will make no difference that the porti«n given in settlement is less than the legacy; it will still adeem the legacy pro tarda. 3 Vern. Ch., 257; 2 Sto Eq. Jur , §§ 1111, 1113. Payment. — A legacy given generally, if no time of payment be named, is due at the death of the testator, although not payable until the execu- tor has time to settle the estate in due course of law. 1 Jarm. Wills, c. XXVI. Legacies are not due by the civil law or the common law until one year after the decease of the testator. The same term is generally allowed the executor in tlie American States to dispose of the estate and pay debts, and sometimes, by special order of the probate court, this is extended from time to time, according to circumstances. 5 Paige Ch. N. Y., 573 ; 1 Wes. S. C, 112 ; 16 Beav. Kolls, 298. Aniiuity given by will shall commence at the death of the testator, and the first payment falls due one year thereafter. 3 Madd. Ch., 167. A distinction is taken between an annuity and a legacy to enjoy the interest during life. In the latter case no interest begins to accumulate until the end of one year from the death of the testator. 7 Ves. Ch., 96 ; 2 Eop. Leg, 1253. Where legatees are under disabilities, as infancy or coverture, the ex- ecutor cannot discliarge himself hy payment, except to some party hav- ing a legal right to receive the same on the part of the legatee, which, in the case of an infant, is the legally appointed guardian, and in the case of a married woman the husband ; but in the latter case the executor may LEGACIES. 243 decline to pay the legacy until the husband make a suitable provision out of it for the wife, according to the order of the court of chancery. 1 P. Wills, 285 ; 1 Johns. Ch. IST. Y., 3 ; 9 Vt., 41 ; 1 Drewr., 71. The proper course in such cases is for the executor to deposit tlie money on interest, subject to the order of the court of chancery. 2 Williams' Exec, 4th Am. Ed., 1206, 1220. The executor is liable for interest upon legacies, wlienever he has realized it, and in general he is liable for in- terest after the legacy is due. 2 Williams Exec, 1283. But he may ex- cuse himself by paying the money into the court of chancery. 2 P. Wills, 67. So, too, if the testator is compelled to pay the money out of his own funds on account of the devistavit of a co-executor, and the mat- ter has lain along for many years on account of the infancy of the lega- tees, no interest was allowed under the special circumstances until the filing of tlie bill. 9 Vt., 41. The proper remedy for recovery of a legacy is in equity. 5 Term, 690. Satisfaction of debt by legacy.— In courts of equity, if a legacy equal or exceed the debt, it is presumed to have been intended to go in satisfaction. Prec. in Chanc, 240 ; 3 P. Will., 353 ; 4 Madd., 325 ; but if the legacy be less than the debt, it §hall not be deemed satisfaction pro tanto. 2Salk., 508; 1 Ves. Sen. Ch., ,263 ; 2 Hou. L. Cas., 153. But courts allow very slight circumstances to relent this presumption of pay- ment : as, where the debt was not contracted until after the making of the will. 2 P. Will. Ch., 343; where the debt is unliquidated, and the amount due not known, 1 P. Wms'., 299 ; where the debt was due 'upon a bill or note negotiable, 3 Ves. Ch., 561 ; where the legacy is made pay- able after the debt falls due, 3 Atk. Ch. , 96 ; where the legacy appears from the wUl to have been given diverse intuitu, 2 Ves. Sen. Ch., 635 ; where there is express direction in the will for the payment of all debts and legacies, or the legacy is expressed to be for some other reason. 1 P. Wills., 410; 3 Atkm. Ch., 65, 68 ; 2 Dev. and Bat. Eq., 66 ; 2 Sto. Eq. Jur., §§ 1110, 1113 ; Brightly, Eq. Jur., §§ 382, 391. Eeleasb of debt by a legacy. — If one leave a legacy to his debtor, it is not to be regarded as a release of the debt, unless that ap- pears to have been the intention of the testator. 4 Brown Ch., 227 ; 15 Sim. Ch., 554. . Where one appoints his debtor his executor, it is at law regarded as a release of the debt, Co. Lit., 264; 8 Co., 136, a; but in equity it is con- sidered that the executor is still liable to account for the amount of his own debt. 11 Ves. Ch., 90, nn. 1, 2, 8 ; 13 Id. 262, 264. Where one appoints his creditor executor, and he has assets, it ope- rates to discharge the debt, but not otherwise. 3 Williams' Exec, 4th Am. ed., 1118, 1123. See generally. Toller and Williams on Executors, Koper on Legacies, Jarman on Wills, and Bouv. Law Die, "Legacies." BOOK THE THIRD, THE RIGHTS WHICH RELATE TO THE PERSON. Book III LECTURE I. HUSBAND AND WIFE — PARENT AND CHILD. Upon marriage what interest does the husband get in the lands of the wife ?* A right to the rents and profits issuing therefrom during coverture, and upon birth of issue, a life es- tate by the curtesy. What interest does the husband get in the wife's chattels real ? He takes them with this qualification, namely, if he die without disposing of them they survive to the wife., A term for years goes to the husband while he lives, and on his death the unexpired part survives to the wife.* " The husband does not, by the marriage, become absolute proprietor of this species of the wife's property, nor is he entitled to dispose of it at his pleasure; but as the head and governor of the family, the management of it, and the rents and profits thereof, devolve upon him during the covert- ure, the freehold remaining entire after the husband's death to the wife or her heirs; unless by the birth of a living child he becomes entitled to an estate /or Ms life, by the curtesy. The husband and wife are said to be seized of the wife's freehold lands in right of the wife, in fee or otherwise, as the case may be; and whilst his alienation or his charges by mortgage, &c., are good as against himself, — that is, during the coverture, or if he be tenant by the curtesy, during his life— yet thej' will avail nothing after his interest is terminated, unless she unites with him in the conveyance. (Bat. Rev., 593, § 33.) The husband's estate by the curtesy is defined to be " where a man takes a wife seized du- ring the coverture of an estate of inheritance, legal or equitable, such as that the issue of the marriage may, by possibility, inherit it as ?ieir to the wife, has issue by her born alive, and the wife dies, the husband surviving has an estate in the laud for his life, which is called an estate by th^ curtesy." (2 Bl. Com., 126; 3 Min.JInsts. Com. and Stat. Law, c. VIII); 8 Th. Co. Lit., 805, n. (L); Id. 113, n. (R); Bac. Abr. Bar. and F. (C) 1; 1 Br. H. and W., 113, etseq.; 1 Min. lusts., 315-'16. * Chattels real, belonging to the wife in her own right, and not to her separate use, areabsolulftly at the husbands' disposal during the coverture. 248 THE EIGHTS WHICH RELATE TO THE PERSON. What interest does the husband get in the wife's choses in possession ? An absolute interest. That is, all the personal estate in the possession of the wife, in her own right, at the time of the marriage, such as money, goods, cattle, house- hold furniture, becomes vested in the husband." 2 Bl. Com., 433 ; 1 Min. Insts., 299 ; 2Kent's Com., 148 ; 3 Th. Co. Lit., 309, and n. (0). What interest does the husband get in the wife's choses in action ? A qualified property, namely, that they are his if he reduces them to possession, as he has the right to do. He has the right to administer on her estate, being excepted by statute 22 and 28 Car. II., (explained by 29 Car. II.) and in that way may obtain possession of her choses in action.* 2 Bl. Com., 434; 3 Th. Co. Lit., 309-'10, and n. (0). He may sell or charge them as he thinks fit,, in whole or in part, but cannot dispose of them by will, and to the wife's prejudice; and so much as he does not absolutely dispose of during the coverture, at the termination thereof, goes to the survivor — that is, to the wife, if she survives, or else to him. If he merely cliarges them, that does not defeat the wife's right of. survivorship, if she survives, unless the charge be enforced, and the debt made out of the property during the coverture. 1 Min. Insls. 303; 2 Bl. Com., 434; 3 Th. Co. Lit., 306, and n. (M); Id. 307-'8; Bac. Abr. Bar. and F. (0), 2. " Exceptions to the general doctrine, where the law does not cast abso- lutely on the husband some chattels in possession of the wife: (1.) Things personal which are in possession of the wife, in autre droit, as executrix, &o. In these the husband, notwithstanding the marriage, has no personal interest. In right of his wife, he does indeed come into posses- sion of them, but only for the purpose of administering the trust upon which she herself had them. Bac. Abr. Bar. and F. (C) 3.; 3 Th. Co. Lit., 309, and n. (O); Id. 311, n. (P); 1 Min. Insts., 301. (2.) Wife's paraphernalia, signifying something over and above her dower. Our law uses it to signify such apparel and ornaments of the wife suitable to her position in society. 1 Min. Insts., 301; 2 Bl. Com., 485-'6; 1 Br. Hus. andW., 386, * A chose in action is a right arising out of contract, such as a debt, or damages for breach of contract, or for a tort connected with contract, in- cluding a legacy or distributive share. Bouv. Law Die, Chose. If the marriage is determined by the death of either ^rty, or by a divorce a HUSBAND AND WIFE, &C. 249 What is the difference between taking choses in action as representative of the wife and reducing them to possession during coverture ? In the former case the husband takes them subject to any debts she contracted before coverture; but if he reduce them to possession during coverture they are not considered assets of the wife in his hands, and he is not re- sponsible for said debts. See references supra. So that the husband being responsible for the wife's debts contracted; before coverture, only during coverture and not after her death, it is better for the creditor to sue during coverture, Bac. Abr. Bar. and F., (F) ; 1 Min. Insts., 335-'6 ; 1 Salk.,, 116 ; 3 Mod., 186 ; 1 P. Wms'., 461, 469 ; 3 Pr. Wms., 411. Suppose the husband administers on the wife's choses in action, pays the debts and has a surplus; who gets it? The- husband. Suppose a stranger administers and there is a surplus, who gets it ? The husband ; the reason being in both cases that the husband has a right to administer. Bat- tle's Rev., 598, §32., In case of the stranger the court of equity* considers him as holding the surplus to the use of riieulo matrimonii, before he has reduced them Into possession, his mari- tal right ceases; and if his wife survive, she takes the choses in action. 1 Min. Insts., 305. ®The doctrine of the husband's interest in the wife's reversionary propertif in chattels may be here alliided to. The term reversionary is employed, not very happily, to denote interests which are to be enjoyed at a. future time, and not in presenti; with or without an intervening estate in some one else. Thus, a gift of State bonds to B, to take effect at the age of twenty- one, or to A until B attains the age of twenty-one, and then to B, is, in either case, a reversionary interest. To such reversionary interests in chat- tels belonging to the wife, supposing them to continue reversionary, if she survive the coverture (whether the same be terminated by the husband's death, or by a divorce a vinculo), she is entitled by survivorship, not only as against the representatives and general assignees of the husband, but also as against his particular assignee for valuable consideration. But if the coverture outlasts the period during which the interest is reversionary, or if (the coverture being determined by the death of the wife,) the husband survive such period, so that he Is in a condition to reduce the cAose into- possession, the interest belongs to him, or to his assignee ; and as between' him and such assignee, it will belong to the assignee, not only where the- 250 THE EIGHTS WHICH RELATE TO THE PERSON. the husband. What right does the wife acquire in the hus- band's lands on marriage ? The right of dower.' What right does the wife acquire in the husband's per- sonal estate ? By statute an equal right with the next of kin to administer; and she is entitled by the statute of dis- iributions to her share, which is one third if there are chil- dren ; if none, one-half. 1 Bl. Com., 367, n. (49). Did she take dower subject to debts ? She did not.^ Does the wife take her distributive share subject to debts? She does not take it at all till the debts are paid.'' 2 Bl. Com., 515. In North Carolina, widows are endowed as at common law. Bat. Rev., 839, §1. They shall be endowed of an es- tate for life in one-third in value of all the lands, tenements, and hereditaments whereof her husband was seized and pos- sessed at any time during the coverture. She is endowable of equities of redemption or other equitable estates in lands, assignment is for value, but also where it is purely voluntary. 1 Br. Hus. and W., 83 ; Pardew v. Jackson, 1 Buss., (1 E, Ch.) 1 ; Hanner «. Morton, :3 Euss., (3 E. Ch.) 65 ; 1 Min. Insts., 310. 'Dower is where a woman marries a man seized at any time during the eo verture, oii, or entitled to a right of entry or action in, an estate of inheritance, such as that theissne of the marriage may, by possibility, inherit it as heir to the husband, and the husband dies, the wife surviving is entitled to one-third for her life, as tenant in dower. 1 Th. Co. Lit., 569, 578; 1 Min. Insts., 315.. 8 In case of debts due before marriage, charged on land, by mortgage, &c., the debts have priority over the claim to dower, but the dowress is entitled -to dower in the equity of redemption and to have the incumbrances cleared off oMi of the personalty, and out of the lands in the hands of the husband's heir or devisee. 2 Min. Insts., 155 ; 1 Th. Co. Lit., 840. In case of debts due before marriage, not charged specifically upon the land, by mortgage, judgment, or otherwise, as to these debts the claim of the widow to dower has priority. 1 Th. Co. Lit., 568, n. (B), Debts contracted by the husband during coverture are postponed to dower. 1 Br. H. and W., 387 ; Pulwood's case, i Co., 64 b ; James' Bkcy., 38. "As to doctrine of distribution of intestate's estate in North Carolina, see Battle's Rev., 411, §103. HUSBAND AND WIFE, &C. 251 &c., 'whereof her husband was seized in fee at any time du- ring the coverture. Bat. Rev., 839, § 2. Every widow may dissent from her husband's will before the court of probate of the county in which such will is proved, at any time within six months after the probate. Bat. Rev., 840, §6. If she is left nothing by the will she need not dissent. Avery, ex parte, 64 N. C, 113. In what court would the wife sue? In a court of chan- cery ; because it could take cognizance of accounts, and if a party does not obey the decree the court can imprison him for contempt ; but an ecclesiastical court could only excom- municate him if he refused. Suppose, after a woman marries, her father dies leaving her a distributive share, and she dies before the administra- tor pays over ; who gets the share ? Her personal represent tatives ; because in the hands of the administrator it was a chose in action. Bouv. Law Die, Chose. Suppose her father dies before her marriage, and she dies before her husband, the husband settles with the administrator ; who gets it ? The personal representatives, and for the cause supra. Sup- pose a cause of action accrues after marriage, who gets the right to it on her death ? The husband ; because the Very existence of the wife is suspended — merged in that of the husband during coverture. And because, also, she is sup- posed to act under his constraining influence, not to say coercion. She is, at common law, j^or the most part, incapa- ble of binding herself by any contract or ccmveyance what- soever. 1 Min. Insts., 337. Suppose a young lady's negroes are hired out for the year ; she marries, and during the year dies ; who has the right to them ? The husband ; because they are not adversely with- held and cannot be choses in action.^ • In case of a, sale the owner parts with the whole proprietory interest ia the thing, and in cases of hire the owner parts with it only for a temporary use and purpose. In a sale, the thing itself is the obiect of the contract ; in hiring, the use of the thing is the object. Jones' Bailm., 86 ; Sto. Baiim., §371. 252 THE RIGHTS WHICH EELATE TO THE PERSOST. Suppose she marries, then her father dies leaving her ne- groes by his will, and she dies before the executor gives them, over to the husband ; who gets them ? The same doctrine prevails as when she marries first and her husband dies before the executor pays them over, i. e., the wife would take. And so, if the father died and the daughter married, and the husband died before the executor paid over, the wife would take. Legacies and distributive shares are ranked as choses in action. 1 Min. Insts , 304 ; Bouv. Law Die, Chose. Suppose her negroes had been in the hands of a guardian and she married and died before the guardian settled and gave them over to the husband ; who gets them ? The hus- band ; because the possession of the guardian was the pos- session of the wife, he holding them as bailiff or servant.* It is the same if the negroes had been in the hands of an over- seer. Suppose there is an unsettled balance, in the case above, in the guardian's hands, as money or debts payable to him for negro hire ; who gets it? The personal representative of the wife ; because the unsettled balance is a chose in ac- tion which requires an action in order to reduce it into pos- session. 2 Bl. Com., 434 ; 3 Th. Co. Lit., 309-'10 an,d.n. (0) ; Bouv. L. Die, Guardian. Suppose an infant's horse is stolen, and an action is brought by the guardian, whose property is the horse when recovered ? The infant's.^ Bouv. Law Die, Guardian, (8). Suppose a horse is left by a will to an infant ; it is stolen be- fore the executor pays it over ; the executor recovers ; whose property is the horse? The executor's until he assents to J The relation of a guardian to his ward is that of a trustee in equity, and bailiff at law. 3Md., ill. It is a trust which he cannot assign. 1 Par. Cont., 116. He will not be allowed to reap any benefit from his ward's es- tate, (3 Comyns, 230) but must account for all profits, which the ward may elect to take or charge interest on the capital used by him. 17 Ala., 306. He cannot convert real estate into personalty without order of court. 2 Jones' Eq., 411 ; 3 Jones, 42 HIPSBAND AND WIFE. 253 the legacy's being paid or handed over. 8 How.', 170 ; 19 Ala., 666 ; 4 Fla., 144; 10 Hare, ch. 177; 9 Ex., ch. 680. .Suppose a woman contracts debts before marriage, can the husband be sued for them after her death ? Not unless he has choses in action taken as her personal representative.'' 1 Min. Insts., 335 ; Heard v. Stanford, Cas. T. Talbot, 173. Is the husband liable for the debts of the wife contracted during coverture ? Only for those contracted by her as his agent.' * The debts and other contracts of the ■wife before marriage are, at corft- mon law, chargeable on the husband, provided a. judgment for them against husband and wife is recovered during the coverture, for the judgment alters the debt and makes it the husband 's. 1 Min. Insts. , 335. 'The husband's liability upon the wife's contracts during coverture, wherever it exists, must be referred to one or the other of the two heads of AGENCY or DITTT. The wife may be the agent of the husband just as a stranger may be, and the authority, as in other eases, may be either express or implied, and, ac- cording to the general rule which governs all authorities, may be revoked at the husband's pleasure. 1 Bl. Com., 442, and n. (43j ; Manly «. Soott, 1 Sid., 109, 3 S. L. C, 865. The wife's agency more frequently arises from an authority implied than express, the implication being, for the most part, derived from one or the other of the following considerations, namely : (1.) From the usage of the parties: When the husband has been accus' tomed to recognize the contracts and dealings of the wife in the particular in question, as binding upon him. 1 Par. Coni, 43-, Chit. Cont., 211. (2.) From the custom of the neighborhood. 1 Min. Insts., 343. (3.) From the husband's voluntaril}' and knowingly taking the benefit of the contract. 1 Par. Cont., 44, etseq.; Chit. Cont., 312; 12 Wal., 681 ; 1 Min. Insts., 343. (4.) From the peculiar circumstances of the bus band's family': As where, by a long absence on a distant journey, or by protracted illness, his per- sonal attention to his domestic affairs is rendered impossible. 1 Bl. Com. , 443, and n. (43); Reeve's Dom. Rel, 79, 80; 1 Par. Con., 287; Sm. Cont., 411, etseq.; 1 Min. Insts., 343. The husband is under a moral obligation to supply his wife with neces- ssaries suited to her station, or that station which he knowinglj permits her to assume. Nor is that obligation a gratuitous one. Upon fhe marriage he becomes absolutely the owner of her chattel property in possession, and en- litled to appropriate her choses in action, to dispose at pleasure of her chat- 254 THE EIGHTS WHICH RELATE TO THE PEESON. Blackstone says he is liable for necessaries also ; but that is error, because it would be for the husband to say what are necessaries. Thus, when she has been accustomed to buy groceries for the family a merchant would be safe in selling her anything of the sort. 1 Min. Insts., 343. If Blackstone's notion is correct, who is to decide the question of necessaries ? The husband ; and hence it would amount to nothing. From what is the agency of the wife to be inferred ? From the fact that she has-been in the habit of buying certain things and the husband in the habit of paying for them ; but it must not be extended too far, — as in case of buying grocer- ies it would not warrant the merchant in selling her a car- riage. Bac. Abr. Mas. and Ser., (K) ; 1 Par. Cont., 83 and notes ; Chit. Cont., 217 and seg.; 1 Min. Insts., 204. When does the question of necessaries really arise? Where the wife leaves the husband for good cause, he is bound to pay for necessaries furnished her. In this case a jury will decide what were necessaries. Why does a man put up a notice in case his wife deserts him ? To revoke any implied agency that may exist. tels real, to take the profits of her freehold lands during coverture, and to receive her earnings. And hence, from this definite duty, thus sustained by such verj' valuable considerations, the law reasonably implies a promise on his part to pay whoever shall supply such necessaries for his wife a rea- sonable compensation therefor. Manly v. Scott, 3 Sm. L. C, 364-'5 ; Hawks and Ux. «. Sanders, Cowp., 390 ; Bac. Abr. Bar. and F., (H). This obligation of the husband ceases only when his duty to supply the necessaries ceases, namely: (1.) Where the wife refuses, without sufficient reason, (e. g., of cruelty, or outrage upon her feelings, as bj' his introducing his mistress in his house), to live with him, and abandons his house and society. (3.) Where the wife is guilty of adultery. (3.) Where she is supplied by liira, or indeed from any source, with nec- essaries, or the means of procuring them, whether the existence of such supply be or be not known to the person who furnishes her the articles ia question. 1 Bl. Com., 443, and n. (43); 2 Sm. L. C , 360, and seg., 364, 366; 2 Kent's Com., 14S, and seq.; Bac Abr. Bar. and F. (H); 1 Minor's In- stitutes, 844. HUSBAND AND WIPF. 255 Suppose a woman beats a neighbor's child, is her husband liable ? He is in a civil suit for damages. Suppose the wife slanders some one, how then ? The husband is liable in dam- ages. Why ? Because she is under the constraint of the husband, and it is supposed that he can and ought to con- trol her." The husband, by the old law, might give his wife moderate correction. For, as he is to answer for her misbehavior, the law thought it reasonable to intrust him with this power of restraining her by domestic chastisement in the same moderation that a man is allowed to correct his apprentices or children, for whom the master or parent is also liable in some cases to answer. 2 Bl. Com., 445. Suppose a man and his wife commit an assault or steal hogs, is she liable ? No ; what she does in her husband's presence she is supposed to do by his direction." Suppose a "The husband is liable, in damages, for all assaults, slanders, libels, and other torts committed by the wife towards strangers, and therefore for her frauds, as long as the relation continues, notwithstanding the parties have permanently separated. The action, however, is not to be brought against the husband alone for a tort committed by his wife, but against the husband and wife jointly. And where the tort complained of is 2i fraud, it must be a fraud so connected with a contract as to be part of the same transaction. No action lies in such a case — not against husband and wife in conjunction,' be- cause it that were allowed, the wife would lose the protection which the law gives her against contracts made by her during coverture; for there is no contract which a married woman would be likely to make, whilst she knew her husband to be alive, which could not be treated as a fraud; nor against the husband alone, for when her conduct is the cause of the action, he is not liable to be sued by himself, but only in conjunction with her. 1 Bl. Com., 443, n. (44); Cooper ®. Witham, 1 Lev., 347; Head i>. Briscoe & Ux., 5 Carr. and P. (24 E. C. L.") 48; Adelphi Loan Asso. ». Pairhurst, 9 W. H. and Gord., 429; Cannam and Ux. «. Farmer, 3 W. H, and H., 698. " Wife's responsibility for crimes committed in the husband's presence. In general the wife is not punishable for crimes committed in the hus- band's presence, because she is supposed to act under Ms coercion. But to this doctrine there are two classes of exceptions, namely: (1) The cnxaes oi treason, fehnious homicide, and robbery; because of the heinousness of the offence, and the necessity of protecting society to the utmost against their commission; and 256 THE RIGHTS .WHICH RELATE TO THE PERSON. felony is committed ? The wife is then liable; for that is an offence against God, to whom she owes a higher duty than to her husband. See note infra. [In criminal cases, an infant of the age of fourteen years may be capitally punished for any capital offence ; but un- der the age of seven he cannot. The period between seven and /ourieera is subject to much uncertainty, for the infant shall, generally speaking, be judged prima facie innocent, yet if he was doli capaz, and could discern between good and evil at the time of the offence committed, he may be convict- ed and undergo judgment and execution of death, though he hath not attained to years of puberty or discretion. And Sir Mathew Hale gives us two instances : one of a girl of thirteen, who was burned for killing her rfiistress; another of a boy still younger that had killed his companion and hid himself who was hanged — for it appeared by his hiding that he knew he had done wrong and could discern between good and evil ; and in such cases the maxim of law is that malitia supplet setatem. So, also, in much more modern times a boy of ten years old, who was guilty of a heinous murder, was held a proper subject for capital punishment by the opinion of all the judges.] 1 Bl. Com., 465. (2. ) The ofEeuce of keeping a brotliel; because, says Blackstone, it touches the domestic economy or government of the house in which the wife has a principal share; and is also such an ofience as the law presumes to be gen- rally conducted by the intrigues of the female sex. 1 Min. Insts., 365 ; 1 Bl. Cora., 444, and n. (48); 4 Do., 28-'9 ; Bac. Abr., Bar. and P., (G); 1 Russ Cr., 15, 16. For offences commiUed by the wife, not in the hmbancfs presence, wheth- er they be felonies or misdemeanors, she is no less amenable to punish- ment than if she were unmarried; save only that if the offence hapunisJia- ble by fine, the husband must be joined with her in the prosecution, because upon conviction he mvstpay the fine. But whatever corporal punishment is inflicted, slie must suffer alone. 4 Bl. Com., 29 ; 1 Russ. Cr., 17; Bac. Abr. B. and F., G. Supplementary Notes Touching the Private Relations. MASTER AND SERVANT. A master is one who exercises personal autliority or control over aii- otlier ; and that other is his servant. 1 Par. Oont., 86-'7. The several classes of servants include: (1.) Slaves; (2.) Menial ser- vants; (3.) Apprentices; (4.) Laborers; and (o.) Stewards, bailiffs, fac- tors, agents, &c. Slavery is properly a state of involuntary servitude Jor life. 1 Min. Insts., 161 ; 1 Th. Co. Lit., 405, and seq. Slavery, which seems to be well-nigli as ancient as human society, is referred by Justinian to three sources, namely : (1.) Captivity in war ; (2.) Purchase for a price ;. and (3.) Birtiv of a slave mother. 1 Th. Co. Lit., 403-'4 ;, 1 Min. Insts., 162. Blaclcstone Says the three origins of the right of slavery assigned by Justinian are all of them built upon false foundations. See 1 Bl. Com., 423. Menial servants are so called because they ai-eiioTOesiics employed iwira mcenia. 1 Bl. Com, 425. A head gardener is a menial servant, notwith- standing he is lodged in an out-house; so a fortiori is a groom, but not a governess, nor a clerk. 8 Ex. 151 ; 4 Bing. 13 E. C. L., 309 ; 3 Cr. Mees. and Ros., 54; 1 Min. Insts., 180. Apprentices are servants (so called from apprendre, to learn) who are bound for a term of years to serve their masters, by whom they are to be maintained and instructed. Every contract for teaching or learning a: trade is prima fade an apprenticeship, and so it is an apprenticeship, where the substantial object is to learn and not merely to serve. 1 Bl. Com., 426 ; 6 Ad. and E., 33 E. C. L., 236 ; 8 B. and Cr., 15 E. C. L., 82;. 1 Min. Insts., 180. The contract of apprenticeship is the only executory/ contract which the common law did not permit to be by parol, bills of exchange being no exception to this proposition, because they were not originally Isnown to the common law but were adopted 'into it from, the custom and usage of merchants. Castor and Aides' case, 1 Sails., 68 ; Bac. Abr. Master, &c., (A), 1 ; 1 Par Cons., 533 ; 1 Min. Insts., 181. Laborers are persons who are only hired by the day, week, or month, and do not live intra mcenia like domestics. 1 Bl. Com., 427. Stewards, factors, bailiffs, agents, &c., are species of servants, although in a superior ministerial capacity. 1 Bl. Com., 427 ; 2 Kent's Com., 622; 1 Par. Cont., 78, etseq.; 1 Min. Insts., 188. The relation of master and servant depends on contract express or im- plied. 1 Par. Cont., 529 to 531 ; Alfred «. Pitz James, 3 Esp., 3 ; 1 Min.. Insts., 189. 17 258 EIGHTS WHICH RELATE TO THE PERSON. A general hiring, tliat is a hiring without fixing the duration of the ser- vice, \s presumed to be a hiring /or a yeai — one revolution of the seasons — the presumption being, of course, liable to be changed by proof. 1 Bl. Com., 425 ; 1 Par. Gont., 518, n. (h) ; 1 Min. Insts., 190. A general hiring of a menial servant is also presumed prima facie to be for a year, but sub- ject to an implied condition that the engagement may be determined on either side by a monWs notice^ or by paying, or forfeiting a morai^'s wages. But the presumption and implication may both be repelled by contrary proof. 1 Bl. Com., 425, n. (5) ; 1 Par. Cont., 518, and n. (h) ; 1 Min. Insts., 190. The dissolution of a contract of service may arise : (1.) By mutual con- isent. Thomas v. Williams, 1 Ad. and El. 28 E. C. L., 785; Lamburn c. Cruden, 2 Maun, and Gr., 40 E. C. L., 250 ; 1 Min. Insts., 192. (2.) Dis- solution of the contract may be by the act of the master. Moral miscon- duct, wilful disobedience, habitual neglect, or any conduct injurious to the master's interests, e. g., persuading or assisting an apprentice to de- sert, are just and good grounds for dismissal of servant. But occasional sulkiness, temporary absence without leave, do not amount to sufficient Cont., 212 ; 12 Wal., 681; 1 Minor's Insti- tutes, 206. Power of the servant to delegate his authority. The general doctrine, especially in agencies involving the exercise of iany discretion is, that the authority cannot be delegated ^ delegatus non potest delegare. But this supposes that no power, express or implied, has been given to lAake the delegation, and that there is no subsequent ratii- 260 RIGHTS WHICH RELATE TO THE PEESCW. flcatioQ of the act of the substitute. 1 Par. Cont., 71-'2 ; Broom's Max, 665-'6 ; 2 Kent's Com., 633, 260 ; Sto. Ageney, §§ 13, 14, 108, 146, 249 j Combe's case, S Co., 76, al and n, (D),- 2 Atk., 88; 2 Ves. Sen., 643; 1 Min. Insts., 209. Liability of servant on contracts- made by him on behalf of his master. The general doctrine : In general all contracts made on behalf of the master by a servant or agent, within Dhe scoi)e of his autliority, whether express or implied, bind the master or principal, but the servant or agent is in no wise liable therefor. It seems hideed, that if he had styled him- self agent in the contract, and had named his principal„\ie is estopped, notwithstanding he is himself the real principal afterwards to claim as such ; at least, unless the other party has treated him as principal. Bae. Abr. Mas. and Ser., (K); 2' Kent's Com., 680; Rayiier «. Grate, 15 M. and W., 359. Exceptions toi the general doctrine, sup™. Theyinclude — (1.) "Where the contract is in the servanfs own name, whether the con- tract be under seal, 5 East. , 148 ; Combe's case, 9' Co., 76 b ; 1 Min. Insts., 213 ; or in writing not under seal. 1 Par. Cont., 54, and n. (a) ; Burrell V. Jones, 3 Bar. and Aid., 5 E. C. L., 47 ; Iveson v. Connington, 1 B. and Cr., 8 E. 0. L., 160 j Drake v. Deckham, 11 M. and W., 81&. Servants of the government,, however, are not in general personally liable upon contracts made in that capacity, whether under seal or not, although the engagement be couched in terms which in the case of agents of private persons would charge them individually. Bac. Abr. Mas. and S. (L) ; 1 T, B., 172, 182 ; do.. 678 ; 1 Bast., 519 ; 11 How., 374 ; 1 Min. Insts., 213. (2.) There is another exception where there is no principal, or none is disclosed. 1 Parr. Cont., 55-'6 ; 3 Sm. Ld, C, 223, and note ;.l Bro. C. C, 101, and n. t ; 1 Min. Insts., 214. (3.) Where the servant or agent exceeds his -authority. 1 Par. Oont., 54, et seq.; 1 Min. Insts., 216; Palhill ». Walter, 3 B. Aid., 23, E. C. !>., 114; Jenkins «. Hutchinson, 13 Ad. and El. N. S. 66, E. C. L., 751 ; Lewis V. Nicholson, 18 Adol. and El. N. S., 83, E. O. L., 511 ; KandaU V. Trimen, 18 Com. B., 86, E. C. L., 793-'4i (4.) Where the agent or servant is dealing for a foreign principal or master. In eveiy case of this kind it is a question of intention to be gath- ered from the contract itself and the surrounding circumstances, whether the agent of a foreign principal is personally liable or not. Mahone v. Kekule, 14 Com. B., (78 E. C. L.) 396 ; Greene «. Kophe, 18 Com. B. (86 E. C, L.) 558 ; Lennard v. Eobinson, 5 El. and Bl. (85 E. C. L.) 130 ; 1 Min. Insts., 216. Liability of a master for torts committed by a servant in connexion with his employment. The general principle is, that a master is responsible for the tortious acts of his servants which were done in his service. 1 Bl. Com., 431 ; 1 Par. ,Cont., 87 ; Laugher ». Painter, 5 B» and Cr., (13 E. 0. E.) 547 ; 1 Min. Insts., 318. MASTER AND SERVANT. 261 Grounds and limits of the master's liability: The grounds of the master's lialsility are that he may and ought t» control Ms servants or agents whom he selects and may dischwrge. His Mos- bility is limited by similar considerations. 1 Bl. Com., 431, and n. (26) ; 1 Par. Cont. , 87, «< «e^. , and n. (a a) ; Id. 89, aud seq^.; Millagan v. Wedge, 12 Ad. and El. (40 Eng. C. L.) 737 ; Overton «. Fruman, 11 0. B. (73 E, a L.) 8674 Ellis u. Sheffield Gas Co., 2 El. and Bl. (75 E. C. L.) 767; Chicago t>. Bobbins, 4 BL, 418, 438 ; Water Co. ■». Ware, 16 Wall., 576-'7; 1 Mia. Inste., 318. The master is not in general answerable for wilfaZ and malicious torts of his servants, even though perpetrated whilst they are engaged about Ills business, because such torts cannot fairly be said to be committed in Ms service, nor has he that power of control with respect to such conduct which, as we have seen, is the ground of his liability in all cases. 1 Par. Cont., 87 and n. (a a); 1 Mln. Insts., 220. A servant cannot subject the master for injuries occasioned by the neg- lect, unskillfulness or ignorance of a fellow-servant employed about the same work, provided the sufferer be actually engaged in the master''s ser- vice, and transacting his business at the precise time when the injury is Inflicted, and provided also, the master has used due precaution in em- ploying competent persons to serve hita. Priestly v. Fowler, 3 M. and W., 1 ; Hutchinson «. E. R. Co., 5 Ex., 351 ; Wigmore v. Jay, Ih. 351 ; 1 Am. L. 0., 620; Un. Pac R. R. Co. e. Fort, 17 Wall., 557; Packet Co. v. McCue, Id. 513; 1 Min. Insts., 221. Crutchfleld «. R. & D. R. E. Co., 76 K". C, 320; Hardy b. C. C. Railway Co., 5. Doctrine touching the termination of the relation of master and servant. The authority of the servant is terminated, (1. ) By express revocation. All mere authorities are revocable and cannot be made otherwise by the most express declarations to the contrary. To be irrevocable the author- ity must be coupled with an interest in the subject to which the agency re- lates., or must be given by way of contract for a valuable consideration. 2 Kent's Com., 264; 1 Par. Cont., 68, and seq., and n. (h); Hunt v. Eausmanier, 8 Wheat., 201; Brown e. McGrau, 14 Pet., 494; Field v. Parrington, et ais., 10 WaL, 149. (2.) Termination of the servant's authority by Ms death or that of th-e master. 1 Th. Co. Lit., 738-'39 ; lb. 344 ; 2 Kent's Cora., 643 ; do 646 ; 1 Par. Cont., 61-'2; 8 Wheat., 201 ; Smout v. Ilberry, 10 M. & W., 1. (3.) Termination of the servant's authority by a change m the condition of the master or principal. Prominent among these changes are bank- ruptcy, lunacy, and marriage in case of female. But in these cases also, as in others, the revocation or determination of the agent's power may be arrested by its being coupled with an interest in the subject matter, or foun-ded on valuable consideration, whereby a lien on the subject may be created, even in case of a bankrupt. 2 Kent's Com., 644-'5 ; Alloy v. Hatson, 4 Gomp., 336 ; 1 Min. Insts., 226. 262 EIGHTS WHICH RELATE TO THE PEKSON. (4.) Servant's authority is terminated by the completion of the business^ 07' by the lapse of time prescribed for its duration. Blackburn v. Scholes, ? Conip., 343 ; Helyear v. Hawlse, 5 Esp., 74 ; Pete v. Hague, 5 Esp., 134; Oliquot's Ghampagne, 3 Wal., 140 ; Auditor v. Jonson, 1 H. andM., 540 ; Hunt i;. Rausmanier, 8 Wheat., 174 ; 1 Am. L. C, 567 ; 1 Minor's Jnsts., 227. (5.) Termination of the servants' authority by the oceurrenee of war between the countries of which he and the master are respectively sub- jects. Ward V. Smith, 7 Wal., 447, 452; 1 Par. Cont., 178; Potts v. Belt, 8 T. E., 548 ; Scholfield v. Eiehelberger, 7 Pet., 593 ; 1 Minor's In- stitutes, 237. GUARDIAN AND WARD. The several kinds of guardians are : (1.) Guardians by nature ; (2.) Guardians for nurture; (3.) Guardians in chivalry ; (4.) Guardians in socage; (5.) Guardians by election ; (6.) Guardians appointed by chancery courts; (7.) Guardians appointed by the ecclesiastical court ; (8.) Guardians under the statute of 4 and 5 Ph. and Ma.; (9.) Testamentary guardians ; (10.) Guardians by the custom of particular places ; and (11.) Guardians ad litem. 1 Min. Insts., 422. The Roman law styles one charged with the custody of a minor's per- son, and the care of his education, a tutor; and one to whom his estate is committed, a curator. Our law unfortunately denominates both sets of fiduciaries guardians, thereby giving occasion to not a little confusion of thought. The student must take care to fix in his memory, in respect to each class of guardians presently to be described, whether he has charge of tlie person only, or the estate only, or of both person and estate. 1 Bl. Com., 360 ; 1 Min. Insts., 422. Guardians by nature exist by the common law. They are the father; or, if he be dead, the mother; and if she, too, be dead, anyiineal ancestor of the minor to whom he is heir. 1 BI. Com., 461.' This kind of guar- dianship embraces only the custody of the minor's ^erso» and the care of his education, and does not include the care of his estate. It is applicable only to heirs apparent. Bac. Abr. Guardian, (A). Guardian for nurture is also of common law origin. It occurs only where the infant is leithout any other guardian — applies to children who are not heirs apparent and continues only until the ward attains the age Oii fourteen. It embraces only the care of the person, and not of the estate, and belongs only to the father and mother. 1 Th. Co. Lit., 155-'6, n. (3); Bac. Abr. Guardian, (A), ] ; 1 Min. Insts. ,.42.4, See also 2 Kent's Com.» 221. GUARDIAN AND WAED. 263 , Guardians in chmalry existed at common law. It was incident exclu- sively to the tenure of lands by knight-service, or oiiivalry ; and occurred only where the infant was seized hy descent of lands holden by that tenure. This embraced not only the infant's person, but also such of his lands as were within the guardian's seigniory. Tlie wardship applies to such male heirs as, at the ancestor's death, were under twenty-one, and to such female heirs as were then under fourteen; continuing as tomales until twenty-one, and as to females until sixteen or marriage. This wardship was for the benefit of the lord, who enjoyed the infant's estates in his hands without accountability for profits, being only obliged to maintain the ward. And the lord was also entitled to the marriage of the ward. 2 Bl. Com., 67-'8 ; 1 Min, Insts., 424^'5. Wardship in chivalry ceased with the tenure out of which it arose — namely, by statute 12 Car. II., c. 24. 1 Th. Co. Lit., 152, n. (11 ; Bat- cliff's case, 3 Co , 37 b, n. (A). Guardians in socage exist at common law, as an incident to lands held by socage tenure. It occurs where the infant is seized by descent of lands or other hereditaments holden by that tenure, and is conferred on tlie nextofhin to the infant, who cannot possibly inherit the lands from him, a precaution adopted in order to remove from the guardian all tempta- tions to employ foul means to clear the way to his own succession. 1 Bl" Com., 461 ; 1 Th. Co. Lit., 169, n. (14); 1 Min. Insts., 425. Unlilce guardianship in chivalry, it is in no respect for the benefit of the guardian; but exclusively for the benefit oftheward. It is, therefore, neither a subject for alienation, nor succession to the personal representa- tive, as guardianship in chivalry was ; and the guardian must account for all the profits of the ward's estate. Although it exists as incident io tenure, it draws to it the custody of the ward's person, and of his personal property, as well as of his socage lands; but it continues with either sex only till the ward has attainedthe age of fourteen. The socage tenure being the tenure by which, since 12 Car. II., c. 24, the great body of the lands in England are holden, this species of guardianship is far the most frequent of all at common law, in respect to infants who have no father living. 1 Bl. Com., 461 ; 1 Th. Co. Lit., 168, n. (14). Guardians by election. The power of an infant to choose a guardian arises at common law only when the infant is without any other legal guardian of his person and estate. 1 Bl. Com., 463 ; Bao. Abr. Infancy, (A). This guardianship embraces the property as well as the person of the ward, and continues until twenty-one. 1 Min. Insts., 427. Guardians appointed by the chancery court. How the court of chan- cery in England acquired this branch of its jurisdiction is not yet agreed amongst English lawyers, although that it exercises it without dispute is 264 EIGHTS WHICH RELATE TO THE PERSON. a matter of daily experience. 1 Bl. Com. 462, n. (8) ; 1 Th. Co. Lit., 158, n. (6) ; 2 Sto. Eq., §1351, §1333 ; Fon'b. Eq., B. 11, Pt II, c. 2. §1, n. (a); Eyre v. Countess of Shrewsbury, 2 P. Wms., 123-'4 ; 1 Min. Insts., 427. The wardship in this case embraces both person and property, and con- tinues until the age of twenty-one. 1 Min. Insts., 427. Guardians by appointment of the ecclesiastical court. See 1 Bl. Com., 461 ; 1 Th. Co. Lit., 159, n. (6). Guardians under the statute of 4 and 5 Ph. and M., c. 8. The direct object of this statute was to punish and prevent the taking away and marrying of maidens under sixteen years of age, witliout consent of their parents, or of the persons to whom the father had temporarily committed them. But the statute prohibited the act in terms which implied that the custody and education of sucli females belonged to the father and mother, or to the person appointed by the father. And accordingly, it is construed to constitute the individuals thus contemplated, the guardians of the per- Hons (but not of the estates') ot females under sixteen, even, it is said, though they be natural children. 1 Bl. Com., 461 ; 1 Th. Co. Lit., 156, n. (4) ; 1 Min. Insts., 429-'30 ; see acts of Leg. for session of 1879, ch. 81, p. 148. Guardians appointed by fathers, or testamentary guardians. The stat- ute of 12 Car. II., c. 24, which took away the chivalry tenure and its in- cidents of wardship, enabled the father, by deed or will, to appoint who should be guardian of his infant children. It applied to all children un- der twenty-one, or unmarried at the father's decease, or born after, and embraced the Control of both person, and property of the ward. 1 Bl. Com., 462, and n. (7) ; 1 Th. Co. Lit , 156-'7, n. (5) ; Bac. Abr. Guard'n, (A), 3 ; 1 Min. Insts., 430. Guardians by the custom of particular places. 1 Th. Co. Lit., 157, n. (6) ; Bac. Abr. Guard'n, (A) 3 ; Id. Customs of London (B). Guardians ad litem. A guardian ad litem is one appointed foi an in- fant to defend him in any action or suit brought against him. In all civil actions or suits every court, where an infant is sued, has power to appoint a guardian ad litem to conduct his defence in that case, the ap- pointment having to be renewed in every separate case, the infant having no discretion to select an attorney to represent him. 1 Min. Insts., 432; Tourgee's Code, 43-'5. In criminal proceedings infants defend like adults, and it is error for a minor to plead to a criminal prosecution by a guardian ad Ktem. 1 Min. Insts., 432. The ages at which, respectively, infants are capable for divers purposes at common law : Males. Females. For betrothal, — 7 For crime (if discretion proved,) 7 7 For dower, — 9 For oath of allegiance, 12 GUARDIAN AND WARD. 266 Males. Females. For assent to marriage, 14 13 For crime, (fully eapax doli,) 14 14 For will of chattels, 14 12 For choosing guardian, 14 14 For acting as executor, 17 17 For full age, 31 21 1 Bl. Com., 463; 1 Min. Insts., 471. An infant cannot in general alien, or contract to alien, or to do any- other act which is binding, relative to his property ; all transactions of that sort being voidable by him on his coming of age. But this principle is not without several exceptions. 1 Bl. Com., 465 ; 1 Th. Co. Lit., 74, n. (35) ; Sug. Pow., 155 ; 1 Min. Insts., 477. Doctrine touching privileges and disabilities of infants in relation to contracts executory. There is a great want of precision in the doctrines scattered through the books on the subjects of the validity and effect of the contracts of Infants. The result of them is very satisfactorily summed up by 0. J. Eyre, in Keane v. Boycott, 2 Hen. Bl., 511, as follows, namely : that all the contracts of which the court can pronounce that it is for the benefit of infants to allow them to bind themselves by them, are valid; that all of which the court can, in like manner, pronounce that to allow infants to be bound thereby would be to their prejudice, are void; and that those of which nothing certain can be predicated as to whether it would be hurtful or profitable to infants to allow them to be bound thereby, are voidable at the infanVs election. 2 Steph. Com., 885 ; 2 Kent's Com., 236, 243; Zouch». Parsons, 8Ba'rr„ 1801 ; 1 Min. Insts., 477. Contracts of infants which are «aZi(i are, namely : (1.) Contracts for nficcssaries; (2,^ Contracts of marriage settlement; (8.) Contracts of apprenticeship; and (4.) Contracts to do what the law would oblige the infant to do at all events. 1 Min. Insts., 478-'9. Necessaries are such supplies as are needful to enable the infant to live according to his real (not his apparent) position in society ; and he who undertakes to supply him must determine that at his peril. They include, according to Lord Coke, (1 Th. Co. Lit., 175,) " necessary meat, drink, apparel, necessary physic, and other such like necessaries ; and likewise good tSaching or instruction, whereby he may profit himself afterwards." But mere ornaments, having no utility, can never be necessaries. 1 Bl. Com:, 466, and ns. (16) and (17); 2 Kent's Com., 230; 1 Par. Cont., 245, and n. (h), 346, and n, (1) ; 1 Am. L. C, 249 ; Peters ». Fleming, 6 M. and W., 47; 1 Min. Insts., 479. Contracts of marriage settlement, so far as they relate to personal prop- erty, are valid as against infant parties thereto : (1.) Because they tend to promote marriage, which is not only advantageous to the State, but emi- 266 KIGHTS WHICH RELATE TO THE PERSON. nently favorable to the respectability and happiness of the parties; and (2.) Because in tlie case oi females especially, they protect the property of the party from the marital rights of the consort. 1 Par. Cont., 277-'8, and n. (t); Mitner v. Harewood, 18 Ves., 259, and notes. As to contracts of apprenticeship, see Bac. Abr. Master, &c., (B) 1 ; 1 Th. Co. Lit., 173, 177, and n. (40) ; Gj'lbert v. Fletcher 4 Cro. (Oar.) 179 ; King ». Cromford, 8 East., 26; 1 Am. L. 0., 232-'3; 1 Par. Cont., 262, n. (e). Whatsoever, says Lord Coke, " an infant is bound to do by law, the same shall bind him, albeit he doth it without suit of law." 1 Th. Co. Lit., 176^7 ; 1 Par. Cont , 263 ; 1 Am. L. C, 249-'50. BOOK THE FOURTH. PRACTICE OF THE LAW IN CIVIL CASES. Book IV. LECTURE I, PKACTICE. How does Blackstone divide his commentaries? Book the first treats of the Rights which relate to Persons ; Book the second, of the Rights which relate to Things; Book the third, of Private Wrongs ; and Book the fouth, of Public Wrongs. How are private wrongs or civil injuries redressed ? (1.) By the mere act of the parties, which may be in two man- ners, namely, — (a.) By the mere act of the party injured, and (6.) By the joint act of all the parties; (2.) By the the mere act of the law ; and (3.) By the concurring act of the parties and of the law. 3 Bl. Com., 3, and seq. Give instances of each ? Redress is effected by the mere act of the party injured in these five ways, namely : (1.) By the defence of one's self, or certain near relations ; (2.) By re- caption of goods ; (3.) By entry upon lands ; • (4.) By abatement of rndsarices; and (6.) By distress. 3 Bl. Com., 8, et seq. Re- dress of injuries by the joint act of all the parties, as by (1.) Accord and satisfaction; (2.) By arbitration and award. 3 Bl. Com., 16 ; Bac. Abr. Accord. Redress of injuries by the mere operation of law is effected by (1.) Retainer, and by (2.) Remitter. 3 Bl. Com., 18 ; 4 Min. Insts., 154. Redress of injuries effected by the concurring act of the parties, and of the law, that is, by suit in court. 3 Bl. Com., 18, et seq. Ac- tions at law correspond with suits in equity. How does Blackstone divide courts ? With respect to the 270 PRACTICE OP THE LAW IN CiVll, CASES. cognizance of the courts, into Ecclesiastical, Military, Mara- time, and Courts of Common Law. Analysis of Bk. III." What are the courts of common law and equity? (1.) Court of Pie Poudre-"Which is a court of record. (2.) Court Baron — which is not a court of record. (8.) Hundred court — which is not a court of record. (4.) County court — which is not a court of record. (5.) Court of Common Pleas.* (6.) Court of Exchequer.* (7.) Court of King's Bench.* (8.) Court of Chancery, composed of-^ (1.) The Ordinary Court of Chancery — a court of re» cord. (2.) The Extraordinary Court of Chancery, or Court of equity — -not a court of record. (9.) Court of Exchequer Chamber — a court of record. (10.) House of Peers — a court of record. (11.) Court of Assize and Nisi Prius — -courts of record. 3 Bl. Com., 30 ; 4 Min. Insts., 179. What is a court ? A court is defined to be a place where justice is judicially administered — whether in a palace or a cabin, in a blacksmith shop or a tavern porch, under a tree like Abraham's oak at Mamre or in the open field, is imma- terial. 3 Bl. Com., 23; 3 Th. Co. Lit., 322 ; 4 Min. Insts., 157. Of what three necessary constituents does every court con- sist? T^he actor, reus and judex. The actor, or plaintiff, who complains of anjury done. The reus, or defendant, who is called upon to make satisfaction for it ; and the judex, or ju- *These are the three great courts of law of Westminster Hall, and are courts of record. " One distinction runs through all the cdurts, namely, that some of them are courts of record, others not of record. A court of record is a court of whose proceedings a solemn contemporaneous minUte is kept by an officer appointed and sworn for the purpose. Hynders case, 4 Co., 17, a and b. NATURE OF COURTS. 271 dicial power, which is to examine the truth of the fact, to determine the law arising upon that fact, and if any injury- appears to have been done, to ascertain and apply the rem- edy. It is usual, also, in the superior courts and in some instances in the inferior courts, likewise, to have attorneys and advocates, or counsel, asi assistants. 3 Bl. Com., 25. What are the courts of general jurisdiction ? Common Pleas, King's Bench, and Exchequer. 3 Bl. Com., 37, etseq. From what source did these courts originate ? From the Aula Regia, which succeeded the Wittena- gemote of the Sax- ons, after the Norman conquest." Reference supra. How is practice divided ? Into court and chamber prac- tice. The first consists in conducting suits in courts; the latter consists in that practice which takes place in a lawyer's oflfice such as writing deeds, giving advice, &c. What is an action ? %. legal mode of enforcing a right or redressing a wrong. [The formal demand of one's right from another person or party, made and insisted on in a court of justice. Bouv. Law Die, Action.] How many kinds of actions are there ? Three : Real, Mixed and Per- sonal. 3 Bl. Com., 118. What is a real action ? Meal ac- tions (or feudal actions) are such whereby the plaintiff claims title to have any lands or tenements, rents, commons, or other hereditaments, in fee simple, fee tail, or for term of life. 3 Bl. Com., 118. What are the real actions at common law ? Writs of right; writs in the nature of vjrits of right; writs of entry; " Common pleas was the first branch lopped off from the court of Aula Regia, being created by Magna Charta, 16 John, A. D. 1315, in order that the private subjects might not be obliged to follow the King wherever he might be in England. 3 Bl. Com., 37 et seq. Exchequer was the second branch lopped off from the aula regia, which took place in the time of Ed. I., apparently by an effort of royal power, without the aid of Parliament. 3 Bl. Com., 43, et seq. Court of Kings Bench is the remnant of the aula regia. 3 Bl. Com., 41. 272 PRACTICE OF THE LAW IN CIVIL CASES. writs of assize and novel disseizin.' See 3 Bl. Com., 168, etseq. What is recovered in a writ of assize of novel disseizin which is a real action ? Possession and damages, being the only case in which damages were recoverable in any posses- sory actions, at the common law, the tenant being in all other cases allowed to retain the intermediate profits of the lands to enable him to perform the feudal service. 3 Bl. Com., 188. What is recovered in personal actions ? A debt, or per- sonal duty, or damages in lieu thereof ; or damages for some injury done to person or property. The former are said to be founded on contracts, the latter upon torts or wrongs. 3 Bl. Com., 87. What is recovered in mixed actions ? Possession and dam- ages. As for instance, in an action %i waste, which is brought by him who hath the inheritance in remainder or reversion^ against the tenant for life, who hath committed waste there- in, to recover not only the land wasted, which would make it merely a real action, but also treble damages in pursuance of the statute of Gloucester, 6 Ed. I., c. 5, which is a personal recompense; and so, both being joined together denominate it a mioixd action. 3 Bl. Com., 87-8. What is the beginning or foundation of a suit in court? "Real actions are : (1.) Possessory; and (2.) Droitural. Possessory actions are such real actions as are employed to recover tlie possession of freehold estates in lands, whereof the plaintiff or his ances- tors have been unjustly deprived, where they still retain a right to the possession, in contradistinction to a mere right to the lands. 3 Bl. Com., 179 to 190. Possessory actions embrace : (1: ) The writ of entry ; (2.) The writ of assize. Droitural actions are real actions founded on the mere right of property, where the right of possession, both actual and apparent, is lost, either by lapse of time or by the unsuccessful issue of a possessory action. 3 Bl. Com., 177, 190-'l ; 4 Min. Insts., 468. The more usual at common law are : (1.) The writ of quod ei deforceat; (2.) The writ of right of dower; (3.) The writ otformedon; (4.) The writ of right. NATUKE OF COURTS. 273 The original, or original writ. 3 Bl. Com., 273. What is an original writ ? It is a mandatory letter from the King, in parchment, sealed with his great seal, and directed to the sheriff of the county wherein the injury is committed, or supposed so to be, requiring him to command the wrong- doer, or party accused, either to do justice to the complain- ant, or else to appear in court and answer the accusation against him. 3 Bl. Com., 278-'4. What division is there of personal actions, with regard tO' the subject matter for M'hich they are brought ? Actions ex. contractu and actions ex delicto. 3 Bl. Com., 117. What is the jurisdiction of the court of comirmom pJieas ?' Its jurisdiction is oi pleas, or causes between, pn-aafe or com-' man persons, and it has exclusive cognizance of reed actions. 3 Bl. Com., 37, et seq.; 1 do., 22-3, and seq. What is the jurisdiction of the court of Exchequer ? Orig- inally it was charged only with those causes which concern the King's revenue, but by what is known as the fiction of quo minus it came to extend its jurisdiction to all personal ac- tions. 3 Bl. Com., 43, and seq. What was the original jurisdiction of the court of King's- bench ? Its jurisdiction embraced all criminal matters and torts. 3 Bl. Com., 41, et seq.; Bac. Abr. Court of King's. Bench. The court of common pleas has exclusive jurisdiction of suits concerning realty ; but in all other cases the three courts have concurrent jurisdiction. 3 Bl. Com., 37, et seq.. Why was the jurisdiction of King's Bench and Exchequer enlarged ? On account of the increase in commerce. How did King's Bench acquire jurisdiction in personal actions ex contractu f It was held that the officers of that court, and. all persons in their custody, had a right to sue and be sued, in that court. In process of time it began by a fiction to holdi plea of all personal actions, and has continued for ages to dO' so, it being surmised that the defendant is arrested for a sup- posed trespass which he never has, in fact, committed, or 18 274 PRACTICE OF THE LAW IN CIVIL CASES. been charged with ; and being thus pretendedly in the cus- tody of the marshal of the court, the plaintiff is at liberty to proceed against him for any other per sonalinjury, either by breach of contract or by tort. 3 Bl. Com., 41, and seq. What did the statute of 13 Car. II., c. 2, provide? That the true cause of action should be expressed in the body of the original writ, or process. See the doctrine in full, 3 Bl. Com., 288. What was the effect of this statute ? This statute, without any such intention in the law-makers, had like to have ousted the king's bench of its jurisdiction over civil injuries without force ; for, as the bill of Middle- sex was framed only for actions of trespass, a defendant could not be arrested and held to bail thereupon for breaches of civil contracts. 3 Bl. Com., 288. How did suitors avoid its effect ? By inserting an " ac etiam" in the original writ.* How did the court of exchequer acquire jurisdiction ? It was held that the officers of that court, and all persons in- debted to the king, had a right to sue and be sued in that court. When, therefore, a man washed to bring an action in the ex- chequer he would allege that unless he recovered he would be less able to pay .the king .; and, as this was a, fiction adopted for the benefit of all parties concerned, it was not allowed to be disputed. Thus the jurisdiction of the court of exche- quer° came to be extended to aUpersonal actions. 3 Bl. Com., 43, and seq; Bac. Abr. Court of Exchequer. * I'o remedy the inconvenience, the officers ol the King's bench devised a method of adding what is called a clause of ac etiam to the usual com- plaint of trespass : the bill of Middlesex commanding the defendant to 1)8 brought in to ansvi^er the plaintiff of a plea of trespass, and also to answer a plea ol debt ; the complaint of trespass giving cognizance to ■the court, and that of debt authorizing the arrest. 3 Bl. Com., 288. ° The court is called the Exchequer, (scaccarium) from the old French word exchequier, from the checked doth, resembling a chess-board, which used to cover the table there, and on which, when certain of the King's accounts were made up, ,the sums were mai'ked and scored with counters. ,3 Bl. Com., 44. NATURE OF COURTS. 275 What is the difference between an action at law and an indictment?^ The first is brought by a private individual for the redress of a civil injury ; the second is brought in the name of the State for the punishment of a public crime. What is the difference between an indictment and an ap- peal f The latter is brought by a private individual, and if the accused is convicted cannot be pardoned by the king.*^ What statute gave a widow damages in case her dower was detained ? Statute of Merton, 20 Hen. III., c. 1; provi- ded the husband died seized, when no dower had been as- signed her in that tract, 1 Th. Co. Lit., 685, and n. (R). What difference is made in the estimate of value between the heir and the purchaser ? As against the husband's heir the lands are valued as at the tim^ of assignment; as against a purchaser from the husband in his life-time, as at the time of purchase, because that value was the measure of the pur- chaser's recovery from the husband's estate on his covenants of title. 2 BL Com., 132, n. (24) ; 1 Th. Co. Lit, 583, n. (43) ; .2 Min. Insts., 135. Which is the broader term, estate or property f Estate; be- cause it includes choses in action. See Bat. Rev., 239, as to provisions of the present law. A, worth several thousand dollars in book accounts and notes, and owning an old sulky and horse, makes a will, in which he says, " I give my property, of whatever and every description, unto C." A dies, and B, his personal represen- ^ In criminal practice, an "indictment" is a written accusation against one or more persons of a crime or misdemeanor, presented to, and pre- ferred upon oatii or affirmation by, a grand jury, legally convoked. 4 Bl. Com., 299 ; Coke Lit., 126 ; 2 Hale PI. of Cr., 152 ^ Bac. Abr.; Comyns Dig.;; 1 Chitty, Crim. Law, 168. An " action" in practice is the formal demand of one's right from another person or party, made and insisted on in a court of justice. Bouv. Law Die, " Action." "* An appeal in criminal prosecutions referred to in the text, denotes an accusation by a private subject against another for some heinous crime ; demanding punishment on account of the particular injury suffered, rather than for the offence against the pvklic. 4 Bl. Com., 313, 276 PRACTICE OF THE LAW IK CIVIL CASES. tative, claims the notes and accounts; the supreme coirrt held that the notes passed to C, the legatee, as it was a wiU, Soon after, a statute was passed making estate and property synonymous. See Bat. Rev., 239. For what is a writ of right used ? At common law, it is appropriate to recover an estate irn fee simple, and liesnotfor one claiming a less estate. It lies concurrently with all other real actions to recover a fee simple, and it also \\e&afterthem, being an appeal to the mere right when judgment has been had as to ihe possession in an inferior possisssw!/ action. SBl. Com., 193^'4. When was the writ of /ormiecto?* used ? The writ oiforrriedon was granted by statutelS Edw. I.,c, 1^ as a necessary incident of estates-tail, which originated in the stat- ute contained in the same chapter. It is applicable where the estate-tail is discontinued, and the remainder or reversion dependent thereon is displaced and turned to a mere vi^ht. S Bl. Com., 191-'2 ; 4 Min. Insts., 469. When was the writ of nght of dower used ? It was used t» recover a widow's dower when a part of it had been alread.y assigned to h&r in the same tract. 3 Bl, Com., 183. When was the writ of quod ei defomeat used ? Where the owner of an estate for life, orin-fee taU, suffers judgment by default in apoasessory action. It w.as given by statute of 13 Ed. I., c. 4. 3 Bl. Com., 193. How many kinds of writs of entry are there ? Four ; Writ of entry ; Writ of entry in the per; Writ of entry in the per and eui ; and Writ of entry in the post. 3 BL Com., 180. Upon what are common recoveries founded? Where there is only one voucher they are founded upon writs of en- try in the per ; when there is more than caae voucher, as is usual, a writ of entry in the post, — sometimes designated. praecipe quod reddai. 2 Bl. Com., 357-'8^. Upon what are fines founded ? Upon a breach of cove- nant real. A fine is an amicable composition of a eoUusive smt, intended to operate as a conveyance of lands by means- of a solemn recogriition by matter of record co^ntained in such col- REAL AND MIXED ACTIONS — LIMITATIONB. 277 lUsive suit, of the title of the proposed vendee, which he as- serts, by the suit, to be preexisting in him, and which the grantor, the defendant in the suit, admits in solemn form, upon the record, to be so. 2 Bl. Com-,348-'9 ; 2 Min. Insts., 901. What is the statute of limitations in an action of dower ? There is none; because the right cannot possibly exist lon- ger than a life. What is the statute of limitations on a wii'il of right f By statute 32 Hen. VIII — which prescribed pie- nods of time for limitations to real actions instead of reckon- ing from a fixed epoch — 60 years, when writs of right and prescriptions are founded on one's ancestor's and predeces- sor's seizin or possession ; and when founded on one's own seizin or possession, 30 j^ears. Bac. Abr. Lim., &c., (B); 3 Eng. Stat, at Large, 292. By the same statute, writs of far- medon in the descender, remainder, and reverter, are limited to 50 years, and, by 21 Jas. I., to 20 years. Entry on lands (and consequently the action of ejectment, which depends on the right of entry,) is limited to twenty years. 21 Jac. I., c, 16, § 1; Bac. Abr. Lim., (B) ; 2 Min. Insts., 499. See " Lim- itations of Actions," Battle's Rev., 147, for the various pe- riods in North Carolina. Why were damages not recovered in real actions ? Be- cause the tenant in possession wals bound to perform -feudal services. 3 Bl. dom., 188. Why were damages recovered In an assize of novel disseizin ? *" What ave damages ? A pecuniary compensation for a,n injury,and±heyinay be recovered in evevj personaladiomthat lies at the common law. Tidd's Pr., 870 ; 2 Gr. Ev., § 253, and n. ; Sedgwick Dam., c. XVIII; 3 Am. L. J., 387. A disseizes B an-d dies, leaving C, his son and heir, an in- fant ; B brings an action of entry against C ; can C pray parol demurrer? Yes; and B cannot get his land till <;omes of age. This right of parol demurrer occurs at com- '^ Qucere: if it was not because it was a remedy given by statiite. 3 Bl. Com., 188, 278 PRACTICE OF THE LAW IN CIVII, CASES. mon law, where an infant is a party to a suit for lands founded on his ancestor's possession, and also where an infant is sued in debt upon his ancestor's obligation, whereby a burden is sought to be laid on the fee sim- ple. Bac. Abr., Infancy, &c., (I); 1 Chit. PL, 481; 4 Min. Insts., 610. Why was an infant allowed to pray that the parol might demur — or that the pleadings be stayed f Because the heir takes by descent, and not by pur- chase. Also, a feudal reason was given, namely: that a man would fight harder if he knew his children could not be evicted until they came of age and were able to defend their title. Can B recover for the mesne profits? No; because the tenant in possession had to perform the feudal services during the time he was in possession. See references supra. Devisee of devisor has no right of parol demurrer or " age ;" he comes in by pwrc/iase, and the feudal reason does not apply. If a lessor evicted his lessee from his term, how would lessee get his term back before the use of the action of ejectment ? File a bill in equity for specific per- formance. Adams'^ Eq., 127, et seq. In the action of ejeclione .fimnae damages only were at first recovered. But in the reign of Ed. IV., A. D. 1483, the wiexpired por- tion of the term and damages could be recovered in this ac- tion.* By another adaptation this action came to be applied to r^over the /r«e/ioM, and then came to be very generally employed as a means of trying the title t» lands. 4 Reeves* Hist. Eng. Law, 165-'6 ; 4 Min. Insts., 358. If a third person evicted the lessee, the lessee would go to the lessor and ask him to enter on the wrong-doer; and if the lessor would not comply with his request he would file a bill in equity, on the ground of collusion. What is the difference between a writ of right of dower, and writ of dower unde nihil habet ? In the latter suit the widow has received none of her dower ; in the former, she has re- ceived part; and sues for the remainder. 3 Bl. Com., 188 ; St. PL, 10 ;, Id., (Tyler) 45;, 1 Th. Co. Lit., 585, and seg. REAL AND MIXED ACTIONS, 279 Courts of oyer and terminer and jail delivery, are confined to criminal actions, and aided the court of King's Bench, See 4 Bl. Com., 269, etc. ■ The attorney-general may file an information on his own information in the nature of a quo warranto} Give an instance where one party has a writ of right; an- other, a writ of entry ; and another, a right to enter on the same man ; and another, naked possession ? Disseizee has a right of property; disseizor holding 30 years, has the actual right; the second disseizor and the second disseizor's heir have the apparent right; and the third disseizor has naked possession. Again, if a tenant in tail enfeoffs A in fee simple and dies, and B disseizes A , now B will have the possession, A the right of possession, and the issue in tail the riglU &f property: A may recover the possession against B, and afterwards the issue in tail may evict A and unite in himself the possession, the right of possession and also the right of property. To make a good and complete title, the right of possession must be joined with the right of property, which right is then de- nominated a double right, jus duplicatum, or droit droit. 2 Bl. Com., 199 ; Co. Lit., 266. The mixed actions have been for many ages reckoned to be three, namely : (1.) Ejectment ; (2.) Writ of dower unde nihil habet; and (3.) Writ of waste.J ' A writ of quo warranto is in the nature of a writ of right for the King, against him who claims or usurps an office, francMse, or liberty, to inquire by what authority he supports his claim, in order to determine the right. It also lies for a non-user or misuser of a franchise. The judgment on the writ is final. This, with the length of its process, occasioned its dis- use und introduced prosecution by informaUon filed in the court of King's bench by the attorney general in the nature of a writ of quo warranto; wherein the process is speedier and the J udgment not quite so decisive. 3 Bl. Com., 263. J The function of mixed actions is to recover land illegally withheld from the lawful owner, together wUh damages sufficient to compensate him for its wrongful detention. 3 Bl. Com., 183; St. PL, 3 ; Id. (Ty- ler), 39. 280 PRACTICE OF THE LAW IN CIVIL CASES. In its origin, ejectment was an action of trespass wiiich lay for a tenant for years to recover damages against a person who iiad ousted him of liis possession without right. To the judgment for damages the courts soon added a judgment for possession, upon which the plaintifE became enti- tled to a writ of possession. As the disadvantages of real actions as a means of recovering lands for the benefit of the real owner from the pos- session of one who held them without title, became a serious obstacle to their use, this form of action was taken advantage of by Ch. J. Bolle, to accomplish the same result. Bouv. Law Die, Ejectment. The writ of dower unde nihil habet, is employed in order to recover a widow's dower unlawfully withheld, or to speak technically, of which she is deforced, where she has received no part of her dower in the tract of land in question, (whereof she has nothing, unde nihil habet,) together with damages for its detention, wherever her husband dies seized. If her husband does not die seized, she recovers damages, not from the period of his death, as in that case, but from the time of the suit hrcmght. 3 Bl. Com., 183; St. PI., 10; 1 Th. Co. Lit., 585, and seq., and n. (R) and (S); 4 Min. Insts., 304. The writ (S Jcffsie is employed to recover the '■'■thing'''' (place) '■^wasted''' by a tenant for life or years, together with treble damages. It existed at common law, but only as the medium for recovering the amount of dam- ages which would compensate the injury, that being at common law the only forfeiture exacted for waste, and that being recoverable of no other tenants, save those who came in by the act of the law, (e. g., tenant by the curtesy, tenant in dower, and guardian in chivalry ;) those tenants who came in by act of the parties, being restrained no otherwise than by the covenants inserted in the lease. The statute of Marlbridge, 52 Hen. III., A. T>. 1368, allowed the writ of waste against all tenants for life or years; but the recovery was still no more than the value of the damages done, until by the statute of Gloucester, 6 Ed. I, A. D. 1278, the thing wasted and treble damages could be recovered. Thence this action be- came mixed instead of personal. 2 Min. Icsts. 591 ; 2 Bl. Com., 2S3-'4. LECTURE II. ACTIONS EX CONTRACTU, What are the personal actions ex contractu ? (1.) Account; (2.) Assumpsit; (3.) Covenant; (4.) Debt; and (5.) Detinue with bailment. ■V^hat is an action of account? An action brought by a party against another with reference to whom the former occupies the position of principal, or agent, consignor, con- signee, &c.* 1 Chit. PI., 44. What was the mode of taking an account in an action at common law? By reference to an auditor. 3 Bl. Com., 162-3. Could the auditor decide either issues of law or fact ? He could not. References su- pra. Why did a bill in equity supersede for an account the action of account at common law. On account of the juris- diction of chancery courts to compel discovery. 3 Bl. Com., 163. Also, because at law the action of account was liable to the wager of law, but in equity it was not. 3 Bl. Com., 341, et seq. Besides, in equity the master could decide both ' The action of account is employed to adjust and settle mutual ac- counts where there is a. privity between the parties, either in fa^t (as in tlie case of partners or of bailiffs, and receivers, and principals, &c.,)orin law as in case of guardian in socage and ward, and to recover the balance ascertained to be due. The settlement of the account is made before au- ditors appointed by the court, who, however, cannot determine-even pro- visionally, any controverted matter of fact or of law, but must refer the same to the court to be decided — if a matter of fact, by a jury, and if a matter of law, by the judge, whereby the proceedings are intolerably t^vo- tracted. Bac. Abr. Accpmpt. (A); 3 Th. Co. Lit., 34B-'7, ns. 15, 16, P; Godfreys. Saunders. 3 Wills, 94, 98; 1 Chit. PI., 44; 4 Min. Insts., 346. In practice the hill in chancery has quite superseded the action of ac- count, being not only applicable wherever the accounts are mutual [al- though there be no primty between the parties] and in all equitable claims arising out of trusts, and therefore, in a wider range of cases than the action at law, but being also a muchimore speedy and effective remedy. 3 Bl. Cora., 163 ; Ad. Eq., 232 ; 1 Sto. Eq., § 443, and seq.; 4 Minor's In- stitutes, 346. 282 PRACTICE OF THE LAW IN CIVIL CASES. issues of law and fact, and the court of equity would also com- pel the production of papers. See generally, Ad. Eq., 220- '28 ; Jones v. Bullock, 2 Dev. Eq., 368 ; Collins u Dickinson, 1 Hay., 240 ; McLin v. McNamara, 2 Dev. and Bat., 83. A, a city mercant, sells goods to B, a country merchant, and B sells A produce with the mutual understanding that the price of one is to liquidate the price of the other; what action should be brought on failure to pay? Account. Suppose there had been no understanding or privity, what action should have been brought? Assumpsit or debt. Bac. Abr. Ac- compt. (A) ; 3 Bl. Com., 162-8. What exception is there to the general rule that the accounts must be mutual, and that there must be between the parties a privity, either in fact or in law, in order that the common law action of account may be maintained? The case of merchants. What is the difference between an auditor at common law and a referee under the Code f The auditor could not decide issu£s oifact or law : 3 Bl. Com., 162-'3 ; 3 Th. Co. Lit., 846- '7, ns. (15), (16), P; a referee can decide /acis and Zau), andhis decision on matters of fact is final. [" All or any of the issues in the action, whether of fact or law, or both, may be referred upon the written consent of the parties. Where the parties do not consent, the court may, upon the application of either, or of its own motion, except where the investigation will require the decision of difficult questions of law, direct a reference in the following cases : (1.) ,Where the trial of an issue of fact shall require the examination of a long account on either side. (2.) Where the taking of an account shall be necessary for the information of the court before judgment, or for carry- ing a judgment order into effect. , (3.) When the case involves a complicated question of boundary, or one which requires a personal view of the premises. (4.) Where a question of fact other than upon the plead- ACTIONS EX CONTEACTU. 283 ings, shall arise upon motion or otherwise in any stage of the action. Code of Civil Procedure, Bat. Rev., 199. — Ed.J What officer in a court of equity corresponds with an au- ditor at common law ? The clerk and master. Ad. Eq., 226. How does the master resemble a referee under the Code? In that he can decide upon matters of law after hearing the issues discussed ; and, upon matters of fact after hearing the evidence. Bat. Rev., 199 ; Ad. Eq., 226. Suppose a party is dissatisfied with the decision of the clerk and master, what remedy has he ? He files exceptions (not a bill) on any points that are thought objectionable, and all such points are simultaneously reexamined by the court, and either at once determined, or if necessary, referred back to the master for review. As soon as the report is finally settled and con- firmed, a decree is made for the payment of the ultimate balance. Ad, Eq., 226. What is the general issue in an action of account? Insimul computassent — "they had ac- counted together." 2 Bouv. Law Die, 719. When does the statute of limitations begin to run on an action of account ? When the relationship is at an end. A having a plantation in Mississippi, hires B to manage it for him ; at the end of five years he wishes to have a settlement, what action would he bring? Action of account. 3 Bl. Com., 162-'3; 3 Th. Co. Lit., 346-7, ns., (15), (16), R What is an action of trespass on the case in assumpsit ? ^ An action brought upon a promise express or implied. What is recovered in assumpsit ? Damages only. 7 Term., 351 ; 3 Johns. Cas., N. Y., 60 ; 3 Bl. Com., 157 ; 1 Chit. PL, 111] et seq.; St. PI., 18 ; Id., (Tyler) 49, 50 ; Bac. Abr. Assumpsit. How does assumpsit differ from coveiiant ? Covenant is brought on an instrument under seal; assumpsit on promises not under seal. 1 Chit. PL, 111, et seq.; Bac. Abr. Assumpsit (C). Why is the action of assumpsit preferable to an action ^Assumpsit, he has undertaken — from assvmere. An undertaking, either express or implied, to perform a parol agreement. 1 Lilly. Reg., 132; 1 BouY. Law Die, 159. IPEACTICE '&P THE LAW IN CIVIL CASES. of debt on simple contract ? Because the action of debt is subject to the wager of law : assumpsit is not ; and in debt you have to prove the &cact amov/nt alleged, or recover nothing; in assumpsit, you recover whatever damages you prove. Eouv. Law Die, "Wager of Law; " 3 Bl. Com., 154. Which is the broader remedy, assumpsit or debt? Assump- sit ; because it applies to simple contracts, both express and implied." Which is the surer remedy of the two ? Assumpsit; because it is not liable t© the wager of law at common law. Bouv. Law Die, " Wager of Law." Which is the speedier .? Debt ; because in assumpsit it may be necessary to have a writ of inquiry. The doctrine is illustrated by .a case where two creditors sued the same 'defendant, one bringing an ac- tion of debt, and the other assumpsit. At the trial, judgment was rendered in the action of debt, and execution issued. The plaintiff in assumpsit was compelled to have his dam- ages assessed, thus^being postponed till the following term. Meantime the execution upon the judgment in the action of debt exhausted the .assets of the defendant, and the plaintiff in the action of assumpsit got nothing. What is the dis- tinction between debt and assumpsit? Debt is founded on the contract ; assumpsit, on the promise. 1 Chit. PL, 113, 116, 123 ; 3 Bl. Com., *54-'5-'6-'7. ° The legal acceptation of a. debt is a sum of money due by certain agreement, either express or implied, whereby the amount to be paid is ascertained, or at least the materials are supplied for ascertaining it, as in case of a bond, a promissory note, Ac. The non-payment of any debt is an injury to personal property in action, [choses or things in action, as such property is called,] and the shortest and most usual remedy there- for [but by no means the sole remedy,] is by action of debt, to compel the performance of the promise, and recover the specific sum due. The idea once prevailed [which also is countenanced by Blackstone,] that in order to constitute a debt proper, the promise must be express, and must relate so precisely to a determinate sum that not only can neither less nor more be recovered, but that, unless the proof establishes the exact sum claimed, the plaintiff fails to recover anything. This narrow view, however, is quite superseded by the more convenient as well as more logical one above stated. 3 Bl. Com., 154; 1 Chit. PI., 133; 4 Min. Insts., 458. ACTIONS EX eONTEACTU. 285^ Suppose a man takes my horse to Salisbury and sells him, what action can 1 bring ? An action of assumpsit for money had and received for my use is the only action ex contractu against the taker ; but I might bring detinue against the purchaser. 1 Chit. PL, 373-'4; 1 Chit. PL, 137, and seq.; 3 Bl. Com., 151 ; 1 Th. Co. Lit., 18. What is the general issue in assumpsit ? Non assumpsit. What is the statute of limitations ? Six years ; in North Carolina three. Battle's Rev., 150 ; 2 Bouv. Law Die, 56. When does the statute be'gin to run ? Upon the entry of each item^ See in general, 2 Bouv. Law Die, " Limitations," as to personal actions. [Statute runs from the date of the last item in an account when, &c. McNaughton v. Norris, 1 Hay., 216 ; Kimbal v. Person, 2 Hay., 394.— Ed.J When is an action of covenant brought ? For the breach of a contract under seal. Which is the broader remedy, covenant, or debt on specialty ? Covenant ;. because it includes specialty debts.* *The action ol covenant is employed to recover damages suflScient to make amends for a breach of covenant;- that is, of a contract under seal. The covenant may be to pay money or to def a collateral thing. If it is to pay money, the damages which the covenantee is entitled to recover, by way of compensation or amends for the breach, Is the money covenanted to be paid, with interest from the time when it ought to have been paid. Where the covenant is not to pay money, but to do some collateral thing, there is no uniform standard of damages, but they must be estimated by a jury, according to the circumstances of each case. Where the covenant is to pay maney, it is obvious that the action of debt and the action of cov- enant are concurrent remedies, and may either of them be resorted to. Thus, In the case of a common money-bond, the action of deibt will lie, be- cause it is a promise to pay a specific s^im of money, and the action of covenant may be brought because it is a contract under seal. The amount recovered In either action is the same ; but there is a difference in the light in which the transaction is regarded in reference to the two actions respectively. When debt is brought, the plaintiff demands the specific sum eo numero, which the defendant engaged to pay, and he recovers ac- cordingly. When the action Is covenant, the plaintiff complains that the defendant, having made a very solemn promise under his seal, has reck- lessly violated it, whereby the complainant has suffered damage to an amount which he names, and which a jury must be called to assess, al- 286 PRACTICE OP THE LAW IN CIVIL CASES. What is the general issue in an action of covenant? There is none. " Covenant performed and not broken," is the nearest thing to general issue given by the books. Is it necessary that the word covenant should be used in the in- strument in order to render the party liable in this action ? It is." What was the statute of limitations in an action of cove- nant ? There was none. 3 Bl. Com., n. (24). Statute 21, Jac. I., c. 16, A. D. 1624, although a general statute of limita- tionS) and applicable to most, if not all, actions for land, and to many personal actions, did not include actions of cove- nant at all, nor any action of debt on a sealed instrument ; nor did it apply to any proceedings in equity. 3 Bl. Com., note 24, "First;" 4 Min. Insts., 504. What is an action of debt ? An action brought for the recovery of "a sum of money certain in amount, and due by express agreement.' 3 Bl. Com. 154. How many kinds of debt ? Two : Debt on simple contract, and on specialty. 3 Bl. Com., 154. What is the general issue in debt on special- ty? Non est factum.^ 2 Ld. Raym., 1500 ; 2 Iowa, 320; 4 though, as we have seen, the iavariable criterion of amount in practice is the sum which the defendant ought to have paid. 3 Bl Com., 155 ; St. PI., 16 ; 1 Chit. PI., 131. ' No peculiar wonds are now needed to raise a covenant, either express or implied. 12 Ired , 145 ; but certain words have been decided to have this effect. The words "I oblige," "agree," 1 Ves. Ch., 516; 2 Mod., 266; "I bind myself," Hardr., 178; 3 Leon., 119, have been held to be words of covenant, as are the words of a bond. 1 Chanc. Cas., 194. Any words showing the intent of the parties to do or not to do a certain thing, raise an express covenant. 13 N. H., 513. ■■The action of debt is employed to recover a specific sum of money due by contract, express or implied, together with damages [generally nominal] for its detention. 1 Chit. PL, 123 ; 4 Min, Insts., 345. Debt is distin- guished from assumpsit, which lies as well where the sum due is uncertain as where it is certain, and from covenant, which lies only upon contracts evidenced in a certain manner, 8 Kon est factum is the common plea when the action is brought on a specialty debt, denying the execution of the instrument ; and nul Uel record when on a record, denying the existence of a record. M John. N" . Y., 55 ; 23 Wend. N. Y., 293. ACTIONS EX CONTRACTU. 287 Strobh. S. C, 38 ; 5 Barb., 449. What is it in debt on sim- ple contract ? Nil debet, when the action is on simple con- tract on statutes, or where a specialty is matter of induce- ment merely. 2 Mass., 521; 5 lb., 266; 11 Johns, N. Y., 474; 13 111., 6i9 ; 6 Ark., 250 ; 18 Vi, 241; 3 McLean C. C, 163; 15 Ohio, 372; 8 N. H., 22; 33 Me., 268; 1 Ind., 146; 23 Miss., 233. What damages are recovered in debt ? Nom- inal damages only. Cowp., 588 ; 1 H. Blacks., 550 ; 1 Bouv. Law Die, 437. Does an action of debt lie on a statute mer- chant? It^does ; because the seal of the party is affixed. Cruise Dig., t. 14, s. 7 ; 2 Bl. Com., 160. Does it lie on a statute staple ? It does not ; because the seal of the party is not affixed. 2 Bl. Com., 160; Cruise, Dig., tit. 14, s. 10; 2 RoUe Abr., 446 ; Bacon Abr. Execution, (B 1) ; Coke 4th Inst., 238. Suppose I have a bond, with A as principal, and B and G as sureties, whom can I sue? In England, one or all; in North Carolina, any or all} 1 Pet., 73 ; Bouv. Law Die, Suretyship ; Bat. Rev., 155, 63a. Suppose B brings an ac- tion against A and gets judgment, can B at the next court bring an action of debt on former judgment ? He can, and continue to do so until the debt is paid. See in general, 1 Dev., 378 ; Salk., 109; 17 Serg. and R., 1 ; 27 Vt., 20 > 10 Tex., 24; 21 Vt., 569; 1 Conn., 402. Who pays the cost? The defendant ; because he ought to have paid the debt with- out standing suit. Suppose the judgment creditor fails to take out execution at common law in a year and a day, what must be done to revive the judgment ? Sue out a scire facias} ■^ A surety differs from a guarantor, and the latter cannot be sued until after a suit against tiie principal. 10 Watts Penn., 258. Tlie surety dif- fers from bail, in this, tliat the latter actually has, or is by law presumed to have, the custody of his principal, while tlie former has no control over him. The bail may surrender his principal in discharge of his obli- gation ; the surety cannot be discharged by such surrender. Bouv. Law Die, "Surety." ' Scire Jacias — that you make known— the name of a writ [and of the 288 PRACTICE OF THE LAW IN CIVIL CASES. Why was wager of law allowed in actions of account, debt on simple contract, and detinue with bailment ? On account of the confidence reposed in the defendant by the plaintiff.^ What is an action of detinue ? An action brought for the specific recovery of personal property and damages for its detention. Or, another definition : It is employed to re- gain the possession of a specific chattel unlawfully withheld, or, in case that should prove impracticable, to recover in the al- ternative its fair value together, in either case, with damages for its detention. 3 Bl. Com., 151 ; St. PL, 16 ; Id., (Tyler,) 47 ; 1 Chit. PI., 137; 4 Min. Insts., 348'9. How many kinds of detinue ? Two : Detinue with bailment, and detinue with- out bailment. The former is the action ex contractu, the latter one is the action ex delicto.^ It is a common doctrine in the books (sanctioned by 3 Bl. Com., 151,) that the action of detinue cannot be supported where the defendant took the goods wrongfully, an opinion which, adverse as it is to convenience and to apparent reason, seems to have no better foundation than the dictum of Bryan, C. J., in the whole proceeding] founded on some public record. The public records to which the writ is applicable, are of two classes, judicial and norirjudi- cial. 2 Bonv, L. Die, 499. In North Carolina the judgment creditor may, at any time within three years after the entry of judgment, proceed to enforce the same. Code Civil P., Execution, § 255 ; Bat. Rev., 302. J W,^ger of battle is an oath taken by the defendant in an action of debt that he does not owe the claim, supported by the oaths of eleven neigh- bora. In England it was abolished by 3 and 4 Will. IV. If it ever ex- isted in the United States, it is completely abolished. 8 Wheat., 642. See in general, Steph. PI., 134, 250; Coke 2d lusts., 119; 3 Chit. PL, 497 ; 3 Bl. Com., 341. '' Detinue is in one particular an anomalous action ; it is difficult to decide whether it ought to be classed among the actions ex contractu or ex delicto. The right to join detinue with debt, and the ability to use de- tinue to recover goods in pursuance of the terms of a bailment to defen- dant, seem to aiford grounds for reckoning it an action ex contractu ; whilst the fact that it lies wherever the chattel in question is illegally with- Tield, notwithstanding there be no contract, but the possession of defen- dant was acquired exclusively by tort, mark it as an action ex delicto. Upon the whole, it seems most proper to arrange it In the latter class of actions. 1 Ch. PL, 138 ; 4 Min. Insts., 448. ACTIONS EX CONTRACTU. 289 time of Hen. VII., who is reported in the year book 6 H 7, 9, to have held that, in such case the action would not lie, and on the fallacious reasoning that by the trespass the plaintiflf's title to the chattel was divested, and consequently that at the commencement of the action the ownership was not in him. 4 Min. Insts., 447 ; 1 Th. Co. Lit., 18. What property in the thing sued for is necessary to sup- port the action? A general or special property at the time the action is brought.' 7 Man. Gr. and Scott, 63 E. C. L.,. 54 ; 16 M. and W., 50. Is the action subject to set-off? It is not." What is the gravamen of the action ? The wrong- ful detainer. Whitehead v. Harrison, 6 Q. B. (43 E. C. L.,)i 423; Clements -y.' Flight, 16 M. and W., 50; Classman u. White, 7 Man. Gr. and Scott, (63 E. 0. L.) 54. Why was the action of detinue brought into more general use in process of time ? On account of the wager of law be- ing abolished by statute of 3 and 4 Wm. IV. Steph. PI.,. 124, 250. Why is an executor or administrator not allowed to wage his law? Because he did not make the contract himself;, and no man can swear his testator did not contract, or that he privately discharged the debt. 2 Bouv. L. Die, 647. Suppose the auditor in an account find a balance in favor ' The action lies only to recover such goods as are capahle of being identified and distinguished from all others. Comyns Dig. Detinue, B. C; Coke Lit., 286 b The property must be in existence at the time. 1, Ired., 533 ; 3 Dan. Ky. , 332 ; 10 Ala., 123 ; but need not be in the possession of the defendant. 4Dev. and B., 4-58; 10 Ired., 134; 1 Dan. Ky., 110. The plaintiflf must liave had actual possession, or a right to immediate possession. 6 Ired., 88 ; 2 Jones, 168 ; 7 Ala., 189 ; 3 Munf., 123 ; 2 Mo., . 45 ; but a special propertj', as that of a bailee, with actual possession at the time of delivery to the defendant, is sufficient. 2 Wms'. Saund., 47 b, c, d; 9 Lei., 158 ; 1 Miss., 315 ; 4 B. Mour., 365 ; 2 Mo., 45 ; 22 Ala., , 534. "" Set-off takes place only in actions on contracts for the payment of money as, assumpsit, debt, and covenant. A set-off is not allowed in ac- tions arising ex delicto as, upon the case, trespass, replevin, or detinue., Buller Nisi P., 181 ; 4 E. D. Smith, N. Y., 162. 19 290 PRACTICE OF THE LAW IN CIVIL CASES. of defendant, what will the judgment be ? That the defend- ant recover the amount of the balance due. Under such circumstances, what would induce the plaintiff to bring the action ? To get the matter finally settled, as, for instance, an executor or administrator would bring the action tiiough he knew the balance would be found against him." "If the defendant is found in surplusage — that is, is creditor of the (plaintiff, on balancing the accounts, he cannot, in this action, recover ;5udgment for the balance so due. He may bring an action of debt or by some authorities a si. fa. against the plaintiff. Falm., 513 ; 2 Bues., 277- '78 ; 1 Leon., 219 ; 1 Roll. Ab., 599, notes. See the law in Xorth Caro- lina touching " counter-claim " with the decisions, Tourgee's Code, 9a, .et aeq. Considerations which determine the choice between debt and covenant, ■or debt and assumpsit, &c. In favor of choosing the action of debt, the practitioner will consider : (1.) That in debt, the declaration is short, direct, and of import easily ■remembered ; whilst in covenant and assumpsit it is longer, more com- plex, and less easily retained in memory ; 1.(2.) That in debt there is no occasion for a writ of inquiry ot damages ; ■that is, where the demand is founded upon any writing for the payment of 'money, signed by the party to be charged; whereas, in assumpsit, or in covenant, there can be no judgment until a writ of inquiry is executed, ■wbich may occasion delay. 0n the other hand, in favor of covenant or assumpsit, is the considera- tion that either of those actions is applicable also to recover damages for a violation of a contract to do a collateral thinff, so that if there be a promise to do such collateral thing, as well as to pay money, covenant or assump- -sit would include both causes of action, whereas in debt one could re- cover only upon the promise to pay money. Another pregnant consideration, adverse to the use of the action of debt, where the promise to pay money is not under seal, prevails at com- •mon law, namely : that upon such a promise, the defendant in the action of debt may Invoke the trial of his cause by wager of law, which is a very curious exemplification and relic of our ancestor's habitual distrust of the average veracity of mankind, and of their own inability, by means of cross-examination, to eviscerate the truth, — a distrust which led them in very many instances, of which this is one, to substitute general presump- tions, founded on probabilities, for special testimony and investigation in eacli case. In trial by wager of law, the defendant presented himself in court, attendtd by eleven of his neighbors, and he having in open court itakunan oath.that be did not owe theideit, his eleven oompwrgators %vf&ie ACTIONS EX CONTRACTU. 291 There was no limitation to bar actions of account between merchants ; but the presumption was that the account was settled in twenty years — in North Carolina in ten years. See the doctrine in full, 3 Bl. Com., n. (24). That is where one, for instance, let the other have merchandise in ex- change for merchandise, and agreed to settle accounts in that way. Limitation would be twenty years after the re- lationship ceased. 2 Ves., 400; Bull. N. P., 149; Sir Wm. that they believed him, which, as being the verdict (veredictum) of twelve men, was considered sufBcient to discharge the defendant from the acr tion. The trial by wager of law is applicable only to actions of debt on simple contract, ofdetimie, and of account, and lies not when a party, by con vie. tion of pei'jury, or otherwise, has become infamous, nor in favor of ex- ecutors or administrators, sued as such ; for in the former case the party's oath is discredited by his conduct, and in the latter he cannot have tiie Information to enable him to swear. 3 Bl. Com., 341, et seq. The liability to wager of law led to the general disuse of the action of debt on simple contract, and to the action of detiniie; assumpsit being ha- bitually substituted for debt, and trover and conversion for detinue, 3 Bl. Com., 347-'S. Tlie wager of law was not abolished in England Until Stat. of 3 and 4 Will. IV., A. D. 1834. 4 Min. Insts., 368. The action of debt Is designed to recover a specific sum of money dtbe by contract, verbal or written, express or implied, wliere the amount is either ascertained, or from the nature of tlie demand is capable of being ascer- tained, whether due on legal liabilities, (as penalties denaunced by statute, on simple contracts, on specialties, (or obligations under seal,) on records (as recognizances, judgments, &c.,) or otherwise. 3 Bl. Com., 154, 155 • 1 Chit. PI., 123, et seq.; 4 Min. Insts., 458. Debt, it seems, lies not for a debt payable by instalments and not secured by penalty, until all are due — a doctrine for which no satisfactory reason can be given, and which is in direct conflict with an early case, (March v. Freeman, 3 Lev., 383,) but Which is too well established by authority to be disregarded. 1 Chit. PI., 128-'9; Paul v. Dod, 2 Man. Gr. and Scott, 52 E. 0. L., 800; Ambergate R. B. Co. V, Coulthard, 5 Excheq., 459 ; 6 lb., 277 ; Coates v, Hewitt, 1 Wils., 80; Judd v. Evans, 6 T. R., 399; 4 Min. Insts., 459. Debt always lies upon a promise to pay an ascertained sum of money, whether the promise be under seal or not, and whether it be express or implied ; but it will be observed that where the promise is net under seal, ttoe action at common law should be era the promise, averring and proving a valuable consideration, and not on the writing, if there be one. 1 Chit_ PL, 123, &c.; 4 Min. Insts., 459. Upon a promise to deliver a chattel not m^mey; e. g., one hundred bar- 292 PRACTICE OP THE LAW IN CIVIL CASE* Jones, 401; 1 Lid., 465; 1 Vent., 89; Carth., 226; 1 Shaw, 341 ; 1 Vern., 456. Can one co partner revive a note barred by the statute of limitatious against Ms partner? He can during the con- tinuance of the copartnership, but not after that relationship ceases. See doctrine discussed, Smith's Mer. Law, 88, and note ; Clementson v. Williams, 8 Cranch, 72 ; Bell v. Morri- son, 1 Peters' S. C. R., 373 ; Bisphane v. Patterson and Wal- ter, 2 McLean's C. C. R., 87 ; Bently v. White, 4 B. Mon., 263; Yandes v. Lefarvour, 2 Black., 371 ; 2 Hump., 166; 1 Pen. and Walls., 135. Can a principal to a note barred by the statute of limita- tions take it out of the statute and revive it against his se- curity ? No ; he can only revive it against himself Any material alteration in the contract without the assent of the surety, or change in the circumstances, will discharge the surety. 6 G. B. N. S., 550; 30 Vt., 122; 32 N. H., 550; 3 Barnew and C, 605 ; 9 Wheat., 680 ; 3 Binn., 520 ; 3 Wash. C. C, 70., A, a merchant, sells B goods ; B sells A a horse ; A brings an action of assumpsit against B ; the latter may let judg- ment be taken against him and then sue A for the price of the horse, or off set A's claim by the value of the horse, or plead the general issue and bring in the price of the horse as evidence. In the two last A would recover only the ex- cess of his claim over B's ; but in the last case, (i. e., general issue) if the horse was worth more than A's account, A would get only a shilling damages and then B might re- cover the value of the horse from him. Under the Code, the judgment would be for B, and he would recover the ex- cess from A. Bat. Rev., 166 ; Tourgee's Code, " Counter- claim," 95. rels of flour, one hundred ounces of gold, debt does not lie. Com. Dig. Debt (B) ; 4 Min, Insts., 459 ;. 1 Bibb. ,487 ; 1 do., 356 ; 12 Grat. 520 ; 21 Grat, 149; LECTURE III. ACTIONS EX DELICTO. What are the personal actions ex delicto f (1.) Trespass vi et armis ; (2.) Trespass on the case; (3.) Trover; (4.) Re- plevin ; and (5.) Detinue without bailment. What is the difference between trespass vi et armis and trespass on the case ? Trespass vi et armis is an action brought when the injury complained of is direct and immediate. Trespass on the case is where the injury complained of is indirect and consequerdial." Mention the kinds of trespass? (1.) Tres- pass de bonis asportatis, (for goods which have been carried away) ; it is a form of action brought by the owner of goods to recover damages for unlawfully taking and carrying them away. 1 Me., 117 ; 2 Bouv. Law Die, 610. (2.) Tres- pass quare davsum fregit, (because he has broken the close) ; the form of action which lies to recover damages for injuries to the realty consequent upon entry, without right, upon the plaintiff's land. 1 Hawks, 485 ; 1 Dev., 435 ; 5 John., 66 ; 14 Pick., 297 ; 8 do., 833. (3.) Trespass vi et armis, and oq the * The action of trespass m et dr^mis, or of trespass, as it is commonly called, is employed to recover damages for injuries to person or property which result directly from tht force applied (wh«ther of purpose or for want of care), by the wrong doer. 3 BL Com., 153; St. PL, 16; 1 Chit PI., 142; Leame v. Bray, 3 East., 593; 4 Qrat., 151; 6 Call., 44. The later English authorities, however, favor the conclusion that al- though the injury results immediately from the force applied by the defen- dant, yet if it results from the defendants' negligence, and not from design, trespass on the case will lie, as well as trespass. Moreton v. Hardern and als., 4 B. and Cr., (10 E. C. L.), 223; Williams v. Holland, 10 Bing., 25, E. C. L , 112; 4 Min. Insts., 355. The action of trespass on the case is at common law properly applicable to recover damages for injuries to person or property which do not result immediately from the force applied by the wrong doer, without reference to the question whether the force was of purpose or by accident, occasioned by negligenee. 1 Chit. PL, 151, 142,; 4 Min. Insts,, 356; references supra. 294 PRACTICE OF THE LAW IN CIVIL CASES. case, as explained supra et infra. (4.) Trespass for mesne profits, a form of action supplemental to an action of eject- ment, brought against the tenant in possession to recover the profits which he has unlawfully received during the time of his occupation. 3 Bl. Com., 205 ; 4 Burr., 1668. Suppose I set my dog on my neighbor's hog, what action would he bring against me for the injury ? Trespass vi et armis. Suppose my dog catches my neighbor's hog without my knowledge at the time, what action would he bring ? Trespass on the case. 3 Bl. Com., 153 ; St. PI., 16 ; 1 Chit. PL, 142 ; and as to the latter doctrine, 4 Br. and C, 10 E. 0. L., 223 ; 10 Bing., 25 E. C. L., 112. What must the plain- tiff prove ? The seimter; i. e., that the defendant knew the evil propensities of his dog. 2 Bouv. L. D., 498. Suppose A is hunting birds in his own field and his dog sets birds, and a stranger, passing at the time, stops and offers to shoot ; if A objects, and the stranger afterwards shoots, what action could A bring ? Trespass vi et armis quare dausurri fregit. 1 Hawks., 485 ; 1 Dev., 485 ; 2 Bouv. Law Die, 610. What damages would the jury give A ? Damages for any insult which was offered, in addition to any other damages he sustained. 5 Ired., 545 ; 2 Humph., 140 ; 8 B. Mour. Ky., 432 ; see doctrine of damages in general, 1 Bouv. Law Die, 421. Suppose two men trade horses and one of them finds he has an unsound horse, what action can he bring? Action on the case for deceit. What must be proved in order to re- cover ? The scienter.'' Suppose the horse had been war- * In Smith's Mer. Law, 633, the text states that every afflrtnation made at the time of sale of personal chattels is a warranty, provided it appears to be so intended. If it be a warranty and the warranty is broken, the party injured may recover for the breach, although the warrantor really thought he was speaking the truth in the warranty. But if the vendee relies upon representations not amounting to warranties, then he must show that the party intentionally made the representations; i. e., the scien- ter- 3 Term Rep., (Led. case), 51. It is, perliaps, most usual to bring assumpsit on promises, but it has been held that " case " will lie for a false ACTIONS EX DELICTO. 295 ranted sound, what action could he bring? An assumpsit on the warranty. See note "b," p. 294-5. What would be the measure of damages in either case ? The wrong, done or injury sustained. Consult Sedgwick, Dam., 604 ; Greenlf. Ev., Damages. Suppose my servant in driving my carriage negligently kills my neighbor's hog, what action would he bring against me ? Trespass vi et armis. 4 Min. Insts., 455 ; 4 Br. and Cr., 10 E. C. L., 223 ; 10 Bingh., 25 E. C. L. Suppose my ser- vant m^/wZii/ kill the hog, would I be responsible? I would not ; but trespass m et arm^s would lie against the servant." warranty, and in such count the sdenter need not be alleged, and If alleged, need not be proven. With it may be joined a count for deceitful misrep- resentation, in which the scienter must be alleged and proven. Thuckart v. Allen, 1 Wall., 359; 8 Grat., 442. ' The master is always answerable for the damages sustained by third persons, in consequence of the ignorance, unsMUfulness or neglect of his ser- vant, in the course of his employment, and although the act or default were without the master's knowledge, or even in despite of his express orders. 1 Bl. Com., 431, and n. (36); Bac. Abr. M. and S., k; 1 Par. Cont., 87, n. (a a); 14 How., 486; 1 Min. Insts., 219. The master is not in general answerable for the willful and malicioiis torts of his servants, even though perpetrated whilst they are engaged about his business, because such torts cannot fairly be said to be committed in his service, nor has he that power of control with respect to such conduct, which, as we have seen, is the ground of his liability in all cases. 1 Par. Cent., 87, and n. (a a); McManus v. Crickett, 1 East., 106; Craft et als. v. Alison, 4 B. and Aid., 6 E. 0. L., 590; Lyons v. Martin, 8 Ad. and El.. 3.5 E. C. L., 513; 1 Min. Insts., 220. To repeat what has been explained under the head of master and servant, the grounds of the master's liability are that he may and ought to control his servants or agents, whom he selects and may discharge; and that the policy of society requires that he should be answer- able for their tortious acts whilst in his employment, and thus subject to his authority. 1 Bl. Com., 431, and n. (26J; 6 M. and W., 499; 9 Id., 710; 13 Ad. and El., 40 E. 0. L., 737; 11 Com. B., 73 E. C. L., 867; 4Wal., 657, 679; 16 do., 576-'7; 1 Min. Insts , 218. Where the servant, whilst in his master's employment, commits a tort against a stranger, he is himself personally answerable therefor, as the master also is, unless the tort be willful or malicious. Bac. Abr. Master and S. (L); Hutchinson i>. R. R. Co., 5 Exchq., 350. 296 PRACTICE OF THE LAW IN CIVIL CASES. Suppose a man goes to my stable and carries off my horse, can I have an action of trespass against him ? I can. What would I recover ? The value of the horse and damages for the wrongful taking, and also damages for the wrongful de- tention. 3 Bl. Com., 209 ; 3 Bl. Com., 308, et seq.; Ad. Eq., 210 ; 2 Sto. Eq., §928 ; 4Min. Insts., 472. Suppose I kill a man's hog, and he brings an action of tres- pass against me and lays his damages so high that I cannot give bail and I am imprisoned, what action can I bring against him ? Action on the case for requiring excessive bail.* What action would you bring for a slander or libel ? Ac- tion on the " case." Why is it customary to have a great many counts in a declaration for slander ? Because you have to prove the exact words.° , * Exacting excessive bail is provided against by the Const, of TJ. S., and was a misdemeanor at common law. U. S. Const. Amend., Art. VIII; 1 Brev. S. C, 14. ' The doctrine at common law, touching slanderous words, is, that words are either actionable per ae, or not actionable per se. Words actionable per se are: (I.) Words imputing an offence punishable in the secular courts/ (2.) Words imputing some contageous disorder, calculated to exclude the party from society; (3.) Words affecting one in his trade or calling; (4.) Words affecting a person's capacity for an office or trust held by him. 3 Bl. Com., 123-'4, and seg., and ns. (9) and (10). In all these classes of cases an action of trespass on the case may be had, without averring or proving any par- ticular damage to have happened, but merely upon the probability that it might happen. 3 Bl. Com., 124; 4 Min. Insts,, 378; 6 T. R., 691; 8 East., 427; 4 Co., 20 a; 3 Bl. Com., 123, n. (9); Bac. Abr. Slander, (B); 2 Wills., 403, 404; 3 B. and Aid., 5 E. 0. L., 702; 3 Bro. and B., 7 E. 0. L., 297; 1 Lev., 11.5; 3 Ld. Raym., 1869; 3 Salk., 695. Slanderous words which yet are not actionable per se, are such as do not belong to either of the foregoing classes; in respect to which the common law requires an averment and proof of special damage in order to maintain an action therefor. 3 Bl.,Com, 123, n (9); Bac. Abr Slander, (C); Ons- low «. Home, 3 Wills., 187; Vickars». Wilcocks, 8 East.; 13 Mass., 253; 1 Bin., 185; 6 Caw., 76; 4 Min. lasts., 381-'3. A libel is a viaMcmxis publication, expressed either in printing, or writing. ACTIONS EX DELICTO. 297 What is done in order that the witness may swear to the same thing in open court that he tells the lawyer in his of- fice ? The lawyer makes a memorandum of what the wit- ness tells him, and gives it to the witness, that he may refresh his memory on trial. See doctrine in full, Gr. Ev., § 437. What action is brought for malicious prosecution ? The action of trespass on the case. 3 Bl. Com., 126, and n. (14) ; 1 Sand., 228, n. (1); 1 Esp.,^0 ; Yelv., 116. Suppose my horse is taken from my stable and I bring an action of trespass, and before judgment the horse dies, who would sustain the loss ? The defendant; because I do not claim the horse, but damages for taking him away from me. Wl^at is an action of trover ? An action brought for the recovery of damages for the wrongful conversion of personal property.' 3 Bl. Com., 152 ; St. PI., 19 ; 1 Chit., PI., 167. What is the gravamin of the action ? The unlawful con- version, which may be by unlawful taking, using (or mis- using), or detention, or assumption ofownership of the goods. 1 Chit. PI., 176, and seq.; 3 Bl. Com., 152, n. (11) ; 4 Min. Insts., 453. At what time does the title come in question in an action of trover? After conversion. 1 Chit. PL, 170, et seq.; and references m,pra. What fiction is usually adopted in trover when brought to try title ? That the plaintiff casually lost chattels, and that the defendant /oi6nd them (hence the word trover,) and converted them to hisownuse. The finding is vaevQ suggestion which need not be proved, and cannot be controverted, the gist of the action being that the chattel is the property of the plaintiff, and that it was con- ox by signs, or pictures, tending either to blacken the memory of the dead, or the reputation of one alive, and expose him to public hatred, contempt or ridicule. 2 Kent's Com., 17; Bac. Abr. Libel. 'It may give greater distinctness of view to discriminate between tres- pass on the case generally, and trespass on the case under special circum. stances; of the former as for fraud, malicious prosecution, &c., and the latter as in trespass on the case in slander, libel and trover and conversion 4 Min. Insts., 356. 298 PRACTICE OF THE LAW IN CIVIL CASES. verted to his own use by the defendant, which conversion is allowed to be sufficiently proved, after proof of the plaintiff's ownership, by showing that the defendant was in possession, and that upon demand made by tbe plaintiff the defendant refused w failed to deliver iiJ^ 3 Bl. Com., 152 ; St. PI., 19 ; 1 Chit. PL, 167 ; 4 Min. Insts., 357. What is an action of replettin ? An action brought for the specific recovery of personal property wrougfuUy taken.'' To what case does Blackstone confine it? The wrongful ^Notice: (1 .) That troveris confined in its application topersonal chaMeU, and hence does not lie for things annexed permanently to the freehold, and constituting ^orf thereof. 1 Ch. PI., 168. (2.) That in order to sup- port the action of trover, the plaintiff, at the time of the conversion, must have had a complete property, either general or special, in the chattel ; and also the actual possession of it. 1 Ch. PI., 170, et seq. (3.) That there must be a conversion of the chattel by the defendant, his personal representative, or by his testator or intestate. 1 Ch. PI., 176, et seq.j 4 Min. Insts., 453. ^ The action of replevin is an extremely beneficial remedy employed at common law in order to regain the possession of a specific chattel unlaw- fully taken, together witli damages for the taking and detaining. It re- . stores tlie possession of the chattel to the party aggrieved, not at the end of the suit, as in detinue, but at the beginning, as soon as complaint is made, exacting, however, from the plaintiflf, before he can have the ben- efit of the writ, that he shall give bond with good security, conditioned to " perform and satisfy the judgment of the court in the suit," which tlie writ institutes, "in case he shall be cast therein." Kob. Forms, 384; 4 Min. Insts., 349. The student will observe that whilst replevin is appropriate only where the taking is unlawful, detinue lies wherever tlie chattel is unlawfully withheld, that is, not only in case of unlawful taking (for if the taking be imlawf ul, the detaining must be so likewise), but also when the wrong doer came lawfully into possession, but continues to detain after his right has ceased. The action of replevin is at common law much used in case of illegal distress, as well by tiie tenant who is distreined upon, as by a third per- son who asserts a claim to the property taken. Indeed, Blackstone con- siders the action confined to an unlawful taking by way of distress, (3 Bl. Com., 145) ; but in this he is clearly mistaken, as Ld. Eedesdale points out in 1 Sch. and Lefrory, 327, Vin. Abr. Replevin, B. &o., Com. Dig. Kepi.; 1 Bl. Com., 145, n. (1); 4 Min. lusts., 349-'o0. ACTIONS EX DELICTO. 299 distress for rent arrear. 3 Bl. Com., 145. But it now lies for any wrongful taking. 1 Sch. and Lefroy, 327 ; 4 Min. Insts., 349. What is the action of detinue ? An action brought for the specific recovery of goods and chattels wrongfully detained.' Suppose A hires a horse to B and B refuses to return him, what action would A bring ? An action of detinue. 3 Bl. Com., 151 ; St. PL, 16 ; 1 Chit. PL, 137. Suppose a man goes to my stable and takes my horse, how many and what actions could I bring against him ? Trespass-" — Bouv. Law Die, "Trespasser;" Trover"— 2 Bouv. Law Die, 613 ; Deti- nue' — 3 Bl. Com., 151 ; and Replevin"" — Vin. Abr., Replevin (B) and (C) ; 3 Com. Dig., Replevin. What is the judgment in detinue for A in the case above ? That the plaintiff recover the horse and damages for his detention, and if the horse cannot be obtained i;Jien the value of the horse. 3 Bl. Com., 151 ; St. PL, 16 ; 1 Ch. PL, 137. When the defendant is poor, and you could make nothing by the execution, it would be advisable to bring detinue or replevin for the recovery of the chattel it- self. If I get judgment in an action of detinue, can I have my choice to take either the horse or the value of the horse ? No ; I must take the horse if he can be found. 1 Ch. PL, 137, et seq.; 3 Bl. Com., 151. ' The action of detinue is employed to regain the possession of a specific chattel, unlawfully withheld; or in case that should prove impracticable, to recovei in the alternative its value, together, in either case, with dam- ages, for Us detention. 3 Bl. Com., 151; St. PI., 16; 1 Ch. PI., 187; 4 Min. Insts., 348. J Trespass, see 1 Dev., 435 ; 1 Hawlis., 485 ; Hired., 417 ; 4 Dev. and Bat., 68; 1 Ired., 163. * Trover, see generally, 7 Ired., 418 ; 4 Dev., 20 ; 4 Dev. and Bat., 323; 1 Hayw., 193; 2 Murph., 19; 1 Hayw., 21, 308, 362; 7 Ired., 370; S Jones, 16; 2 Ired., 98. ^Detinue, see generally, 10 Ired., 124 ; 1 Ired., 523 ; 4 Dev. and Bat., 458 ; 6 Ired., 88 ; 2 Jones, 168 ; 13 Ired., 172 ; 4 Ired. Eq., 118 : 1 Ired., 523. ^Beplevin, see generally, 2 Murph., 357 ; 8 Ired., 387 ; 6 Ired., 38 ; 5 Ired.,. 192. 300 PRACTICE OF THE LAW IN CIVIL CASES. « What is the difference between avoiory and cognizance ? In case of action brought in replevin and declaration delivered, the distreinor, who is now the defendant, makes avovn-y, that is, he avows taking the distress in his own right or the right of his wife ; or else, if he justifies in another's right as bai- liff or servant, he is said to make cognizance, i. e., he acknowl- edges the taking. 3 Bl. Com., 149. Why is a horse generally valued high in an action of det- inue ? Jo compel the defendant to return him. And so of any other chattel. In what cases can detinue be brought where replevin cannot ? Where there has been no wrong- ful taking but there is an unlawful detention. 3 Bl. Com., 145, n. (1); 1 Chit. PL, 185, and seq.; 1 Chit. PL, 137, etseq. What effect did 4 Anne have on the action of replevin ? It allowed two or more matters to be pleaded in the repli- cation. Why did the judges say the statute extended to rep- lication in replevin? Because the avowry was in thje na- ture of a new declaration." Upon what is the action of re- plevin founded ? The replevin bond. 3 Bl. Com., 145, and n. (1); 1 Chit. PL, 185, and seq. How is the action of re- plevin begun? At common law by writ of replevin is- suing out of chancery ; but, by 52 Hen. III., by plaint made to the. sheriff. The sheriff takes the goods and delivers them to the plaintiff, provided he executes a bond with sure- ty to prosecute the action, to return the goods if judgment is given against him, and to pay all the costs and damages that may be recovered against him. 3 Bl. Com., 147, et seq. What is the general issue in replevin ? Nil cepit, or non cepiV " The statute of 4 Anne changed the common law ruje against duplicity in pleading, providing that "it shall be lawful for any defendant or tenant in any action or suit, or for any plaintiif in replevin, in any court of record (the plaintiff in replevin being virtually the defendant in the suit) with leave of the court, to plead as many several matters thereto, as he shall think necessary for his defence." St. PI., 274 ; 4 Min. Insts., 948 ; Com. Dig. Pleader, (E, 2). ° The plea of nmi cepit puts in issue the taking, and not the plaintiff's title. 6 Ired., 38 ; 25 Me. , 464 ; 3 JST. Y., 506 ; 2 Fla., 42 ; 12 111., 378. ACTIONS EX DELICTO. 301 Into what classes are injuries divided ? Those that are committed mms, so that the claimant is specially desir- ous to recover it in kind, or if it is of a character likely to appreciate in value, these are considerations which point to the action of detinue, rather than of trover and conversion; whilst if the chattel has no specific and peculiar value, nor is likely to appreciate in value, and especially if It is likely to depreciate, and most especially if it is perishable, these con- siderations decidedly recommend trover and conversion rather than deti- nue. In detinue the plaintiff recovers the specific chattel, if to be had, or- if not, its alternative value at the time of verdict; whilst in trover and' conversion, the value, aXihetime of conversion, which is before suit brought,, is recovered. Hence the expediency of one or the other action, accord- ing as the property is appreciating or depreciating in value. Thus, if the chattel consisted of a young blooded mare, worth say $500, it might be best to bring detinue, for in that action the plaintiff would not only re- cover her when she was, or might probable be, of much increased value,, but he might recover also any colts that she might meanwhile produce. On the other hand, where the property is perishable, as the action ofi detinue claim.s it as still belonging to the plaintiff, if it perishes before verdict and judgment, it perishes the plainUfTs property, and it would seem that upon principle the suit should abate, supposing the fact of the destruction to be put in issue by a plea puis darrein continuance. Aus- tin's Ex'or V. Jones; Gilm., 341; Caldwell v Fen wick, Ky., 333;, 4. Min. Insts., 369 ; Kob. Pr., (3d ed.) 468. ^An audita querela is where a defendant against whom judgmenti is- 20 306 PRACTICE OF THE LAW IN CIVIL CASES. after satisfying one judgment, he waits one year and a day and then attempts execution, does the defendant have to re- sort to audita querela ? No ; in that case judgment can only be revived by scire facias, and as this gets the case again into court, the defendant shows for cause why execution should not issue, that one judgment concerning the same property has been satisfied.'" If the plaintiff bring an action of det- inue, and obtain judgment and stay execution, and then bring trover on the same subject matter, and pending the latter suit the defendant delivers the property, how can he stop proceedings in the second suit? By plea "puis darrein continuance;"" and e converso. recovered, and who, therefore, is in danger of execution, or perhaps actu- ally in execution, may be relieved upon good matter of discharge which has happened since the judgment: as if the plaintiff hath given him a ;general release ; or if the defendant hath paid the debt to the plaintiff, without procuring satisfaction to be entered on the record. 3 Bl. Com., 313. "The purpose of scire facias, when founded on judgment — for it maybe founded on recognisances and on non-judicial records, as letters patent and corporate charters — is to revive the judgment, which because of lapse of time — a year and a day at common law — is presumed in law to be exectUed or released. 3 Bl. Com., 416, 421 ; Coke, 2d Insts., 469, 473 ; 2 Wm. Sand., 71, 73, notes ; 3 Gill, and J., Md., 359. " Puis darrien continuance — since the last continuance— is a plea which is put in after issue joined, for the purpose of introducing new matter, or (matter which has come ito the knowledge of the party pleading it subse- .quently to such joinder. .2 Bouv. L. D., 391. LECTURE IV. MIXED ACTIONS — EJECTMENT. The general issue in ejedione firmssis, "not guilty." 1 Bouv. L. D., 519. Damages are recovered by the plaintiff, who must prove four things: (1.) Title of the lessor; (2.) That the lessor made the lease ; (3.) That the plaintiff made the entry; (4.) That he was ousted. 3 Bl. Com., 202. The term originally could not be recovered, but equity restored it by compelling specific performance ; and courts of law in analogy gave the same remedy. 3 Bl. Com., 201 ; Ad. Eq., 209. If the lessor evicted the lessee, equity com- pelled him to restore the term ; if a third party evicted him, equity made the lessor bring an action for the lessee, and if the lessor refused the presumption was that he and the third party colluded, and on that ground equity granted relief. 3 Bl. Com., 201. This caused the courts of common law to take cognizance. What are the divisions of actions ? Real, Personal, and Mixed. What are the real actions ? Writs of right, writs in the nature of writs of right, and writs of entry and assize. 2 Bl. Com., 181, et seq. A writ of right is brought when a demandant claims a fee simple interest in the land. 3 Bl. Com., 194. Writs in the nature of writs of right are generally used when a less estate than fee simple is claimed, as in case of a writ of right of dower. These are used when the demandant has no pres- ent right of entry. The instances of writs in the nature of writs of right are : The Formedons, Writ of Right of Dower, and Writ of Dower unde nihil habet, and Qriare Impedit. 3 Bl. Com., 195. Where the demandant has a right of entry, writs of entry are used. 3 Bl. Com., 181. Writs of assize are those of mort d'ancestor, &c., and novel disseizin. These took the place of writs of entry as -being more speedy and lessexpen- 308 PRACTICE OP THE LAW IN CIVIL CASES. sive. 3 BL Com., 185, et geq. Statute of 3 and 4 Wm. IV. abolished all real actions, except writs of dower and qvare impedit. Rawle's Gov. Tit., 24 ; Wms. Real Prop., 408-'9. Ejectment has now become the only remedy for trying title for land. When a tenant for years was evicted, what action did he bring formerly ? JE^edionefirmse, and recovered damages only ; and he had to go into equity to recover pos- session. 3 Bl. Com., 201. The action of quare ^ecit infra terminum was broaght ,when the lessor had evicted the lessee, and had enfeoffed a third person. Here ejectment could not be brought against the lessor, because he was not in possession, nor against the feoffee because he did not eject the lessee ; hence this action of quare ejecit infra terminum arose by force of 13 Ed. I., (be- ing one of the writs devised in consimili casu) and was brought against the feoffee for the deforcement. 3 Bl. Com., 199-207. By this means the lessee recovered the term for the time un- expired, from the feoffeein possession ; andforthe time the les- sor was in possession, -he can recover damages in a suit against him in trespass quare clausum fregit. This action now is in dis- use, owing to the fictitious ouster by which the title could be tried against any one in possession. 3 Bl. Com., 204-7. When a freeholder was evicted from his land^ his extra- judicial remedy was entry ; when entry was impracticable, to avoid the expense and tedious delay of a suit of entry, the following contrivance was resorted to : The freeholder would make a formal entry on some part of the premises, and then make a lease for years to some friend, and then put the lessee in possession, who would be immediately ousted by the wrong-doer. This being shown, the plaintiff (lessor's friend) would be put in possession, and would sur- render immediately to lessor. This became a very usual action, after the judges decided that by it parties could recover theteEm as well as damages, which decision they came to because the term was always recovered anyhow by a bill in equity, and their, giving the term avoided the necessity of MIXED ACTIONS — EJECTMENT. 309 going into equity. 3 Bl. Com., 210, et seq. After this be- came the usual action for trying title, one could recover term and nommcd damages, for it was decided that the action should be one for deciding the tide only, and it was allowed to recover the damages in another suit — trespass on the case for mesne profits. 3 Bl. Com., 205, and n. 12. This action was rendered less complex and troublesome because the formal entry, c&c, was avoided by the invention of C. J. B,olle of what is termed the ^'fiction in ejectment," namely, that the plaintiff might allege entry, lease, and ous- ter in the declaration, and that the defendant should not be allowed to traverse these allegations. In this the plaintiff supposed himself evicted by the casual ejector, and the suit was brought against him (casual ejector), and he (casual ejector) would send a copy of the declaration, together with a written notice, to the tenant or wrong-doer, of the action brought against him (casual ejector) and that, unless he (ten- ant) appeared and defended the suit, the judgment would be given against him (casual ejector) by default, the result of which would be that a writ would issue to the sheriff to clear the premises. 3 Bl. Com., 202, ei seq. Plaintiff must prove, however, that notice was served on the person in possession of the land. If none be in posses- sion, the sheriff should put notice on the door, and in the field. The tenant was allowed to substitute himself instead of casual ejector only on condition that he would admit the three allegations specified above, viz.: the lease, entry and ouster. 3 Bl. Com., 204. His admitting this was called en- tering into the common consent rule, (1 Bouv. L. Die, 518,) so-called to distinguish it from the special consent rule. The declaration would then be altered by substituting his (tenant's) name instead of the casual ejector's, and the case would then go down to nisi prius for trial. 3 Bl. Com., 204, Upon the trial, if the defendant broke the above condition and refused to admit lease, entry and ouster, the plaintiff" would 310 PRACTICE OF THE LAW IN ClVIIi CASES. have to submit to a non suit, because he could not prove them, of course ; and the defendant would then take the postea back to Westminster and pray judgment, which would be rendered that he go without day. But the plaintiff would then pray judgment in the first suit against the casital ejector, on the ground that the tenant had been allowed to substi- tute himself for the casual ejector on condition that he would admit lease, entry and ouster, and that the condition was broken, and hence the original suit revived and judgment would be given against the casual ejector and execution would issue to the sheriff " to clear the premises " and put the plaintiff in peaceable possession. 3 Bl. Com., 205, n. (11). Thus we see that two suits, as it were, were carried on at the same time. The plaintiff would have to pay cost in the second suit against tenant, because in that he was non- suited, but he could have the defendant (tenant) attached for contempt for disobeying a rule of court ; and the con- tempt could only be purged by his paying to the plaintiff the cost which the plaintiff had lost. Adams' Eject., 235, 298. In this way the plaititiff would be placed in statu qua. Thus we see that if the tenant disregards the notice served on him by the casual ejector, or obeys the notice and after- wards refuses to make the required admissions, the result will be the same, and plaintiff in either event will be put into possession ; though when judgment was rendered against casual ejector, plaintiff incurred all the cost in that suit. Still, the plaintiff could recover this cost by suing the tenant in trespass for mesne profits, and the cost in the action against casual ejector would be included in the damages. 3 BL Com., 205, d seq., and ns. 7, 11, 12. He could not have him (the tenant) attached for contempt as when he breaks the condition as above; for disregarding the notice of casual ejector is not contempt of court. Judg- ment could not be given against him for the cost, for he was no party to the action. Hence the action for mesne profits, as above explained, is the only means by which the plain- MIXED ACTIONS — EJECTMENT. 311 tiff can recover costs. 10 Ired., 439 ; 3 Johns., 481 ; 25 Miss., 445. The " common consent rule " was called the common rule in North Carolina ; for here the admissions had to be expressly made (because here the case is not sent to nisi pHus) whereas in England the admissions are supposed to be made. The rule is called the " common rule," to distinguish it from the "special rule." In the "common rule," lease, entry, and ouster are admitted, and title traversed. In the " special rule" either title, lease and entry are admitted and ouster traversed, or lease, title and ouster admitted and entry traversed, &c. The question of ouster arises when one of two tenants in common brings this action against the other. 2 Dev. and B., 97 ; 10 Ired., 146 ; 11 Ired., 211. And entry is traversed in this case,~ namely : A enfeoffs B, on condition ; condition is broken ; A brings ejectment against B ; B alleges that A cannot maintain his action — not because he has no title, but because B's estate has not been defeated by entry; hence entry is traversed." 3 Bl. Com., 203, n. (4). If lessor says to wrong-doer, " If you stay here I will leave and consider myself ousted," this amounts to an ouster. The origin of the action for mesne profits is, that the judges decided to make the action of ejectment the one by which title alone was decided, and if damages were proven and judg- ment given to defendant, the proof as to damages would be time wasted. Hence the title was first decided, and then plaintiff was allowed to recover mesne profits^ by the action " Ejectment may be brought upon n, right to an estate in fee simple, fee-tall, for life, or for years, if only there be a. right of entry and posses- sion in the plaintiff. 1 Dev. and Bat., 586 ; 5 Ohio, 28 ; 2 Mo., 163 ; 3 Dan., 289 ; 1 Johns., 125 ; 8 Ga., 105 ; 4 Gratt, 139 ; 15 Ala , 413. * Whilst the action of ejectment was at first designed to recover merely damages for the ejection, and by adaptation only was gradually fitted to recover the land also, as well as damages, con.»itituting it properly a mixed action, yet no sooner had it become established as a means, and the favorite means of recovering lands, than the old ideas recurred. It was considered rather in the light of a real action, the plaintiff rarely prepared 312 PRACTICE OF THE LAW IN CIVIL CASES. of trespass quare clausum f regit cum continuando. In this the plaintiff must prove the damages, and by the continuando he is supposed to enter and be evicted each day ; and the right to damages thus relates back to the first eviction by means of the jus postUminii. 1 Bouv. L. Die, 354. To support this action, it is necessary to prove that the writ of possession is- sued and was returned executed; though it was not neces- sary to prove that it was actually executed. If the lessee brings this action, he recovers damages from the date of de- mise to the date of judgment in ejectment. 3 Bl. Com., 205, etseq., and ns. (11) and (12). If brought by the lessor, he can prove and recover prior and subsequent damages. The cases in which damages are allowed to be proved in the action of ejectment are : (1.) When the title is not trav- ersed, but the traverse is to one of the other three, viz: lease, entry, or ouster ; (2.) When the title of the lessor had expired, neither he nor lessee could be put into possession, nor could he (lessor) bring his action for mesne profits because we have seen that to support that action plaintiff must prove that the writ of possession issued, &c.; hence he is allowed to prove damages in the action of ejectment. The plaintiff may continue to bring new a'ctions of eject- ment for the same land, by substituting new lease, until stopped by a bill of peace, which the defendant can get after the fourth action. See Adams' Eq., 202. If the time of the lease alleged in the declaration expires before the suit is decided, the plaintiff must obtain leave to amend and insert a lease for a longer time. Blackstone says himself to prove the actual damages arising from the detention, not caring probably to distract the jury's attention, or his own, from the main question of title, to the secondary ones of rents and profits; and, therefore, upon the ejectment he took nominal damages, and afterwards brought a new action of trespass for the mesne profits, of whicli action there is no mention till sometime after the reign of Queen Elizabeth. 4 Reeves' Hist. Eng. Law, 168. And Blaclistone mentions this as the re- ceived practice in his day, as it continued to be long afterwards. 3 Bl. Com., 205, n. (12); do. 199, etseq.; St. PL, 11, 33 ; 4 Min. Insts., 363. MIXED ACTIONS — EJECTMENT. 313 the lessee must not be a fictitious but a real person (3 Bl. Com., 203) ; because, if it was a fictitious person, defendant might plead in abatement alleging that there was no such person. The condition on which the defendant (tenant) was allowed to substitute himself for casual ejector was, that he would admit three allegations and plead not guilty, and by so pleading he waived all claims to pleas in abatement. Hence we hold that it was not necessary that he be a real person." The statute of limitations in trespass is six years in England, (3 Bl. Com., 307,) and three years in North Car- olina. Bat. Rev., 150. The statute does not run in action for trespass for mesne profits after date of the declaration in ejectment ; because this is considered a continuation of the action of ejectment. If the action of ejectment was not brought, it then runs to the declaration in the action for mesne profits. Can you bring trespass quare clausum /regit for mesne profits with a continuando where there has been no action of ejectment preceding it? Yes ; if the wrong-doer had left. 3 Bl. Com., 212. Suppose judgment is given for the plaintiff in ejectment, and before he is put in possession he brings his action of trespass quare clausum fregit, will he be non-suited, or has he some ground to stand on ? He will recover damages for the original act (breaking his close, &c.,) ; but not for mesne profits. Lessor of plaintiff must have a strict legal right; and a mere equitable interest is not sufficient to support this action. 2 " The practice of allowing the plaintift" to be some fictitious person was reprobated, because it was considered that it provided no responsibility for cost in case the defendant SHCceeded. But this objection is now ob- viated by its beings always now a part of the consent rule, that in such case the lessor of the plaintiff will pay the costs, and an attachment will He against him for disobedience of this, as of every other rule of court. Adams on Eject., 235, 298. 314 PRACTICE OF THE LAW IN CIVIL CASES. T. R., 695 ; 1 T. E., 758 ; 3 Bl. Com., 204, n. (6). Trustee may set up legal estate against cestui que trust.* In ejectment, the party must recover on the strength of his oum title." Lessor of plaintiff must have right of entry and right of possession' at the time of demise. 3 Bl. Com., 204, n. (6). The only title necessary to be proved in the lessor is that he had sufficient title to make a lease. 1 Dev. and B., 586 ; 2 Mo., 163 ; 1 Dan., Ky., 289. Several demises may be contained in the same declaration ; also many counts. For instance : A makes feoffment to B, B to C, and C is evicted; here C's friend, the plaintiff, can in one count rest on title of C ; in another, on title of B, &c. If plaintiff bring an ac- tion, and it is found that the deed has not been registered there will be judgment against him ; but the action could again be brought in the name of other parties, by which ex- pedient the plea of a former judgment would be avoided. The demise must be prior to the declaration, or else it will be a fatal variance, since it is necessary for the lessor to have the land at the time of making the lease. 2 T. R., 695 ; 1 T. R., 758. If the lessor wished to recover damages for a period prior to the demise he should bring the action himself. If only for the time stated in the demise, either the lessor or lessee ■^In Doe on the demise of Bowermaii v. Sybouni, 7 T. K. 2, Lord Kea- yoii declared, that in all cases where trustees ought to convey to the beneficial owner, he would leave it to the jury to pi-esume, where such a presumption might reasonably be made, tliat they had conveyed accord- ingly, in order to prevent a just title from being defeated by a matter of form. But if such a presumption cannot be made, he who has onlj' the equitable estate cannot recover hi ejectment. Jones v. Jones, 7 T. E., 46. " The real plaintiff must recover on the strength of his own title, and cannot rely on the weakness of the defendant's. 6Ired.,159; 1 East., 246 ; 3 Humph., 614 ; 2 Serg. and R , 65 ; 27 Ala., 586. 'It may be brought upon a right to an estate in fee simple, fee-tail, for life, or for years, if only there be a right of entry and possession in the plaintiff. 1 Dev. and Bat., 586 ; 3 Don., 289 ; 1 Johns., 125 ; 4 Gratt., 129 ; 15 Ala., 413. MIXED ACTIONS — DOWER UNDE NIHIL HABET — WASTE. 315 may bring the action. If a defendant in an action of eject- ment after judgment say that he will leave, a writ of execu- tion need not issue ; and if the action be for mesne profits, and he leave at a time of year when no crop could be put in, damages would be given by the jury for that year. Another reason why a separate action was required to re- cover damages, instead of giving them in the action of eject- ment, was to prevent the jury from being confounded about both title and damages. 4 Reeves' Hist. Eng. Law, 168. If a widow assign her dower, and her assignee be evicted and bring an action of ejectment, and during the action she die, the assignee would have judgment rendered for him, but no writ of possession would issue, and damages for mesne profits would be given, as he could not bring an action for trespass for them. If an action of ejectment be brought against A and he let B take possession, judgment would be had against A, and the sheriff would clear the premises and put plaintiff in pos- session. Ejectment, under the Code of North Carolina, is simply an action for land and damages. You allege in your com- plaint that you had the possession, that the defendant evicted you, and that he now wrongfully withholds posses- sion. The answer simply denies these allegations. Under the Code, damages are proved also. The decision in this action, under the Code, is final, which is the most striking objection to the action here. If, according to present pr^- tice, plaintiff comes to trial and finds some of his deeds un- registered, his best course is to take a non-suit, and bring a new action ; but he will have to pay costs of the whole suit up to the non-suit. Another mixed action besides ejectment is tiie writ of dower unde nihil habet. It is employed in order to recover a widow's dower nnlawfuUy withheld, or to speak technically, of which she is deforced, where she has received no part of her dower in the tract of land in question, (whereof she has nothingr—unde nihil habet), together with damages for its deten- 316 PRACTICE OF THE LAW IN CIVIL CASES. tion, wherever her husband dies seized. If her husband does not die seized, she recovers damages, not from the period of his death, as in that case, but from the time of the suit brought. 3 BI. Com., 183 ; St. PL, 10 ; Id. (Tyler), 45 ; 1 Th. Co. Lit., 585, and seq , and n. (R) and (S); 4 Min. Insts.i 364. The third mixed action is the writ of waste. It is employed to recover the "tiling (place) icassteti " by a tenant for life or years, together with treble damages. It existed at common law, but only as the medium for recovering the amount of damages which would compensate the injury, that being at common law the only forfeiture exacted for waste ; and that being recoverable of no other tenants save those who came in by the act of the law, (e. g., tenant by the curtesy, tenant in dower, and guar- dian in chivalry) ; those tenants who came in by act of the parties being restrained, no otherwise than by the covenants inserted in the lease. The statute of Marlbridge, 52 Hen. III., c. 23, A. D. 1268, allowed the writ of waste against all tenants /or life or years; but the recovery was still no more than the value of the damages done, until by the statute of Glou_ cester, 6 Edw. I., c. 5, A. D. 1278, it was enacted that the landlord or reversioner should recover " the thing wasted, and treble damages." The writ of waste, which before has been a mere personal action, thencefor- ward became mixed, having for its object the recovery, not only of the treble damages given by 6 Edw. I., but also of the place wasted. 2 Min. Insts., 591, and seq., 628, and seq.; 4 do., 364. Notes on Ejectment : Action of ejectment must be brought against the person having pos- session. 3 Hawks., 479 ; 1 Dev. and Bat., 5 ; 4 Dan. Ky., 67 ; 17 Vt., 674; 9 Humph.. 137 ; 8 Barb. N. T., 244 ; 7 Tr., 327 ; 1 Bos. and P., 573. Where there is a right of entry and possession in the plaintiff, eject- men may be brought for an estate in fee simple, fee-tail, for life, or for years. 1 Dev. and B., 586 ; 5 Ohio, 28 ; 2 Mo., 163 ; I "Wash. C. C, 207 ; _1 Blackf. Ina., 133 ; 3 Dan. Ky., 289 ; 1 Johns. Oas. N. Y., 125 ; 3 Ga., 10^; 4 Gratt. Va., 129 ; 15 Ala., 412 ; 2 Dutch. N. J., 376 ; 4 Cal, 278. T'lie title must be a legal one. 2 Wash. 0. C, 33 ; 10 Johns. N. Y., 368 ; 3 Barb. N. Y., 554 ; 3 Harr. and J. Md., 155 ; 4 Conn., 95 ; 3 Litt. Ky.. 32; 4 Gratt. Va., 129 ; 13 Miss., 499. The title must be one which existed at the commencement of the suit; 5 Harr. and J. Md., 155 ; 4 Vt., 105 ; 5 Watts and S. Penn., 427 ; 23 Miss., 100 ; 13 111., 351 ; 25 Miss., 177 ; 20 Barb. N. Y., 559 ; at the date of de- mise, 2 Dev. and B., 97 ; 3 McLean C. C, 302; 11 Mo., 481 ; 11 111 , 547 ; 12 Ga., 166; 21 How., 481 ; 3 A K. Mar. Ky., 131 ; 4 Id., 388. Must have existed (title) at the time of trial. 2 B. Monr. Ky., 95 ; 13 Id., 32; 20 Vt., 83 ; 9 Gill. Md., 369. Title must be actually against the person having possession. 1 Dev. MIXED ACTIONS. 317 and B., 5 ; 3 Hawks., 479 ; 4 Dan. Ky., 67 ; 17 Vt., 674 ; 9 Humph., 137; S Barb. N.Y., 244; 7 Term., 327 ; 1 Bos. and P., 573; 4 McLean, C. C, 255. That the plaintiff must recover on the strength of his own title and not on the weakness of the defendant's, see6Ired., 159 ; 27 Ala., 586 ; lEast., 246; 2Serg. andE.,65; 6 Vt., 631 ; 4Halst., 149 ; 20v.,185; 3Humph., 614 ; 1 Md., 44 ; 19 Miss., 249. Plaintiff must show an injury which amounts inlaw to an ouster or dispossession. 6 Mumf'd, 346 ; 4 N. Y., 61 ; 15 Penn., 483 ; 1 Vt., 244. The action may be maintained by one joint tenant, or tenant in com- mon, against another who has dispossessed him. 2 Dev. and B., 97 ; 17 Miss., Ill; 1 Spenc, 394; 4 IST. Y., 61; 24 Mo., 541; 2 Ohio, 110; 7 Oranch., 456 ; 3 Conn., 191. Co-tenants need not join as against a mere disseizor. 10 Ired., 211 ; 5 Day, Conn., 207 ; 3 Blackf., 82 ; 6 B. Monr., 457 ; 11 Ired., 211. Where the fictitious form is abolished, however, the possession of the land generally is recovered, and the recovery may be of part of what the demandant claims. 10 Ired., 237 ; 9 B. Monr. Ky., 240 ; 14 Id., 60 ; 26 Mo., 291 ; 4 Sneed Tenn., 566 ; 6 Ohio, 391 ; 1 Harr. and McH. Md., 158 ; 2 Barb. N. Y., 380; 1 Ind., 242. The damages are, regularly, nominal merely ; and in such case an action of trespass for mesne profits lies to recover the actual damages. 13 Ired. , 439 ; 25 Miss., 445 ; 3 Harr. and J. Md., 84; 3 Johns. N. Y., 481. In some States, however, full damages maybe assessed by the jury in the original action. Pet. 0. 0.,452; IS Vt , 600; 12 Barb. N. Y, 481; 19 N. Y, 488; 1 Bouv. L. D., 519. The action lies for the recovery of corporeal hereditaments only; 7 Watts, Pa., 318; 5 Denio N. Y, 389, including a room in a house ; 1 Harris N. J., 202, upon which there may have been an entry, and of which the sheriff can deliver possession to the plaintiff; 9 .Johns. N. Y, 298; 18 Barb. N. Y., 484; 15 Conn., 137; and not for incorporeal her- editaments, 2 Yeates, Penn., 331 ; 3 Green N. J., 191 : as, rights of dower; 17 Johns. If. Y., 167 ; 10 Serg. and K. Penn., 326; aright of way; 1 N. Chipm. Vt., 204 ; a rent reserved ; 5 Denio, N. Y., 477. See 20 Miss., 373 ; 1 Bouv. L. Die , 518. LECTURE V. PROCESS. How are actions commenced ? By purchasing an origi- nal vjrit out of chancery. 3 Bl. Com., 273. Suppose de- fendant does not appear upon service of original writ, what must the plaintiff do ? Sue out mesne process. 3 Bl. Com., 280. How do writs of mesne process differ from original writs ? They are issued from the courts to which original writs are returnable, under the hand of the senior justice, if there is no chief. They are not tested in the King's name, and do not issue out of chancery under the great seal. 3 Bl. Com., 282. . They are called judicial writs. What is the object of writs of process ? To compel the defendant to ap- pear. 3 Bl. Com., 280. To what court is the original writ returnable ? The court in which the action is to be tried. 3 Bl. Com., 273-4. How are writs of process tested ? Of the preceding term ; because formerly the order was given for them to issue in open court, and they are still supposed to be. 1 Ch. PI., 264. Of what day of the preceding term are they tested? The first; because all the term is construed as one day. 1 Ch. PI., 265. Why is it important that writs of execution should be tested of the preceding term ? For the reason stated above. How are writs of process tested in North Carolina ? Of the pre- ceding term ; but a note is made below of the actual date in order to meet the statute of limitations." See Tourgee's Code, 60, et seq., for further explanation. What are the courts of general jurisdiction at common law ? Common Pleas, King's Bench, and Exchequer. 3 Bl. Com., 40, et seq. What is the first writ of process in the common pleas ? " See the doctrine that the date of filing the writ is the time of the com- mencement of the action to prevent the bar of the Statute of Limitations. Haughton ». Leary, 3 Dev. and B., 21. PROCESS. 319 Summons. 3 Bl. Com., 280. Suppose the defendant did not appear upon the service of the summons, what was the next step ? A writ of attachment or pone, from the words of the writ.* What is the next writ ? Distringas, or distress infinite. 3 Bl. Com., 281. Suppose the defendant refused to appear upon the distringas, what could the plaintiff do ? In case of injury without force he was at the end of his row ;° but some hold that he might issue an exigi facias and then proceed to outlawry. Suppose the injury was accompanied with force, how would the plaintiff proceed ? The most regular process would be to issue a capias ad respondendum; but the practice now is to issue a capias in the first instance upon a supposed return of the sheriff.* * The writ runs, ^'■pone per vadium et salvos plegios, put by gage and safe pledges A B, the defendant," &c. This Is a writ not issuing out of chancery, but out of the court of connnon pleas, being grounded on the non-appearance of the defendant at the return of the original writ. 3 Bl. Com., 280. ° And here by the common law, as well as by the civil law, the process ended in case of injuries without force ; the defendant, if he had any substance, being gradually stripped of it all by repeated distresses, till he rendered obedience to the King's writ ; and, if lie had no substance, the law held him incapable of malting satisfaction, and therefore looked upon all further process as nugatory. And besides, upon feudal princi- ples, the person of a feudatory was not liable to be attached for injuries merely civil, lest thereby his lord should be deprived of his personal ser- vices. But in case of injury, accompanied witii force, the law, to punish the breach of the peace, and prevent its disturbance for the future, pro- vided also a process against the defendant's person, in case he neglected to appear upon the former process of attachment, or had no substance whereby to be attached. 3 Bl. Com. , 281 ^ The practice (through custom rather than necessity, and for saving some trouble and expense, in suing out a special original adapted to the particular injury) still continues in almost all cases, except in actions of debt; though now by virtue of statutes, a capias might be had upon al- most every species of complaint. If, therefore, the defendant being summoned or attached, malces default, and neglects to appear ; or if the sheriff returns a mhU, or that the defendant hath nothing whereby he may be summoned, attached or distrained, the capias now usually issues; being a writ commanding the sheriff to take the body of the defendant, 320 PRACTICE OF THE LAW IN CIVIL CASES. Suppose the defendant is not within the county, the sher- iff's, return being non est inventus in his bailiwick? A testa- tum capias issues to the county in which the defendant is supposed to be. 3 Bl. Com., 283. Suppose where the de- fendant absconds, the plaintiff desires to proceed to outlawry? In that case an " original " should be sued out regularly, and then a capias. Tidd., 8 ed., 126; 1 Bla. Rep., 20. Suppose the capias is returned non est inventus, what writ then issues? An alias capias; and if the alias is returned non est inventus, then a pluries is'feues to the same effect. 3 Bl. Com., 284. Suppose all these are returned non est inventus, what is the next process ? An exigi facias, or writ of exigent, and if this is returned quinto exactus, he (the defendant) is outlawed by the coroner of the county. What did the statutes 6 Hen. VIII. and 31 Eliz. enact with regard to exigifacias ? That a writ of proclamation should issue at the same time with the writ of eMi7i/acias, whether the defendant lives in the same or another county, commanding the sheriff of the county wherein the defendant dwells, to make three proclamations thereof in the places the most notorious and most likely to come to his knowledge, a month before the outlawry was to commence. 3 Bl. Com., 284. Where is an original writ of the King's Bench returnable? Ubicunque fuerinnus in Anglia — wheresoever the King shall then be in England." What is the usual process in the King's bench ? They may, and frequently do, proceed by if he may be found in his bailiwick or county, and him safely to keep, so that he may have him in court on the day of the return, to answer to the plaintiff of a plea of debt or trespass, &c., as the ease may be. The writ and all others subsequent to the original writ are csW^A judical, not origi- nal writs. 3 Bl. Com., 282-'3. «In the Kings bench they may also (and frequently do) proceed in cer- tain causes, particularly in actions of ejectment and trespass, by original writ, with attachmeni and capias thereon ; returnable^ not at Westminster where the common pleas are now fixed in consequence of Magna Charta, but wheresoever the King shall then be in England ; the King's beach PROCESS. 321 « Oi'iginal writ, attachment, and capias thereon ; but the most ordinary practice is to sue out a Bill of Middlesex. 3 Bl. Com.,. 285. Suppose the defendant is not taken with a bill of Mid- dlesex, the sheriflf 's return being non est inventus, what is the next process ? A writ of latitat issues to the county in which the defendant is supposed to be. 3 Bl. Com., 286. To what writ in common pleas does bill of Middlesex correspond T Capias. To what the latitat ? Testatum capias. 3 Bl. Com., 285-6. Suppose the plaintiff wishes to outlaw the defend- ant, how would he proceed? Sue out an original writ, then a bill of Middlesex with alias and p/wnes, then a latitat,. a,nd^ then an ezigi facias with proclamation. What is the first writ of process in ExchecLuer ?: A writ of quo minus, in order to give the court jurisdiction oyer pleas between party and party. 3 Bl. Com., 2S6. It corresponds with capias in common pleas. At common law, if defendant did not appear upon dis- tringas, who paid cost of suit ? The plaintiff. What statute' allowed the property to be sold, the cost paid, and the bal- ance to go to the king ? Statute of 10 Geo. III. 3 Bl. Com.,, 281. Could the sheriff bail the defendant ? He could at common law, either bail him or put him in prison.' 3 Bl. Com., 290. being removable into any part of E ngland at the pleasure and discretion of the crown. But the more usual method of proceeding therein is without any original, but by a peculiar species of process, entitled a bill of Mid- dlesex: and therefore so entitled because the court now sits in that county ; for if it sat in Kent, it would then be called a bill of Kent. 3' Bl. Com., 285. 'Bail is used both as a substantive and a verb, though more frequently as a substantive, and in civil cases at least, it means, in practice, those persons who become sureties for the appearance of the defendant in court. In its more ancient signification, the word includes the delivery of prop- erty, real or personal, by one person to another. Bail in actions was first introduced in favor of defendants, to mitigate the hardships imposed upon them while in the custody of the sheriff under arrest, the security thus offered standing to the sheriff in the place of the body of the defend- ant. 1 Bouv. L. D., 180, Bail. Bail is from bailler, to deliver. 21 322 PRACTICE OP THE LAW IN CIVIL CASES. What statute compelled the sheriff to take bail when a suf- ficient bond was offered ? Statute of 23 Hen. VI.« 3 Bl. Com., 290-1. If the sheriff took irresponsible bail he was responsible himself, and the plaintiff could have recourse on him (sheriff) and then he had recourse on thebail. 1 Bouv. L. D., 182. Plaintiff would get a rule of court against the sheriff, and would not have to bring action. Why was the statute supra passed ? Because the sheriff was responsible if the bail was insufficient or proved irresponsible, and they (-sheriffs) were in the habit of refusing bail in order to se- cure themselves. 1 Bouv. L. D., 180. What was the obligation in a bail bond ? That the party should appear in court.'' What was the bond called ? Bail below. 3 Bl. Com., 291. The sureties in such bond bind themselves to the sheriff to secure the defendant's a-ppearance, •or to secure his (defendant's) putting in hail to the action, (bail above) on the return day of the writ. It may be demanded by the sheriff whenever he has arrested a defendant on a bailable process, as a pre-requisite to releasing the defendant. What was bail to the action or hail above ? An obligation that the defendant should appear and hear the judgment, and if he did not appear the bail would pay the debt and costs.' s Taking bail was made compnlsory upon sheriffs by the statute 23 Hen. VI., and the privilege of the defendant was rendered more valuable and secure by successive statutes until by statute 12 Geo. I., made perpetual by 21 Geo. II., and 19 Geo. III., it was provided that arrests should not be made unless the plaintiif make affidamt as to the amount due. and this amount be indorsed on the writ ; and for this sum and no more the sheriff might require bail. 1 Bouv. L. Die, 180. " A hail bond, in practice, is a specialty by which th? defendant and other persons become bound to the sheriff in a penal sum proportioned to the damages claimed in the action, and which is conditioned for the due appearance of such defendant to answer to the legal process therein described, and by which the sheriff has been commanded to arrest him. IBouv. L. D., 182. ' Bail above. Sureties who bind themselves either to satisfy the plain- PROCESS. 323 What did the statute of 4 and 5 Anne enact with regard to the assignment of bail bonds ? That the sheriff should assign them to the plaintiff. Upon the return of the writ, or within four days after, the defendant must appear according to the exigency of the writ. This appearance is effected by putting in and justifying bail to the action (bail above). If this be not done, and the bail that were taken by the sheriff below are responsible persons, the plaintiff may take an as- signment from the sheriff of the bail bond (under 4 and 5 Anne, c. 16), and bring an action thereupon against the sher- iff's bail. 3 Bl. Com., 291. Suppose the defendant failed to appear, how did the plaintiff reach the bail ? Brought a scire /acias on the bond. 2 Hayw., 223; 15 Pick., 339; 9 Yerg., 223. What are the necessary allegations in a scife facias on a bail bond ? (1.) That the defendant executed the obligation ; (2.) That the defendant in the action failed to appear ; (3.) That a ca. sa. had been issued and returned non est inventus; (4.) That a judgment had been obtained and is unsatisfied, and judgment is prayed of the bond. Suppose A and B are bail for C, and C runs away and goes out of the State, how may they get him ? Get a copy of the record and have the Governor to put the seal of the State on it, and they may then go and arrest him. 8 Pick., 138; 1 Baldw. C. 0., 578 ; 3 Conn., 84 ; 7 Johns., 145. Can -a dep- uty be employed to arrest him ? Yes ; by giving him power of attorney.'' 'tiff his debt and costs, or to surrender the defendant into custody, provi- ded judgment be against him in the action, and he fail to do so. Sellon Pract., 137. ' A deputy is one authorized by an officer to exercise the office or right which the officer possesses, for aad in the place of the latter. In general, ministerial officers can appoint deputies, Comyns Dig. Officer (D 1), unless the office is to be exercised by the ministerial officer in person ; and where the office partaljes of a ministerial and judicial character, although a deputy may be made for the performance of minis- 324 PBACTICE OF THE LAW IN CIVIL CASES, What process is used in North Carolina ? Summons, or ca. sa. Bat. Rev., (C. C. P.), 158, 176; see, also, Tourgee's Code, 58, 132. In a real (though not in a personal) action if the defend- ant holds out against the process, judgment may be given against him for default of appearance.^ And in actions real, personal, and mixed, if, after appearance the defendant neither pleads nor demurs ; or, if after plea, he fails to sustain his pleading till issue joined by rejoinder, &c., judgment will be given against him for want of a plea, which is called judgment by nil dieit. 3 Bl. Com., 296, 396 ; 15 Vin. Abr., 556. Suppose a defendant in a criminal action stands mute, what will be done ? The court will order him to be placed on his back and heavy weights placed, upon his stomach until he does answer. This is called peine /orfeefdwre. There is a case on record of. an ancestor of an. ancient family in the North of England. [In a fit of jealousy he killed his wife and put to death his children who were at home, by throwing them from the battlements of his castle ; and pro- ceeding with, an intent to destroy his only remaining child, an infant nursed at a farm house at some distance, he was in- tercepted by a storm of thunder and. lightning. TJiis awak- ened in his breast the compunctions of conscience- He de- sisted from his purpose, and having surrendered himself to justice, in order to secure his estates to this child, he had the resolution to die under the dreadful judgment oi peine forte et dure. Because by enduring this suffering his blood was not terial acts, one cannot be made for the performance of as judiciai act; a sheriff cannot, therefore, make a deputy to hold an inquisition, under a writ of inquiry, though he may appoint a deputy to serve a writ. 1 Bouv. L. Die, 462-'3. * In practice default is the non-appearance of a plaintiff or defendant at court, within the time prescribed by law to prosecute his claim or make his defence. When the plaintiff makes default, he may be non-suited; and when the defendant makes default, judgment by default is rendered against him. Comyns Dig. Pleader, E 42, B 11. PROCESS. 325 attainted, and his child consequently not deprived of his property by forfeiture.] 4 Bl. Com., 325 ; 2 Bouv. L. D., 318. Suppose a writ of scire facias issues against the bail on their bond supra, what could they plead? (1.) Non est fac- tum; {2.) Nul tiel record ; (3.) No ca. sa. In North Carolina, the plea must be under oath ; because it is designed to do away with untruthful pleas which were commonly put in. In England, when might the bail surrender the princi- pal ? At any time before the return of the ca. sa} In North Carolina, at any time before the return of the judg- ment in a scire facias. ■ Does an execution by sheriff in North Carolina bar a wife of dower ? No ; her dower can only be passed by her con- sent privily taken. Bat. Rev., 839, § 3 ; do., 354. A gets judgment against B in the Superior Court in North Carolina for $500 ; B .appeals to the Supreme Court ; what bond will he have to give? (1.) A bond not to eocceed two hundred and fifty dollars for the payment -of cost if the suit goes against him ; (2.) A bond for double the amount of the judgment in the Superior Court; as in case of judgment for money, security is necessary to stay execution. Bat. Rev., (C. C. P.), 215-16, § 303, § 304. Why is this latter bond re- quired ? Because the appeal vacates the judgment in the Superior Court and renders it no lien on the property ; hence if a bond was not taken the defendant might dispose of his property pending the appeal. Bat. Rev.," 216, § 304. In how many ways can bail relieve themselves of the re- sponsibility of the bail bond ? By surrendering the princi- ' JSote the distinction between mainpernors and bail. A man's bail may imprison or surrender him up before the stipulated day of appear- ance ; mainpernors can do neither, but are merely sureties for his ap- pearance at the day ; bail are only sureties that the party be answerable for all the special matter for which they stipulate ; mainpernors are bound to produce him to answer all charges whatsoever. 6 Mod., 331 ; Id., 77, 85, 98 ; 3 Bl. Com., 138. 326 TRACTICE OF THE LAW IN CIVIL CASES. pal, or by proving his death, or that his non-appearance is caused by the plaintiff himself, or by act of the King's enemies. Suppose, in a civil action, the principal of a bail bond runs away and goes out of the State, how can his securities get him ? They will have to go after him, taking with them a copy of the record in the State, the bail bond, and the ca. sa. returned non est inventiis. It is sufficient if they have him at any time before judgment is given, in a civil action. In a criminal action, he must be there in time for the trial or the bond is forfeited. Suppose a man was unable to give bail to the action, what was done ? Pray that he be put in execution. See the doctrine as stated in 3 Bl. Com., 291. Extradition treaties between nations do not extend to po- litical treasons." "Whenever a deed is alleged in pleading p-ofeii must be made of it; i. e., he who pleads it must offer to produce it in order that his adversary may see that he has quoted it correctly. 1 Chit. PI., 365. Probate of wills and letters of administration, though they are not deeds, require profert. 1 Chit. PL, 42,0. Records do not veqnive profert; they being in the hands of the court, either party may see them when- "Extradition (Lat. ex, from traditio, handing over). The surrender by one soverei£;n State to another, on its demand, of persons charged with the commission of crime within its jurisdiction, that they may be dealt with according to its laws. 1 Bouv. L. D., 567. Public jurists are not agreed as to whether extradition, Independent of treaty stipulations, is a matter of imperative duty or of discretion merely. The United States has always declined to surrender criminals unless bound by treaty to do so. As to former doctrine, see Grotius, Vattel, Kent, PuIFendorf and Wheaton. As to latter, Wheaton Int. Law, 171 ; 1 Kent's Com., 9th ed., 39, n ; 1 Opin. Att'y Gen., 511 ; Hurd. Hab. Corp., 575. Between the Federal States, by Art. IV., sec. 11, § 2 of the Constitution of U. S., it is provided tiiat a person charged in any State with treason, felony, or otlier crime, who shall flee from justice and be found in another State, shall, on demand of the executive authority of the State which he fled, be delivered up to be removed to the State hav- ing jurisdiction of the crime." PROCESS. 327 ever he desiffes, but a statute requires that when a record is pleaded you must state the parliament roll or report in which it is to be found. The journals of either house must be stated in pleading, and proved in evidence. Ld. Raym., 15 ; Cowp., 18 ; Dougl., 569. The courts take notice of pub- lic statutes, and the facts which they recite, but do not ex- officio take notice of private acts, which must be stated in pleading. 1 Bl. Com., 85, 86 ; Bac. Abr. Stat., (L); 1 Chit. PI., 215 ; Ld. Raym., 381-'82 ; Dougl., 97. Suppose a deed is pleaded and the party pleading fails to make profert, can you demand oyer ? No, you must demur. 1 Ch. PL, 366, 420. The rule is that if you fail to demur and answer over your right to oyer is lost. What is oyer ? The right to de- mand that any deed of which profert is made may be read in your hearing, or given to you in ord^r that you may ex- amine it. 1 Ch. PI., 429. When the defendant's goods (chattels) and issues are taken at common law under a distringas, he forfeits them to the king if he does not appear ; but, by statute of 10 Geo. III., they may be sold to pay the reasonable cost of the plaintiff: i. e., when the defendant fails to obey the process of the court. 3 Bl. Com., 281. An outlaw is disabled from bringing an action and his goods and chattels are forfeited to the king. 1 Phil. Ev., Index ; Bac. Abr., Outlaw. But he who kills him (an out- law) is guilty of murder. Original writs are either optional or peremptory, or a prae- cipe, or a si tefecerit securum. The prxcipe is in the alterna- tive, commanding the defendant to do the thing required, or show the reason wherefore he has not done it : e. g., to re- store the possession of land, or to perform a specific covenant. The writ si tefecerit securum directs the sheriff to cause the defendant to appear in court without any option given him, provided the plaintiff gives the sheriff security effectually to prosecute his claim ; e. g., writs of trespass on the case 328 PRACTICE OF THE LAW IN CIVIL CASES. where damages are to be assessed by a jury. "■" 3 Bl. Com., 274^'5. Though at common law the defendant's person was not liable to be attached for injuries merely civil (but only in case of injuries accompanied by force), yet a capias was al- lowed to arrest the person in actions of account, though no breach of the peace be suggested, by the statutes of Marlbridge, 52 Hen. III., c. 23, and Westm. 2, 13 Ed. I., c. 11, in actions of debt and detiniie, by statute 25 Edw. III., c. 17, and in all actions on the case, by statute 19 Hen. VII., c. 9. Before this last statute a practice had been introduced .of com- mencing the suit by bringing an original writ of trespass quare clausum f regit for breaking the plaintiff's close vi et ar- mis, which, by the old common law, subjected the defend- ant's person to be arrested by writ of capias and then after- wards, by connivance of the court, the plaintiff might pro- ceed to prosecute for any less forcible injury. 3 Bl. Com., 282. This practice (through custom rather than necessity, and for saving some trouble and expense in suing out a special original adapted to the particular injury,) still con- tinues in almost all cases except actions of debt, though now, by virtue of the statutes above cited, and others, a ca- pias might be had on almost any species of complaint. 3 Bl. Com., 282. Notes— Taking bail was made compulsory upon tbe sheriffs by the statute of 23 Hen. VI., and the privilege of the defendant was rendered more valuable and secure by successive statutes, until by statutes 13, Geo. I., c. 29, made perpetual by 31 Geo. II., c. 3, and 19 Geo. III., c. 70, it was provided that arrests should not be made unless the plaintiff make affidavit as to the amount due, and this amount be indorsed on the writ, and for this sum, and no more, the sheriff might require bail. In the King's benuh, bail above and below were both exacted as a condition of releasing the defendant from the custody in which he was held, from the time of his arrest till his final discharge in the suit. In the Common Bench, however, tihe origin of bail above seems to have been different, as the capias on which bail might be demanded was of effect only to bring the defendant to court, and after appearance, be was theoretically in attendance, but not in custody. The failure to file such PROCESS. 329 bail as the emergency requires, althoughi no arrest may liave been made, is in general equivalent to a default. Bouv. L Die., 180. In soraeiof the States the defendant, when arrested, gives bail by bond to the sheriff, conditioned to appear and answer to the plaintiff and abide the judgment, and not to evade it, which thus answers the purpose of bail above and below. 4 Dev., 40 ; 18 Ga., 314 ; 2 Mass., 484. As to what are bail above (or bail to the action) and bail below, see definitions in notes, supra. Common hail. Fictitious sureties formally entered in the proper office of the court. It is a kind of bail above similar in form to special bail, but having fictitious persons, John Doe and Richard Roe as sureties. Filing common bail is tantamount to entering an appearance. Special,bail. Responsible sureties who undertake as bail above. When a defendant is arrested in North Carolina in a civil action, he may at any time, before execution, be discharged from arrest either upon giving bail or upon depositing the amount mentioned in the order of arrest. See 0. C. P., § 156, Bat. Rev., 177. For causes of arrest in civil actions, see €. C. P., § 149, Bat. Re v., 176. The defendant may give bail by causing a written undertaking to be executed by two or more sufficient bail, stating their places of residence and occupations, to the efliect that the defendant shall at all times render himself amenable to the process of tlie court during the pendency of the action, and to such as may be issued to enforce the judgment tlierein. C. C. P., §157, Bat. Rev., 177. Any .Tustice of the Supreme Court, or any Judge of a Superior Court, or a Criminal Court, shall have power to let to bail persons committed to prison charged with crime in all cases: any justice of the peace, or chief magistralte of any incorporated city or town, in all cases where the pun- ishment is not capital. Laws lS68-'9, ch. 168 ; Bat. Rev., 331, § 38. LECTURE VI. PLEADING. Provided the defendant appear in court, what is the next step in an action ? The pleading. 3 Bl. Com., 292. What is pleading? The mutual altercation between the parties for the purpose of bringing about an issue." What are the orderly parts of pleading ? The Declaration, Plea, Replica- tion, Rejoinder, Sur-rejoinder, Rebutter and Sur-rebutter. What is the declaration ? An enlargement of the original writ with the additional circumstances of the manner, time, and place, in and at which the plaintiff was injured.'' "Pleading is the statement in a logical and legal form of the /acfe which constitute tlie plaintiff's cause of action, or the defendant's ground of defence. Buller, J., 37 R.. 159 ; Dougl., 278. It is belieyed that this definition is too narrow, because it does not state the object of pleading, and does not reach the replication. It is one of the first principles of pleading that there is only occasion to state facts, which must be done for the purpose of informing the court, wliose duty it is t,o declare tlie law arising upon those facts, and of ap- prizing the opposite party of what is meant to be proved, in order to give him an opportunity to answer or traverse it. Dougl. Eep., 159; 3B1, Com., 292, n. (1). •> In real actions, it is most properly called the cov.nt; in a personal one, the declaration. St. PI., 3G ; Lawes PI., 33. In an action at law, the declaration answers to a hill in chancery, the libel {narratio) of the civil- ians, and the allegation of the ecclesiastical court. For instances of forms of declaration, see St. PL, (ed. 1845,) 32, etseq. DECLABATION IN DEBT ON A BOND. Title of Court Ibedell County— In Sup. Court, and Term . Term, 18 . . A. B. ] V. > Declaration (or complaint'). C.D.J Charles Creditor complains of Daniel Debtor, being in Queritur. custody, &c., of a plea tljat lie render unco him the sum of Statement of one thousand dollars, which to him he owes, and from him cause of unjustly detains ; for this, to-wlt: that heretofore, to-wit, on action. the first day of JMay, in the year of our Lord eighteen hun- PLEADING. 331 After filing the declaration, what is the next stage of the action ? The defendant must enter his defence and put in a plea, else the plaintiff will at once recover judgment by default, or nil dicit, of the defendant. 3 Bl. Com., 297. How many kinds of defence ? Two ; half defence, and whole de- fence. What is half defence ? That which was made by the form, "defends the force and injury and says :" [defendit vim et ivjuriam, et dicit). What is full defence ? That which was made by the form, "defends the force and injury when and where it shall behoove him, and the damages, and what- ever else he ought to defend," {defendit vim et injuriam quando et ubi curia consideravit, et damna, et quicquid quod ipse defender e debet, et dicit. Gilbert, C. P., 188 ; 8 Term, 632 ; 3 Bos. and P., 9, n.; Coke, Lit., 127 b. What does the defendant waive by defending the force and injury ? All pleas of misnomer. What by defending damages ? All exceptions to the person of the plaintiff. What by defending either one or the other, when and where it should behoove him ? The jurisdiction of the court is acknowledged. But Blackstone says (3 Bl. Com., 298) that of late years these niceties have been very deservedly discountenanced. Salk., 217 ; Ld. Raym., 282. Supposing the defence to be entered, what is the next stage of pleading? The defendant must put in his plea. 3 Bl. Com., 297, ei seg. How are pleas divided? Into Dilatory dred and forty-eight, at the county of A , the said defendant, by his certain writing obligatory, sealed with his seal, and now to the court here showr, the date whereof is the day and year aforesaid, acknowledged himself to be held and firmly bound unto the said plaintiff, in the sum of one thousand dollars above demanded, to be paid to the said plaintiff whenever the said defendant should be thereunto afterwards requested. Yet the said defendant, although Breach. often requested, hath not as yet paid to the said plaintiff the said sum of one thousand dollars above demanded, nor any part thereof, but the same to pay hath hitherto refused, and Conclusion, still doth refuse, to the damage of the plaintiff one thousand dollars. And, therefore, he brings his suit. A. p. q. 332 PRACTICE OF THE LAW IN CIVIL CASES. and Peremptory. St. PI., 46, 153. How are dilatory pleas di- vided? • Into (1.) Pleas to ih.e'jurisdidion of the court; (2.) Pleas in suspension of the action ; and (3.) Pleas in abatement. What is a plea to the jurisdiction f A plea alleging that for some reason set forth the court has not jurisdiction to enter- tain the action. St. PL, 47 ; 3 Chit. PL, 894. What is a plea in suspension ? A plea alleging some disability in the plaintiff to sue, or the defendant to be sued, at the present time, and praying that the action may be suspended until that dis- ability has been removed." What is a plea in abatement ? A plea praying that the writ or declaration may be quashed on account of some defect therein.* "Blackstone calls the plea one to the '■ Disability of the plainUff by reason whereof he is incapable to commence or continue the suit, as that he is an alien enemy, outlawed, excommunicated, attainted of treason or felony, under a prcemynire, not in rerum ncuturce (being only a fictitious person), an infant, 2,, feme covert, or a monk professed." 3 Bl. Com., 302. It may be noticed that dilatory pleas go to destroy the particular action, but do not affect the right of action in the plaintiff, and hence delay the decision of the cause upon its merits. Gould PI., ch. 2, § 33. All dila- tory pleas must be pleaded with greatest certainty, must contain a dis- tinct, ■clear, and positive averment of all material facts, and must in general enable the plaintiff to correct the deficiency or error pleaded to. 1 Ch. PI., 365. ■" Pleas in abatement are of two sorts: (1.) To the disability of the person to sue or be sued ; and (2.) To the declaration. St. PL, 47 ; 4 Minor's In- stitutes, 627. In England the disability (of the first sort supra) may arise from various causes, as in case of the plaintiff, from attainder of treason or felony, outlawry, coverture, and some others ; and in case of defendant, from coverture and infancy. 1 Ch. PI., 8;82-'3. A ground for the second class above may be either, (1.) A variance be- tween the writ and the declaration, Eedraan v. Edolph, 1 Saund., 318, n. (3) ; Norton ». Palmer, 1 Cro. (Eliz.), 829 ; or (2.) Some defect in the declaration, which being supposed to be transferred from the original writ, is spoken of as applicable to the writ. The defect may be apparent on the face of the writ or declaration, 1 Ch. PI, 485 ; or for matter dehors (outside) the writ, e.g., for misnomer, and non-joinder of a co-contractor. 1 Ch. PL, 279 ; Lind.^ay ». Wells, 3 Bing. N. C, (23 E. C. L.), 777 ; Rust V. Kennedy, 4 Mees. and W., 588. PLEADING. 333 How are pleas in bar divided ? Into pleas by way of (1), Traverse; and pleas by way of (2), Confession and avoidance. St. PI., 52, 153. What is a demurrer ? A declaration by either party that he will go no further, because the pleading of his opponent is insufficient in law." Suppose the defendant does not put in a dilatory plea, what must he do ? He must demur, traverse, or plead by way of confession and avoidance.' Of how many and what kinds are demurrers ? General and Special. St. PI., 44, 139-'40 ; 4 Min. Insts., 619. What is a general demurrer ? A demurrer to the suffi- ciency in law of the subject matter. Or, one which excepts to the' sufficiency of a previous pleading in general terms, without showing specifically the nature of the objection ; and: such demurrer is sufficient, when the objection is on matter of substance. St. PL, 159 ; 1 Ch. PI., 639 ; Lawes' Civ. PI., 167 ; Bac. Abr., Pleas, (n. 5). What is a special de- murrer ? A demurrer to the sufficiency in form, and shows specifically the nature of the objection, and the particular ground of exception.* What statute gave rise to special de- murrer ? Statute of 4 and 5 Anne. It did not exist at common, law."" What did 4 and 5 Anne enact ? That the ' Demurrer (Lafc demorari, old Fr. demorrer, to stay, to abide.) In pleading. An allegation that, admitting the facts of the preceding plead- ing to be true as stated by the party making it, he has yet shown no cause why the party detaurring should be compelled by the court to proceed further. 5 Mod., 232 ; St. PL, 61 ; Coke, Litt., 71 b. 'The rule is, " after the declaration, the parties must at each stage demur, or plead by way of traverse, or by way of confession and avoid- ance." St. PI., 137. 8 See Coke, Litt., 72 a ; Bac. Abr. Pleas, (n 5). '' A demurrer couched in general terms, without specifying the faults intended to be insisted on, is called a ^'■general demurrer;'''' and to cure the evil of allowing a general demurrer in the case of such trivial objec- tions, several statutes were at different times enacted. The first was the statute of 27 Eliz., c. 5, which directed that the judges should proceed to 334 PRACTICE OF THE LAW IN CIVIL CASES. court should take no notice of formal errors, unless made the subject of special demurrer. 3 Bl. Com., 315. What is the effect of a demurrer? It admits the truth of the facts alleged, but denies that the law arising from these facts is sufficient upon which to ground the action.' Can advantage be taken of defects in substance under special de- murrer? No See also, note "h" infra; also Bac. Abr., Pleas, (n. 5) ; Coke Lit., 72a. What is a traverse ? A denial of all or some material part of the pleading. 1 Ch. PI., 525 ; 20 Johns., 406. How many and what are the kinds of traverse ? Three : (1.) Gorti- mon traverse; St. PI., 52. (2.) General traverse or issue; 1 Sand. PL and Ev., 435-'6 ; of this sort of traverse is the replication de injuria sua propria absque tali causa in answer to a plea of justification. St. PI., 171. {B.) A special traverse.' St. PI., 188. What are the rules applicable to traverses in general." give judgmfint according to the very right of the cause, without regarding any defect, imperfection or want of form in tlie pleadings, except those only wiiich the party demurring shall specially set down and express, to- gether with his demurrer. 4 and 5 Anne provides that the judges on demurrer shall regard no defect, imperfection or want of form in the pleadings, except those specially set down in the demurrer as causes there- of, so as suiHoient matter appear in the pleadings, upon which the judges may give judgment according to the very right of the cause. These two statutes gave rise to the distinction between " general demurrers,'" which arise where the objections to the pleadings are of a substantial and mate- rial nature, and special demurrers, which are intended to be employed where the imperfection was one of form only, in which case the grounds of the (iemurrer must be specially set forth in the demurrer itself. 4 Min^ Insts., 619-"20. Qucere if Chitty and Tidd do not regard special demurrer as existing at common law? 'A demurrer admits as true all such matters of fact as are sufficiently pleaded. Bac. Abr. Pleas., &c., (n) 3; Com. Dig. Pleader, (Q 5). J Traverse (L. Fr. traverser, to turn over, to deny.) Meaning to deny, to put off. 2 Bouv. L. D., 606. ■■(1.) A traverse puts the adversary to prove his allegations in manner and form as they 'are made. St. PI., 190. (2.) A traverse must not be taken upon matter of law, unless it be PLEADING. 335 The traverse de injuria can be used only when the defence consists of matter of excuse} What is a common traverse ? A direct denial, in common language, of the adverse alle- gations without the absque hoc, and concluding to the coun- try. It is not preceded by an inducement, and hense can- not be used where an inducement is requisite. 1 Sand., 103b., n. 1. What is the general issue ? A denial of all.the allegations." What is the traverse de injuria ? A traverse peculiar to the replication in actions of trespass by which a party could deny more than one point in the plea — such plea being one of excuse. St.Pl.,163;lChit. Pl.,638; note "1" w/ra- What is a special traverse?" See St. PL, 166. What is the mixed with matter of fact. 6 B. and Cr., 13 E. C. L., 295, 297. Com. Dig. PL, (G 5), (3). A traverse must not be taken upon matter not alleged, unless it be necessarily implied. 1 Clr. PI., 644; 1 St. PL, 193. (4). A party to a deed can traverse its contents no otherwise than by the plea of non ett factum. Com. Dig. Estoppel, (A 1) ; St. PI , 197, 217-'18. ' The traverse de injuria sua propria absque tali causa, is applicable only by way of replication, and only to pleas in excuse, (and not by way of title, interest, commandment or authority, &c.,) in actions of trespass, and trespass on the case. It always tenders issue;hut, like most of the general issues, diifers from the common form of traverse by denying in general and summary terms, not in the words of the allegation traversed. It Is a sort of general issue. St. PL, 163 ; 1 Ch. PL, 638. " General issue appears to be so called because the issue that it tenders involving the whole declaration, or the principal part of it, is of a more . general and comprehensive kind than that usually tendered by a common traverse. This kind of traverse occurs only in the plea and at no subse- quent stage of the altercation. St. PL, 15.t ; 4 Min. Insts., 900, "A special traverse is a qualified denial of the adversary's allegation . and is composed of two parts, namely : (1.) The inducement or explana. tion which is designed to qualify the denial; (2.) The categorical denial, or traverse itself, under the remarkable furmula of the absque hoc. This traverse Is employed either, (1.) Because a direct and unqualified denial would be opposed to some principle or rule of law; 2 Wils., 143 ; (3 ) Be- cause it is desired to separate questions of law from those of fact; 3 Saund., 252, and seq.; (3.) Because the defendant (or party so pleading) wishes to open and conclude the cause. 3 Bing, N. C, (32 E. C. L.) 71 ; 1 Chit. PL, 653 ; 1 Tidd's Pr., 684-'5, and n. (a). 336 PRACTICE OF THE LAW IN CIVIL CASES. use- and abject of special traverse? It is used when a posi- tive denial would be contrary to- some principle of law, and when a common traverse would be inexpedient, as involv- ing in the issue of fact some question which it would be de- sirable.to- develop as a question of law. Greene v. Gale, 2 Sand., 252, et seq. See a third, object stated, in note "n" svpra. "What is the other kind of plea in. bar beside trawerse t Plea by way of confession and avoidance. 1 East., 212 ; St. PL, 72, 79^ This plea admits that the plaintiff had a right of action, but owing to some subsequent matter it is gone. What is the rule concerning pleas in confession and avoid- ance ? They must show color." How do such pleas con- clude? With a verification; because the opposite party might not wish, to deny the new matter, and if 'it tendered issue he would have to accept. 1 Sand., 103n. Suppose a party pleading by way of confession and avoidance tender issue, what would you do? Demur. 1 Ch. PL, 589-90; St. PL, 230, 378. What is the final result of all pleading ? The parties ar- " Pleas, and indeed all pleadings, by way of confession and avoidance, always conclude with a verification, and must really, and not professedly only,, confess the truth of the allegations which they affect to avoid ;, that is, they must give a color or prima fade right to the adversary, which the subsequent averments avoid. Color is always implied, that is, is inierent in every pleading which is naturally by way of confession and avoidance, as in case of plea of payment, release, infancy, &c. Btit in those in- stances where the natural and direct mode of making the contemplated defence or answer, is by way of traverse, but for some reason the pleader desires to plead by way ot' confession and avoidance, it is necessary to in- troduce into the pleading an artificial and fictitious color, which is de- nominated express color. Express color is practically confined to theplea in the writs of assize, of trespass, and of trespass on the case. It consists in imputing to the plaintiff a feigned and only colorable title, which yet gives him an apparent prima facie right, and then affects to confess such colorable title, whilst it avoids it by setting forth in detail the real and better title of the defendant. Upon the subject of express color, see St. PI., 200, et seq.; 4 Min. Insts., 652. PLEADING. 337 rive at an issue.' What is an issue ? Matter affirmed on one side and denied on the other.' How jnany kinds of is- sue ? Two ; issues in law and fact. Co. Lit., 126a ; Bac. Abr., Pleas, (G, I). How does an issue in law arise ? By- demurrer. In fact ? By one of the modes of trial. How How does a demurrer conclude ? To the court. How does a traverse conclude? By tendering some mode of trial. What rules are laid down for the production of an issue ? (1.) After the declaration, the parties must at each stage de- mur, or plead by way of traverse, or by way of confession and avoidance; St. PI., 137. (2.) Upon a traverse issue must be tendered; St. PI., 230. (3.) Issue, when well tendered, must be accepted. St. PL, 130. Suppose issue is not well tender- ed, what must be done ? Demur. Suppose, in an action of debt on bond, the defendant pleads non est factum and offers trial by certificate ? Issue would be ill tendered — de- murrer would be proper in such case in answer to such plea and offer of trial. Suppose, in an action of debt,, the plaintiff allege that the defendant promised to pay him one hundred dollars at G., and the defendant traverse in the common form, what should the plaintiff do ? De- mur; because the traverse was too narrow.' The traverse^ should have been of the promise to pay at G., or anywhere- I" The pleadings are so conducted as to evolve some question, eitlier of fact or of law, disputed between the parties and mutually proposed and accepted by them as the subject for decision. The question so produced is- called the issue, because it is at once the result and the end (exitus),ot the pleading. St. PL, 24-'5, 124, 127. ' A single, certain and material point deduced by the pleadings of the parties, which is affirmed on the one side and denied on the other, is an- other deflnition. 1 Bouv. L. Die, 749. 'A traverse is too narrow when it fails to answer fully the whole of the adversary's allegation, which it proposes to answer. 6 Taunt, (IE. C. L.), 27 ; ID. and By., (16 E. C. L.), 163 ; 4 Min. Insts., 930. The pi'ineiple which forbids too narrow a traverse is the same as that which requires that every pleading shall really answer as much of the ad- versary's allegation as it professes and undertakes to answer. St. PI.,. Sig-'l6. 22 388 PRACTICE OP THE LAW IN CIVIL CASES. else. What is meant by a traverse being too large ? A trav- erse is too large when it involves in the issue, quantity, time, place, or other circumstances, which, though they form part of the allegations traversed, are immaterial to the merits of the cause.= 1 St. PI., 244; Com. Dig., Pleader, (G, 15), (G, 16) ; 1 Saund., 268, n. (1), 269a, n. (2). May a material allegation of title or estate be traversed to the extent to which it is alleged, though it need not haveheen alleged to that extent P It may, without being considered too iarge.* What is profert, and when should it be made? When- ■ever a party alleges the existence of a deed in his pleading h-e should produce the deed. 3 Salk., 119; 6 Man. and Gr., 277. It is also necessary of probate of wills and letters of :a!dministration. 1 Salk., 497. Does it apply to records? It does not ; they are already in the custody of the court. .Suppose a party in pleading fails to make profert when he ought to ? The opposite party should demur. 8 Bl. Com., .299, et seq.; St. PL, 56, et seq. A gives a bond to B for ten thousand dollars, to be void if he makes title to a certain piece of land ; he fails to do so; B brings an action of debt on the bond ; what would he re- cover? Ten thousand dollars. What relief could A have? File a bill in equity, and the court would decree that judg- ment be entered satisfied on payment of real damages — i. e., principal, interest and costs. 8 Bl. Com., 434, et seq. A is indebted to B by bond and pays the money, but takes ' It in an action on the case for stopping t?iree lights the defendant tra- ■verse that he stopped the said three lights, it is bad, for if ho stopped any of them the action lies. Kewhall v. Barnard, Yelv.. 235. Tlie student can hardly be at a loss to see that the principle which forbids too wide a .traverse, is that it involves in theissuewhat is immaterial. O'Brian v. Saxon, 1 B. and Cr., 9 E. C. L., 908. 'Thus, if A alleges that he, being seized in fee, put his cattle into the •close in question, the defendant may traverse the seizin in fee; though any estate for life or years, at will, or a license from the owner, would enable him to put his cattle there. Leke's case, 2 Dy., 365 a ; Yelv., 193 a, and n. (1) ; 3 Saund., -206, n. (22). PLEADING. 839 no release ; B brings an action of debt on the bond ; could he recover? He could; because A could not plead release. If B had accepted a horse in lieu of the money from A, A might plead " accord and satisfaction ; " and so in all cases where the thing done is not the thing stipulated in the bond, but some- thing collateral. What remedy could A have in this case, to-wit, the one preceding the last stated ? File a bill in equity for relief by matter in pais of a contract under seal." What statute rendered it unnecessary in the first case (bond with collateral condition) for the defendant to seek his relief in equity ? By statute of 8 and 9 Wm. III., c. 12, § 8, A. D. 1697, the obligee was permitted to assign as many breaches of the condition as he thought fit.^ How was "may," in the words of the statute 8 and 9 Wm. III., " may assign as many breaches," &c., construed by the courts .? " May " was construed equivalent to shall, and it was compulsory upon the plaintiff to proceed in the method the statute pre- scribes. 1 Saund., 57 ; 2 Wils., 377 ; Tidd's Pr., 9 ed., 584 ; 13 East., 8 (a). Before the passing of 8 and 9 Wm. III. the plaintiff in an action on a bond,^ with a condition for the performance of anything, could only have assigned one "It is a rule of law that an agreement under seal can only be avoided by a like specialty, and it is therefore unafltected by an accord by parol, or other matter in pais, which would operate as a discharge of a simple contract. In equity.the rule is otherwise. If the act done is in substance a discharge, it will warrant a decree for the execution of a release, or for delivery up and cancellation of the specialty. Ad. Eq., 106. ^ A jury was called to assess the damages sustained by reason of such breaches, and judgment was rendered for the penalty, to be discharged by the payment of the damages assessed. This statute exists generally in the U. S. Bac. Abr. Oblig'n., § 17 ; do., A 3. At law the penalty upon breach of the condition becomes a debt, and must all be paid unless relief is had in equity. 4 Min. Insts., 35. "The most frequent instances of bonds with collateral condition (to which 8 and 9 Wm. III. relate,) are bonds to perform the award of arbi- trators, bonds conditioned to convey lands, sheriff's and constable's bonds, guardian's, executor's and administrator's bonds, and refunding and indemnifying bonds. Tate's Forms, 129, 132, 134, 140, 125. 340 PRACTICE OF THE LAW IN CIVIL CASES. breach, and under that assignment was entitled to the full penalty of the bond. 1 Ch. PL, 586. After the statute what did the plaintiff recover ? Judgment was given for the amount of the bond, the jury assessed the damages, and ex- ecution issued for the whole amount, but was returned " satisfied " on the collection of the amount assessed by the jury. 1 Sand., 58, u. (l);Bac. Abr., Oblig'n, (A) 3. What did 4 and 5 Anne enact with regard to penal bonds (not bonds with a collateral condition) ? That payment should be a good plea.'' How is an action brought on an official bond ? In the name of the. State ex relatione of the plaintiff, and judgment is taken for the whole amount of the bond. See Bat. Rev., 657-'8, §§ 10 and 11. Suppose A brings an action on B's official bond and gets judgment, and C has cause to sue, how would he proceed ? By sci. fa. on the judgment, as it is in the name of the State. What plea is a bar to such sd. fa. f " Execution satisfied to amount of bond." A and B are joint obligors of a bond, and A diesj against whom should the action be brought ? Against B as survi- vor, suggesting A's death upon the record.'' Where are issues made up for trial ? At Westminster. Where are they tried ? In the county to which the original ' writ issued. 3 Bl. Com., 58. How did the parties to a bond avoid the necessity of go- " The penalty at common law, after default of payment of the princi- pal sum, is the debt; and relief agalnstthis rigorous doctrine could be bad in equity alone. 3 Bl. Com., 425. But 4 and 5 Anne, c. 16, A. D. ITOTi directed judgment to be entered for the penalty, but to be discharged by the prmeipal sum, with interest, 2 Bl. Com., 341 ; 3 do., 435 ; 4 Minor's Institutes, 19. ylf one of several joint obligors die, the obligation at common law survives against the rest, and the decedent's estate is discharged even in equity, unless he were the principal debtor and the survivors his sureties. Bac. Abr. Oblig'n, (D) *; 2 Min. Insts., 751. See the practice in N. C, G. C; P.^ § 63, et seq. PLEADING. 341 ing into equity ? They put in the penalty lay way of con- sideration, and plead consideration performed. What does the plea "puis darrein continmnce" admit ? The matter before in dispute, and alleges some new matter in de- fence, and is not allowed to be put in if any continuance has taken place between the arising of new matter and the time of pleading it. 4 East., 502 ; .3 Term, 186 ; 5 Pet., 224. What did statute 3 and 4 Wm- IV. enact with regard to pleas in abatement? It abolished pleas of misnomer in abatement, and gave a defendant a remedy by summons to compel the plaintiff to state the correct name in his decla- ration, and at the plaintiff's cost. 1 Chit. PL, 245, et seq. The names of persons not parties, mentioned in the plead- ing, if known should be accurately set forth and strictly proved; but if unknow^n, an allegation to that effect should be made, and is a bar to a plea in abatement. You should use two counts where you are uncertain concerning names. See 1 Ch. PL, 248, et seq. Suppose a judge at nisi pvius ' refuse to sign a bill of exr ceptions, what will the counsel do ? Call on two of the bar- risters present to sign it, and it goes up and answers the same purpose as if the judge had signed it. Or, the judge may be compelled to sign it by a compulsory writ.* ' By Magna Charta the common pleas were to be held m one place ^nd not follow the King's person. Assizes of novel disseizin and mort d'an- cestor were to be held in the various counties before the justices in eyre. By statute of nisi prius, 13 Ed. I, enforced by 14Edw. III., justices of assize were empowered to try common issues in trespass and othpr suits, and return them when tried to the superior court where judgment was given. The clause was then left out of the continuance and inserted in the venire, thus : we cpmmand you that you cause to come before our justices at Westminster on the, &c., unless (nisi) such and such a one on such a day and place, shall come to thpse parts, twelve, &c. By 42 Ed. III., the clause is omitted from the venire and the jury is respited in the court above, while the sheriff summons tliem to appear before tiiejustipe^. 1 Sp. Eq. Jur., 116 ; 3 Bl. Com., 352-'4 ; 1 Reeve's Hist. Eng. Law, 245. " The object of a bill of exceptions is to put the decision objected to 342 PRACTICE OF THE LAW IN CIVIL CASES. Pleading is applied to the whole proceedings or mutual al- tercations ; 2 Bouv. L. D., 337 ; while a plea is only that portion of pleading where the defendant answers the plain- tiff's declaration.'' The plea is the most important stage, as the case is apt to turn upon it — hence the whole process is termed pleading. Can matter of substance be cured by verdict? Yes; " where there is any defect, imperfection, or omission, in any pleading, whether in substance or form, which would have been a fatal objection upon demurrer, yet if the issue joined be such as necessarily required on the trial proof of the facts so defectively or imperfectly stated, or omitted, and without which it is not to be presumed that either the judge would direct the jury to give or the jury would have given the verdict, such defect, imperfection, or omission is cured by the verdict by the common law." Stennell v. Hogg, 1 1 Sand., 228, n. (1). If a party plead and demur to the same cause of action, the plea overrules the demurrer; but pleadings in which the party pleads to some and demurs to some of the allega- tions made in support of any cause of action are erroneous. upon record for the information of the court having cognizance of the cause in error. Bills of exceptions are authorized by Stat. West., 2, (13 Ed. I), the principles of which have been adopted in all the States of the Union. 1 Bouv. L. B., 201. In the trial of civil causes, vrherever the court, in making a decision, is supposed by the counsel against whom the decision is made to have mis- taken the law, such counsel may tender exceptions to the ruling, and require the judge to authenticate the bill. 3 Jones, 155; 3 Bl. Com., 372 ; 3 Cranch , 300 ; 3 Jones, 407. ^ In eqnity a plea is a special answer, showing or relying upon one or more things as a cause why the suit should be either dismissed, or delayed, or barred. Mit. Eq. PI., 223 ; Sto. Eq., PI., § 649. At law a plea is the defendant's answer by matter of fact to the plaintiflfs declaration, as distinguished from a demurrer, which is an answer by matter of law. 2 Bouv. L. D., 335. PLEADING. 343 Section 96 of the Code applies only where a complaint con- tains several causes of action or grounds of defence." A demurrer under the Code of Civil Procedure differs from demurrer at common law in this : Every demurrer, whether for form or substance, is now special, and must distinctly specify the ground of objection to the complaint or be dis- regarded. It differs from demurrer in equity, in that judg- ment overruling it is final, and decides the case, unless the pleadings are amended by leave to withdraw the demurrer and put in an answer. [See more fully that, "After the decision of a demurrer the judge shall, if it appear that the demurrer was interposed in good faith, allow the party to plead over," C. C. P., § 181 ; Tourgee's Code and the de- cisions cited, 120-1; Mathews v. Copeland, 80 N. C, 30.] In North Carolina, a party may amend either after or be- fore judgment or demurrer, unless the judge thinks that demurrer was not bona fide put in. How many kinds of demurrer at common law ? One ; 27 Eliz. and 4 Anne originated special demurrers. Coke, Litt., 72a ; Bac. Abr., Pleas, (n s). Why the necessity for the statutes making special demurrers ? Because the case would some times be tried on purely a matter oiform, and the sub- stance or merits not be touched. St. PL, 159, 161 ; 1 Chit. PL, 642. After these statutes, the judges took no notice of errors of form unless made the subject of special demurrer. What was the object in specifying the error of form ? In order that the party might amend, and then the case would go on till an issue of substance was arrived at. See 1 Ch. PL, 663, et seq. Suppose issue is joined on demurrer, what is the judgment ? An absolute judgment, if for the plaintiff* ; if " The demurrer shall ilistinctly specify the grounds of objection to the complaint. Unless it does so, it may be disregarded. It may be taken to the whole complaint, or to any of the alleged causes of action stated therein. C. C. P., §96. " The judgment for the plaintifE upon an issue in law, upon a peremp. tory plea, or upon any pleading other than a dilatory plea Is, that the 344 PRACTICE OF THE LAW IN CIVIL CASES. for the defendant the judgment is, that he go without day {sine die), and recover his costs. What is the nature of a judgment for the defendant where the issue, either of fact or law, is on a dilatory plea ? Where the dilatory plea is to the jurisdiction of thecourt, the judgment is " that the court will not take further cognizance of the plea aforesaid of the said plaintiff." Where the plea is in suspension of the action, the judgment is "that the suit do stay and be respited until," &c. And where the plea is in abatement the judgment is, " that the writ or declaration be quashed." St. PL, 106, 107; 4 Min. Insts., 779. Since 4 Anne, what is the difference between general and special demurrer ? A general demurrer is stated in general terms, and a special demurrer particularly specifies the form which is faulty. 1 Ch. PL, 639 ; St. PL, 159 ; Bac. Abr., Pleas, (n 5). Why, in a case of arrest of judgment, does each party pay his owncost? Because there is no judgment. Suppose, in an action of slander, the defendant dies before judgment, who pays costs^ Each party pays his own costs, for the reason last stated. In North Carolina, if a suit is brought against two part- ners and one dies, the plaintiff can either allow suit to abate, or carry on suit against the surviving partner as though brought against him only in the first instance. What is the difference between declaration and count, and indictment and count ? Declaration is the complaint, or whole cause of action ; count is a distinct statement in the declaration, and there may be several in each declaration. plaintiff do reamer — quod recvperet. In case of a dilatory plea, in like case the judgment for plaintiff is always respondeat ouster. St. PI., 104- '5; Id., (Tyler), 133; 4 Min. Insts., 779. The judgment for the defendant, where the issue, whether of law or fact, arises upon the declaration or peremptory plea, or a pleading follow- ing thereon, is that the plaintiff take nothing by his writ, and that the defendant go thereof without day — nil capiat. 4 Min. Insts., 779. PLEADING. 345 An indictment is a declaration in a criminal case. 1 Bouv. L. D., 371. If either party demurs, that raises a question of law to be decided by the judge ; if he pleads by way of confession and avoidance the pleader concludes with a verification, and the case proceeds ; if he traverses an issue of fact is generally raised which goes to the jury. A wrong venue in local actions is a fatal variance; but not in transitory actions, as in case of contracts. Actions to be tried where the subject matter is, in North Carolina, will be found summarized in C. C. P., §66. And the venue* in all other actions is stated in §§ 67, 68. 'Venue (L. Lat, visnetum, neighborhood.) The word was formerly spelled visne. Coke, Litt., 125 a. In. Practice, the county in which the facts are alleged to have occurred, and froni which the jury are to come to try the issue. Gould. PI., § 102, c. 3. LECTURE VII, RULES OP PLEADING. What did the statute 4 and 5 Anne enact with regard to demurrer? That where any demurrer shall be joined in an action in any court of record the judges shall give judgment according as the very right of the cause and matter in law shall appear unto them, without regarding any imperfection, omiss'on, or defect, in any pleading, except those only which the party demurring shall particularly and specially set down and express, together with his demurrer, so as sufficient matter appear in the said pleadings upon which the court may give judgment according to the very right of the cause. 1 Ch. PI., 664. How many modes of defence could the defendant use in his plea at common law ? One only.* 3 Th. Co. Lit., 406 ; 1 Ch. PI., 564. What did the statute 4 and 5 Anne, c. 16, s. 4 and 5, enact? That it shall be lawful for any defendant or for any plaintiff in replevin in any court of record, with the leave of the court, to plead as many several matters thereto as he shall think necessary for his defence.* 1 Ch. PI., 560. To what part of the pleading did the statute apply ? Plea only ; except in case of replication in replevin, and in case of set-off. Why was it extended to the replication in these* cases ? Because the avowry was considered in the light of ° The general doctrine at common law is contained in the rule that " pleadings must not be double. " A plaintiff may no more reply to two matters, one whereof goes to the whole, than a defendant may plead them. St. PI., 254. The object of the rule against duplicityis toenforce a single issue upon a single subject of claim or defense. St. PI., 259. The rule is relaxed where the subjects of demand or defence are several, or several defendants choose to act severally. St. PI., 355, 258; 4 Minor's Insts., 934. " Tlie statute does not extend to pleas in abatement. 1 Ch. PI., 661, (n)Z. RULES OF PLEADING. 347 a new declaration in the action of replevin ; and set-off was in the nature of a cross action. 1 Ch. PL, 560. Suppose there is a substantial defect in the plea and the defendant demur to the replication, how will the court de- cide? In favor of the defendant." [Quaeref] Suppose the plaintiff had traversed the plea and obtained judgment against the defendant, what was the defendant's remedy ? A motion in arrest of judgment. Suppose A takes my horse, and I bring an action against him and fail to allege a time. The case goes to trial and I get judgment against him, will judgment be arrested on motion ? No ; the defect will be cured by verdict. St. PL, 148 ; 1 Sand., 228a, n. (1) ; 1 M. and Selw., 236. Can a plea in bar and abatement be pleaded to the same cause of action ? No ; either one, but not both. St. PL, 258-'9. May a plea be double on account of two answers, when one is ill pleaded ? It may ; but not for immaterial matter. Com. Dig., Pleader, (E 2); Bac. Abr., Pleas, &c., (K) 1, 2; 1 Chit. PL, 259, 491, 564, 687. May a plea be bad on account of multifariousness? No ; provided the whole matter constitute but one entire propo- sition or point. St. PL, 232-'3 ; Vin. Abr., Double Pleas, (A, 7). What may a party state in his pleading? Any and all circumstances necessary to constitute one mode of defence. How may a defendant plead to one declaration contain- ing several counts ? May plead in bar to one, demur to an- other, and confess and avoid another. St. PL, 255, 258. ° On demurrer to the replication. If the court thinks the replication bad but perceive a substantial fault in th^ plea, it will give judgment, not for the defendant but the plaintiff, provided the declaration be good, but If the declaration be bad in substance, then upon the same principle judg- ment would be given for the defendant. The rule is, that on demurrer the court will consider the whole record and give judgment for the party who, on the whole, appears to be entitled to it. St. PI., 144; Bouham's Case, 8 Co., 120 b. 348 PRACTICE OF THE LAW IN CIVIL CASES. The relaxation of the rule against duplicity is where the subject of demand, or defence is several, or where there are several defendants who choose to answer severally. References supra. Suppose, before the statute of 4 and 5 Anne, a defendant in an action of debt had several modes of defence, how would he be compelled to proceed ? Make his election of one and abandon the rest. 1 Chit. PL, 532. Why was it common after the statute to plead the general issue as well as the special plea? In order to make the plaintiff prove his case. St. PI., 156 ; App., Ivii. If either party fail to demur for duplicity, what is he compelled to do ? Answer both pleas.* What is the object of the rule "pleadings must not be double " ? To enforce a single issue upon a single subject of claim ov defence. 1 Ch. PL, 259-'60; St. PL, 255. Is this rule applicable . to a declaration containing two causes of action ? It is not. Hence there may be introduced into a declaration several distinct demands, into the plea an answer to each of such demands, or where there are several de- fendants and they choose to sever, an answer by each de^ fendant, and in the replication, a reply to each several plea. 1 Chit. PL, 259-60. May two pleas be pleaded as one answer to the whole declaration ? No. How many counts could a plaintiff have in an action of assumpsit" for goods sold and *The objection of duplicity in any manner of pleading can be taken advantage of, even at common law, only by special demurrer. Com. Dig. Pleader, (E, 2) ; 1 Ch. PI., 228, Quare, if according to this view- special demurrer did not exist at common law ? ' Originally there were seven descriptions of common counts in assump- sit, namely: (1.) The count of indebitatus assumpsit, tor the price of goods sold, work done, &c.; (2.) The count of quantum meruit; (3.) The count of quantum valebant; (4.) The count of indebitatus assumpsit, for money paid, laid out and expended ; (5.) The count of indebitatus assump- sit for money lent and advanced; (6 ) The count of indebitatus assumpsit for money had and received by the defendant for the plaintiff's use ; and (7.) The count of ac Eliz., 195. The rule is that "pleadings must not be argumentative." St. PL, 384. ' Suppose, in an action for slander, it is averred that the defend3.»t by words, or by wmds coupled with acts, slandered the plaintiff in his trade ? It is error, which, in England, is not even cured by a verdict ; but is ground for arresting the judgment."- Cook v. Cox, 3 M. and S., 114-15. Suppose the plaintiff, in an action of trespass, "complains of the said A B/or Trial by inspection is Jy the court, and the inspection is only the me- dium of proof , whereby the opinion of the court is determined. 3 Bl. Com., 331-'3 ; 4 Min. Insts., 678. '364 PRACTICE OF THE LAW IN CIVIL CASES. What is trial by certificate ? It is a mode of trial allowed by the English law in those cases where the evidence of the person certifying is the only proper criterion of the point in dispute. For when the point in dispute lies out of the cog- nizance of the court the judges must rely on the solemn -averments or information of persons in such stations as af- fords them the most clear and complete knowledge of the truth. 2 Bouv. L. D., 611. Give -an instance of the appli- cation of the rule ? Where, in an action of dower at com- mon law, the heir denies that the widow claiming dower was ever lawfully married to the ancestor, and the issue is joined upon the averment— ne unques accoupU en loial matri- monie: i. e., never accoupled to her alleged husband in law- ful matrimony." What is trial by wager of law ? * It is a mode of trial re- sorted to in certain actions ex contractu, where confidence has been placed in the defendant. Thus, in an action of debt, the defendant swears that he has paid the debt and brings eleven good men who swear that they believe him. This is equiv- alent to a verdict in his favor. It is founded upon a ten- dency in English jurisprudence to su.hstitu.te presumption tor proof, and upon the idea of the practical value oi character. What statute abolished wager of law ? The statute of 3 and 4 Wm. IV., c. 42. What were the eleven men called whom the defendant brings into court In practice, a verdict is " tlie unantTiwus decision made by a jury and reported to tlie court on the matters lawfully submitted to them in the course of a trial of a cause." " A public verdict is one delivered in open court. A private verdict is one delivered to a judge privily out of court. 2 Bouv. L. D., 635. A general verdict is one by which the jury pronounce at the same time on the fact and the law, either in favor of the plaintiff or defendant. Coke Litt., 228; 4 Bl. Com., 461. A speciaT verdict is one by which the facts of the case are put on the record, and the law is submitted to the judges. 1 Litt. Ky., 376 ; 1 Jer., 176 ; 4 Eau., 504 ; 3 Mass. 0. C, 31 ; 1 Wash. C. C, 499. TRIAL — EVIDENCE. 369 How many kinds of evidence in the most general sense I Two : written and unwritten.' Written is divided into that ' (1.) In its nature evidence is direct, presumptive, or circumstantial. Direct evidenee is tliat means o£ proof wiiicii tends to show tlie existence of a fact in question, witliout the intervention of the proof of any other fact. It is that evidence, which if believed,, establishes the truth of the fact in issue, and does not arise from any presuiaiption. Evidence is di- rect and positive, when the very facts in dispute are eommunicated by those who have the actual knowledge of them: by means of their senses. 1 Phil. Ev., 116 ; 1 StarWe Ev., 19. Presumptive evidence is that which shows the existence of one fact by the proof of the existence of another or others, from which the first may be inferred ; because the fact or facts shown have a legitimate tendency to lead the mind to the conclusion that the fact exists which is sought to- be proved. Presumptions of law adopted from motives of public policy, are those- which arise ia certain, cases by force of the rules of law, directing an in- ference to be drawn from proof of the existence of a particular fact or facts. Best on Presump., ch. II. Presumptions of fact are not the subject of fixed rules, but are merely- natural presumptions, such as appear from common experience to arise- from the particular circumstances of any case. Some of these are- " founded upon a knowledge of the human character, and of the motives,, passions, and feelings by which the mind is usually influenced." 1 Stark.. Ev., 27. Circumstantial evidence is sometimes used as synonymous with presump ^ tive evidence, but presumptive evidence is not necessarily circumstantial evidence. The latter is that evidence which tends to prove a disputed' fact by proof of other facts which have a legitimate tendency from the laws of nature, the usual connexion of things, the ordinary transactions of business, &c., to lead the mind to a conclusion that the fact exists which is sought to be established, 1 Starkie Ev., 478. (3.) In its legal character, evidence is primary or secondary, and prima- fade or conclusive. Primwry evidence is the best evidence, or that proof which most cer- tainly exhibits the true state of facts to which it relates. This is a rule of policy grounded upon a reasonable suspicion that the substitution of inferior for better evidence arises from sinister motives, and an appre- hension that the best evidence, if produced, would alter the case to the prejudice of the party. See 3 Barnew and Aid., 566 ; 1 Campb., 439 ; 4 Esp., 313. Secondary evidence is that species of proof which is admissible when the- primary evidence cannot be produced, and which becomes by that event 24 370 PEACTICE OF THE LAW IN CIVIL CASES. lander seal and not under seal. Is there any difference in point of veracity between evidence under seal and not un- >der seal ? No ; but there is with regard to competency. •the best evidence. 3 Yeates Pean., 530; 7 East., 66; 6 Terra, 236; 10 Mod., 8. Prima facie evidence is tliat which appears to be suflSoient proof re- specting tlie matter in question until something appears to controvert it, "but which may be contradicted or controlled. Conclusive evidence is that "Which establishes the fact ; as in the instance of conclusive presumptions. -2 Bouv. L. D., 545. (3.) As a rule, evidence is admitted only when it lies in the knowledge •of the witness ; hence, hearsay evidence is excluded. Hearsay, in its legal sense, denotes that kind of evidence which does not derive its value solely from the credit to be given to the witness himself, but rests also In part on the veracity or competence oi some other person. 1 Gr. Ev., § 98, 99. Instances which at first view seem to he hearsay, and yet are not, are : (1.) Information on which one has acted ; (2 ) Expressions of bodily or mental feelings ; and (3.) Declarations accompan3'lng an act done — res gestae. 1 Gr. Ev., §§ 101, 103, 108. Exceptions to the rule, excluding hearsay, namely : (1.) Those relating 'to matters of public and general interest. 1 Gr. Ev., §§ 128, 130, et seq.; 1 Stark. Ev., 28, and seq. (2.) Those classes relating to ancient posses- -sions. 1 Qr. Ev., § 141, and seq.. (3.) Declarations against interest of the declarant. 1 Gr Ev., § 147, and sej. (4.) Testimony given on a former trial by a witness since deceased. 1 Gr. Ev., § 163, and seq. (5.) Dying declarations in cases of homicide made by a person injured, touching the ■cause of his death, while in extremis and conscious tbat he is so, and without expectation or hope of recovery. 1 Gr. Ev., § 156, and sej.; Eosc. Cr. Ev., 23, and seq.; 4 Min. Insts., 707. (4.) The effeit of evidence. As a general rule, a judgment rendered by a court of competent jurisdiction, directly upon a point' in issue, is a bar between the same parties, 1 Phil. Ev., 342; and privies in blood, 3 Mod-, 141, or privies in estate, 1 Ld. Baym., 730. The Constitution of U. S., Art. IV, sec. 1, declares that "full faith and credit shall be given in each State to the public acts, records, and judicial proceedings of every other State. And Congress may, by gene- ral laws, prescribe the manner in which such acts, records and proceed- ings shall be proved,, and the efiect thereof." 3 Wheat., 234; 10 2d., 469; 17 Mass., 546. (5.) The object of evidence is to ascertain the truth between the parties, and this is done most certainly by observing the following rules which are now binding as law : 1, The evidence must be confined to the point in TRIAL— EVIDENCE. 371 How must a note be proved ? By the witness thereto, if living ; by proof of his handwriting, if dead. How must wills be proved ? By oath of the subscribing witnesses. Suppose that one of the subscribing witnesses swears that the testa- rssue. 2. The substance of the issue must be proved. 3. The affirmative of the issue must be proved, (generally by him who aflfirms). 2 Russ. Cr., 694 ; 1 Phil. Ev., 166. (6.) Modes of proof . Records are to be pro\edby an exempUfkation,, duly authenticated in all cases, where the issue is *'• rml tiel record." In other cases an examined copy, duly proved, will, in general, be evidence. 1 Stark. Ev., 224 ; 1 6r. Ev., § 508. The production of an office copy is, also, a means of proof of records. 1 Gr. Ev., §§ ."507, 514. Private writings. Where there are subscribing witnesses to a writing, the law is peremptory in requiring them, or at least one of them, to be pro- duced as the best evidence of the genuineness of the instrument. But to this rule there are sundry exceptions, namely: (1.) Where the instrument is thir- ty years old or more, comes from the proper custody, and is otherwise free from suspicion, in which case it is not needful tofjall the subscribing wit- nesses, though they be living. (2.) Where the writing is produced pur- suant to notice by the adverse party who claims an interest under it. (3 ) Where the writing is an official bond, like that of a sheriff, or of an exec- utor, guardian, &c., executed under the direction of a court, or some public functionary, and preserved in some public registry, in wliich case an office copy is admitted without furtlier proof of the original. 1 Gr. Ev., § 569, and seq.; 4 Min. Insts., 727. When it is impracticable to pro- duce the subscribing witnesses, or either of them, secondary evidence of the execution of the instrument being rendered admissible, the next most trust-worthy evidence of the fact is deemed to be proof of the hand-wri- ting of one or more of the subscribing witnesses, and it is only when that becomes impossible that the law is satisfied with evidence of the hand-- writing of the party himself, and if that cannot be proved, or the Instrii- ment cannot be otherwise shown to be genuine, it may not be read. 1 Gr. Ev., § 574 ; 4 Min. Insts., 728. (7.) Proof by witnesses. The testimony of witnesses is called oral evi- dence, or that which is given viva voce, as contradistinguished from that which is written or documentary. It is a general rule that oral evidence shall in no case be received as equivalent to or as a substitute for a writ- ten in'stfument where the latter \s required by law, or to give effect to a written instrument which is defective in any particular, which by law is essential to its Validity, of to contradict, alter, or vary a written instm- ment, either appointed by law, or by the contract of the parties to be the appropriate and authentic tneinorial of the particular facts it recites ; fof by doing so oral testimony would usurp the place of evidence decidedly 372 PRACTICE OF THE LAW IN CIVIL CASES. tor was insane, would that invalidate the will? It would not. Suppose one of the witnesses be convicted of an infa- mous crime, would that invalidate the will ? It would not ™ What is the writ of certi&rari ? A writ issued by a supe- rior to an inferior court of record, requiring the latter to send into the former some proceeding therein pending, or the records and proceedings in some cause already termi- nated, in cases where the procedure is not according to the course of the common law. 1 Bouv. L. D., 251 ; 2 Murph., 100 ; 3 Dev., 117 ; 1 Dev. and Bat., 382 ; 2 Hawks, 102 ; 4 Jones, 309 ; 2 Hayw., 38. What is a record ? A written memorial made by a pub- superior in degree. I Esp. Cas., 53; 1 Serg. and Roll., 27; 1 Yeates, 140 ; 1 Bina., 616 ; 3 Marsh., 333; 11 Mass., 30. But parol evidence is admissible to defeat a written Tnstrnment on the ground ot fraud, mistake, etc., or to apply it to its proper subject matter, or in some instances, as ancillary to such application, to explain the meaning of doubtful terms, or to rebut presumptionsarising extrinsically. Iti these cases the parol evidence does not usurp the place or arrogate the authority of ^^'^itten evidence, but either shows that the instrument ought not t^ be allowed to operate at all, or is essential in order to give to the instrument, its legal efFect. 1 Mnrph., 426; 1 Des., 465; 4 Id., 211; I Bay, 247 ;• llMass., 30 ; 1 Pet. C. C, 85. ^ In North Carolina wills are admitted to probate as follows : (1.) In ease of a written will with witnesses on ti>e oath of at least tvm of the subscribing witnesses, if living, but when any one or more of the subscribing witnesses to such will are dead, or reside out of the State, or are insane, or otherwise incompetent to testify, then such proof may be taken of the hand-writing, both of the testator and of the witness or witnesses so dead, absent, insane, or incompetent, and also of such other circumstances as will satisfy the judge of probate of the genuineness and due execution of such will. (2.) In case of a, holograph will on the oath of at least three credible witnesses who state that they verily believe such will and every part thereof is in the hand-writing of the person whose will it purports to be. (3.) In case of a nuncv-paiive will, where the estate exceeds two hun- dred dollars, on the oath of at least two credible witnesses present at the making thereof, who state that they were specially required to bear wit- ness thereto by the testator himself. Bat. Kev., 849. TRIAL — EVIDENCE. 373 lie officer authorized by law to perform that function and intended to serve as evidence of something written, said, or done. 2 Bouv. L. D., 42 1. How did the courts construe that part of the statute of Frauds (29 Car. II., c 3, § 5) which required a will to be witnessed by three cr^ible" witnesses ? It was universally agreed that credible m«ant no more and no less than compe- tent, so that no progress was made in substituting — as in the later statutes — the one word for the other. To what period did the statute refer the witness' competency f Lord Camden thought the period when he attested the will. 1 Bro. Admy. and Civ. L., 284, n. (24) ; Bac. Abr., Wills, (D), III. Lord Mansfield held the period to be when he was called to prove it. 1 Burr., 414. A case of trial by inspection occurred, where a man was ar- raigned before the Superior Court for maiming another. [The statute in North Carolina says, "if any person shall, on purpose and unlawfully, but without malice aforethought, cut or slit the nose, bite or cut off a nose, or lip, or ear, or disable any limb or member of any other person, or castrate any other person, or cut off, or maim, or disfigure, any of the privy members of any other person, with intent to kill, maim, disfigure, disable, or render impotent, such person, in any such case the person shall, on conviction thereof, be imprisoned at least six months, and fined at the discretion of the court."] Bat. Rev., 301. In the construction of this statute, the court below decided : (1.) That biting off a piece of an ear as large as a sixpence, is within the intent and mischief to be remedied by the statute ; (2.) That the court had a right to try it by inspection, and did so. The Su- preme Court affirmed the decision. State v. Girkin, 1 Ired., 121 ; State v. Green, 7 Ired., 39. " The common law rejects the testimony : (1.) Of parties; (2.) Of persons deficient in understanding; (3.) Of per- sons wanting in religious belief; (4.) Of persons convicted of infamous offences, who have been neither pardoned nor punished ; and (5.) Of per- sons inieresied, in favor of their interest. 1 Gr. Ev., § 327 to 34u. 874 PRACTICE OP THE I(AW IN CIVIL CASES. What is the difference between a want of jurisdiction and defect of jurisdiction ? A want of jurisdiction is the entire absence of it; a defect of jurisdiction is where either of the parties may, by a plea in time, deprive the court of juris- diction—but if one neglect to take advantage of this privi- lege and the judgment is rendered, the judgment is good. An issue in law in England is determined by all the judges at Westminster. An issue of fact was originally tried at Westminster, at bar, or in bank {in 6anco) as it was called. This was afterwards changed for the convenience of jurors and the witnesses, and the cause was tried in the county in which the venue was laid from which the jury was to come, and this was called trial at nisiprius, from the clauses of Aa- beas corpora juratoruTn, which summoned the jury, namely, that they appear at Westminster nisi prius (unless before) the time specified for their appearance at Westminster the justices in Eyre come into that county, then to appear be- fore them. This nisi prius contrivance was simply a rule of the court adopted for the convenience of the witnesses and jurors, and for which they had no law. Hence, either party might object to trial at nisi prius, and have the case tried at bar, though the judge always ordered the case to be tried at nisi prius unless objections were put in. Cases of much weight, however, are tried at bar, as, for instance, the Tich- borne case. How does the case get back to Westminster after trial at nisi prius f The successful party takes the record called the postea up to the court at Westminster, and, if the plaintiff, he prays judgment that he may have a writ of inquiry to get his damages; if the defendant, he prays judgment that he maj'^ go sine die and get his costs. What does the postea include? The record from the issue to the judgment, which are all the proceedings had at nisi prius. A writ of inquiry could not be executed by a deputy sher- iff, because the sheriff must act in his judicial capacity, he having to judge as to the eligibility of jurors and witnesses. TRIAL. 375 Only ministerial acts can be performed by a deputy. As to nisi prius, see Sellon, Pract. Introd., XIV.; 1 Spence, Eq. Jur., 116 ; 3 Bl. Com., 352-'54 ; 1 Reeves' Hist. Eng. Law, 245, 382. As to what acts a deputy can perform, see Com. Dig., Officer, (D, 1); 7 Vin. Abr., 556 ; Archb., Civ. PL, 68. LECTURE X. JUDGMENT. What is judgment ? In practice, it is the conclusion of law upon facts found or admitted by the parties, or upon their de- fault, in the course of the suit. Tidd, Pr., 930. What is the difference between a final and an interlocutory iudgTaent'! A final judgment is one which puts an end to the suit. An in- terlocutory judgment is one given in the progress of a cause upon some plea, proceeding or default, which is only inter- mediate, and does not finally determine or complete the suit? 3 Bl. Com., 396 ; 1 Bouv. L. D., 760. ^ Final judgments are such as at once put an end to the action by de- termining the right and fixing the amount in dispute. Such are judgments for defendant at any stage of the suit, a judgment for the plaintiff after verdict, ^ judgment for a specific amount confessed upon warrant of at- torney, and a judgment signed upon the return of a writ of inquiry. When an issue in fact, or an issue in law, arising on a peremptory plea, is determined for the plaintiff, the judgment is, " that the plaintiff do recover, &c., which is called a judgment quod recuperet. St. PI., 126. "When the issue in law arises upon a dilatory plea, and is determined for 'the plaintiff, the judgment is only that the defendant " do answer over," called a judgment of respondeat ouster. In an action of account judgment for the plaintiff is, that the defendant "do account " — quod computet. Of these the last two, quod computet and respondeat ouster, are interlo- locutory, and the first quod recuperet is either final or interlocutory, ac- cording as the quantum of damages is, or is not ascertained, at the rendi- tion of the judgment. In the Ordinary sense, interlocutory judgments are those incomplete judgments whereby the right of the plaintiff is indeed established, but the quantum of damages sustained by him is not ascertained. This can only be the case where the plaintiff recovers, for judgment for the defendant is always complete as well as final. The interlocutory judgments of most common occurrence, are where a demurrer has been determined for the plaintiff, or the defendant has made default, or has by cognovit actionem acknowledged the plaintiff's demand to be just. After interlocutory judgment in such case, the plaintiff must ordinarily talce out a w7-it of inquiry, which is addressed to the sheriff, commanding him to si^mmon a JUDGMENT — NEW TRIAL. 377 What is a writ of inquiry ? A writ sued out by a plain- tiff, in a case where a defendant has let the proceedings go by default, and an interlocutory judgment has been given for damages, generally, where the damages do not admit of calcu- lation. To whom does it issue ? The sheriff of the county in which the venue is laid, and commands him to inquire, by a jury of twelve men, concerning the amount of damages. Where is the cause tried ? In the sheriff's court, and some amount must always be returned to the court. But the re- turn of the inquest merely informs the court, which may, if it choose, in all cases, assess the damages, and thereupon give final judgment. 2 Arch. Pr., Waterman ed., 952 ; 3 Bl. Com., 398 ; 3 Chit. 495. Is the practice in North Carolina similar to the above ? It is not ; because but one venire is issued and damages are assessed by the same jury that tries the case. When the jury have given their verdict in England what is the next step in the action? The postea is taken up to Westminster by the successful party in order to get judg- ment. Bac. L. Tr., 127 ; 2 Lilly, Abr., 337. How may the unsuccessful party avoid judgment, which, in due course, fol- lows as the conclusion of the law upon facts found by ver- dict ? By one of the methods following : — (1.) A motion for new trial ; (2.) A motion in arrest of judgment ; (3.) A motion for a repleader ; (4.) A motion for a judgment non obstante veredicto ; (5.) A motion for a writ of venire facias de novo. jury and assess the damages, and tipon the return of the writ of inquiry, final judgment may be entered for the amount ascertained by the jury. It is not always necessary to have a writ of inquiry upon interlocutory judgment, for it is said that " this is a mere inquest of- office to inform the conscience of the court who, if they please, may themselves assess the damages." 3WiIs., 62. And accordingly, if the damages are matter of mere computation, as for instance, interest upon a bill of exchange or promissory note, it is usual for the court to refer it to the master toleani what is due. 4 Tr., 275 ; 4 Price, 134. 378 PRACTICE OF THE LAW IN CIVIL CASES. What are the grounds for a motion for new trial ? — 1. That the damages awarded by the jury are excessive, or are manifestly too small. 6 Com. Dig., 227, Plead., (R, 17); lOGa., 37; 7 Wend., 330. 2. That new evidence has been discovered since the former trial, which was not then attainable. 3 Whart. Am. Or. L., § 3101 ; 4 Min. Insts., 757. 3. That some surprise or mistake occurred at the trial. 6 Mod., 22 ; 2 Salk., 645 ; 11 Mod., 1 ; 14 Pick., 494; 4 Litt., Ky., 1 ; 7 Yerg., 502. 4. ilfi!s6e/i.amor of the jury, or gross mistake as to its- duty.. 4 Yerg., Ill ; 3 Harr., 468 ; 4 Min. Insts., 755. 5. Fraud or misconduct of the successful party. 4 Min.. Insts., 755 ; Cas. temp. Hardw., 116 ; 13 Mass., 218. 6. Mistake of the court in point of law by misdirection of the jury." St. PL, 95. What is an arrest of judgment? The act of a court by which the judges refuse to give judgment, because upon the face of the record it appears that the plaintiff is not entitled to it." What is meant by the statutes of Jeofailes ? Certain statutes are called statutes of amendments and jeofailes, because where a pleader perceives any slip '' Also, that the verdict is contrary to the evidence. 4Mnor's Insti- tutes, 756. " A motion for arrest of judgment must be grounded on some objection arising on tlie face of the record itself, and no defect m the evidence or irregularity at the trial can be urged in this stage of the proceedings. But any want of sufficient certainty in the indictment, as in the statement ofi' time or ^Zace— where material,— of the person against whom the oflfenee- was committed, or of the facts and circumstances constituting tlie of- fence or otherwise, which is not aided by the verdict, is a ground for arresting the judgment. Although the defendant himself omits to make any motion in arrest of judgment, the court, if on a review of the case, it is satisfied that the defendant has not been found guilty of any offence in law, will, of itself, arrest the judgment. 1 East., 146. Where a statute upon which an indictment is founded, was repealed after the finding of the indictment, but before plea pleaded, the court arrested the judgment. 18 Q. B., 761 ; 8 Ad. and E., 496 ; 1 Russ. and R. Cr. Cas., 429. If the judgment is arrested, all the proceedings are set aside and judgment of acquittal is given, but this will be no l)ar to a new indictment. Com. Dig. Indictment, N. JUDGMENT — MOTION IN ABREST OF JUDGMENT. 379 in the form of his proceedings and acknowledges the error — -jeofaile, I have failed, I am in error — he is at lib- erty by those statutes to amend it. The amendment, how- ever, is seldom made, but the benefit is attained by the court's overlooking the exception. 3 BI. Com., 407 ; 1 Saund., 228, n. 1 ; Doctrina Plac, 297 ; Dane, Abr. Can judgment be arrested for error in form, apparent upon the face of the record ? At common law judgments were former- ly arrested for errors of mere form, but this abuse has been remedied by the statutes of amendments and jeofailes. And by the statutes of 27 Eliz., c. 5, and 4 Anne, c. 16, it is en- acted that courtsshould take no notice of formal errors un- less made the ground of special demurrer. X Bouv. L. D., 450. What is a motion for a repleader ? A motion for a re- pleader arises where the unsuccessful party, on examination of the pleadings, conceives that the issue joined and decided was on an immaterial point not proper to determine the ac- tion.* Why do the courts award a repleader ? Because they cannot tell from the verdict for whom, to give judg- ment. Is it error for repleader to be,granted or denied where it should not be ? It is. 2 Salk. 579. Will it be allowed where the court can give judgment on the whole record ? It will not (Willis, 532) ; unless perhaps where the plea in bar and replication are bad. Croke Eliz., 318 ; 1 And., 167; 7 Me., 302. *It may happen to either party, plaintiflFor defendant, from misappre- hension of the law or from oversight, to pass over without demurrer a statement on the other side insuffldent and immaterial in law, and an issue of fact may have been ultimately joined on such immaterial statement, and so the issue will bo immaterial, although the parties liave made it the point of controversy between them. For example : in an action of tres- pass on the case in assumpsit against an administratrix upon a promise hy decedent, defendant pleaded that she did not assume, on which issue was joined and verdict for defendant. A repleader was awarded, on motion of the plaintiff, because it was immaterial to the merits of the action, whether she, the defendant, assumed or not. The proper ques- tion, and therefore the proper issue was, whether the deceased promised. Bao. Abr. Pleas, (m), 2 ; St. PI., 99; Id. (Tyler) 127. 380 PRACTICE OF THE LAW IN CIVIL CASES. What is a judgment non obstante veredicto ? A judgment rendered in favor of the plaintiff, notwithstanding the ver- dict for the defendant.* Why is it sometimes called a judg- ment upon yjonfession ? Because it occurs after a pleading by the defendant in confession and avoidance, and issue joined thereon and verdict found for the defendant ; and then it appears that the pleading was bad in law, and might have been demurred to on that ground. The plea being sub- stantially bad in law, of course the verdict, which merely shows it to be true in point of fact, cannot avail to entitle the defendant to judgment ; while, on the other hand, the plea being in confession and avoidance, involves a confession of the plaintiff's declaration, and shows that he was entitled to maintain his action.' 1 Wils., 63 ; Croke Eliz., 778 ; 2 Rolle, Abr., 99; 6 Mod., 10 ; 8 Taunt., 413. What is a writ of venire facias de novo ? It is a writ award- ed when, by reason of some irregularity or defect in the pro- ceeding on the first venire, or the trial, the proper effect of the venire has been frustrated, or the verdict become void in law ; as, for instance, when the jury have been improp- ° This judgment is given upon motion, which can only be made by the plaintiff when, upon an examination oi the whole proceedings, it appears to the court that the defendant has admitted himself to be in the wrong, and that the issue, though decided in his favor by the jury, is on a point which does not at all better the case. Smith, Actions, 161. ' Differences between a motion for a judgment non obstante veredicto and for a repleader: (1.) That a motion for a repleader lies alike at the instance of either party, plaintiff, or defendant, whilst the motion for judgment non ob- stante veredicto, according to the English, and as it seems, the better practice, lies for the plaintiff alone upon a pleading by way of confession and avoidance. (2.) That a repleader is upon the form and manner of the pleading, so that the court knows not for whom to give judgment, and therefore ob- liges the parties to plead over again, whilst a judgment non obstante veredicto is always vpon the merits, when it is apparent upon the pleaders own showing — upon his pleading in confession and avoidance — that he has no adequate answer to make to his adversary's averments. 2 Saund., 319 e, n. (c); 4 Min. Insts., 775. JUDGMENT — VENIRE FACIAS DE NOVO. 381 erly chosen, or an uncertain, ambiguous, or defective ver- dict has been rendered.* St. PI., 120 ; 1 Sellon, Pr., 150. What is the difference between a motion for a new trial and a motion for a venire de novo ? Venire de novo is asked on account of some irregularity in the proceedings ; new trial on account of something concerning the merits} A motion for a new trial admits that there has been a trial according to law; a. venire de novo denies that there has been a legal trial and is founded on an allegation, by motion, that there has been a mistake of law on the part of the judge. What is meant by nonsuit ? The name of a judgment giv*n against the plaintiff when he is unable to prove his case, or when he refuses or neglects to proceed to the trial of a cause after it has been put at issue without determining such issue. What is the difference be- tween voluntary and involuntary nonsuit ? A voluntary nonsuit is an abandonment of his cause by plaintiff.' An 8 A venire de novo can occur only in these three cases, namely : (1.) Where it appears from the record that the jury has been Improperly selected or returned, or that a challenge has been improperly disallowed. 2 Tidd's Pr., 922. (2.) Where the verdict is upon its face so imperfect that the merits of the cause are not disclosed, and so no judgment .can be given upon it. 1 Wils., 56; 4 Min. Insts., 776. (3.) V7here it appears that the jury ought to have found otTier facts dif- ferently. 1 Wils., 56 ; Bac. Abr. Verdict (M) and (O) ; Gould's PI., c. X, § 55, and seq. ^ The most essential difference between them is, that the venire de novo is never granted except for causes a/pparent on the record, whilst a new trial is obtained for extrinsic reasons. Another diversity is, that the venire de now is an ancient process of the common law, and the propriety of granting it is to be determined upon principles of Iom, allowing no discre- tion to the court ; a new trial is a modern practice, (a substitute of the old writ of attaint,) whereby the equitable discretion of the court is invoked in order to prevent the verdict from occasioning a palpable injustice. 2 Tidd's Pr., 922 ; 1 Wlls-, 55 ; 3 H. and M., 318 ; 4 Min. Insts., 775. 'And in this case he allows a judgment for costs to be entered against him by absenting himself, or failing to answer when called upon to hear the verdict. 2 Bouv. L. D ., 233 ; 1 Dutch., 556. 382 PRACTICE OP THE LAW IN CIVIL CASES. imolwntary nonsuit takes place when the plaintiff on being called neglects to appear when his case is before the court for trial, or when he has given no evidence on which a .jury could find a verdict. 13 Johns., 334 ; 2 Bouv. L. D., 233. Can there be a non suit after verdict? No; but there may be, even after the judge has charged the jury and they have returned and say they are ready to give their verdict.^ Which is the more limited in application, motion in ar- rest of judgment or general demurrer? A motion in arrest of judgment is narrower than a general demurrer, because you cannot allege in arrest of judgment anything that is cured by verdict, though that might have been ground'»for demurrer. Motion for new trial, venire de novo, judgment non ohdante veredicto, repleader, and in arrest of judgment, are made to the court at Westminster, before judgment, but after the postea is taken up and judgment prayed. In North Carolina all the motions are called motions for a new trial— though the Reports always order a venire de wOT&^-because the court on appeal decides errors of law. What are the comparative conditions of the party in a general demurrer and in a motion in arrest of judgment ? In the latter, no judgment is given, hence each party pays his own costs ; in the former, judgment is final, the suit is end- ed, and no other suit can be brought for the same cause of action ; whereas, on motion in arrest of judgment, plaintiff may bring suit again, for there is no judgment to be pleaded to stop him. What is meant by "nol. pros." {nolle prosequi) ? In prac- J A nonsuit is no bar to another action for same cause. '*rhe courts of the United States cannot order a nonsuit against a plaintiff who has given evidence of his claim. 1 Pet., 469, 476. A nonsuit may, in gene- ral, be ordered where the evidence is insufficient to support the action, but not till final submission of cause. 3 Cliit. Pr,, 910; 1 SellonPr.,- 473 ; 1 Arch. Pr., 787 ; 3 Bl. Com., 376 ; 2 Tidd. Pr., 916, et seq. JUDCfMENT — RETRAXIT — NONSUIT — BILL OF EXEMPTIONS. 383 tice, an entry made on the record by which the prosecutor or plaintiff declares that he will proceed no further." "What is retraxit in practice ? The act by which the plain- tiff withdraws his suit. It is so called from the fact that this Was the principal word used when the law entries were in Latin.' What gives rise to nonsuit ? Where the plaintiff, after issue joined, neglects to bring such issu^ on to be tried in due time. What is a bill of exceptions ? A written statement of ob- jections to the decision of the court upon a point of law, made by a party to the cause, and properly certified by the judge, or court, who made the decision." *It is for the prosecuting officer to enter a not pros, in his discretion. 3 HaAvlfs., 613. It may be entered as to one of sewj-aZ defendants. 11 Bast., 307. The effect of a. noUs prosequf., -vrhiin obtained, is to put tlie defendant without day, but it does not operate as an acquittal, for he may be after- wards reindicted, and it is said even upon the same indictment fresh pro- cess may be awarded. 13 Ired , 256 ; 1 Salk , 59 ; 6 Mod., 261. A nol. pros, may be entered either in a criminal or a civil case. In criminal cases before a jury is impannelled to try an indictment, and also after conviction, the attorney-general has power to enter a Tiol. pros, with- out the ^consent of the defendant, but after a jury is impannelled, a nol. pros, cannot be entered without tlie consent of the defendant. 3 Hawljs., 613 ; 17 Picl£., 395 ; 7 Humph., 152. ' A retraxit differs from a nonsuit,— the former being the act of the plaintiff himself, for it cannot be even entered by attorney, 8 Colte, 58 ; 3 Salic., 245 ; and it must be after declaration filed, while the latter occurs in consequence of the neglect of the plaintiff. It differs from a nol. pros. A retraxit in effect is a bar to all actions of a like or similar nature. Bac. Abr. Nonsuit (A) ; a nol. pros, is not a bar even in a criminal prosecution. 2 Sellon Pr., 338; Bac. Abr. Nonsuit. " The object of a bill of exceptions is to put the decision objected to upon record for the information of the court having cognizance of the cause in error. Bills of exceptions are authorized by statute West. II, 13 Ed. I., c. 31, the principles of which have been adopted in all tlie States of the Union, though the statute has been held to be superseded in some by their own statutes. It provides for compelling tlie judges to sign such 384 rEACTicE OP the law in civil cases. bills and for securing the insertion of tlie exceptions upon the record. They may be brought by either plaintiff or defendant. In the trial of civil causes, wherever the court in making a decision, is supposed by the counsel, against whom the decision is made, to have mis- taken the law, such counsel may tender exceptions to the ruling, and require the judge to authenticate the bill. 3 Jones, 185 ; 3 Bl. Com., 372 ; 3 Cranch., 300 ; 24 Me., 420. As to the requisite statement of facts and law, see 3 Jones, 407 ; 7 Cranch., 207 ; 2 Pet., 15 ; 9 Wheat., 615 ; 4 How., 4. In criminal cases at ^ommon law, judges are not required to authentic cate exceptions. 1 Chit. Crim. L., 622,. LECTURE XI. REMEDIES IN THE NATURE OF APPEALS — REMEDIES AGAINST," EXECUTORS AND ADMINISTRATORS. What errors are cured by verdict ? All errors of form,, and omissions of anything that must necessarily have been, proven on trial to obtain a verdict. For instance : A brings. an action of trespass quare clausum fregit, and fails to allega possession, if the verdict is given in his favor, the error is.- cured. St. PI., 149 ; Jackson v. Pesked, 1 M. and S., 238-'9;: Nevat V. Wallace, 3 T. R., 25 ; Barber v. Fox, 2 Saund., 13j6. Why would a party prefer a motion in arrest of judgment to general demurrer ?. He might wish, to try the case on the merits if he thought the facts were in his favor, and because judgment on demurrer is final at common law. What are the disadvantages of motion in arrest of judg- ment ? Formal errors have been cured. Errors of substance may be cured hj pleading over" and by verdict, and each party pays his own cost. Which is the broader remedy, a motion in arrest of judg- ment or general demurrer ? General demurrer ; because it. includes some defects that could not be cured by verdict. Which is the broader remedy, a motion in arrest of judg- ment or writ of error ? Writ of error; because it extends to ■ matter put on record by bill of exceptions. On what ground, is a writ of error founded ? Error in law apparent upon the face of the record. 3 Bl. Com., 410 ; Bac. Abr., Error, (A) 2. Which is the broader remedy, writ of error or general de- murrer ? A writ of error, in that it takes in matter put on * Lord Holt lays down the general proposition that " if a man pleads-- over, he shall never take advantage of any slip committed in the plead- ings of the other side, which he could not take advantage of upon a gene- ral demurrer." St. PL, 147 ; Bac. Abr. Pleas.; 2 Salk., 519. 25 386 PRACTICE OP THK LAW IN CIVIL CASES. record by bill of exceptions ; it is narrower, in that it does not include.matter cured by verdict. How many kinds of writs of error? Two; (1\ Writs of error where the alleged error consists of matter of fact; and (2), where it consists of matter of law} From what court does a writ of error in law issue ? In England, from the Court of Chancery. In practice, a writ of error is a writ issued out of a court of competent jurisdic- tion, directed to the judges of a court of record in which final judgment has been given, and commanding them in some cases themselves to examine the record ; in others, to send it to another court of appellate jurisdiction therein named, to be examined in order that some alleged error in the pro- ceedings may be corrected." St. PL, 138; 2 Saund., 100, n. 1 ; Bae. Abr., Error. Is & writ of error in effect a supersedeas ? It is not. It may be, by special order of the court, and does become a su- persedeas when bail in error is put in. 8 Mod., 373 ; 1 Barnes, 260 ; 6 Binn, 461. Were writs of error granted ex debito justitias ? Both kinds were so granted at common law, ■as a matter of course, without application to the court. And 'A writ of error coram vobis (or nobis) is where the error is matter of iaet, the writ of error generally, where it consists of matter of law. Bae. Abr., Error, (4). ° The first kind referred to in the text is called a writ of error coram vobis or nobis. When an issue in fact has been decided, there is not in general any appeal, except by motion for a new trial, and although a matter of fact should exist which was not brought into the issue, as for example, if the defendant neglected to plead a release, which be might have pleaded, this is no error in the proceedings, though a mistake of the defendant. St. PL, 139. But there are some facts which affect the va- lidity and regularity of the proceeding itself, and to remedy these errors the party in interest may sue out the writ of error coram vobis. The death of one of the parties at the commencement of the suit, the appear- ance of an infant in a personal action by an attorney and not by guar- dian, the coverture of either party at the commencement of the suit, when her husband is not joined, are instances. 1 Saund., 101 ; 1 Ar. Pr., 313 ; 2 Tidd. Pr., 1033. APPELLATE PROCEEDINGS. 387 it appears not to have been until the third year of Jas. I. that the obvious precaution against frivolous delays from this source was resorted to of requiring plaintiffs in error, except in a few cases to find substantial sureties for the pros- ecution of the writ.'' 3 Bl. Com., 410; Bac. Abr., Error, (A), 2. An action of debt on specialty is brought against an ad- ministrator, and judgment is given against him. After- wards he finds a release in the hands of a neighbor or de- posited in bank; is this ground for writ of error? It is not; for the court committed no error. Is it ground for an au- dita querela ? It is not ; to sustain audita querela the matter must have arisen since judgment.' Suppose the release had been executed after plea and before judgment, how could the defendant take advantage of it ? By plea puis darrein continuance. This is a plea which is put in after issue join- ed, and before judgment, for the purpose of introducing new matter, or matter which has come to the knowledge of the party pleading it subsequently to such joinder. Suppose the administrator file a bill in equity, charg- ing the plaintiff with fraud and concealing the release, what would the court of equity decree ? That the plaintiff at law allow judgment to be raised and give defendant chance to plead his release. Thus, where the defendant agreed that the plaintiff might take judgment on condition that he (the plaintiff) would do what was right, and after judgment defendant brought forward a receipt in bar of * By some authorities the writ of error was always deemed to operate a supersedeas, and to restrahi any proceedings in the cause in the court below, unless indeed in a few special cases. Bac. Abr., Error, (4). "The writ of audita querela is an antiquated proceeding, whereby a defendant asfainst whom judgment is recovered, and who is in danger of execution, or perhaps actually in execution, ma}' be relieved upon good matter of discharge, which has happened since the judgment, as if the plaintifi' hath given him a general release, or it the defendant hath paid the debt to the plaintiff without procuring satisfaction to be entered on the record, 3 Bl, Com,, 405. 388 PRACTICE OF THE LAW IN CIVIL CASES. judgment, the plaintiff refused so to take it : — in this case, the Court of Chancery will compel him to take it. Suppose on the trial, in the case above, the plaintiff will not agree to have judgment raised, what is the remedy ? He would be attached for contempt. A is principal to a promissory note, with B and C as sure- ties ; A is sued and pays the money, and a sd. fa. is brought against B and C ; how would they avoid paying ? Showing for cause that A had paid it. A is principal to a promissory note, with B as surety ; they are jointly sued and A pays the money. Then execution is issued against B, what is his remedy ? Audita querela^ What general rule does Coke lay down as to pleadings ? Pleading must have apt time, due form and proper matter. In the case of the release, the defendant did not produce it in apt time. As stated above, courts of equity would have given relief if the release had been fraudulently concealed, or if the defendant had been prevented from using it by any act of the plaintiff. What is liie judgment in an action ofi debt ? That the plaintiff recover the debt, interest, and cost, and that the de- fendant be in mercy; or that the 4efendant recover his cost, and the plaintiff be fined for his false, claim. Illustrate the doctrine of writ of error for matter of fact in North Carolina? Richmond Pearson appointed Jesse A. Pearson and Elizabeth Pearson executor and executrix of his last will. At the time of his death, Richmond Pearson was indebted to the firm of Alex. Nesbit & Co., which con- sisted of Nesbit and the same Jesse A. Pearson, whom he had appointed executor. A writ issued in the name of A. Nesbit & Co., plaintiffs, v. J. A Pearson and Elizabeth Pearson, de- fendants. Execution was issued and continued till. Spring, 'The Indulgence of the courts in granting summary relief upon motion. merely in cases of such evident oppression, has- for more than acentury practically superseded in most cases the writ of audita^ querelcu&uA ren- dered it well nigh useless. 3 BI. Com., 406, aad n. (3). APPELLATE PROCEEDINGS. 389 Term, 1823, when the writ was returned nulla bona testatoris. After confession of judgment, J. A. Pearson died. A sci.fa. issued at the instance of A. Nesbit, as surviving partner, to • subject the plaintiff in error (Elizabeth Pearson) de bonis propriis. The defendant in that case moved for a writ of error coram vobis. Judgment was reversed for error, and Nes- bit appealed. The Supreme Court affirmed the judgment of reversal. The error was that Jesse A. Pearson appeared on the record as both plaintiff and defendant. Pearson V. Nesbit, 1 Dev., 315. The Supreme Court of North Carolina decides only mat- ters of law. In the Superior Court, it is proper, first, to ask for a new trial ; if refused, then for a venire de novo ; if this is refused, one can appeal to the Supreme Court. What is ground for new trial in the Superior Court would not be in the Su- preme Court. The bill of exceptions is part of the record. Writs of error in fact would be supported where an infant appears by attorney instead of guardian, where a feme covert appears and defends without her husband, or, where an at- torney carries on a suit after the party for whom he acts is dead. A writ of error may be sued out and made return- able before judgment is signed, because when it is signed in the same term it relates back to the first day of the term. 1 East. Rep., 145. In an action on a bond for $500 against an executor, where he pleads no assets, upon which issue is taken, and upon trial assets amounting to $100 is found ; here judg- ment would be given for $100 de bonis testatoris, and for $400 de bonis testatoris quando. 2 Wms. Ex'ors, 1693 ; 1 B. and Ad., 265. When new assets come to hand, then execution issues, and if the sheriff returns no assets to be found, a sci.fa. must be issued to bring the executor into court, suggesting a de- vastavit, and commanding the executor to show cause why execution de bonis propriis should not issue. If assets come 390 PRACTICE OF THE LAW IN CIVIL CASES. into his hands afterwards, a sci.fa. would be issued suggest- ing new assets, and commanding the executor to appear and show cause why execution should not be issued against him, and judgment would be de bonis testatoris si non tunc de bonis propriis as to costs. If an action on a bond be brought against an executor, and he necessarily knows that the plea he uses is false, judg- ment would be rendered for the amount de bonis testatoris d, &c., and si non, &c., de bonis propriis, both as to amount and cost.s 1 Saund., 336b, note 10. What plea must an executor or administrator put in who has no assets to satisfy the debt upon which action is brought ? He must plead pl&ne administravit, or plene ad- ministravit prseter. 2 Wms. Ex'ors, 1665. If an action of debt be against an executor for $500, and fee admits assets to the amount of $100, his plea should be no assets prseter $100. If an action of debt be brought against an executor for $500, and if there be debts of superior degree covering the same, plea should be " debts of higher dignity, no assets ultra." " When an executor is sued, it is incumbent upon the plain- tiff to prove the debt, and also that the defendant has assets for payment of debts. 8 But where the defendant pleads ne ungues executor, or administrator, or a release to Tiimself, and it is found against him, the judgment is that the plaintiff do recover both the debt and costs in the first place, de bonis testatoris si, &c., and si non, &c., de bonis propriis. The reason alleged is, because the executor cannot but know these to be false pleas. But the same reason seems equally to apply to other pleas where the judg- ment is different. 2 Wms'. Ex'ors, 168ti. ■f An executor is hound to plead a debt of a higher nature, of which he has notice, in bar of an action brouglit against him for a debt of an infe- rior nature, and riens ultra if he has not assets for both, otherwise it will be an omission of assets to satisfy both debts. Thus the executor is bound to plead a judgment recovered against the testator in bar of an action on a bond, otherwise he will admit that he has assets to satisfy the judgment. 2 Stra., 732; 2 Wms'. Ex'ors, 1667. REMEDIES AGAINST EXECUTOES AND ADMINISTRATORS. 391 When a specialty creditor sues the heir, .he must prove not only his debt, but also that the heir has assets by descent. If the heir denies the debt, he pleads non est factum. And if he admits the debt, but denies having assets, he pleads reins per descent. Judgment, if for the plaintiff, is that he recover from the heir the amount of the assets descended, e. g., if he has $100 by descent or land worth $100, (the delrt being $1,000), judgment would be quod recuperet $100, and a fi. fa. would issue to the sheriff to collect the $100 from the heir, or other writs of execution at the option of the plain- tiff, the heir being individually liable to the amount of land descended. When an action is brought against an executor, if he de- nies the note or debt he would plead the general issue, and then would deCy that testator owed the debt ; because the declaration would allege that the testator owed it, and the general issue would deny that allegation, then plaintiff must prove the debt against testator. Wms. Ex'ors, 1642, et seq. In a suit against an executor, if he denies assets he would plead " no assets," and the burden of proof would lie on the plaintiff; and he would have to prove both the debts and the assets in the executors hands. The fact that the plain- tiff has to prove assets is rather an anomaly in pleading, be- cause "no assets" is apparent by a plea in confession and avoidance ; yet, being a negative plea, plaintiff must prove it to be false. It is a negative plea, because it is supposed that the plaintiff in the declaration alleged that the execu- tor had assets ; this then denies that allegation and plaintiff must prove it. When an executor, in answer to plaintiff's declaration, pleads " debts of higher dignity, no assets ultra," the plaintiff has to prove assets and executor has to show debts of higher dignity which have absorbed the assets proven. 2 Wms. Ex'ors, 1690, et seq. The plea of "plene administravit" means 392 PRACTICE OF THE LAW IN CIVIL CASES. that the estate is wound up, and that the executor is no longer liable.* When it is shown that the jury have found assets in the executor's hands, that execution issued against them and that the sheriff returned nothing to be found, a sci. fa. issues against the executor suggesting a devastavit and requiring him to show cause why execution should not issue against him individually. He can relieve himself of the imputa- tion of the devastavit by showing that the assets were destroy- ed and the destruction was not caused by any default of his — as by act of God. The leading case in North Carolina is, where the assets were a negro who ran away ; this was al- lowed as cause. When there is a judgment quando, and new assets come to hand, the creditor issues a sci. fa. suggesting new assets, and requiring the executor to show why judgment should not be made absolute. If he finds new assets, for instance |100, he would get judgment quod recuperet $100. If the sheriff failed to find new assets after plaintiff proved them, a sci. fa. suggest- ing a devastavit ut supra would issue. Devastavit i extends to creditors, not to legatees. ' " Pkne administrami," (he has fully administered). In pleading it is a plea in bar entered by an executor or administrator by which he affirms that he had not in his possession at the time ol the commencement ol the suit, nor has had at any time since, any goods of the deceased to be ad- ministered, when the plaintiff replies that the defendant had goods, etc., in his possession at the time, and the parties join issue, the burden of the proof will be on the plaintiff. 6 Term, 10 ; 11 Vin. Abr., 349 ; 1 Barnew. and Aid , 254 ; 2 Phil. Ev., 295 ; 3 Saund., (a) 815, n. 1. > Devastavit. A mismanagement and waste by an executor, adminis- trator, or other trustee, of the estate and effects trusted to him as such by which a loss occurs. For devastavit by direct abuse, see Com. Dig. Adra'n., II ; 3 Bac. Abr., 700; by neglect, Bac. Abr., Ex'ors, (L). The law requires from trustees good faith and due diligence, the want of which is punished by making them responsible for the losses which may be sustained by the property entrusted to them ; when, therefore, a party has been guilty of a devastavit, he is required to make up the loss REMEDIES AGAINST EXECUTORS AND ADMINISTRATORS. 393 When there are several debts of equal dignity, and assets only sufficient to discharge one of them, the executor can pre- fer," unless suit is brought by one ; and even then he can con- fess judgment in favor of his favorite, and then pl|p,d to the other suits " debts of higher dignity, no assets ultra," because the debt of the one in whose favor he has confessed judg- ment has now become a debt of record. If an executor, who has in any way notice of an outstand- ing bond, or other specialty affecting the testator's assets, confesses judgment in an action brought for a simple contract debt, then should judgment be afterwards given against him on the bond, he will be obliged, however insufficient the as- sets, to satisfy both the judgments; for as to the debt on simple contract he might have pleaded the demand of a debt of a higher nature. An executor must not, by negligence or collusion, defeat specialty creditors of his testator by confess- ing judgments on simple contracts, of which he had notice. 1 T. R., 690 ; 3 Liv., 115. After proving the will the executor must advertise the debts of the estate to be brought in. If an executor pleads a false plea, knowing it to be false, the judgment is de bonis testatoris, si non, tunc de bonis propriis as to debt and cost. Wms. Ex'ors, 1687. If he pleads in good faith, judgmentis de bonis testatoris as to debt and costs; si non, tunc de bonis propriis as to costs. For exposition in full of the doctrines above, see 2 Wms. Ex'ors, 1642, et seq. Who is an executor de son tort ? One who intermeddles with the property of the deceased, except in charitable acts^ such as the burial of the deceased. 2 Bl. Com., 507. An executor de son tort can only be sued as executor when there is no lawful executor or administrator, because this out of his own estate Com. Dig., Adm'n., 1; 11 Vin. Abr., 306; 1 Belt. Suppl. toVes., 209; 1 Vern. Ch., 328 ; 7 East, 2.57; Bac. Abr., Ex., (L). ''Without suit brought, the executor has go legal notice of the debt. Dyer, 32 ; 2 Leon, 60; 2 Bl. Com., 513. 394 PRACTICE OP THE LAW IN CIVIL CASES. fiction is allowed only for the benefit of the creditors, and it is allowed them to sue him only when there is no rightful exec- utor or administrator, since there is no other way for them to recovqj; their debts.' When there is a lawful administra- tor or executor, the creditors must sue him and he can re- cover the property which the other holds as executor de son tort by an action of trespass. If he will not sue the executor de son tort for it, then he will be guilty of a devastavit.'^ If the executor de son tort has faithfully administered the assets, this will be allowed him in mitigation of damages in suit by rightful executor or administrator. The only instance in which an executor de son tort can be sued when there is a rightly appointed executor or admin- istrator, is by force of 13 Elizabeth, thus : the testator makes a gift to A. This is good between the parties and their rep- resentatives, but void as to creditors by force of the above statute. The creditor is allowed to sue the donee, A, as ex- ecutor de son tort, because, otherwise, he could not recover the property ; for lie could not sue the donor, he being dead, nor the rightful executor or administrator, because he has no right to the property — ^being estopped by the deed of his ancestor — hence he is allowed to sue A as executor de son tort." The other case is, where the creditor is allowed to sue 'An executor de son tori is an executor only for the purpose of being sued, and not for the purpose of suing. 11 Ired., 215. He is sued as if riglitful executor. But if he defends as such, he becomes thereby also an executor de son tort. Lawes PI., 190, note. ™It has been held that an executor de son tori is only liable to the right- ful administrator. 3 Barb , 477 ; 9 Lei., 79 ; 2 McCord, 423. He cannot be sued except for fraud, and he must be sued as executor. 11 Ired., 215. " Where a father made a fraudulent conveyance of slaves to his son, an infant of tender years< and tlien died and the slaves were taken pos- session of by the grandfather of the infant, for the use and benefit of the infant, it was held that the grandfather was liable as ex executor de son tort. Bailey ». Miller, 5 Ire , 444. One who administers upon the estate of a frudulent assignee, upon the death of such assignee, may be sued as executor de son tort by the creditors of the assignor, and this, although REMEDIES AGAINST EXECUTORS. 395 the donee of a gift causa mortis, as executor de son tort, and one B afterwards gets letters of administration; A, the donee, may plead this as a plea puis darrein continuance, tender the costs, and the plea will be sustained and he discharged, be- cause none of the creditors have a rightful executor against whom to bring the suit. If, in the above case, A pleads ne ungues executor," this will not be admitted by the court. When the suit is brought, it is against him as executor gen- erally ; but if he pleads retainer the plaintiff will be allowed to show what kind of executor he is, (consequently his plea will be bad, he not being allowed to retain,) without being guilty of a departure — this being allowed because it is nec- essary to carry out the suit— hence it must allow all the nec- essary incidents thereto. Quaere, if "Williams on Executors, Chitty, and Toller, do not hold that an executor de son tort can be sued, notwithstanding tliere is a rightful executor or administrator. See in general, 1 Wms. Ex'ors, 210, etseq. administration may have been granted of liis estate. McMarine ». Storey, 4 Dev. and Bat., 189. So, an administrator who holds property of the intestate under a fraudulent conveyance, is liable as an executor de son tort. Iforfleet v. Eiddicl^, 3 Dev., 221. But it is otherwise where one merely sets up a claim to the goods of the intestate under a fraudulent conveyance, and thereby injures the sale of them. Barnard v. Gregory, 3 Dev., 223. It makes no difference that there is a rightful executor or administrator in another State. Hopkins v. Towns, 4 B. Munroe, 124. " And if the executor de son tori, being sued by a creditor, should plead ne unques executor on which issue shonld be joined, this issue on proof of acts by the defendant, such as constitute in law an executorship de son tort, would be found against him, and the judgment thereon would be that the plaintiff do recover the debt and costs to be levied out of the assets of the testator, if the defendant have so much, but if not, then out of the defendant's own goods. Eobin's Case, N^ay., 69 ; 1 Wms'. Ex'ors, 217. Additional Obsebvations : The writ of error generally is applicable when errors of law have oc- curred in the proceedings and in the judgment of an inferior court, and those errors are visible on the face of the record. Such error may have 396 PRACTICE OF THE LAW IN CIVIL CASES. happened by the court below, having wrongly decided an issue in law, brought before it by demurrer, but it may happen also in other ways. Thus it may occur by a wrong decision of the inferior court upon a de- murrer to evidence, or upon a special verdict, or a case agreed, or special case, or where it appears from a bill of exceptions that the court erred in allowing illegal evidence to be introduced, or in excluding that which is legal, or in granting erroneous instructions, or denying such as are proper, or in improperly overruling or improperly granting a new trial, or in irtir^ properly arresting or refusing to arrest a judgment, or in short, wherever it appears on the face of the record that an error in law has been commit- ted, provided always the error be of a substantial kind. 4 Minor's In- stitutes, 851. The writ of supersedeas, lilje the writ of error generally is awardable only for error in law, apparent on the face of the record, the errors being identical with those which warrant the latter writ, of which many in- stances have already been stated. The difference in its tenor from a writ of error is, that it is addressed to the sheriff instead of to the judge, and commands him to forbear further proceedings on the judgment — informs him that the record thereof has been removed into the appellate court for the correction of errors therein, and enjoins upon him to give notice to the other party to appear in the appellate court and answer to the complaint. 4 Min. Insts., 854. The three writs already mentioned, namely, the writ of audita querela, the writ of error — of both sorts — and the writ of supersedeas, are all in- tended to correct errors occurring in the course of common law proceed- ings in the courts of common law. To the common law appeals (so-called) are unknown.- They are employed t)nly in those classes of cases where the ciml law method of proceeding has been adopted. The common law processes for reviewing judgments do not draw again into question any fact whicli has been already pronounced upon by the proper tribunal. They aim only to correct errors of law arising out of the facts, errors which, in the audita querela, and in the writ of error coram vobis, may be suggested by extrinsic proof, but in a writ of error generally, and in a writ of supersedeas, must be apparent on the face of the record itself. The proceeding by way of appeal, on the other hand, involves the re- view by the appellate court of the fad, as well as the law. And this diversity grows naturally out of the very diiferent modes of investigating and determining questions of fact employed by tlie civil law and tlie common law respectively. The common law inquired into and determined such questions, never by the court, except in a few rare instances, (mani- festing a great distrust of the court for that purpose) by a jury, or by wager of law, or by wager of battel, none of which in their nature admit- ted without incongruity of the reconsideration of the facts which they ascertained, either by the court which first heard the cause, nor a. fortiori APPELLATK PEOCEEDINGS. 397 by a higher court. Nor indeed, (according to the system of the common law which required all oral testimony to be delivered viva voce in court, and made no provision for its being written down, either before delivery or afterwards,) did the record contain any memorial of the evidence ex- hibited at the trial, unless it was artificially put there by means of a hill of exceptions, which was itself a subsequent contrivance, owing its origin probably to the statute 13 Edw. I., c. 31. St. PI., 89. But the civil law referred disputed facts always to the court, and the evidence, as well as the testimony of witnesses, as that derived from documents, was wliolly written, was uniformly, and, of course, made part of the record, thus put- ting into possession of the appellate court all the matsiials necessary for a review of the decision of facts ; whilst, as no collateral ^ency was em- ployed in such decision, but the same was made hy the court, there was no inconsistency in submitting as well the facts as the law to the higher tribunal. 4 Min. Insts., 855. What is a certiorari ? In practice, a writ issued by a superior to an in- ferior court of record requiring the latter to send in to the former some proceeding therein pending, or the records and proceedings in some cause already terminated, in cases where the procedure Is not according to the course of the common law. 1 Bouv. L. D., 251. The writ lies to complete the proceedings, when the lower court refuses to do so upon erroneous grounds. 1 Hayw., 303; 2 Ark., 73. As in some States of the United States the writ may also be issued to remove criminal causes to a superior court. 2 Murph., 100 ; 2 Terg., 178 ; 2 Whart., 117 ; 2 Va. Cas., 268. It is used also as an auxiliary process to obtain a full return to other process, as when, for example, the record for an inferior court Is brought before a superior court by appeal, writ of error, or other lawful mode, and there is a manifest defect or suggestion of diminution to obtain a perfect transcript and all papers. 3 Dev., 117 ; 1 Dev. and Bat., 382 ; 7 Cranch, 288 ; 9 Wheat., 526. The application for the writ must disclose a proper case upon its face. 2 Hawljs., 102; 8 Ad. and El., 43 ; 4 Jones, 309. What is a recordari facias loguelam? In English practice, a writ commanding the sheriff that he cause the plaint to be recorded, which is in his county, without writ, between the parties there named, of the cat- tle, goods and chattels ofi the complainant, taken and unjustly distreined, as it is said, and that he have the said record before the court tlierein named, and that he prefix the same day to the parties that then they may be there ready to proceed in the same plaint. 2 Sellon, Pract., 166. BOOK THE FIFTH. DOCTRINE OF EQniTY. Book V. LECTURE I. DEFINITION OP EQUITY, DISCOVERY, COMMISSION TO EXAMINE. WITNESSES, PERPETUATION OE TESTIMONY, &C. What is equity? A system of jurisprudence devised by the Chancellors of England for the purpose — (1.) Of furnishing evidence to be used in the courts of com- mon law ; (2.) Giving relief where courts of common law from their mode of trial cannot administer the right that will reach the • merits of the case ; (3.) Of giving a remedy where the courts of common law give one, but the remedy they give is inadequate ; (4.) Of giving a remedy when the courts of common law do not demy the right, but give no remedy.'' 'It is obvious that the term equity, as employed in England and the- American States, has a signification very different from the same term In the general sense of Grotius, namely, " tlie correction of that wherein the ■ law by reason of its universality is deficient." The English and American i equity, so incessantly alluded to in the text-writers, is well defined by Judge Story to be, " that portion of remedial justice which is exclusively administered by a court of equity as contradistinguished from that por- tion of remedial justice which is exclusively administered by a court of ' common law." 1 Sto. Eq., § 25, and seq. The same writer further dis-- criminates between the courts of equity and the courts of common law by reference to the particulars following, namely : (1.) The different natures of the rights which they are respectively de- signed to recognize and protect, e. g., trusts and equitable estates gene- rally, injuries arising from mistake, fraud or accident, many cases of for- feitures and penalties, cases of imposition and unconscionable bar- gains, &c. (2.) The different natures of the remedies which they apply, e. g., the ■ specific performance of certain contracts, Injunctions to prevent irreme-- dlable wrongs, &c. (3.) The different natures of the forms, and modes of procedure which 26 402 DOCTRINE OP EQUITY. Remedy is the process ; relief the result. In how many ways is the jurisdiction of the courts of equity for furnishing evidence atlaw exercised ? Four ; (1.) By discovery;' (2.) Commissions to examine witnesses abroad ; (3.) Perpetuation of testimony ; and (4.) Examina- tions ds bene esse. Adams' Eq., 57, 93. What is the rule respecting discovery ? Every compe- tent defendant in equity must answer as to all facts material to the plaintiff's case, he must answer to all and not to a por- tion only, and he must answer distinctly, completely, and mtk- out needless prolixity, and to the best of his information and be- lief. Adams' Eq., 69. Is the right of discovery confined to the plaintiff in an ac- tion at law ? It is not. Either party is entitled to it ; the defendant can file a cross-bill. Adams' Eq., 57-8 [2]. How may a party protect himself from discovery? (1.) On the ground that no man need discover matters tending to criminate himself, or to expose him to a penalty or forfeiture ; (2.) That no man need discover legal advice which has been given him by his professional advisers, or statements of facts which have passed between himself and them in reference to the dispute in litigation ; and (3.) That official persons shall not be called upon to disclose any matter of State, the they adopt, e. g., determining contested facts by the court instead of by a jury, deriving proofs from discoveries made by the parties as well as ^rom disinterested witnesses, taking evidence in writing in the shape of depositions, and not by the oral examination of witnesses in the presence of the court, &c. 4 Min. Insts., 187. ■' The right to enforce discovery, as it is called, does not exist in tlie courts of common law. In those courts the plaintiff must make out his -case by tlie evidence of witnesses or the admissions of the defendant. By this right more effectual means of ascertaining the truth are afforded to plaintiffs in equity than in the courts of common law, whilst the riglits of the defendant are equally provided for by the privilege in his turn of requiring from the plaintiff by a cross suit (the reconvention of tVie civil law) the like discovery, upon oath, of all the circumstances within the plaintiff's knowledge. Adams' Eq., 58 [2]. DISCOVERY. 403 publication of which may be prejudicial to the community. Adams' Eq., 59, [3]. Suppose the answer is evasive? The plaintiff must file exceptions to its sufficiency." Suppose the bill contain collateral matter ? The oppos- ing party may except to it on account of impertinence or scandal.'* The same rule applies to the answer." What is done when the bill or answer is excepted to ? Reference is made to the master, who, upon examination, either reports in favor of the exceptions or against them.' Suppose a vlea is insufficient ? Plaintiff would except to its sufiiciency and set it down for argument. The proced- ure is regulated by the view taken by the plaintiff of the sufficiency of the defence in law, or in reference to the fads. If the plea be deemed valid, it may be met by amendment. If it be deemed invalid, it may be set down for argument.* " If the bill contained interrogatories to elicit the requisite admissions, and the answer has failed to give them, it may be open to an exception for insufiBciency, or if the interrogatories have been inadequately framed, their Inadequacy may render an amendment requisite, but in either case the admissions must be extracted from the defendant before the order for production can be made. Adams' Eq., 14. ^ The statement and charges of a bill include all its allegations, and no allegations ought, in strictness, to be inserted in them which are not ma- terial for establishing the plaintiff's case, rebutting that of the defendant, or obtaining discovery for one of those purposes. Any matter alleged Which is not material, is in strictness impertinent, and may be struck out of the bill on application to che court. And if it be criminatory of the defendant, or of any other person, it is also objectionable on the ground of scandal. Even if the statement be material, yet excessive prolixity will be impertinent. Ad. Eq., 306. ° The averments of an answer, so far as it is a narrative of the defend- ant's case, are governed by the same rules as those of a bill, viz.: they must state the defence with reasonable certainty and without scandal or ■impertinence. Ad. Eq., 343. 'If either party is dissatisfied with the master's decision, he may bring the question before the court by exceptions to the report^ and it will then be finally decided. Ad. Eq., 345. « If he thinks it untrue, the plaintiff mayflle a replication and go to the 404 DOCTRINE OF EQUITY. What does impertinence mean ? Matter not pertinent to the case — a term applied to matters introduced into a bill, answer, or other proceeding in a suit, which are not properly before the court for decision at that particular stage of the suit. 1 Sum. C. C, 506 ; 3 Sto. C. C, 13. Impertinent mat- ter is not necessarily scandalous, but all scandalous matter is impertinent. A pleading may be referred to a master to have imperti- nent matter expunged at the cost of the ofifending party, (Sto. Eq. PI., § 266 ; 2 Hayw., 407) ; but a bill may not be, after the defendant has answered. Cooper Eq. PL, 19. What rule was adopted to prevent two frequent recourse to courts of equity ? The plaintiff pays all costs."" Suppose the defenda,nt enters a disclaimer, who pays costs ? Plaintiff pays all costs including attorneys fees. Upon what reason is the rule founded ? That the plaintiff has been guilty of laches.' Would the plaintiff have to allege that an action was pending ? He would have to show right to bring an action. Must he allege that he can prove the matter in no other way? He is not obliged to do so, because such a course might be a temptation to »wear falsely. Bills for discovery are favored in equity ; and when some good objection does not exist against the exercise of the jurisdiction, such bills are sustained.^ Sto. Eq. Jur., § 1488. hearing oa the issue of its truth. If the plea be overruled on argument, the defendant must answer. Ad. Eq., 342. *In suits under the protective and administrative jurisdiction of the court, the general principle is, that the party requiring aid shall be liable for the costs. Sneh are suits for discovery and for perpetuating testt- -luony in which the costs are paid by, the. plaintiff Ad. Eq., 390. *It seldom, however, happens that 'a disclaimer can be put in alone, for as it is possible that the defendant may have had an interest which he has parted with, or may have set up an unfounded claim which may malse hiBa liable for costs, the plaintiff is entitled to an answer on those points. Ad. Eq., 333 ; 2 Bland, 678 ; 6 Othl and J., 152 ; 10 Paige, 103: JSome of-the more important of the objections are : — (1.) That'the subject is. not.cognizable in any^municipal court of jus- DISCOVERY — COMMISSION TO EXAMINE WITNESSES. 405 Are suits for discovery brought under the Code of Civil Procedure? No. Section 332, C. C. P., provides that "no action to obtain discovery under oath in aid of the prosecu- tion or defence of -another action, shall be allowed." As to the examination of a party on behalf of an adverse party, see the manner prescribed in C. C. P., § 333, d seq. Can a wife give evidence either for or against her hus- band ? She cannot. Neither the husband nor wije is compe- tent or compellable to give evidence for or against the other in any criminal action or proceeding, or in any action or proceeding in consequence of adultery, or in any action or proceeding for divorce on account of adultery, or in any ac- tiou or proceeding for or on account of criminal conversa- tion. Exceptions are : (1.) To prove the fact of marriage in case of bigamy ; (2.) To prove marriage in action for di- vorce for adultery. C. C. P., § 341. How did the jurisdiction to examine witnesses abroad arise ? From the limited jurisdiction of courts of law."' tice. Sto, Eq. Jur., § 1489. (2.) That the court will not lend its aid to obtain a discovery for the particular court for which it is wanted, as where the court can itself compel a discovery. 2 Atlj. Chy., 258; 2 Ves. Ch., 451. (3.) That the plaintiff is not entitled by reason of personal disabili- ty. (4.) That plaintiflF has no right to the character in which he sues. 4 Paige Ch., 639. (5.) That the value of the suit is beneath the dignity of the court. (6.) That the plaintiff has no interest in the subject matter or title to the discovery required, 2 Br. Ch., 341 ; 1 Ves. Sen. Ch., 248 ; or that an action for which it is wanted will not lie. 3 Br. Oh., 165 ; 3 Ves. eh., 494. (7.) That the defendant is not answerable to the plaintiff, but that some other person has a right to call for the discovery, or that the policy of the law exempts the defendant from the discovery. 5 Ves. Oh., 322; 3 Esp., 38. (8.) That the defendant is not bound to discover his own title. 1 Vern. Ch., 105. (9.) That the discovery is not material to the suit. 2 Ves. Ch., 491. (10.) That the defendant is a mere witness. 7 Ves., 287. (11.) That the discovery called for would criminate the de- fendant. The suit must be a civil one. 19 How. St. Tr., 1154. " It originated in the incapacity of the common law courts to issue such commissions without the consent of hoth parties. Courts of chancery in the United States, and courts of law exercising ehaueery powers, are in the constant practice of entertaining jurisdiction 406 DOCTKINB OF EQUITY. Suppose the defendant object to the deposition abroad being read, will the court sustain the objection ? It will. The court of chancery cannot compel courts of law to receive these depositions, but can compel partieT to receive them, because it acts in personam. The plaintiff would have to take a nonsuit and then make afi&davit that the defendant had refused to obey the order of the chancellor. How would the court of equity compel him to permit it ? By attaching him for contempt, and imprisoning him until he agreed to pay the cost of the action and allow judgment to be raised and give the party a chance to read his answer. What notice is necessary to be given in the examination abroad ? Of person, time and place. If the opposite side be present at examination you need not prove that notice was served on him. Is it necessary to allege that this is the only evidence you have of the fact ? It is not. Will the court of chancery grant commissions to examine witnesses abroad in case of tort? Yes; so also in case of perpetuating testimony, and in the examination of witnesses de bene esse. Can discovery be compelled in case of tort ? It cannot.' In what cases is an examination de bene to be used ? Pend- ing a suit, wiien a party has cause to fear that before a case is regularly at issue, material evidence will be lost." of bills for the perpetuation of testimony, issuing commissions for the ex- amination of witnesses abroad, and of permitting testimony to be talien de bene esse. 7 Ire. Eq., 239 ; Sto. Eq. PI. Ch., VII. As to method of taking depositions in North Carolina, see C. C. P., sec. 343, and sub-sec., 343 i, etc. ' The suit must be of purely a civil nature, and may not be a criminal prosecution, a penal action, a suit partaking of this character, or a case involving moral turpitude. 19 How. St. Tr., 11.'54 ; 1 Keen, 329; 2 Blatchf. C. C, 39; 1 Pet., 100; 2 Ves. Cli., 398; 14/6., 64; 2 E. L. and 5q., 117 ; 1 Sim. Oh., 404. ™ The examination of a witness de bene esse takes place where there is danger of losing the testimony of an important witness from death, by reason of age or dangerous illness, or where he is the only witness to an PERPETUATION OP TESTIMONY, &G. 407 Is it necessary to allege that the party whose examination is required is the only witness of the fact ? No ; but where there is only one witness of a fact it is sufficient cause for granting the examination, if alleged. Bouv. Law Die, De bene esse. What is necessary to be proved in order to use the depo- sition in court ? That the witness is dead, beyond the sea, or so sick that he cannot attend." Where there is danger of losing testimony as recited above, in an action at law, a bill may be had for an auxiliary ex- amination de bene esse, provided an affidavit of the circum- stances which render such examination necessary is annex- ed to the bill. Ad. Eq., 25. The affidavit is necessary in this case, because the bill tends to alter the ordinary ad- ministration of justice. Ad. Eq., 25. When is the jurisdiction for perpetuation of testimony exercised ? When there is reason to fear that evidence in a case, which cannot be litigated at present, may be lost before the time." What is the most usual instance in which this jurisdiction is exercised ? In the case of a devisee in possession, who important fact. 1 Bland Ch., 238 ; 3 Bibb., 204 ; 16 Wend., 601. In such case if the witness be alive at the time of trial, his examination is not to be used. 2 Dan. Ch. Pr., 1111. De bene esse, (Lat. formally; conditionally; provisionally.) A techni- cal phrase applied to certain acts deemed for the time to be well done, or until an exception or other avoidance. It is equivalent to provision- ally, with which meaning the phrase is commonly employed. Bouv. L. D., De bene esse. " The depositions can only be read if the party seeking the benefit of them has used all diligence to examine in the ordinary course, but there has been a moral impossibility of his so doing. 19 Ves., 320 ; 3 Bea., 317 ; 1 Hare, 328 ; 1 P. W., 567. ° E. g., where the party filing the bill has merely a future interest, or having an immediate interest is himself in possession and not actually disturbed, though threatened by the defendant with disturbance at a fu- ture time. Mltf., 51 ; 6 VeS., 251 ; Ad. Eq., 24. 408 DOCTRINE OF EQUITY. fears that the heir-at-law is only waiting till the witnesses die to bring an action against him. How is a will proved in chancery ? The devisee files a bill for the perpetuation of testimony, in which he charges that the devisor made a will. The heir-at-law puts in his answer, denying the validity of the will. The court sends the issue devisavit vel non^ down to the court of common pleas to be tried, and the verdict is filed away in chancery. Ad. Eq., 249, and n. (2). How is the examination of witnesses taken ? By an ex- aminer or commissioners. The parties frame their interrog- atories, and the examiner is sworn to secrecy. What is the difference between perpetuation of testimony and the examination of witnesses de bene esse ? According to Story, perpetuation lies where no present suit can be brought at law by the party seeking the aid of the court to try his right ; the examination of witnesses de bene esse is in aid of a suit pending.' Why is it necessary that these bills should be supported by afiidavit ? Because they have a tendency to change the ordinary course of administration of justice. See when affi- davit is required, Ad. Eq., 25. Will equity enforce discovery in aid of an action in a for- eign court? Mitford says it will not, (Mit., 53, 186, 225) ; p Devisavit vel non in practice is the name of an issu6s,%nt out of a court of chancery, or one which exercises a chancery jurisdiction to a court of law, to try the validity of a paper asserted and denied to be a will, to as- certain whether or not the testator did devise, or whether or not that paper was his will. 3 Atk. Ch., 424 ; 7 Brown, Pari. Cas., 437. 1 The jurisdiction in suits to perpetuate testimony arises where the fact to which the testimony relates cannot be immediately investigated at law. The jurisdiction to examine witnesses de bene esse is a jurisdiction for permitting evidence to be tal^en before the cause is regularly at issue in cases where, from the age or illness of a witness, or from his being the only witness to an important fact, there is reason to appreliend that be- fore the regular-opportunity arrives material evidence may be lost. Ad. Eq., 34. OP EXAMINATIONS DE BENE ESSE, &C. 409 but Adams says discovery has been enforced in one instance to aid the jurisdiction of a foreign court. Ad. Eq., 19. Suppose there is only one witness to a material fact, can you examine him de bene esse? You will be allowed to do so, because he is the only witness and his evidence might otherwise be lost. Bouv. L. D., De bene esse. Suppose there are two or more, how then ? You could have any one or more of them examined by making affidavit that the wit- ness is old or ill. 1 Bland, Ch., 238; 3 Bibb., 204; 16 Wend., 601. A statute in North Carolina allows the courts of common law to issue commissions to examine witnesses abroad, and also de bene esse; hence there is no necessity to apply to equity here ; so, as to the perpetuation of testimony. C. C. P., sec. 343i, etc. The same statute provides that, upon giving notice to the heirs, the devisee may prove the will in the probate court, and that such proof shall have the same validity as if proved in chancery. If heirs contest the validity of the will, they put in a caveat and the case is tried in the Superior Court. Bat. Rev., 851, sec. 2, 3, et seq. Commissions to examine witnesses abroad, or de bene esse, do not issue in case of indictments. They would not issue in favor of the defendant, because the court of chancery could not compel the plaintiff (the King) to allow them to be read, and it would not issue iu favor of the King, because the de- fendant could not be allowed the same privilege. Commissions to examine witnesses abroad, to perpetuate testimony, and de bene esse, are granted iu aid of courts of chancery as well as to aid courts of law. Addenda :— "Equity follows the law" — equitas sequitur hgem. That Is, it follows the rules of law in all cases to which these rules are applicable, and in dealing with cases of an equitable nature, it follows the analogies of the law, as e. g., statute of limitations to equitable claims. This rule, how- ever, is not always applicable when the law is peremptory, determining 410 DOCTRINE OF EQUITY. a case with all of its circumstances, equity must conform to it. But there may be equitable circumstances which justify a court iu departing from the law, or in controlling it in the particular case, e. g., if the true owner of the tract of land purposely conceals his title and permits an innocent purchaser to pay his money for it, the owner will not be permitted to assert his title in a court of law against a purchaser, and as courts of equity often afford a remedy because a court of law afifords none, it can- not be said that they follow the law in every respect. Prof S. O. South- all's notes on Equity. " When equities are equ.n.1, the law must prevail." That is, when the defendant has an equal claim with the plaintiff for the protection of the court of equity, it will allow him that has the legal advantage to enjoy it. Thus equity will give no aid against a bona fide purchaser for value who has paid his money without notice of the adverse title. Of course, how- ever, if one of the parties have a superior equity, the principle does not apply. Basset ■». Nasworthy, 3 Wh. and Tud. L. C. in Eq., 20. And when equities are otherwise equal, mere priority in time will fre- quently give a preference of one equity over the other according to an- other maxim, qui prior est in tempore potior est in jure— he who is first or before in time is stronger in right. Coke Litt. , 14 a; 1 Sto. Eq. Jur., § 64 d; Sto. Bailm,, § 312; 1 Sm. Led. Cas., 4th Hare and W. ed., 440; 3 East., 93. " He who seeks equity must do equity." This applies to the plaintiffs in equity, and signifies that such shall not have its aid unless they do equity to the party against whom its aid is invoked. Thus, if the bor- rower of money at a usurious interest, which makes the bond void at law, seeks through equity a discovery of the usury from the usurer and conse- quent relief, that I'elief will only be afforded him' on condition that he does, in an equitable manner, e. g., pay him (defendant) his principal and legal interest. But if the usurious lender comes into equity to enforce a security for the loan to the borrower, being full handed with proof and asking no aid of equity, he could stand upon liis legal rights, show the illegality of tlie consideration and thus defeat the claim. Notes of Prof. S. O. Southall. "Equality is equity," or "equity delighteth in equality." This is applied to contribution between co-contractors, sureties, abatement of legacies. Ttius iJ a principal to a bond i.s insolvent, and one of the sure- ties has to pay the bond, he can recover contribution from his co-securi- ties so as to make the burden equal. Prof. Southall's notes ; KamesEq., 75; 4 Bouv Insts., n. 3735. Again, a rule of equity as to jurisdiction is, that if the jurisdiction has properly attached in equity in any case on account of a defect of remedy at law, that jurisdiction thus acquired, will not, in the absence of some statute, be lost or surrendered because courts of law subsequently enter- tain jurisdiction in cases in which they formerly rejected it. JURISDICTION IN EQUITY. 411 He who comes Into equity must come with clean hands, i, e., he will not be aided if he bases his claim upon facts tainted with illegality, fraud, &c. It must be remembered that the jurisdiction of courts of equity is con- cwrrent with courts of law, and sometimes it is exclusive, and sometimes it is auxiliary Xo it, as in case of discovery and perpetuation of testimony. M]-. Story says, perhaps it is sufficiently accurate to say that a court of equity has jurisdiction in cases of rights recognized and protected by the municipal jurisprudence, where a plain, adequate and complete rem- edy cannot be had in courts of law. 1 Sto. Eq., § 33. In common law courts there are only certain prescribed forms of action, e. g., debt assumpsit, &c., and if tliere be no prescribed form to reach a given case, the common law gives no remedy. There are certain cases in which a simple judgment for plaintiflf or de- fendant would be alike unjust. Modifications, restraints, mutual adjust- ments and obligations must frequently be annexed to effect complete justice. In those last, courts of law are inadequate to give the proper remedy from the simplicity and rigor of their processes or pleadings. But though courts of equity have their prescribed forms of proceeding, these forms are more flexible, and may be adapted to different conditions of cases. Notes of Prof. S. O. Southall. -The jurisdiction of the courts of equity is concurrent, more or less with that of the courts of law, in a great number of cases, such as (1.) Acci- dent ; (2.) Mistake ; (3.) Fraud ; (4.) Account ; (.5.) Administration and legacies; (6.) Dower and partition; (7.) Confusion of boundaries; (8.) Marshalling of securities; (9.) Partnership; (10) Cancellation of wri- tings; (11.) Specific performance of agreements ; (12.) Interpleader, bills quia timet, and bills of peace ; and (13.) Injunctions. Fonbl. Eq., B. 1, c. I, § 3, n. (P), and Am., note * ; 1 Sto. Eq., § 75, et seq. The jurisdiction is exclusive of courts of law in the instances following, amongst others, namely: (1.) Trusts; (2.) Mortgages; (3.) Assignments; (4.) Election and satisfaction ; (5.) Penalties and forfeitures ; (6.) Infants, idiots and lunatics; (7.) Separate property of married women; and (8.) The setting aside of awards. 2 Sto. Eq., § 960, and seq. It is auxiliary in the cases following, among others : (1.) Bills of dis- covery; and (2.) Bills to perpetuate testimony. 2 Sto. Eq., § 1480, and s&q. LECTURE II. ACCOUNT — SPECIFIC PERFORMANCE, AC. Give an instance where courts of common law give the same relief as courts of equity, but cannot, from their mode of trial, reach the merits of the case ? In actions of account. What is the mode of trial in an action of account at com- mon law ? If no account has been made up then the legal remedy is by bringing a writ of account, de computo, command- ing the defendant to render a just account to the plaintiff, or show the court good cause to the contrary. In this ac- tion, if the plaintiff succeeds there are two judgments : the first is. that the defendant do account {quod computet) before auditors appointed by the court, and when such account is finished then the second judgment is that he do pay the plaintiff so much as he is found in arrear."' , " The action of account at common law is adapted to those cases only where there is a trust or privity in deed, or a privity in law. An exten- sion of the doctrine Is allowed for the benefit of trade, and in favor of and between merchants where one may be regarded as the receiver for and in behalf of the other. But the action is strictly confined at common law to bailiffs, receivers, guardians in socage, and mercliants. 1 Sto. Eq., §445; 4 Man. and Gr., 43 E. C. L., 284-'5 ; Bac. Abr. Accompt. A ; 3 Th. Co. Lit., 346-7, n. (15), (16), (P). The statute 18 Ed. I., c. 23, gave it to executors, that of 25 Edw. III., c. 5, io executors of executors, and that of 25 Ed. III., c. 11, to adminis- trators. But it was not until 3 and 4 Anne, c. 16, that it lay against ex- ecutors and administrators of guardians, bailiffs, and receivers, and by and against joint tenants and tenants in common, and their personal represen- tatives, even though such joint tenants and tenants in common were not appointed receivers. 1 Th. Co. Lit., 340, n. (10), (11), and (12); Id., 787, and n. (B); Bac. Abr. Accompt., (A); 4 Min. Insts., 1216 If the matters offered before the auditors are controverted by the plain- tiff, he may demur or take issue in point of fact, and this demurrer or issue in fact is certified by the auditors to the court, where the matter of law is decided by the court, and of fact by a jury, which being returned to the auditors, they adjust and report an account accordingly, but as these ACCOUNT. 413 What is the mode of trial in an action of account in equity ? "A foundation is first laid for all necessary in- quiries by the discovery elicited by the defendant's answer. The account is then referred to a master, who is armed with power, not only to examine witnesses but also to examine the parties themselves, and to compel production of books and documents. It is not liable to interruption by contro- versies on particular items, but is carried on continuously to its close. The master reports the final result to the court. The report may be excepted to on any points which are thought objectionable, and all such points are simultaneous- ly re-examined by thecourtand either at once determined, or if necessary, referred back to him (the master) for review. As soon as the report is finally settled and confirmed, a de- cree is made for payment of the ultimate balance. If the interest of other parties are entangled in the account, the court may require that they be made parties to the suit, or may direct, if necessary, the institution of cross-suits, and thus, by a single decree, embrace and arrange all interests before the court.'"" references may be repeated in connexion with each item of the account, the proceeding is liable to become intolerably tedious, expensive and inconvenient, especially as besides the contested matters of law or fact which there may be occasion to submit to the court or to a jury, either of the parties, if he thinks the auditors do him injustice, may apply for re- dress to the court. Bac. Abr. Accompt. (F) ; 1 Sto. Eq., §§ 447, 448. '' Various instances where matters of account are cognizable in equity: (1.) Wherever the matter of account stands upon equitable claims, or has equitable trusts attached to it. 1 Sto. Eq., § 454. (2.) In all cases of the administration of the personal assets of a decedent and consequently of what concerns the debts, legacies, distribution of the residue, and the official conduct of executors and administrators, which, without violence, may be referred to the preceding head of equitable trusts and claims. 1 Sto. Eq., § 453 ; 3 Bl. Com., 437. (3.) Dealings in partnership and many other mercantile and business transactions. 1 Sto. Eq., § 453 ; 3 Bl. Com., 437. (4.) Wlierever the liability is that of bailiff, receiver, factor, or agent, to his principal. 3 Bl. Com. 437. (5.) Wherever coparceners, joint-tenants, or tenants in common are called 414 DOCTRINE OP KQUITY. Who tries issues of law in an action of account at com- mon law ? All issues of law are tried by the court; issues of fact by the jury. Ad. Eq., 225. Suppose the parties are dissatisfied with the decision of the master ? Any exceptions, by either party, to his state- ments and conclusions may be re-examined, and, upon argu- ment, adjudged by the court, and the whole case moulded and directed as ex sequo et bono may be required. The court may also bring all proper parties in interest before it, where there are different parties concerned in interest, and if any serious doubt arises upon any particular demand as to which there is a conflict of testimony, it may direct the same to be sub- mitted to a jury upon an issue made up for the purpose. 1 Sto., 609, § 450 ; 2 Dan. Ch. Pr., 987, 1285, and seq.; 4 Min. Insts., 1218. Suppose land be acquired by persons in trade as partners, how will it be considered ? As money, until the account has been taken between the partners, and each one has re- ceived his share; it will then be considered as land." P was an administrator of one brother and executor of another, and wished to settle up the estate. He filed a bill against the heir of each one for account. His brother G had directed his land to be sold, if the executor thought to account for rents, profits, &c., over and above their respective shares. 4 Min. Insts., 1219. (6.) Wherever in matters of accounts growing oat ot privity of contract, tliere are mutual demands and a fortiori, when the accounts are intricate. 2 Sto. Eq., § 459. (7.) Where the accounts are all on one side, but a discovery is sought and is material to the relief. 1 Sto. Eq., § 459 ; 4 Min. Insts., 1219. " Where it has once been determined that land is partnership assets, it is then for all the purposes of the partnership to be treated as personalty, except ihat it cannot be conveyed by one partner, and assumes the char- acter of real property only after the partnership debts have been paid and the shares of the other partners have been provided for, that is, only as to the widow's heirs and individual creditors of the partners respectively. 2 Min. Insts., 192. ACCOUNT — PARTITION. 415 proper, for the education of his children. P sold the land and kept part of the negroes to hire out to educate the chil- dren ; he paid the debts with the proceeds of the sale of the land. R married a daughter of his brother, (P's) and when the account was taken P insisted that R was entitled to an estate by the curtesy in the negroes, as the land had paid the debts, which would have been paid by the sale of the negroes. Owelty of partition between minor children is an- other example of conversion.* How is a charge made upon an estate for owelty' of par- tition considered ? As land. How long does it retain the character of realty ? Until it has accomplished the purpose for which it was intended, or has come into possession of the legal owner. Why did courts of equity take jurisdiction in cases of as- signment of dower ? Because it was inconvenient and often injurious to divide the estate as must have been done at law.' For example, the case of a mill : It is impracticable to di- * In equity, conversion is the exchange of one species of property for another, wiiich taiies place under some circumstances in the considera- tion of the law, although no such chanfi;e has taken place. ^ Land is held to be converted into money in equity, when the owner has contracted to sell, and if he die before making a conveyance, his ex- ecutors will be entitled to the money and not his heirs. 2 Vern. Chy , 52 ; 1 W. Blackst., 139. Money may be held to be converted into land under various circum- stances, as where, for example, a man dies before conveyance is made to him of land which he has bought. 1 P. Wills. Ch., 176; 10 Pet., 563 ; Bouv. Insts. Index. ' Owelty. The difference which is paid or secured by one co-parcener to another for the purpose of equalizing a partition. Cruise Dig , tit. 19, § 32 ; 1 Vern. •Ch., 133 ; Plowd., 134. ' The assignment of dower has also long been regarded as a proper sub- ject of equity, cognizance at first by reason of the embarrassments which often obstructed the assertion of a widow's rights in a court of law, but for more than a century without pretending sucii obstruction in all cases, at leant where the legal title to dower is not in controversy. 1 Sto. Eq., § 624, and scq. 416 DOCTRINE OP EQUITY. vide a mill, and give the widow the mill one week and the heir the next week ; a court of equity would have the mill sold and give her one-third of the money. Suppose an action is brought on a bond at common law, what must the plaintiff do? Make profert.*^ Suppose the bond was lost, how would he proceed ? File a bill in equity and the court would compel the defendant to excuse profert. Though this was the former practice, in course of time courts of law dispensed with profert in such cases and obtained concurrent jurisdiction with courts of equity ; so tliat now the loss of any paper, other than a negotiable note, will not prevent the plaintiff from recovering at law as well as in equity. 3 Atk., 214; 1 Ves. Ch., 341 ; 5 lb., 235 ; 6 Id., 812; 7 Id., 19 ; 3 Ves. and B. Ch. Ir., 54. Suppose an action is brought on a negotiable instrument, what must the plaintiff do in order to get judgment ? Pro- duce the instrument. Suppose it was lost ? The plaintiff would file a bill in equity and the court would force the de- fendant to allow him to take judgment, provided he gave defendant an indemnity bond."" A statute allows the courts of law the same jurisdiction.' What is the remedy at law for a breach of contract ? As- sumpsit, if not under seal ; covenant, if under seal. What is the remedy in equity ? ' A bill for specific performance. What are the requisites for specific performance ? (1.) The s Profert in curia. In pleading, a declaration on the record that a party produces the deed under which he makes title in court. In ancient prac- tice, the deed itself was actually produced; in modern times, the allegation only is made in the declaration, and the deed is then constructively in possession of the court. 3 Salk., 119. '' When a negotiable note has been lost, equity alone will, in the ab- sence of statutory provisions, grant relief. In such case the claimant must tender an indemnity to the debtor and file a bill in chancery to compel payment. 7 Barnew. and C, 90; Ky. and M., 90; 4 Taunt., 602 ; 2 Ves. Sen. Chy., 317 ; 16 Ves. Oh., 430. ' Distinctions between actions at law and suits in equity are abolished in North Carolina. Const. Art. IV., sec. 1 ; C. C. P., sec. 12. SPECIFIC PERFORMANCE. 417 contract must have been made for valuable consideration ; (2.) Its enforcement must be practicable ; (3.) Its enforce- ment must be necessary.^ Give instances of contracts for valuable consideration which courts of equity will not enforce ? (1.) Marriage con- tract, because it is contrary to the policy of the law to en- force marriage. (2.) In the case of partnership, the court could only enforce the decree by appointment of a receiver ; and unless in the contract the term was stated, the court would not know how long the partnership was to continue." (3.) When ' The character of the relief which equity affords in decreeing the spe- cific performance of a contract, does not differ in Ifind from that which is administered by the same system of jurisprudence in other cases, for the relief given' in equity is always specific. In cases of contracts, the juris- diction of equity arises in some instances from the inability to estimate damages for the breach, and in others from the inadequacy of tJje com- pensation which damages afford, and the jurisdiction having once at- tached, the court goes on to apply its usual remedy, namiely: spedfic relief.! or causing that to be done which in good conscience ought to be done. The requisites for the specific performance of contracts in equity are : (1.) The performance in specie must be necessary. Lloyd v. Loaring, 6' Ves. Jr., 773; 10 do., laS ; Earl of Macclesfield v. Davis, 3 Ves. and B.,. 16 ; Lowther v. Lowther, 13 Ves., 95 ; 3 Ves., 71 ; 1 Vern., 273 ; 3 P. Wms'., 389; Cuddie c. Butter, 1 Lead. Cas. Eq., 640 ; Pussfey ». Pussey, 1 Lead. Cas. J^q., 654; Duke of Somersets. Toolsson, Id., 655. (2.) The specific enforcement of the contract must be _prfls(! The following is an abstract of the proceedings in the courts of equity, as laid down by Mr. Minor in vol. 4, p. 1110, of his Institutes :— (1.) The process to convene the parties defendant which consist of the subpmna, or summons, and the order of publication. (2.) Orders or rules, with a view to mature the cause for hearing and decree. (3.) The pleadings which include, (1.) The bill of complaint; (2.) The defence by the defendant, and such defence may be either by demurrer to the biU, or by plea to some specific matter or matters in the bill, or by disclaimer by the defendant of any interest in the subject matter of the suit, or by answer in full to the averments and interrogatories contained in the bill ; (3.) General replication by plaintiff to defendant's defence, including Joinder in demurrer; (4.) Amended bill by plaintiff, wliere a general replication is not sufficient. (4.) The decree. (5.) The circumstances attending the carrying out of a decree. (6.) Kehearings and bills of review under which are embraced re-hear- ing of interlocutory decrees, and bills of .review of final decrees. (7.) Proceedings by way of appeal. " Adams gives the bill or informatien five principal parts : the state- ment, the charges, the interrogatories, the prayer for relief, and tlie prayer of process. Ad. Eq., Intro., 42. 438 DOCTRINE OP EQUITY. to answer and give him time to prepare his defence. What then ? He may be attached for contempt.* What difference is there between practice in equity and under the Code of Civil Proceedure ? In practice under the Code the defendant, at the same term at which the com- plaint is filed, must appear at court and put in his answer to the complaint, which is required to be filed within the first three days of the term." In equity, the defendant could prepare his answer and appear by attorney. Suppose, un- der the Code, the defendant does not appear and answer the complaint during the next term after process served, what is done ? The plaintiff takes judgment by default. Tour- gee's Code, 315, § 4. This is usually done the first week of the term, with the understanding that if the defendant ap- * After the bill has been filed, it is next requisite that the subpoena should be served, that the defendant should enter his appearance, and that after appearing he should put in his defence. If he be contumacious and refuse to do so, his disobedience may be punished as a contempt; and the plaintiff is enabled, on compliance with certain rules, to enter an appearance for him, and, on continuance of his default, feither to take the bill pro confesso, or to put in a formal defence in his name and pro- ceed to support Che bill by evidence. Ad. Eq., Intro., 44. The processes of contempt were originally five, viz : (1.) A vfrit of at- tachment directed to the •sheriff of the defendant's county, commanding that the defendant's person should be attached ; (2.) A writ of attach- ment with proclamations ; (3.) A writ of rebellion directed to commis- sioners appointed by the court, and extending into all the counties of England ; (4.) An order that the sergeant-at-arms, as the immediate offi- cer of the court should eifect the arrest ; (5.) A writ of sequestration, issuable only on the return non est inventus of the sergeant-at-arms, or on a defendant in custody being committed to the fleet. Ad. Eq., 325-'6. ■^The plaintiff shall file his complaint in the clerk's office on or before the third day of the term to which the action is brought, otherwise the suit shall, on motion, be dismissed by the court at the cast of the plain- tiff. See Haywood v. Bryan, 63 N. C, 521. The defendant shall appear afld demur, plead or answer at the same term to which the summons shall be returnable, otherwise the plaintiff may have judgment by default, as is now allowed by law. See both these sections, Tourgee's Code, 315, §§ 3 and 4 ; Oates «; Gray, 66 N. O., 442. EQUITY PLEADING. 439 pears and answers during the term the judgment is to be set aside and he is to be allowed to answer. Under the Code practice, when does the issue stand for trial ? The plaintiff replies to the answer, or joins in demurrer at the same term such answer or demurrer is filed, and the issue of fact or law, thus arising, stands for trial at the next term succeeding the term at which the pleadings are made com- plete. Tourgee's Code, 316, § 5. What is the object of interrogatories in equity pleading ? They answer the purpose of cross-examination at common law, and obtain discovery in detail in regard to matter that might be avoided by a general answer.' What is the object of using charges ? They are generally used for col- lateral objects — such, for example, as : (1.) Meeting the de- fence by matter in avoidance; (2.) Sifting the truth of the defence by inquiries; (3.) Giving notice of evi- dence which might otherwise operate as a surprise ; (4.) Ob- taining discovery, as to matter of detail, which could not conveniently be introduced in the statement. Ad. Eq., In- trod'n, 42-'3. What does the plaintiff do when he thinks the answer is not full ? He excepts to the sufSciency, and the answer is ' Material and pertinent questions, in writing, to necessary points, not confessed, exhibited lor the examination of witnesses or persons who are to give testimony In the cause answer to the name of interrogatories in the text. They are either original and direct on the part of him who produces the witnesses, or cross and counter, on behalf of the adverse party, to examine witnesses produced on the other side. Either party, plaintiflf or defendant, may exhibit original or cross interrogatories. The form which interrogatories assume is as various as the minds of the persons who proposed them. They should be as distinct as possible, and capable of a definite answer; and they should leave no loop-holes for evasion to an unwilling witness. Care must be observed to put no lead- ing questions in original interrogatories, for these always lead to incon- venience ; and for scandal or Impertinence interrogatories will, under certain circumstances, be suppressed. See Wills, Int. passim; Gresley, Eq. Ev., pt. 1, c. 3, s. 1 ; Viner, Abr. ; Hind. Chanc. Pract., 317 ; 4 Bouv. Insts., n. 4419, etseq.; Daniel, Chanc. Pract. 440 DOCTRINE OF EQUITY. then referred to the master to examine and report,^ and he may either sustain or overrule the exceptions. If the ex- ceptions are sustained, the defendant must answer over, and if his third answer is successfully excepted to, he must ap- pear before the master and answer on interrogatories viva voce, and may be committed to prison until he does perfectly answer the interrogatories.'' Suppose the answer is full, admits the allegations of the 8 Wherever an answer is wanting in any of the qualities and attributes which we have seen ought to belong to it, it is liable to objection for in- aufficieney. Thus it is insuflScient if it does not answer the material aver- ments of the bill directly, or without evasion ; if it merely answers the charges literally and generally, but does not confess and avoid, or trav- erse the substance of each charge; if it answers any interrogatory argu- mentatively, and not positively and directly, &c. Dan. Ch. Pr. 864, et seq.; 1 Johns. Ch. K., 103 ; 3 Do.. 297 ; 5 Do., 347 ; 8 Pick., 113, 119 ; 4 Band., 434; 9 Gratt., 131. Exceptions to an answer for insufficiency ought to be in writing, and ought to state with precision the part iculars wherein the plaintiff con- siders the insufficiency to consist. The mode of doing it is dwelt on elab- orately in the books of practice, to which it must suffice to refer. 3 Dan . Ch. Pr., 881, and se?. ; Sto. Eq. PL, §864, and n. 6 The exceptions having been stated, are set down to be argued, not before a master com- missioner, as in England, but before the court itself (in some of the States) ; and if they are sustained, and the defendant shall put in a sec- ond insufficient answer, he may be examined upon interrogatories, and committed until he answers them. Mitf. Eq. PL, 250-'51. But no ex- ception to an answer is allowable after a replication thereto. Coop. Eq. PL, 321-'2. And it should be observed, that scandal and impertinence in an answer ought to be disposed of before its sufficiency is considered. Sto. Eq. PL, §867. '' If the defendant puts in a second or third insufficient answer, the plaintiff does not* deliver new exceptions, but must refer it for insuffi- ciency on the old ones, pointing out, in the order which he obtains, the particular exception or exceptions to which he requires a further answer. If a third answer is reported insufficient, the defendant is examined per- sonally on interrogatories ; and is committed to prison until he shall have perfectly answered them, Ad. Eq., 346 ; Rules in Equity of U. S. Courts, No. Ixi, &c. EQUITY PLEADING. 441 bill, and introduces no new matter, what is then to be done ? The evidence will be taken, and the hearing follows.' What is an interlocutory order? One made during the course of the suit, but which does not affect the merits.^ When the further action of the court in the cause, and not 'FoUowing the exceptions to the answer, the next step Is the amend- ment of the bill. The object of the amendment may be either to vary or add to the case originally made, or to meet the defence by new matter. If the amendment make fresh discovery requisite, the plaintiff may call for a further answer, or, if the defendant considers it material to make a further answer, he may do so, though not required by the bill. The right of amending is not absolutely confined to the plaintiff. The de- fendant may, under special circumstances, obtain a similar indulgence by getting leave to file a supplemental answer ; but as an answer is put in on oath, the court, for various reasons, wiU. not readily suffer alterations to be made. The final result of the pleadings is, that the original or ultimately amend- ed bill and the answer or successive answers of the defendant constitute the whole record. The plaintiff may then either set down the cause for hear- ing on bill and answer, admitting the answer to be true throughout, or if he controverts any part of the answer, or requires additional proof of his case, may file a short general form called a replication, stating that he joins issue with the defendant. Ad. Eq., Introd'n, 47. J The answer of the defendant is the chief foundation of interlocutory orders, that is, of orders not made at the hearing of the cause, but ob- tained during its progress for incidental objects. Application for these orders is either by motion or hy petition. They are made for a variety of objects, such as : (1.) For the production of documents, when documents are admitted to be in the defendant's possession, and to be capable of af- fording discovery to which the plaintiff is entitled ; (2.) For payment into court, when the defendant admits money to be in his hands which he does not claim as his own, and in which he admits that the applicant is interested ; (3.) For a receiver, where no competent person is entitled to hold the property, or the person so entitled is in the position of a default- ing trustee ; (4.) For an injunction to restrain a defendant, so long as the litigation continues, from doing acts productive of permanent injury, or from proceeding in an action at law, where an equit}' is alleged against his legal right ; (5.) For a writ of ne exeat, in the nature of equitable bail, to restrain a defendant from quitting the kingdom ; (6 ) For a prelimi- nary reference to the master, where accounts or inquiries are requisite before the cause can be decided, which cannot be conveniently taken or made by the court. Ad. Eq., Intro., 49. 442 DOCTEINE OF EQUITY. beyond it, is necessary to give completely the relief contem- plated by the court, there the decree is only interlocutory. Where the whole law of the case before the court is settled by a decree, and nothing remains to be done unless a new application be made at the foot of the decree, it is a final one as respects an appeal. French v. Shoemaker, 12 Wal- lace, 86. A files a bill for an account, the question is whether the plaintiff is entitled to an account, and the court determines that he is, would the court's decision be mani- fested in an order or decree ? In a preliminary decree.'^ Suppose the defendant denies a material allegation in a bill, what would be the effect? To rest the decision of the court on a single point. Suppose he omits to answer a ma- terial allegation; what is the effect ? The plaintiff may ex- cept to the sufficiency of the answer, or pass it over and file a replication.' In the latter case, the allegations remaining '' At the hearing of the cause, the pleadings and evidence are stated, and the court either makes a final decree, or,, if any questions are involved which the evidence does not satisfactorily determine, it eliminates them from the general statement, and provides for their determination by a preliminary decree. The causes wiiich create a necessity for a preliminary decree are four in nnraber, viz : (1.) That in the course of the suit a dispute has arisen on a matter of law, whicli the court is unwUling to decide ; (3.) That a simi- lar dispute has arisen on a matter of fact ; (3.) That the equity claimed is founded on an alleged legal right, the decision of which the court of chancery declines to assume ; and (4.) That there are matters to be inves- tigated which, although within the province of the court, are such as the presiding judge cannot at the hearing effectually deal with. The ma- chinery for obviating these impediments is that of a preliminary decree, directing: (1.) A case for a court of law; (2.) An issue for a jury; (3.) An action at law to be determined in the ordinary course ; or (4) A reference to one of the masters of the court to acquire and impart to it the neces- sary information. Ad. Eq., Intro., 50. ' Where an answer responds to some of the allegations of the bill, and omits to notice others, it seems the better opinion that tlie allegations not noticed are not to be considered as admitted, but are to be proved by the plaintiff. There are cases, however, which assume that the averments of the bill not denied or noticed by the answer, are considered to be admit- EQUITY PLEADIITQ. 443 unanswered must be proved at the hearing. What amount of evidence would be required for proof? The plaintiff's oath only, as the defendant never put in a denial."" What distinction is there between practice in equity and practice under the Code of Civil Procedure concerning alle- gations unanswered ? In equity, such allegations must be proved (4 Min. Insts., 1192) ; under the Code, allegations of fact not controverted are taken to be true, except in the rep- lication.'' Does the answer to a bill in equity have to be verified ? It does not, as a general rule ; but it does when any relief tending to change the ordinary course of the administration of justice is asked." What is the rule with regard to verifi- ted as true, and need no further proof. 2 Munf., 298 ; 5 Do., 86. But the proper course is to except to the answer for insufficiency. 4 Min. Insts., 1193. ™ After the defendant has put in his plea oi: answer, the plaintiff must determine whether the answer or the plea is sufBcient, and also whether he will amend his bill. It he neither excepts to the answer nor to the plea for insufficiency, nor amends his bill, the usual step next taken by him is to file a replication, which is the avoidance or denial of the answer or plea, and in maintenance of the bill, to dfaw the matter to a direct is- sue io be proved or disproved by testimony. Coop. Eq. PI., 328-'9 ; Sto. Eq. PI., §877. " Every materia] allegation of the complaint not controverted by the answer, as prescribed in section ninety-seven, (§97 of C. C. P.) and every material allegation of new matter in the answer, constituting a counter^ claim, not coniroverted by the reply, as prescribed in section one hun- dred and one (§ 101 of C. C. P.) shall, for the purposes of the action, be taken as true. But the allegation of new matter in the answer, not re- lating to a counter-claim, or of new matter in reply, is to be deemed con- troverted by the adverse party as upon a direct denial or avoidance, as the case may require. Tourgee's Code, 116, § 127 ; McKesson ». Menden- hall, 64 N. C, 386; Green ». N. C. B. E. Co., 77 ST. C, 95 ; Erwin v. Lowery, 64 N. C, 321 ; Priv.e ». Eccles, 73 N. C, 162 ; Jenkins v. Ore Dressing Co., 65 N. C, 563 ; Bk. of Bait. «. Charlotte, 75 N. C, 45. " In case relief is sought by the bill, the answer contains both the de- fendant's defence to the case made by the bill, and the examination of 444: DOCTKINE OP KQTJITY. cation of pleadings under the Code ? Wherever any plead- ing is verified every subsequent pleading must be verified.'' At common law, pleadings were not verified and it was the practice, in order to delay the suit when the defence had not merits upon which to base a plea, to plead payment, set-off, statute of limitations, &c. This mode of pleading would give the pleader till the next term, but as such pleas were put in to give time it was a practice to withdraw the plea and take judgment.' Under the Code, the practice was to demur for the pur- pose of delay, until the Supreme Court decided that a de- murrer was final.'' The Legislature then passed an act the defendant on oath, as to the facts charged in the hill of which discov- ery is sought. Gresley, Eq. Ev., 19 ; Mitf'd. orEq. PI., Jeremy ed., 15, 16. The answer must he upon oath of the defendant, or under the seal of a corporation defendant, (21 Ga., 161 ; Barh., N. Y., 22; 8 Gill, Md., 170;) unless the plaintiff waives the rie;ht, (Sto. Eq. PL, §824; 1 Gush., Mass. , 58 ; 2 Gray, Mass., 431 ;) in which case it must he generally signed hy the defendant, (6 Ves. Ch., 171, 285 ; 10 Id., 441 ; 14 Id., 172 ; Coop. Eq. PI., § 326 ;) and must be signed by the counsel, (Sto. Eq. PI., §876 ;) unless taken under a commission. 4 McLean, C. C, 136. P Every pleading in a court of record, must be subscribed by the party or his attorney : and, when any pleading is verified, every subsequent pleading, except a demurrer, must be verified also. Tour. Code, 106, §116; Haywood J). Bryan, 63 N. C., 531; Bankin v. Allison, 64 N. C, 673; Harkey v. Houston, 65 N. C, 137. 'i Sham plea. One entered for the mere purpose of delay; it must be of a matter which the pleader knows to be false ; as judgment recovered, that is, that judgment has already been recovered by the plaintiff for the same cause of action. These sham pleas are generally discouraged, and in some cases are treated as a nullity. 1 Barnew. and Aid., 197, 199 ; Archbold Civ. Plead., 249 ; 1 Chitty Pi., 401 ; 1 Barnew. and C, 286. ' A demurrer under the C. C. P., differs from the former demurrer at law in this ; every demurrer, whether for substance or for form, is now special, and must distinctly specify the ground of objection to the com- plaint, or be disregarded ; it differs from the former demurrer in equity, in that the judgment overruling it is final, and decides the case ; unless the pleadings are amended by leave to withdraw the demurrer and put in an answer. Love v. Comm'rs of Chatham, 64 N. C, 716. EQUITY PLEADING. 445 allowing the. defendant to amend and put in an answer.' Suppose, in a suit in equity, the defendant's lawyer thought the bill was true, what course would he pursue ? Demur to the bill and set the demurrer down for argument.' "jifter the decision of a demurrer, the judge shall, if it appear that the demurrer was interposed in good faith, allow the party to plead over, upon such terms as may be just. Acts of 1871-'2, chap. 172, § 1 ; Ran- som ». McClees, 64 N. C, 17 ; Merwin «. Ballard, 65 N. C, 168; Walsh i>. Hall, 66 N. C, 233 ; Wilson & Shober v. Moore, 72 N. C, 558 ; Dunn v. Barnes, 73 N. C, 273; Cowan v. Baird, 77 N. C, 201; Moore «. Hobbs, 77 N. C, 65. 'A demurrer admits the truth of the facts contained in the bill, or in the part of the bUl to which it extends, (as it will be remembered, is the rule in an action at law) and therefore, as no fact can be in question be- tween the parties whilst the demurrer is pending, the court may imme- diately proceed to pronounce Its definative judgment, which, if favorable to the defendant, in the absence of plea filed along with the demurrer, puts an end to so much of the suit as the demurrer extends to, although when the court has signified its opinion to overrule the demurrer, it may be withdrawn, and a plea or answer filed, as we have seen, is the practice at law. Miff. Eq. PI., 14. The principal ends of a demurrer, which it will be observed, is founded exclusively upon grounds apparent on the face of the bill, or of the documents filed theretoith, and not upon any for- eign or extrinsic matter alleged by the defendant, are to avoid a dis- covery which may be prejudicial to the defendant, as by subjecting him to a fine, forfeiture, or penalty, to cover a defective title, or to prevent unnecessary expense. Mit'f. Eq. PI., 100. If no one of these ends is attained, there is little use in a demurrer. For in general, if a demurrer would hold to a biU, the court, though the defendant answers will not grant relief upon hearing the cause. Mit'f. Eq. PL, lOi) ; 4 Minor's In- stitutes, 1146. If a bill be good in part, a demurrer to the whole must be overruled, notwithstanding a part be bad, which is the doctrine also, as the student will remember, in an action at law. 4 Min. Insts., 1146, The grounds of demurrer to original bills praying relief are enumerated as follows : (1.) That the subject of the suit is not viithin the jimsdiction of the court of equity. Mit Eq. PI., 102-'3. {2.) Tha.t some other court of equity has the proper jurisdiction. 4 Min. Insts., 1147. (3.) That the plaintiff is not entitled to me by reason of some personal disability. Mit. Eq. PI., 102. (4.) That ^e plaintiff, or any one of several plaintiffs, has no inter- est in the subject, or no title to institute a suit concerning it. Mit. Eq. PL, 446 DOCTEINE OP EQUITY. Suppose the demurrer is sustained, what is the result? The bill will be dismissed. Ad. {iq., 336. Suppose the demur- rer is sustained because the plaintiff failed to make an alle- gation which he could have made ? The bill is dismissed without prejudice. And if the bill had been absolutely dis- missed the defendant could move for a re-hearing and ask that the bill be dismissed without prejudice. Ad. Eq.. 388, et seq. Suppose the demurrer is overruled, what is the ef- fect? The defendant must answer over. Suppose the de- 102, 136. (5.) That the plaintiff, or some one of several plaintiffs, has no right to call on tJie defendant concerning the subject of the suit. Mit. Eq. PL, 103, 141. (6.) That the defendant has not thai interest in the subject which can make hint liable to the claims of the plaintiff. Mit. Eq. PI., 102, 143. (7.) That for some reason founded on the substance of the case, the plaintiff is not entitled to Uie relief he prays. Mit. Eq. PL, 102, 144. (8.) The deficiency of the bill to answer the purpose of complete justice. Sto. Eq. PL, §395; Mit. do., 144. (9.) The confounding of distinct mb^ jeeis in the same bill, or of urmecessarUy. multiplying suits. Mit. Eq. PL, 102, 147. Ses generally, 4 Min. Insts., 1147-'52. Grounds of demurrer to original bills not praying relief: (1.) That the case made by the bill is not one in which a court of equity assumes a jurisdiction to compel a discovery. Mit. Eq. PL, 149, et seq.) Sto. do., § 551, et seq.; 4 Min. Insts., 1153. (2.) That the plaintiff has no interest in the subject, or no interest which entitles him to call on the defendant fof a discovery. Mit. Eq. PL, 149, 151 ; Sto. do., § 571 ; 4 Min. Insts., 1152. (3. ) That the defendant has no interest in the subject to entitle the plaintiff to institute a suit against him, even for the purpose of discovery. Mit. Eq. PL, 149, 152 ; Sto. do., § 570; 4 Min. Insts., 1153. (4.) That although the plaintiff and defendant may have an interest in the subject, yet there is not that privity of title between them which gives the plaintiff a right to the discovery demanded by the biU. Mit. Eq. PL, 149, 154; Sto. do., § 572, et seq.; 4 Min. Insts., 1153. (5..) That the discoveyy, if obtained, cannot be material. Mit. Eq. PL, 149, 154. (6.) That the situation of the defendant renders it improper for a court of equity to compel a, discovery, because it would tend to subject him to pennies, &c. I»pt. Eq. PI, 149, 157; Sto. do., § 575; 4 Minor's Insti- tvit?s, 1J52. As tfx g^Qun^ of demurrer to bills not original, see Mit. Eq. PL, 164; Cpop. Eq. PL, 310 ; Stp. do. , § 61J. EQUITY OF PLEADING. 447 fendant does not demur but puts in an answer, can he take the same ground of defence ^as in demurrer? He can. What are the reasons for preferring a demurrer to an answer? They are to avoid discovery and expense, and to protect a defective title." What is the eflfect of a demurrer at law. As a general rule it is final. It admits as true all matters of fact which are sufficiently pleaded, ai:id it obliges the court to give judgment for him who is, on the whole. entitled to it, upon the consideration of the whole record. St. PL, 143-'4 ; Bac. Abr., Pleas, (n) 3 . Com. Dig., Pleader, (Q, 5). What is the effect of a demurrer in equity ? It admits the facts for the sake of argument, and tests the strength of the plain- tiff 's bill. Give an instance, in law, where the effect of overruling a demurrer causes the pleader to answer over? A demurrer to a plea in abatement in which case the judgrnent is in gen- eral interlocutory — quod respondeat ouster. 1 Ch. PL, 466. What is the object of a plea in equity ? It avoids discovery and puts an end to the case.'' Must the plea be sworn to ? ° It is not conopulsory on a defendant to demur. The principal motives lor dqing sp are tp avoid a prpiudicial discovery, and to prevent unneces- sary expense. And -vvhere the only matter in dispute is a point of law, this latter object rpay often be attained by a bill intentionally so framed, as to be open to demurrer on that point. If these motives do not exist, it is geiierally an inexpedient and often an objectionable course as in- volving a prema,ture discussion of the case, of wliioh the plaintiff will probably take advantage;, If fraud or misccfnduct be alleged in the bill, it affords an additional reason against demurring, as it may expose the defendant to unfavorable comments. And even when he wishes to avoid discovery, he may now, to some extent, if the bill be demurrable, pro- tect himself by answer. Ad. Eq., 336. '' The FQEMS of defence in equity are four in number, viz : Disclaimer, Demurrer, Plea, and Answer. A disclaimer denies that the defendant has any interest in the matter. A demurrer submits that on the plain- tiff's ovs^n sbowing his claim is bad. A plea avers some one matter of avoidance, or denies some one allegation in the bill, and rests the defence on that issqe. 4-1 answer puts on tjie record thP wllPle case of the de- fendant, whether by way of demurrer, of avoidance, or of denial, and whether raising one or more issues. 448 DOCTRINE OF EQUITY. It must, unless it consists of matter of record."' Should a demurrer be verified ? No. 3Vhat is a plea ? Some single matter, either in the bill or collateral thereto, upon which the defendant rests his case.^ A and B carry on a business; A sues B for an account -j B puts in a plea that they were never partners, and the court says the plea is sufficient in law ; would the bill be dismissed? No; B would have to prove the facts upon which his plea was based. Suppose the plea is set down for argument and sustained, the truth of it could then be de- nied ; but could the truth of it be denied and afterwards its sufficiency in law be denied ? No.^ ^ It is necessary to the validity of a plea, tiiat it be verified by the de- fendant's oath. This rule is in accordance with the general principle of equity that no man shall set up a defence which he does not believe to be true. The exceptions to it are where the matter pleaded is provable, not by evidence of witnesses, but by matter of record, 1. e., by the enrolled proceedings of a court of record. Ad. Eq., 341-'2. ^ The principle of a defence by plea, is that the defendant avers some one matter of avoidance, or denies some one allegation of the bill, and contends that assuming the truth of all the allegations in the bill, or of all except that which is the subject of denial, there is suflScient to defeat the plaintiff's claim. It is applicable, lilte a demurrer, to any class of objections ; but the most usual grounds of plea are :: (1.) Want of jurisdic- tion ; (2.) Personal disability in the plaintiff; (3.) A decision already made by the court of chancery, or by some other court of competent jurisdic- tion, or a suit already pending in a court of equity respecting the same subject. But the suit must be pending in a court of equity. If there be a pending action at law, the proper course is to put the plaintiflf to his election, by motion, which court he will proceed in. (4.) Want of equity, where the equity depends on a single point. Ad. Eq., 64d. y Pleas of the first class are those in vhich new matter is alleged in avoidance and are termed affirmative, e. g., the statute of limitations, the statute of frauds, a release under seal, an account settled, or stated ac- count, &c. Pleas of the second class, or those in which an allegation of the bill is denied, are termed negative pleas, and are applicable when the plain- tiff, by false allegation on one point, has created an apparent equity, and EQUITY PLEADING. 449 What is an anomalous plea ? A plea supported by an answer, as where there is a plea setting up a defence which the plaintiff has impeached by charging an equity in avoid- ance, and the answer denies the averment of the equity charged in avoidance. Must the court decide peremptorily upon a plea ? No ; there are four ways of disposing of a plea: (1.) Allowing it absolutely; (2.) Overruling it abso- lutely ; (3.) Overruling the plea ; (4.) Saving the equity un- til the hearing." • apparent equity, and asks dfecovery as consequent thereon, e. g., where he alleges himself to be a partner or heir-at-law, and asks for an account of the tmsiness, or particulars of the estate. In this ease a denial by an- swer would exclude the relief, but it would not protect the defendant from giving the required discovery, because, on principle which has al- ready been explained, a defendant who answers at all must answer fully. In order, therefore, to avoid such discovery, he must resort to a negative plea, denying the allegation oL partnership or heirship ; and until the validity of his plea is determined, he will be protected from giving dis'- covery consequent on the allegation. Ad. Eq, 647. ^ Effect of a Plea. A plea may extend to the whole or a part, and if to a part only must express which part, and an answer overrules a plea if the fwo conflict. 3 Younge and C. Ch., 683; 3 Cranch., 220. The plea may be accompanied by answer fortifying it with a protest against waiver of the plea tliereby. Sto. Eq., PI., §695. A plea or argument may be allowed, in which case it is a full bar to so much of the bill as it covers, if true, (Mitf'd. Eq. PI., Jeremy ed., 301); or the benefit of it may be saved to the hearing, which decides it valid so far as tlien ap- pears, but allows matter to be disclosed in evidence to invalidate it, or it may be ordered to stand for an answer, which decides that it maybe part of a defence, (4 Pai. Ch., N. Y., 124), but is not a full defence, that the matter has been improperly offered as a plea, or is not sufficiently forti- fied by an answer, so that the truth is apparent. 3 Pai. Ch., N. Y., 459. See generally, Sto. Eq PI.; Mitford Eq. PI., by Jeremy; Beames' Eq. PL; Cooper Eq. PI.; Blake Chanc. Pract.; Bouv. Insts. A plea at law, is the defendant's answer by matter of /aci to the plain- tiff 's declaration, as distinguished from a demurrer, which is an answer by matter of law. 29 LECTURE V. EQUITY PLEADING CONTINUED. Can a demurrer to a whole bill be sustained as good as to a part of a bill ? It cannot ; a demurrer that is bad in part is bad altogether." 5 Ired. Eq., 86. Why is less particularity required in equity pleading than at law ? Because the mode of trial and the object of pleading are different. In law, the object of pleading is to reduce the case to a certain issue ; in equity, the object is to state the facts in such a way that the chancellor may adjudge the equities? "The defendant, may demur to a part of the bill, 2 Barb. Ch. N. T., 106, and plead or answer to the residue, or both plead and answer to separate parts thereof, 3 P. Will. Ch., 80; 2 Atk. Ch., 382; 6 Johns., Ch. N. Y . 214 ; 4 Wise , 54 ; taking care so to supply them to different and distinct parts of the bill that each may be consistent with the others, 3 Mylne and C. Ch., 653; 1 Keen Ch., 389 ; 23 Miss., 304; Cooper Eq. PI., 112, 113 ; Sto. Eq. PI., § 442 ; but if it be to the whole bill, and a part be good, the demurrer must be overruled. 5 Ired. Eq. 'No. Cn., 86 ; S7 Miss., 419 ; 29 Me., 273 ; 12 Meto. Mass., 323. '' The characteristic peculiarity of the common law system of pleading. Is that it aims to produce an issue, and an issue with certain marked traits of singleness, materiality and certainty, free from obscurity and confusion, and without unreasonable ^roMa:% or delay; and that in the first of those particulars, namely, in seeking, by the effect of the altercation itself, without any retrospective analysis, to expel all irrelevant matter, and by alternate allegations continually to narrow the subject of controversy, until one or a few definite points are developed, on which, by mutual con- sent, the result of the dispute is to turn, which is denominated the issue, or the issues, it stands in prominent contrast with all other systems of forensic statement. St PI., 444, etseq.; 4 Min. Insts., 1066-'7. The causes of the marked peculiarity of common law pleading : (1.) The aid this system afforded to the pleader^s memory. The practice of oral pleading, which prevailed in the English courts, would have made the Boman or Scottish system intolerably burdensome to the memory, by obliging each party to retain the whole tenor of his adversary's state- ment in mind, however complicated with a multiplicity of averments, whilst the system in question required that he should remember only the EQUITY PLEADING. 451 What supplies the place oi repleader in equity? A petition. single averment, or a small number of definite averments last made by his opponent, to each of vehich he was allowed to make but one reply. 4 Min. Insts., 1067 ; St. PL, 126. (2.) The different methods of trial at common law for different ques- tions. Questions of law were, at common law, decided hy the court, and ques- tions of fact usually by a jury, but sometimes also, according to their nature, in other modes. It was, therefore, indispensable that the system of altercation should be such as would discriminaie the precise point to be determined in order to know to which of the arbitraments provided by the law it should be referred for decision. By the Roman law all ques- tions of every description were submitted to the court, and consequently this necessity did not exist. 4 Min. Insts., 1067, (3.) The general prevalence of Jury trial, in common law causes, as to questions ot fact. The jurors being originally recognitors, (that is, witnesses,) rather than triers of the questions of fact submitted for decision, it was necessary to emply the specific and definite mode of averment whicli the rules of com- mon law pleading enjoin, in order to attach to each fa^ct alleged a place and a time for its occurrence, so that the sheriff, in executing the writ of ■eenire facias, might have the means of summoning such persons as should be prepared to recognize the truth of the matter. And in modern times, although the jurors no longer depend upon their peraonol cogni- zance to arrive at the determination of the issue, but decide upon the evi- dence adduced before them, it is yet essential that a similar precision of statement should prevail, with a view to apprize the litigants of the exact question to be tried, so that they may be guided in preparing their proofs. Nor is it less essential for the sake of the jurors than of the parties ; for however intelligent jurors may be, they are not fitted to try ill-defined issues, susceptible to ramifications witliout number, and of a comprehen- siveness practically without number. All things considered, jury trial is probably the best that the wit of man has devised to try single and spe- cific questions of fad, and to assess dafcnages for wrongs, &c.; but it for- feits its best claim to respect when the issue or issues it is employed to determine are not clearly ascertained, or are too numerous, or too com- prehensive. St. PI., 133, et seq.; 4 Min. Insts.. 1068. The method ot judicial altercation employed in the Roman law. The Roman law seeks to make no public adjustment whatever of the precise question for decision. For as by tliat law all matters, whether of law or fact, are decided by the judge, and by him alone, upon proofs ad- duced by the parties on either side, one of the necessities upon which that practice has been shown to be founded In the common law, does not arise. Hence the mutual allegations are allowed to be made at large, as 452 DOCTRINE OP EQUITY. for a re-hearing.'' At what time must it be obtained ? Be- fore enrollment.* There is a case in which a rehearing was it may be called ; that is, with no view to the exposition, by force of the pleading itself, of the {jarticular question in the cause. The litigants, indeed, before they proceed to proof, must explore the precise point or points of the controversy, in order to ascertain whether any proof be re- quired, and to guide them to the points to which their proof is to be di- rected. And upon the hearing of the cause the judge also must of course ascertain for his own information the exact matter to be decided, and consider in what manner it is met by the evidence. But in these proceed- ings, neither the courts nor the parties have any public exposition of the point in controversy to guide them, and tliey judge of it, each according to his individual discretion and acumen, upon a retrospective examina- tion of the pleadings. 4 Min. Insts., 1068-'9 ; St. PI., 447.^ Nor does the practice of the courts of equity, which for the most part conforms to the Roman law, constitute an exception to the gene- ral statement just made. For, though the replication, as it is called, propounded to the defendant's ainswer, offers a formal and general con- tradiction thereto,— a contradiction that imitates, in some measure, the form of an issue *n the common law, and borrows its name, yet in sub- stantive effect the two results are quite different ; for the contradiction to which the name of an issue is thus given in equity pleading, is of the most general and indefinite kind, and developes no particular question as the subject for decision in the cause. , St. PI., 447, a. (d) ; 4 Minor's In- stitutes, 1069.. In the Scottish judicature, the method of juridical altercation is a modi- fication of the m ethod of the Koman law, made necessary by the engraft- ing upon the Scottish system of the trial by jury in civil cases. See how i. differs from the common law system. St. PI., 448, and n. (e); 4 Min, Insts., 10(J9. ' A rehearing is applicable only to an interlocutory, and not to a final decree. After a final decree has been rendered, and the term is ended, the cause cannot be heard in the same court, except upon a bill of review, a proposition which holds even wliere the deci-ee is final as to but one of several defendants, notwithstanding furtlier proceedings maybe ordered, or may be proper, as to the others. But where the decree is interlocutory, vvliat is styled by the party a bill of review, may be treated as a petition for 'Are-hearing. 4 Min. Insts., 1351; 3 Pai., 34; 10 Lei., 629; 1 Rand., 421. To grant a re-hearing is in the sound discretion of the court. 7 Johns. Ch. R., 256. ^ After an entry and before enrollment, the decree is in some sense still in fieri, and may be altered by a re-hearing before the same jurjsdic- EQUITY PLEADING. ^ 45S had after the lapse of thirty years, where there was error in the decree, and where the fund, which was the subject of the former suit, remained undisposed of. Brandon v. Bran- don, 25 L. J., Ch., 896. A petition for , a rehearing will be entertained upon two grounds only : (1.) Where there is upon the face of the de- cree error in law ; and such error may be found in any part of the record where it may exist. (2.) Where there is newly discovered' testimony, provided this testimony is important and such that must materially vary the case as it stands. The newly discovered evidence must not be cumulative in respect to the evidence which was before the court already in the case, and it must be such as the petitioner for a re- hearing was not aware of before the trial, nor could have discovered by proper diligence and inquiry. Huntti. Smith, 3 Rich. Eq., 465; Ad. Eq., 399, and notes. Suppose the rehearing has not been asked for in due time (after entry and before enrollment, as is necessary in asking for a rehearing in equity,) what may be done ? ° File a bill tion. Ad. Eq., 740-'l. Upon a re-hearing, no ovklenoe can be gone into which was hi the case at the orighial hearing, and oapablo of being then produced. 3 Sto. 299. 'A bill of review is a bill whoso object it is to procure an examination, and the annulling of a final decree made upon a former bill, after the term is ended at which the decree was pronounced. It may be brought upon error of law appearing in the body of the decree itself, or upon dis- covery of new matter. In- the first case the decree can only be reversed upon the ground of the error apparent ; as if an absolute and uncondi- tional decree be made against a person who, upon the face of it, appears to have been an infant. A bill of this nature may be brought without the leave of the court previously given. But if the bill seeks to reverse a decree upon discovery of some new matter, the leave of the court must be first obtained ; and such leave will be granted unless the court is sat- isfied, by affidavit, that the new matter could not be produced when the decree was made, and that it is relevant and material, and such as might have occasioned a different determination. Mitf. Eq. PL, 78 et seq.; 4 Min. Insts., 1136. A bill in the nature of a bill of review lies where a decree is made against a person who had no interest at all in the matter in dispute, or 454 DOCTRINE OP EQUITY. of review. Suppose one of the parties dies ? The person who took his interest would file a bill of revivor.' Suppose new matter arose before the filing of the bill, but was discovered after that time, what is the way to proceed ? Amend the bill. Suppose matter arose after the filing of the bill, but before the filing of the answer, what then ? Bring in the new matter by supplemental bill.^ had not such an interest as was sufficient to render the decree against him binding upon some other person claiming the same or a similar in- terest, and it seeks relief against that error in the decree. Thus, if a de- cree is made against a tenant for life only, a remainderman in fee cannot defeat the proceedings against the tenant for life, except by filing a bill of this nature, showing the error which has occurred, the incompetency in the tenant for life to sustain the suit, and the accrual of his own inter- est, and thereupon praying that the proceedings in the original claim may be reviewed, and for that purpose that the other party may appear and answer this new bill, and that the rights of the parties may be prop- erly ascertained. Mit. Eq. PI., 83; Sto. Eq. PI., §424; 4 Min. Insts., 1137. 'In equity practice, a bill of revivor is one which is brought to continue a suit that has abated before its final consummation, as, for example, by death, or marriage of a female plaintiff. A bill of revivor and supplement is one which is a compound of a sup- plemental bill and bill of revivor, and not only continues the suit which has been abated by the death of the plaintiff, or the lilie; but supplies any defects in the original bill arising from subsequent events, so as to entitle the party to relief on the whole merits of his case. Mitf. Ch. PI., 32, 74 ; 5 John. Ch., 334. • « A supplemental bill is an original bill in order to supply some defect in its original form and structure, which cannot properly be supplied by amendment, which latter ought to be employed wherever it is admissible, instead of a supplemental bill. Thus, the introduction of new parties, who ought to have been, but were not introduced at first, is always ac- complished by an amendment to the original bill, and matter which arose before the commencement of the suit should generally be inserted also by amendment, and not by a supplemental bill. Sto. Eq. PI., § 332, and n. 1 ; Mitf'd. Eq. PI., 53 and seq., .59 and seq, A. supplemental bill is proper in order to introduce new parties whose interest has arisen since the institution of the suit, to introduce new charges, or to put in issue a new material fact, such as fraud, a new title acquii-ed since suit was brought. Sto. Eq. PL, § 335, 336 ; Mitf'd Eq. PL, 53, 59, 60 ; 4 Min. Insts., 1131. A supplemental bill is employed to carry into complete ef- EQUITY PLEADING. 455 From what time would the pleading date, from the time of filing the original bill or from the time of filing the amendment? From the time of filing the original bill. But when the new matter would affect the opposite party preju- dicially, it should not have relation back to the time of filing the original bill, but should be considered as pending only from the time of amendment. To what plea in common law pleading does supple- mental bill in equity pleading correspond? The plea of puis darrien continuance} When is a supplemental bill used ? When matter arises after bill filed, but before hearing or decree.' When would it be proper to use a supplemental bill in the nature of review? When the matter arises before decree enrolled.'' When is it proper to feet a decree already pronounced, and to get the full benefit of a decision ; and of course, for this purpose, it may be filed as well after as before a decree. Mitf'd. Eq. PI., 59 ; Sto, Eg. PL, §335; 4 Min. Insts., 1131. '^ A cross-bill may be filed to answer the purpose of a pleap«i« darrein continuance, where a new defence arises after answer ; but not for the pur- pose of indirectly altering the answer itself. It may be observed here that where a decree on the plaintifl' 's bill will not determine the litiga- tion, the imperfection may arise either from cross-relief ov discovery being required by the defendants, ov from the existence of litigation between co-de- fendants. In either case it is remedied by one or more cross-bills, filed by one or more of the defendants against the plaintiff, and against such of their co-defendants as the cross-relief may affect. If this has not been done, and the difficulty appears at the hearing, the cause may be directed to stand over for the purpose. Ad. Eq., 402-'3. 'A supplemental bill is a mere continuation of the original suit, by or against a party having or acquiring the interest of a former party, and forms, togetiier witli the original bill and the proceedings under it, but one record. Defects in a suit subsequent to its institution may be caused, either in respect of parties by the transfer of a former interest, or the rise of a new one, or in respect of issues between the existing parties, by the occur- rence of additional facts. And they are cured by a bill of supplement, or in the nature of supplement. Sto. Eq. PL, ch. viii, §333, et seq.; Ad. Eq., 408, and notes. ' A supplemental hill, in the nature of a review, is used to procure the re- 456 DOCTRINE OF EQUITY. file a bill of review ? When matter arises after the decree is enrolled ; or in other words, when it is desirable to pro- cure the reversal of a decree after signature and enrollment. The grovmd for it may be error of law, apparent on the de- cree, or on occurrence or discovery of new matter. Sto. Eq. PL, §414; Ad. Eq., 416. What is the use of a cross-bill ? It is filed by the defen- dant when he is entitled to discovery on an allegation in his answer, or when the plaintifi''s bill introduces matter upon which an equity is claimed.'' Suppose the proof does not sustain the relief specially asked for in the bill, what is the result ? The bill is dismissed. But to provide against such dismissal, a prayer for general relief may be added.' \ersal of the decree before enrollment, on the occurrence or discovery of new matter. The leave of the court must be oblained for filing It, and the same afBdavit is required for this purpose as is necessary to obtain leave for a bill of review. An original hill, in the nature of review, is applicable when the interest of the party seeking a reversal was not before the court when the decree was made. 18 Jur., 34S ; Ad. Bq., 419. '' A cross-bill is a matter of defence. It cannot introduce new and dis- tinct matter not embraced in the original suit, and if it does so, no de- cree can be founded on those matters. Hopk., 48 ; 3 J. J. Marsh., 262 ; 6 Dana, 186; 13 Geo., 478. A defendant, however, cannot file a cross-bill where his rights are fully protected by his answer. 11 III, 194. ' The prayer for relief is for special relief, such as the complainant con- templates as desirable, and as warranted by the case made by the bill ; and second, for general relief, in the discretion of the court. Lest the case should present in evidence a new aspect, or the court should differ with him as to the appropriate relief, the complainant prays "for such other and further relief as may be adapted to the nature of the case, and agreeable to equity and a good conscience ;" and under such prayer for general relief, he may in most cases obtain such relief as his case en- titles him to, provided it be not inconsistent with the specific relief prayed for, nor relate to a claim distinct from that demanded or put in issue by the bill. The prayer for specific relief, therefore, in complicated cases, should be framed with great care and attention, and if need be, in seve- EQUITY PLEADING. 457 In proceedings in equity the bill is filed first and the mbpeena issues afterwards, accompanied by the bill. 1 Sp. Eq. Jurisd., 344. In actions ujider the present Code of Civil Procedure, the summons issues first notifying the defendant to appear and answer the complaint, which must be filed during the first three days of the term. The summons does not give notice of the ground of complaint, unless in a suit for money in which case the summons must state the amount sued for." The summons under the Code bears an analogy to the original writ " at common law, which writ ral aspects, so that if the court determines against the complainant in one aspect of the case, it may yet afTord him assistance in another. Mitf 'd. Eq. PI., 36-'9; 1 Dan. Ch. Pr., 434-' 5 ; Sto. Eq., PI., §42; Soden b. Soden, cited in Hiern v. Mill, 13 Ves., 119 ; Coolc ». Martyn, 2 Atk., 3 ; Do., 141 ; 3 Do , 182 ; 8 Lei., 513 ; 4 Min. Insts., 1125. " The summons (in civil actions) shall run in the name of the State, be signed by the clerk of the Superior Court, having jurisdiction to try the action, and under the seal of the court, and shall be directed to the sher- iff of the county in which the defendant resides, or may be found. It shall be returable to the regular term of the Superior Court of the county where the plaintiffs, or one or more of them, or the defendants, reside ; and shall command the sheriff or other proper officer to summon the de- fendant to appear at the next ensuing terra of the Superior Court and answer the complaint of the plaintiff, and shall be dated on the day of its issue. The oflScer to whom the summons is addressed, shall note on it the day of its delivery to him, and shall execute it at least ten days be- fore the beginning of the term to which it shall be returnable, and shall return it on the first day of the term. Tourgee's Code, 61, §73a 1. The plaintiff shall file his complaint in tlie clerk's office on or before the third day of tlie term to which the action is brought, otherwise the suit shall, on motion, be dismissed by the court at the cost of the plaintiff. Tourgee's Code, 315, §3; Haywood v. Bryan, 63 K. 0., 521. The defendant shall appear and demur, plead or answer at the same term to which the summons shall be returnable, otherwise the plaintiff may have judgment by default, as is now allowed by law. Tourgee's Code, 315, §4; Gates v. Gray, 66 N. 0., 442. " Original writ. In English Practice. A mandatory letter issued in the King's name, sealed with his great seal, and directed to the sheriff of the county wherein the injury was committed, or supposed to have been done, requiring him to command the wrong-^doer, or party accused, eithei 30 458 EQUITY PLEADING. was either peremptory or in the alternative. In all cases under the Code, except debt, the summons is peremptory — " to appear at the next ensuing term of the Superior Court and answer the complaint of the plaintiff;" — so was the form of the writ at common law as in an action on a covenant. If the action is for debt, the form of the summons is to appear and answer the complaint or the plaintiff will take judg- ment for the amount asked for in the complaint. This frame of the writ corresponds with the si te fecerit securum (if he make you secure) at common law, or the alternative writ." The Code is a mixture of common law, and equity proce- dure ; it adopts the common law mode of trial, and the equity inode of pleading. It allows the judge to try a case only by consent of all the parties.'' to do justice to the complainant, or else to appear in court and answer the accusation against him. This writ is deemed necessary to give the courts of law jurisdiction. In modern practice, howeyer. it is often dispensed with, by recourse, as usual, to fiction, and a proceeding by bill is substituted. In this coun- try our courts derive their jurisdiction from the constitution, and require no original writ to confer it. Improperly speaking, the first writ which is issued in a cise. is sometimes called an original writ, but it is not SO in the English sense of the word. 3 Bl. Com., 374; Walker Am. Law, 514. " Si te fecerit securum (Lat. if he make you secure). Words which occur in the form of writs, which originally required, or still require, that the plaintiff should give security to the sherilf that he will prosecute his claim, before the sheriff can be required to execute such writ. 2 Bouv. Law Die, 521. ^ I" Trial by jury may be waived by tlie several parties to an issue of fact, in actions on contract, and with the assent of the court, in other actions, in the manner following : 1. By failing to appear at the trial ; 2. By written consent, in person or by atto. ney, filed with the clerk ; 3. By oral consent, entered on the minutes. Tourgee's Code, 197, § 240 ; Armfleld «. Brown, 70 N. C, 27; Isler v. Murphey, 71 N. C, 436. GENERAL INDEX. INDEX. ABATEMENT OF LEGACIES, 242. See Legacies. ABATEMENT OF NUISANCES, 269. ACCORD AND SATISFACTION, 269. ACCOUNT. in equity. (See Actions under head of Ex contractv.) action of, in equity, 412. proceedings in an action of account at common law, 412. confined at common law to cases where there is privity in deed or law, 412. changes in last doctrine by statutes, 412. proceedings in an action of account in equity, 413. various instances where matters of account ai-e cognizable in equity, 413, 414. duty of the auditor and master respectively, 412-'13-'14. who decide questions of law and fact respectively, 412-'13-'14. action for, between partners, 414. \ action for, by an executor, instance of, 412, 414^'15. exceptions to the masters decision, 414. ' why equity took jurisdiction of assignment of dower, 415. ACTIONS. definition of an, 271. diflter from indictments, 275. kiads of, 271. commenced by purchasing an original writ, 318. definition of real, 271. what are the real, 271-'2. what is recovered in novel disseizin, 272. KEAii Actions. divided into possessory and di'oitural, 272. divisions of possessory and droitm-al, 272. limitations of, 270. why damages are not recovered in, 277. use of the vn-it of right, 276, 307. use of writs in the nature of writs of right, 307. use of the writ of right of dower, 276. use of the writ quod ei defoeceat, 276. vmts of entry, 276, 307. fines, 276-7. use of formedons, 276. distinctions between writs of right, writs of entry, entiy, and naked possession, 279. gMO warranto is in the nature of writ of right, 279. courts of common pleas have exclusive jurisdiction of what, 273. judgment by default in real actions, 324. judgment by nil dicit, 324, 462 INDEX, ACTION'S. Mixed Actions. division of, 279, 307. changes in ejectment, 278, 280, 311-'12. function and the origin and nature of ejectment, 279-'80. general issue in ejectionefirmcE, 307. what plaintiff mvist prove, 307. term not originally recoverable, 307, 313. remedy of lessee in equity, 302, 307-'8. ejectment now used to try title to land, 308. use of action quare ejecit infra terminum, 308. steps in ejectment proper, 308-'9. the fiction in ejectment, 309. plaintiff must sei-ve notice on tenant in possession in ejectment, 309. conditions upon which tenant may take the place of casual ejector, 309. when the case goes to nisi prius, 309. when the plaintiff is non suited and his remedy, 310. proceedings where tenant disregards notice ; and where he obeys notice, but refuses to malse the required admissions, 310-'ll. the " common consent rule," 311. the "common rule," 311. what amounts to ouster, 311. origia of the action for mesne profits, 304, 311. estate for which ejectment will lie, 311. meaning of "cum continuando," and jus postliminit, 304, 312-'13. cases where damages were allowed in ejectment proper, 312. plaintiff may continue to bring actions of ejectment, 812. bUls of peace, 312. where time of lease expires, before suit is decided, 812-'13. limitations in England and North Carolina in ejectment, respect- ively, 313. plaintiff in ejectment recovers on strength of his title, 313-'14. title required of plaintiff in ejectment, 313-'14r-'16-'17. why a separate action for damages was necessary in ejectment, 314-'15. how plaintiff is put in possession, 310, 313, 315. nature of ejectment vmder the Code in North Carolina, 315. ejectment must be against the person jn possession, 316. plaintiff must show an injm-y amounting to ouster in ejectment, 317. ejectment allowed to joint tenants and tenants in common, 317. natm'c of ejectment where the fictitious form is abolished, 317. ejectment lies for recovery of corporeal hereditaments only, 317. writ of right of dower differs from dower unde, &c., 278. use of the writ of dower Jt)ide nihilhabet, 280, 315-'16. damages allowed widow, 275. the use of the writ of waste, 280, 316. statutes touching waste, 280, 316. Actions Ex Contractu. not now used in North Carolina, 304. personal actions ex contractu, 281. definition and nature of account, 281. mode of taking account at common law, 281. duties of the auditor, 281. bill in chancery superseded the action of account at common law, 281. INDEX. 463 ACTIOKS— Continued. Actions Ex Contractu. diversity of methods at law and in equity for taking accounts, 281, 28-2. duty of the master, auditor, and referee under the Code, compared, 281, 282, 283. wlien references for account may he made under C. C. P., 282-'3. proceedings under reference to master or referee under the Code, 238. doctrine where auditor finds halaiice for defendant, 289-'90. general issue in an action of account, 283. limitation to bar accounts between merchants, 291. See Account in Equity. definition of assumpsit, 283. damages recovered in assumpsit, 283. assumpsit diflfers from covenant, 283. assumpsit preferable to debt, 284. assumpsit broader and sm-er than debt, 284. assumpsit not so speedy as debt' 284. set-off in assumpsit, 289-'90-'92. considerations which determine choice between debt and assump- sit, 290-'91. distinction between debt and assumpsit, 286. general issue in assumpsit, 285. statute of limitations in assimipsit and when it begins to run, 285. use of covenant, 285. covenant broader than debt on specialty, 285. distinctions between covenant and debt, 285. 110 general issue in covenant, 286. statute of limitations in covenant, 286. words necessary for covenant, 286. set-off in covenant, 289-'90. how to choose between debt and covenant, 290. and between covenant and assumpsit, 290-'l. definition and use of the action of del)t, 286-'7. debt on simple contract and specialty, 286. general issue in debt on specialty and on simple contract, 286-'7. nominal damages recovered in debt, 287. whether debt may be brought on statutes, merchant and staple, 287. wager of law — when used, 288. debt by express and implied contract, 284. 'Choice between debt and covenant and debt and assumpsit, 290, 291, 292. covenant broader than debt, distinctions between debt and cove- nant, 285. set-oft' in debt, 289-'90. detinve — use of and dr-finition., 288. detinue with and without bailment, 288. whether detinue is an action c.x contractu or ex delicto, 288. property of plaintifl' to support detinue, 289. why detinue was brought into more general use, 289. the gravamen in detinue, 289. wager of law denied to executors and administrators, 289. Actions Ex Delicto. not now used in North Carolina, 304. tlie personal actions ec de.lcli, 293. 464 INDEX. ACTioisrs. Actions Ex Delicto — Continued, trespass vi et armln, and trespass on the case distinguished, 293. limitations in trespass vi et armis, 304. different actions of trespass, 293. examples where iii et armis will lie, 294-'5. example where case is the remedy, 294. example where trespass vi et armis quare clausum fregit lies, 294. example where action on the case for deceit lies, 294. meaning of scienter, 294-'5. action on the case for excessive bail, 296. action on the case for slander and libel — reasons for the number of coimts in slander, 296. slanderous words actionable per se, and those not actionable per se, 296. meaning of libel, 296-'7. action on the case for malicious prosecution, 297. trover — ^its meaning and use, 297. the gravamin of the action, 297. when title in trover comes iii question, 297. the Action in trover, 297. requisites for the action in trover, 298. origin of actions on the case, and under it, trover, &c., 303. use and meaning of replevin, 298-'9. what may be pi-oved under general issue in replevin, 302. lies for any wrongful taking, 299. damages and the specific chattel recovered in replevin, 298, 297. not confined to illegal distress, 297-'8. difference between avowery and cognizance, 300. general issue in replevin — actions founded on what — provisions of 4 Anne, 300. detinue — definition of and use, 299. choice between detinue and replevin, 299. detinue can be brought after judgment in trover, and vice versa, 301. whose loss where the chattel is lost after judgment in detinue, 304. trover may be brought after judgment in detinue, and vice versa, 305. choice between detinue and trover, 304r-'5. See Account in Equity. ADEMPTIOK OF LEGACIES, 242. See LEaAciBS. ADMNISTRATOKS, 389, 231, et seq. See ExECUTOES. ADVANCEMEJfT. meaning and instances of, 166-'7. See PUBCHASB UNDBB SUB-DIVISION, — GiFT. ADVOWSONS, 46. See Incobpoeeal heeeditaments. AID PRAYER. meaning of and distinguished from voucher, 140. See Voucher. example of, 144. ALIAS CAPIAS, 320. See peocess. INDEX. 465 ALIEKATIOK. not allowed tenants in tail, 62, 105. of uses, 101. See PUBOHASE. AMENDMENT. of the bill, 441. See Equity Pleading. ANCIEKT ENGLISH TENURES. See Feudal System. ANNUITIES, 47. See INCOEPOBFAL Heeeditaments. ANSWER. when put in under the Code, 438, 447. when to be verified, 443. APPEALS. what eiTors are cured by verdict, 385. general demurrer and motion in arrest of judgment compared,. ooZ — o. disadvantages of motion in arrest, 385. motion in arrest and writ of error compared, 385. writ of error founded on, 385. writ of error compared with general demurrer, 385-'6. pleading over cures what, 385. kinds of writs of error, 386. writ of error issues out of chancery, 386. writ of error defined, 386. writs of error coram vobis (or nobis,) 386. writs of error generally, 386. whether a writ of error is a supersedeas, 386-'7. whether writs of error are granted eq debito jvMitae, 386. sureties for writ of error, when, 387, writ of andita querela, 387-'8. plea puis darrein contimiance and audita querel compared, 387. writ of error for fact illustrated, 388-'9. motion has superseded audita querela, 388. supreme couit in North Carolina decides only matters of law, 389, motion in supreme court for new trial, venire de novo, &c., 389. ■ how error may appear on the face of the record, 396. wi'it of supersedeas — when used, compared with writ of error, 396. audita querela, writs of error and supersedeas confined to common law courts, 396. judgment in common law com-ts reviewed for errors in law, 396. errors of law and fact reviewed jn courts which are controlled in their procedure by the oivil law, 396-'7. certiorari, what it is, and use of, 397. recordart facias loquelam, 397. i APPEAL BOND. provisions of, under C. C. P., 325. APPEENTICES, 257. See Mastbe and Servant. 466 INDEX. AEBITEATIOSr AND AWAED, 269. AEKEST OF JUDGMENT, 378-'9. See Judgment. ASSIGN^EENT, 171. effect of upon lessee whei-e covenaBts do and do not run with the land, 74. effect in Uke case upon lessor and assignee, 74. of dower is absolute — not conditional, 78. by wrong doer, 78. of dower by one joint tenant, 78. of dower by heir and by feoffees respectively, 78-'9. . does not pass dower — nor is writing or liveiy necessary, 79. compulsory methods of, as to dower, 84. of term as to effect upon lessor, lessee, and assignee in case of cov- enants which do and do not run with the land, 89. of rights at common law inadmissible, 127. interesse termini, the only interest assignable at common law, 141. what things were assignable at common law, 210-'20. See Bills of Exchange and Pbomissoby Notes— Dowee — AND PUECHASE TJNDBB SUB-DIVISION, — ^LeASE AND ASSIGNMENT. ASSUMPSIT, 283. See Actions undeb head of — Ex Contbactu. ATTACHMENT. when it may be used against the defendant, 438. See Equity Pleadin«. AUDITA QUEEELA. use of, 805-'6; 387, d seq. See Appeals. AUDITOE, 281-'2. See Actions undeb head of Ex Contractu. BAIL, 321, et seq. See Pbocess. BAIL BONDS, 321, et seq. See Pbocess. BAILMENT. meaning o^, 212. differs from absolute property, 212. kinds of, 212. exceptions to third kind, 213. why inn-keepers and common carriers are insiu"ers, 213. for what inn-keepers and common carriers are not liable, 213. where one interferes and undertakes to deliver goods safely, 213. raUroads responsible for what neglect, 213. definition of inn-keeper and common carrier, 213. for what passenger carriers are responslbk% 213. diversity between jailors and carriers, 214. when liability of can-ier ceases — example, 214. IKDEX. 467 BAILMENT. liability of inn-keeper and private boarding house respectively, 215. lien upon passenger's goods, 215-'6. respecting sale of goods detained, 216. no lien upon goods of a regular boarder, 216. class of persons having a lien, 216. principle and origin of lien, 216. when it is larceny to appropria,te goods bailed, 217. doctrine of abridgement of carriers common law liability, 217. BANKRUPT. difference between, and an insolvent, 42. BARGAIN AND SALE. nature of, &c., 113, et seq. See Purchase tjndek head of Conveyances by stat- ute, "Baegain and sale." BETTERMENTS, 418. BILL OF EXCEPTIONS. definition of, 383. origin of, and use, 383-'4. See Judgment. BILL IN EQUITY. its parts, 437. See Equity Pleading. BILL IN THE NATURE OF A BILL OF REVIEW, 453. See Equity Pleading. BILLS OP EXCHANGE AND PROMISSORY NOTES. definition, 220, 225. how bOls derive their peculiar properties, 220. how notes derive their peculiar properties, 220. choses in action not assignable at common law, 219. exceptions to the last doctrine, 219-'20. whether contingent remainders and executory limitations are as- signable, 219. statute of 3 and 4 Anne, 220, 224r-'5. effect of drawee's refusal to accept, 220. notice necessary, and kind of, 220-'21. time of notice — example, 221. what will excuse notice, 222-'3. effect of drawee's acceptance, 221. undertaking of drawer and drawee, 221-'2. indorsement in full and in blank, 222. who introduced bills (Of exchange, 223. diversity between foreign and inland bills, 223-'4. effect of assignment after maturity, or after non-acceptance, 224. days of grace, 224. definition of a promissory note, 225. promissory notes and bUls compared at different stages, 225. seal not necessary for notes, 226. bonds assignable in North Carolina — contra under 3 and 4 Anne, 226, 227. 468 INDEX. BILLS OF EXCHANGB A.ND PK0MIS80RY NOTES. consideration in notes necessary — ^in bonds when, 226. common law secmities for payment of money — ^mercantile securi- ties, 226. nature of indorsement, 226. is a fresh and substantive contract, 226. indorsement may be qualified or restrictive, 227. diversity in remedies against indorser, surety, and guarantor, 227, 228. difTerence between mercantile and common law securities, 229. doctrine of guaranty, 227-^8. BILL OP MIDDLESEX, 321. See Peocess. BILL OF KEVIEW, 453. See Equity Plfading, BILL OP REVIVOB, 454. BILL OF EEVIVOR AKD SUPPLEMENT, 454, BONDS. bail, 323, with collateral condition— instances of, 339-'40, in cases of appeal, 325. relief against, in equity, 339-'40, 433, provisions of 8 and 9 Wm. III., 433, 339-'40. how official are proceeded against in North Carolina, 840, 433-'4. relief against bastardy bonds, 434. with 3 penalty — ^provisions of 4 and 5 Anne, 340, 433. See Pleading, Conditions, Bills of Exchakge ank Peomissoby Notes. CANCELLATION, 426. See Eescission and Cancellation, CiiPIAS AD KESPONDENDUM, 319, See Peocess, CEETIFICATE. proof by, 364, See Teial, CEETIORARI. definition of, 372, CHALLENGE, to the array and polls, 366, See Tbial. CHARGES. object of, in equity pleading, 439, See Equity Pleading. CHOSES IN ACTION, 248-'9. See Husband and "Wife, and AcTioSfS, INDEX. 469 COLOR, exception to rule that matter amounting to tlie general issue must be so pleaded, 361. express and implied, 361. meaning and use of express, 361. meaning and use of implied, 361-'2. Chitty's idea of express color, 362. doctrine of new assignment, 362. reason for allowing numerous actions in ejectment, 362. See Pleading, and Exiles of Pleading. COMMONS, 46. See Incoepobeal hbebditaments. COMMON CAUEIEBS. See Bailment, COMMON LAW. origin of, 40. a man could not alien land at, 40. one could not devise at, 41. devise considered a species of alienation at, 41.. a man not liable for debt at, 41. lord could not alien except, 54. attornment, 54. burning a house by negligence or mischance, waste at, 69. wife of felon not endowable at, 69. COMMON PLEAS, 273. See CouETS and Peocess. COMMON EECOVERIES, 173. introduced by the ecclesiastics, and for what, 21, 100. to bar estates tail, 64. effect upon, of statute of 13 Ed. I., 101. See PUBCHASE and sub-head, C03MM0N Ebcoveey. COMMON TEAVEESB, 335. See Pleading. COMMISSION TO EXAMINE WITNESSES. origin of jurisdiction to examine witnesses abroad, 405. courts of law with chancery powers may issue commission in Uni- ted States, 405-^6. defendant may object to deposition, 406. courts of equity act in personam, 406. proceedings where defendant objects to deposition, 406. method of taking depositions in North Carolina, 406. notice ^ven, 406. may issue in case of tort, 406. provision for, in North Carolina, 409. granted in aid of law and equity courts, 409. COMPLAINT. when filed under the Code, 438. CONCLUSION. See Deeds. CONDITIONS. definition of a, 127. 470 INDEX. CONDITIONS. • estate cannot be created by, 127-'8. divided into express and implied, 127. sub-divisions of express, 127. examples of express and implied, 127. feoffor or his heir must enter for express condition broken, and vchy, 127, 128, 129. broken vrhere feoflfor enters and defeats dower of feoflfee's wife, 128, 129, 130. run with the land, 128. when entry of lessor is necessary for broken, 128. a remainder is void which is limited after an estate on express, 129. for implied conditions broken, the remainderman or reversioner must enter, 129. differ from remainders, 129. express differ from conditional limitations, 129. diversity between conditions in law and limitations, 129-'30, 171-'72. dower and curtesy where the consorts estate expires by limita- tion — ^rule, 130. resemble equities of redemption — ^how, 131. of estates upon, mortgages, tacking, &c., 131. doctrine of marshalling assets, 132. subsequent and impossible at time of grant, or which become so afterwards by act of God, or the act of the feoffor, or which are contrary to law, or repugnant — effect of, 132-'3, precedent and impossible annexed to estates, 133. precedent which are illegal, 133. marriage brocage annexed to bonds and estates, 133. in restraint of marriage annexed to legacies and devisees, 133, 238. (1) in case of condition precedent ; (2) in case of condition sub- sequent, 133-'6. impossible, annexed to bonds, 136-'7. in restraint of trade, 134. making estates inalienable, 135. estate for life or years may be made inalienable by condition annexed, 136. in deeds, conveying lands, and in bonds, 136. whether annexed to estates to reduce the quantity of interest, 137. differ from defeasances, how — examples, 171. in deed and in law, differ, 171. in deed and in law differ from conditional limitations, 172-'3. See Executory Limitations and Mobtgages. CONDITIONS IN DEED AND IN LAW, 171. See Conditions. CONDITIONAL LIMITATIONS, 121, 172-'3. See ExECTTTOBY Limitations. eONFESSION AND AVOIDANCE. pleas by way of, 336. See Pleading. CONFIRMATION, 170. See PUBCHASE UNDEE SUB-DIVISION— CONFIEMATION, CONTINGENT EEMAINDERS. See Eemaindees and Executory Limitations. INDEX. 471 CONVERSION. instances of, 415. CONVEYANCES BY MATTER OF RECORD, 173. See PuECHASE, sub-head— Conveyances by matteb of EECOBD. COPYHOLDS. See Feudal System. CORODIES, 47. COUNT, 344. See Pleading, and Rules of Plbadino. COURTS. Blackstone's division of, 270. of common law and equity, 270. definition of, 270. constituents of, 270. of record and not of record, 270. of general jurisdiction, 271, 318. practice in, divided, 271. of oyer and terminer, 279. of common pleas, have jurisdiction of real actions, 273. jurisdiction of King's Bencli; 273. jurisdiction of Exchequer, 273. jurisdiction of common pleas, 273. how King's Bench acquired jurisdiction in actions ex contractu, 273, 274. ac eiiam, 274. how jurisdiction over all personal actions was acquired by Exche- quer, 274. COVENANT. differs from a simple contract, how, 112. good without consideration in courts of law ; contra in equity, 113. See Actions Ex Contractu, undeb head of Actions. COVENANT TO STAND SEIZED, ljl3, et acq. See Purchase undeb head oe Conveyances by stat- ute, " Covenant to stand seized." COVENANTS THAT RUN WITH THE LAND, AND VICE VERSA. doctrine of, 74. instances of, in case of leases, 89. respecting anything not in esse, or not on the land, 89. See Leases and Assignment. COVERTURE. See Husband and Wipe, and Doweb. CURTESY. defined, 70, 247. contrasted with dower, 70. Idnd of seizin necessary, and how it differs in this respect, from dower, 70-' 1. 472 INDEX. CURTESY. requisites for, 70. initiate and consummate, 71. of feudal origin, 72. not allowed unless the consort has the immediate estate of free- hold in possession, and the first estate of inheritance without any inteimediate vested estate of freehold, 75. tenant hy curtesy, as effected by waste, 76. emblements at husbaijid's death, 86. tenant by effected by waste in North Carolina, 96. in a bare right, title, use, reversion or remainder expectant, 95. in a trust estate — in a remainder limited after a term, 96. in money directed to be laid out in lands, 96. cannot be waived, and husband take under will, and why, 96-'7. barrad by husband's feoffment, 97. effect upon, of the determination of consort's estate, 98. illustrative examples, 99. in uses denied, 102. allowed in trusts and reasons, 109. where the consort's estate expires by limitation — ^rule, 130. See DowEE, Uses, Tbusts, Eemaindees, Joint Tenants, Executory Limitations, — and Husband and Wife. DAMAGES, 277, 304. See Actions in geneeax. DATES. See the Histobical Summary in genbeal. DEBT, 284-'86, et seq. for what debts of ancestor the heir is bound, 132. See Actions under head of Actions Ex Contractu. DEEDS. indented or inter partes, 62, 176-'7. why called indented, 62 originals and counter-parts, 63. poll, why so caUed, 63, 176-'7. not necessary for feoffments at common law ; contra by statute, 82. definition of, 176-'7. consideration necessary in those operating under statute of uses, 177. counterparts in deeds poll, 177. all original in deeds indented, 177. where the habendum gives a less and a gi-eater estate, respectively, than the premises, 177. indenture necessary in bargain and sale — contra in N. C, 177-'8. registration in N. C. answers to enrollment in England, 178. the requisites of, 177. the orderly parts of, 177. when consideration in, is necessary, 226. DEFAULT. judgment by, 324. See Peocbss, Actions, and Judgment. DEFEASANCE, 171. See Purchase under sub-head of Defeasance. INDEX, 473 DECLARATION, 330, et seq. See Pleading. DEMUEKER, 333, 343. See Pleading ; Rules op Pleading ; and Equity Plead- ing. DEPUTY. cannot perform judicial acts, 323, 371. may perform ministerial acts, 323-'4. DESCENT— TITLE BY. definition of, 159. distinguished from purchase and instances of, 146-'7-'8. kinds of, 159. canons of and their changes, 159. may be from a son at common law, 159. doctrine of possessio fratris, 159-'60. difference between taking per stirpes and per capita, 160. doctrine of primogeniture where the eldest son commits felony, as to whether the younger son will take, 160. alien born son does not impede descent as to native born, 160. native sons of an alien father may inherit from each other, 160. sons of an attainted father may inherit from each other, 160. when the taker must be both heir and female, 160. provisions of 11 and 12 Wm. III., and 25 Geo. II., as to taking by- native subjects, 161. lineal consanguinity defined, 161. collateral consanguinity defined, 161. degrees as estimated by the civU, canon, and common law, 161. canons of descent, 161. doctrine of hotchpot and what in our law is analogous thereto, 166. DETINUE, 288, 299. See Actions undeb heads op Ex Delicto and Ex Con- tractu. DEVISE, 189. See PUECHASB AND SUB-HEAD, DEVISE. DEVISOR, 189, et seq. See Devise undeb the genebal head of pubchase. DILATORY PLEAS, 332. See Pleading. DISCLAIMER, 447. DISCOVERY. rule respecting, 402. plaintiff and defendant entitled to, 402. when one can protect himself from, 402. right to does not exist in common law counts, 402. when the defendant answers evasively, 403. course where the bill contains collateral matter, 403. bill and answer both must be without scandal or impertinence, 403.. meaning of impertinence and scandal, 404. plea — course where it is insufficient, 403. 31 474 INDEX. DISCOYE'RY— Continued. course pursued when the plea is sufficient, 403. exceptions to master's report, 403. interrogatories — exception, 403. the statement and charges in a bill, 403. when plaintift' may file a replication, 403-'4. when a pleading may be referred to a master for impertinence, 404. when the plaintiff pays cost in eq[uity, 404. costs when a disclaimer is put in,M:04. bills of, favored in eguity, 404. objections to, 404-'5. bills for, not used under C. C. P., 405. what plaintiff must show in equity to obtain, 404. wife cannot give evidence against her husband, 405. exceptions to the last doctrine, 404. not compellable in iort — suit must be civil, 406. respecting enforcement of in aid of a foreign court, 408-'9. DISTRESS. what duty in the lord corresponds to, 44. not allowed one who has a rent seek, 44. for nominal rent to keep the reversion, 44. a remedy by the mere act of the party, 269. DISTEEBUTIVE SHAKE. See HusBAJSTD and wife— Dowee— Executoes and Leg- acies. DISTEINGAS, 319. See Peocess. DOWER. wife to get, must be over nine years old, 51-'9. where husband aliens before wife arrives at nine and she becomes nine before his death, 51-'9. dower in respect of wife of an idiot, non compos, or person attaint- ed of felony but not of treason, 51-'9, 69. •wife not dowable of lands both given and taken in exchange, 51. in such cas" as the last she may elect, 51. ■dower attaches in shares in canals, railroads, &c., unless prevented by statute, 51. in fisheries, franchises, 51. in incorporeal hereditaments except corodies and annuities, 51. not to be had in corrodies and' annuities, why, 51. of wife where lands escheated, 55. diversity in case of escheat propter defectum ^nd. propter delictum, 55. s has not its foundation in the feudal system, 56, 71. not allowed to the wife of the tenant pur autre vie, or feoffee of tenant in taO, 63. reasons for the last doctrine, 63-'4. to be had in fees conditional and fees in tail, 66. what it includes — definition, 69, 70. lively nor wiiting necessary in assigiiment of, 69. as to forfeiture being paramount to dower, 69, 70. requisites for, 70. seizin in deed or law for, 70, distinctions between dower and cm-tesy, 70. INDEX. 475 DOWEE— Continued. maxim in dower, 70. given in trusts and equities of redemption in IT. C, 433. ol wife of a disseizee, 70. denied to wife of feoffor who has not entered for condition bro- ken, 71. originated among the Germans, 71. introduced into England by the Saxons, 72. different kinds of and definitions of each, 72. barred by jointiu'e, 73. barred in several other ways, 73-'4. not barrable after marriage, 73. nor by contract with wife before marriage, 73. of wife of mortgagor and mortgagee and of a trustee, 75. husband must have the immediate estate of freehold in possession and the first estate of inheritance without any intermediate vested estate of freehold, 75. denied in estates tail, when, 77. not to be had in a life estate in rent nor in the reversion after such life estate, 77. can be had in lands leased for years, 77. valued as against heir and husband's feoffee, how, 77. damage for detention of first given by statute, 77. when wife may elect, 78. where the marriage is voidable, 78. kind of death for, 78. given absolutely — not conditionally, 78. effect if one joint tenant, or the heir, or the feoffees assign, 78-'9. writing and livery unnecessary, 79. rent out of same lands a bar — contra as to rent out of different lands except in equity, 79. passes by intendment of law, 79. a dowress a freeholder and why, 82. assigned by the tenant of the freehold, wliether heir, devisee, alienee, or disseizor, 82. remedy upon refusal to assign, 82. writ of right of dower and writ of dower unde nihil liabel re- spectively, 82. value of, 82-'3. how obtained from an infant or minor, 83, where the husband leases before marriage, 83. damages in case of detention of dower, 84, 93-'4. why damages for detention of, at common law was refused, 84. effect upon of a lease for life or years after marriage, 84. judicial remedies for assignment of, 84. effect upon of a lease by husband before marriage, 84-'5. seizin in law sufHcient for, but not ioy possessio fratris, 85. doctrine of dos de dotipeti non debet, 85, 94, 97-'8-'9. emblements at death of dowress, 86. of wife of disseizor and disseizee, 86. where a husband dies in d«bt, 92. where debts are due before marriage and charged on the land, 92, 93. where there is a case the converse of the last doctrine, 93. where debts are contracted during coverture, 93. where a man's lands are taken under statute of elegit, 93, comparative advantages of jointure and dower, 93. time for assignment—quarantine, 93. 476 INDEX. DOyim'R— Continued. no right of entry for at common law, 93. when hest to dissent from will and take, 94. in respect to partnership lands, 95. effected hy waste in K. C, 96. effect upon of determination of consort's estate, 98. illustrative oxamples, 99. denied in uses, 102. where lands are seized by feoffee to uses, 102. in resulting use, 105. not allowed in trusts ; contra by 3 and 4 Wm. IV., and statute in North Carolina, 109. of feoffee's wife liable to be defeated by entry of feoffor for condi- tion broken, 128-'30. where the estate expires by limitation — ^rule, 130. of feoffor's wife where feoffor does not enter on feoffee for for- feiture, 130. of wife of mortgagee, 130. in an interest unless adversely withheld, 140. denied where there is an intermediate vestate of freehold, 146. does not attach in joint tenant's estate, 151. seizin in law sufBcient for, 160. of wife of tenant per autre vie, 163. as at common law allowed widow in IsT. C, and she may dissent from the will and take the same, 195, 250. defined — subject to debts when, 250. use of writ of dower unde nihil habet, and writ of right of dower, 278, 280, 315-'6. not barred by execution in N. C, 325. See Uses, Trusts, Mortgages, CoNDiTiaNAL Limita- tions, Curtesy, and Husband and Wipb. EJECTMENT, 280, 307, et seq. See Actions under head of Mixed Actions. EMBLEMENTS. definition of, 47, 86. who takes as between heir, executor or administrator, 47. as between executor and devisee, 47. parol evidence admitted to prove that vendor of lands reserves I them, 48. when tenant at will is not entitled to, 67. allowed when tenant knows not the end of his term and his estate ends without his default, 67. lessee for years does not get, 86. who gets when tenant by cm-tesy or in dower dies, 86. when tenant knows not the end of his estate, 86. reasons for the common law doctrine of, 85. cases when the doctrine of does not apply, 86. doctrine of, with respect to tenants at will and at sufferance, 87. See Estates. ENTRY ON LANDS, 269. See Actions. EQUITY. defined, 401, 429-'30. INDEX. 477 E QVJTY— Continued, meaning of the term in England and America, 401, 430. courts of common law and equity distinguished, 401. follows the law, 409. the law prevails when equities are equal, 410. priority in time gives preference, when, 410. he who asks equity must do equity, 410. equality is, 410. jurisdiction in equity, concurrent, exclusive and auxiliary, 411. discriminations between courts of equity and law, 430. origin of most of the branches of equitable jurisdiction, 431. See Discovbby; Commission to Examine Witnesses, &c.; Account; Specific Peefoemanob, &o.; Equity Plead- ing. EQUITY OP EEDEMPTION, 131, 434'-5. See MoETGAGES ; Conditions ; Eedemption. EQUITY PLEADING. the ordinary steps in the progress of a suit in equity, 437. writ of process — -subpoena — or summons — and order of publication, 437. process in law and equity and under the code compared, 457. the parts of a bUl, 437. svbpcena served after the bUl is filed, 438. when defendant may be attached for contempt, 438. the processes of contempt, 438. when the bill is taken pro confesso, 438. the practice under the Code of C. P. compared with equity prac- tice, 438-'9. time of filing complaint, and answer or demurrer under the code, and efi'ect of negligence, 438-'9. object of interrogatories in equity, 439. object of charges, 439. nature and object of exceptions to the answer, 440-'42-'3. exceptions to the sufliciency of the answer must be in writing and precise, 440. where more than one answer is successfully excepted to, 440. amendment of the bill follows exceptions to the answer, 441. the bUl (or amended bUl) and the answers make up the record, 441. when the cause is set for hearing, 441. foundation for interlocutory orders, 441. application for, is by motion or petition, 441. use of and grounds for a preliminary decree, 442. effect where the answer does not respond to some of the allega- tions of the bUl, 442-'3. allegations unanswered to be proved — amount of evidence, 443, doctrine, respectively, under the code and equity practice, touch- ing unanswered allegations — diversity, 443. replication — ^when put in, 443. how pleadings are verified, 443-'4. demurrer must not be verified, 444. diversity between demurrers under the code and at law and in equity, 444^'5. object of demurrer in equity, 445. effect of demurrer in equity, 445-'6. grounds of demurrer in equity, 445. effect of overruling demurrer, 446. when demurrer is preferred to an answer, 447. 478 INDEX. EQUITY Fl.'EADmG-Oontmued. demurrer bad in part is bad altogether, 450. effect of demurrer at law, 447. plea — ^the object of, 447-'8. plea must be verified, 448. principle of a plea, 448. most usual grounds for, 448. pleas affirmative and negative, 448. anomalous pleas — ^how disposed of, 449. effect of a plea, 449. less particularity in equity tlian in common law pleading and why, 450. characteristic peculiarity of common law pleading, 450. causes of the peculiarity of common law pleading, 450-'51. method of judicial altercations in the Eoman law, 451-'2. the courts of eqmty for the most part conform to the Boman law, 452. method of judicial altercations in Scottish judicature, 452. re-hearing corresponds to repleader at law, 451-'2. when a re-hearing may be had, 452. re-hearing is confined to interlocutory decrees, 452. grounds for petition for a re-hearing, 453. bill of review — ^its object, 453. grounds for a bill of review, 453. bill in the nature of a bill of review, 453. bUl of revivor — ^use of, 454. bUl of revivor and supplement — ^use of, 454. supplemental bill — use and principal of, 454. supplemental bUl corresponds to what, 455. date of pleadings where there have been amendments, 455. cross-bills, 455-'6. how defects in a suit may arise,. 445. supplemental bUl in the nature of review, 445. original bill in the nature of review, 456. relief — special and general prayer for, 456. See Pleading^ and Rules of Pleading. EEROKS cured by verdict in. some cases, 385. See Appeals. ESCHEAT. is what, 55. propter defectum sanguinis a,viA propter delictum fenentis, 55. differs from forfeiture, 55. effect of, where lands are subject to uses, 103. See Feudal System and Purchase. ESCUAGE. See Feudal System. ESTATE. differs from property, 275-'6. the largest in, lands, 69. word heirs necessary in its creation, 69. feoffment without the word heirs, 59. tenant in fee seized mhis demesne as of fee, 59. INDEX. 479 ESTATE — Continuecl. four estates of inheritance, 59. fee tail arose out of statute, 59. first estate granted under feudal system — different views, 59, 60. words necessary in fees conditional, 60. words necessary in base fees, 60. only case of base fee in N. C, 60. grant to A and his "heirs male," 61. effect of an estate to A and the " heirs male of his hody," 61. effect of alienation of a fee conditional before birth of is- sue, 61. effect of birth of issue on donees in fees conditional, 61. right to alien, charge and forfeit, 61. what donees did on birth of issue, 61. provisions of de donis, 13 Ed. I., 61. estates tail not liable for forfeiture till 26 Hen. VIII., 62. leases allowed tenant in taU, 62. requisites of such lease, 62. effect of feoffment by tenant in taU, 63. kinds of estates tail, 64. no remainder could be limited after a fee simple (except by substiti ition) nor after a fee conditional, but could be after a fee taU, 64-'5. fee-tail barred in several ways, 65. taU made subject to debts of record and specialty and ap- pointment to charitable uses and liable to debts of bank- rupt, 65. dower in, 66. course of descent in fee tail, 66, 74. possessio fratris^ 66. lasts longer than fee simple, why, 66. different classes of estates in their order, 67. tenant in tail after possibility of issue extinct not liable for waste, 67. tenant in dower, by the curtesy and guardian in chivalry liable for waste at common law, 68. conventional estates for life not liable for waste at common law, 68. T — defined, 69, 70. requisites for, 70. difference in seizin for dower and curtesy, 70. contrast between dower and ciu-tesy, 70. maxim in, concerning marriage, 70. seizin in dower and curtesy must be sole, 70. as to wife of a disseizee, 71. as to wife of feoffor who has not entered for condition bro- ken, 71. as to lands descended to husband who dies before entry, 71. not of feudal origin, 71. introduced into England by the Saxons, 72. jointure a bar to dower, 73. what three things necessary for dower and curtesy, 75. denied in estates tail, when, 77. denied in a life estate in rent -and in the reversion after the same, 77. estate in dower, valued how, 77. 480 INDEX. ESTATE— Cb)!«Kwefl'. damages for detention of dower, 77. election of wife as to dower between fee simple and fee tail, 78. in dower where the marriage is voidable, 78. kind of death for dower, 78. dower passes by intendment of law; neither writing nor livery is necessary, 78. assignment of dower must be absolute, 78. quantity ^'interest., 80. estates of freehold and less than freehold, 80. definition of freehold, 80. diflferent kinds of livery, 80. use of livery in law, and it passes what kind of estate, 80. estate of tenant pur autre vie may be devised and limited over as a remainder, 87. tenant may bar all remainders, 87. estates less than freehold, 87. difference between tenant at will and sufferance, 87. emblements as to either, 87. how tenant at sufferance becomes tenant at ^tII, 87-'8. why tenancy from year to year is preferred, 88. notice, length of time and why, 88. tenant at sufferance and trespasser, 88. terms for years to evade statutes of mortmain, 88. why terms were not vsrithin the mortmain policy, 88. use of terms for provisions for, 89. terms devisable or bequeathable, 89. statute of enrollments applies to freeholds — not to leases, 91. estate in term and by elegit compared, 91. writ to recover a term, 91. duration of estate by stat. of elegit, 92. condition annexed to last estate, 92. quantity of land taken by elegit, 92. compared with stat. merchant in this respect, 92. estate under stat. staple 27 Ed. III., 92. estate in dower where lands are taken under stat of elegit,^Z. estate of guardian in chivalry passed like a chattel, 94. for life, when forfeitable and why, 94. writ of cessavit, 95. effect of "an estate given to A and his heir," 95. in dower in respect to partnership lands, 95. lease of tenant for life caunot be coiifli'med after liis death, 95. fee cannot be limited after a fee bs^ way of remainder, 119. use in fee is Umitable after a use in fee, 119. cannot be created by force of a condition, 127, 128. on condition — ^mortgages, 130-'31. "tacldng" mortgages, 131. equity of redemption, 131. distinguished from "interest" and "right," 140 in fee may be in abeyance, freeholds cannot be — diversities of opin- ion, 150. See Fee ; Dower ; Curtesy ; Lease ; Statutes ; Remain- dees ; NuMBEB AND Connection op Tenants. ESTOPPEL. definition, 199. INDEX. 481 ESTOPPEL— ConififtMed. kinds of, 199. instances of, 199. estoppel against an, 199. rules governing the doctrine of, 200. principle and nature of, 201. in regard to recitals in deeds, 201-'2. restalcted to particulars, 202-'3. recital of payment of consideration money, 203. EVIDEITCE, definition, &c., 368, et seq. See TeiaXi. EXAMINATION" DE BENE ESSE. when it occurs, use of, 406-'7. may occur in cases of tort, 406. what is necessary to he alleged, 407. what must be proved to use the deposition in court, 407. affidavit necessary, 407. meaning of de bene esse, 407. provision for in Nortli Carolina, 409. differs from perpetuation of testimony, 408. granted in aid of law and equity courts, 409. wlien there is only one witness for a case, 409. EXCEPTION. is a part of a thing granted and in esse, 50. differs from a reservation, how, 50. to the sufficiency of tlie answer (see Equity pleading), 440, ei. seq. EXCHANGE. definition of, &c., 168. See PuBCHASE under sub-division Exchange. EXCHEQUEE, 271, et seq. See CouBTS, and Actions. EXECUTION— for the body, 42. writ ot fieri facias, 42. capias ad satisfaciendum, 42. to sell property, once did not include chases in action, 76. contra now as to last doctrine, 76. writs of, how tested, 318. EXECUTOBS. devastavit suggested against, effect of, 389, 392. when new assets — jucTgment de bonis testatoris, si non tunc, &c., 390 judgment wlien false plea is used by, 390, 393. plea oiplene administravit, 390, 392. plea oi plene administravit prceter, 390, plea of debts of higher dignity — ^no assets ultra, 390. bound to plead debts of higher dignity of which they have notice and nens ultra, 390. ■plea oiriens per descent, 391. proof by specialty creditor against the heu', 391. plea of general issue by, 391. 482 INDEX. EXECUTOKS— Continued. ^ proof where executor pleads no assets, 391. judgment where assets come to, after judgment quando, 392. what the law requires of, 392. debts preferred by, 393. de son tort, who are, 393. de son tort, allowed for benefit of creditors, 394. de son tort, may be sued when there Is a rightful executor, 393. docJ;rine of executors de son tort generally, 394-'5. goods of intestates went to whom anciently, 231. personal property bequeathable at common law, 231. doctrine of pars rationabilis, 231-'3-'4. lands not devisable tDl 32 Hen. VIII., 231. reasons for diversity in respect to wills of realty and personalty, 231 from whom the legatee and devisee take, respectively, 232. different lands of legacies, 232 abatement of general and specific legacies, 232. preference among creditors, 232. diversity in respect of preference between legatees and creditors, 232 rules of priority inpayment of debts at common law and in North Carolina, respectively, 233. statutes touching appointment of administrators, 234. administrator cum tedamento annexo, 234. provisions of the statute of distributions, 23-5. bonds of administrators, 235. . of the residuum. 236. powers of executors and administrators in collecting assets, 236. duty of executors and administrators in case of precatory bequests, 236. when the personal representative may sue, 236-'7. rights in action which do not survive, 237. when judgment against, is de bonis testatoris vnth a quando, 389. See Legacies, Husband and "Wife, and "Devise," under THE HEAD OP PUBCHASE. EXECUTORY BEQUESTS. See ExEcuTOEY Limitations. EX CONTKACTU, 281. See Actions. EXECUTOEY DEVISES. See Executory Limitations. EXIGI J^CIAS, 320. See Process. EXEMPLIPICATIOBr, 363. See Trial. EXECUTORY LIMITATIOlSrS. definition of, 121. distinguished from contingent remainders, 121-'2-'3. rule against perpetiuties, 120. reason and derivation of the rule, 120-'l. diflference between conditional limitations and contingent remain- ders, 121. INDEX. 483 EXECUTORY LIMITATIONS— ComWmteff. of real estate where the freehold is not in meantime disposed of goes to heir, 123. of personal property where it goes with its profits, hetween vesting and testator's death, to person next to take, 123. conditional limitations defeated, 124. illustrated, 124. no freehold necessary to support a conditional limitation, 125. conditions in deed and in law distinguished from, with examples, 171, 173-. common recoveries not a bar to, 174. perpetuities defined, 174. executory devises and conditional limitations sti'onger than war- ranty, (Spruill «. Leary,) 182. of personal chattels, 210. of chattels formerly void and why, 210. by wai and by deed, 210. does not apply to things consumed in the use, 211. examples of executory bequests, 210-'11-'12. See Eemaindebs. EXTRADITION. meaning of, 326. doctrine of between the States, 326. FEE. simple, largest estate, 59. possessio fratris, 66. the word heirs, 59. seized in his demesne as of fee, 59. no remainder after a fee except by substitution, 64. conditional — first gi-anted, 59, 60. diversity of opinion as to the last doctrine, 60. necessary words, 60. no remainder could be limited after, 65. effect of birth of issue, 61. base or qualified — necessary words, 60. instance in N". C, 60. tail — provisions of statute of de donis, 61-'2. forfeitable by statute, 62, 65. leases of and requisites, 62. effect of feoffment by tenant, 63. kinds of estates tail, 64. general and special — male or female, 64, , mischiefs of estates tail, 64. efforts in England to defeat them, 64. remainders could be limited after, 65. barred how, 65. liable to debts of record and specialty debts of a bankrupt and appointment to charitable uses, 65. statute de donis does not extend to all hereditaments, 65. dower in entails, 66. course of descent in fee tail, 66. 32 484 FEE — Continued. INDEX. lasts longer than fee simple and why, 66. estates In fee in their order, 67. effect where remainderman for life disseizes the life tenant, 97. simple may be in abeyance — Fearne contra, 150. simple have seven canons of descent, 159. tail have four canons of descent, 159. See Estates; Dowee; Lease; Remaindees; and Statutes. FEOFFMENT, 1Q5. See PuECHASE under head of Pbimary Conveyances. FEUDAL STSTEM. what it is, 52. meaning of sovereign, lords paramount, mesne lords and tenants paravail under the system, 52. who are socage tenants,. 52. ■ manors, 52. villeins and serfs, 52. the ancient English tenures, 52 knight service, socage and villeinage tenm-es, 52. difference between villein-socage and pure villeinage, 52. the modern English tenures, 52. free and common socage, copy-holds, tenants in ancient de- mesne, grand serjeanty and frankalmoigne, 52. origin of copy-holders, 53. rank of pure villeins, 53. ancient demesne, 53. last villein in England, 53. how villeins were emancipated, 53. derivation of socage, 53. meaning of scutage or esouage, 53. meaning of manor, 53. services of a knight, 53. sei'vices of a sbcage-tenant, 53. incidents to knight service, 53. what is a seigniory, 53. how it difl'ers from a reversion, 53. abolition of feudal tenures, 53. difference between alienation and subinfeudation, 54. objections to subinfeudation, 54. provisions of quia emptores, 54. kings, lords and commons arose how, 54. idefimition of escheat, 55. propter defectiim sanguinis and propter delictum tenentis^ 55, difference between escheat and forfeiture, 56. ^^ dower not a part of, 56. reliefs, 56. marriage of ward, 56, 57. ouster le main, 56. who was guardian of socage tenant's lieu- and why, 56. why the lord was guardian in knight service, 56. wardship, 57, 58, fines for alienation. 57. fii-st kind of estate granted under the system— different views, S9, 60. no fines for alienation of uses, 101. INDEX. 485 FINES. definition, 175. See PUECHASE UNDER SUB-HEAD, FiNE, and ACTIONS. FIERI FACIAS. what it is used lor, 42. FINAL JUDGEMENTS. differ from interlocutory, 376. See Judgment. FORECLOSURE. 20 years raises a presumption of discharge against, 434. 10 years bars mortgagee's right in N. C, 435. FORFEITURE, 165. See Purchase, and Feudal System. FRANCHISES, 47. See Inooepobeal Hebeditaments. FRANK ALMOIGNE . See Feudal System. FRAUD. in the factum. &nA procurement of a deed, respectively, 427. where inferred from inadequacy of price, 427. where it vitiates conveyances as against creditors, 431-'3. a fraudulent conveyance is binding on the party maldng it, 432. GENERAL DEMURRER. defined, 333, 343, See Pleading and Rules op Pleading. GENERAL ISSUE, 335. See Pleading. GIFT, 166. See PuBCHASE under sub-head— Pbimaby Conveyances. GRAVAMEN, 289. See Actions under sub-head of Ex-Delicto, GRAND SERJEANTY. See Feudal System. GUARDIAN AND WARD. the several kinds of guardians, 262. diversity between tutor and curator, 262. guardians by nature, 262. i guardians for nurture, 262. guardians in chivalry, 263. wardship in chivalry ceased by statute, 263. guardians in socage, 263. the last prevailed at common law, 263. differs from guardianship in chivalry, 263. guardians by election, 263, guardians appointed by the chancery court, 363-'4. 486 INDEX, GUAEDIASr ABTD WART)^ Continued, ecclesiastical guardians, 264. guardians under the statute of 4 and 5 Fh. and M., 264. testamentary guardians, 264. guardians by custom of particular places, 264. guardians ad litem, 264. infants capable for divers purposes at certain ages, 264-'.5, - contracts of infants, valid, void, and voidable, 265-'6. doctrine where guardian mixes the vyard's funds with his own, as to the profits, 427-'8. interest for which the gTiardian is chargeable, 428. settlement with ward by guardian a few days after ward's age — how viewed, 428. doctrine where the guardian procm-ed a release from the husband of his ward soon after marriage, 429. See FBtTDAL System. GUARANTY, 227-'8. See Bills of Exchange and Promissory Notes. HABENDUM, 177. See Deeds. " HOMESTEAD. reversionary interest not liable to levy and sale for debt during existence of, 435. consists of what, 435. exempt fi-om sale on final process for any debt except, 435. HOTCHPOT. doctrine of and what in our law is analogous thereto, 166-'7. See Purchase and sub-division — Gift. See Descent. HUSBAND AND WIFE. hvisband's interest in wife's land, 247. husband's interest in wife's chattels real, 247. curtesy defined, 70, 247. husband^s interest in wife's cho-^es in action — exceptions ; and in her choses in possession, 248. husband may administer on wife's estate, 248. difference where the husband takes chosei in action during covert- ure and as wife's representative, 249. husband as personal representative of the wife, takes the residue after payment of debts, 249. doctrine of husband's interest in the wife's reversionary interests. 249. wife's interest in liusban'T.? lands, 250. wife's interest in respect to husband's personal estate,. 250. wife's distributive sliare subject to liu§band"s debts, 250. dower defined — subject to husband's debts when, 250. widow may dissent from husband's will, when, 251. in what court the wife sues, 251. personal representative of wife takes her choses in action, 251. husband takes where the flead wife's chattel was hired, 251. at wife's death lier^ personalty in the hands of a guardian goes to husband, 252. INDEX. 487 HUSBAND AKD yviFS— Continued. an unsettled balance in a guardian's hands goes to wife's personal representative, 252. doctrine as to liability of the husband for wife's ante nuptial debts, 253. doctrine as to husband's liability for wife's jjosi nuptial debts, 255. the wife's agency — express and implied in respect to the husband, 253, 254. the husband's liability on the scoi-e of duty, 253-'4. when the husband's obligation for necessaries ceases, 254. necessaries — diversities as to the doctrine — when the question arises, 254. husband's liability for wife's torts, 255. husband's liability for wife's crimes not committed in his presence, 255, 256. exceptions to last doctrine, 255-'6. IMPERTINENCE. meaning of, 493-'4. See Discovery. INCOEPOEEAX, HEEEDITAMENTS. Advowsons — purchasing where the living is vacant, 46. donative no longer exist, 46. tithes — originally in the hands of the clergy, 46. origin of and definition, 49. common — difference between common appendant and appurtenant, 46. appurtenant, how it arises, 46. meaning of levant and chouchant, 46. because of vicinage obtains in N. C, 46, 49, 50. how common in gross may arise, 48. ways — arise, how, 47. public or private, 47. how laid out, discontinued and altered .in N. 'C, 50. what are private, 47. right of, claimed for twenty years, 51, what is a right of "way, 47. repair of in N. C. and England, 47, 49. release of the right x)f, 47. when cum pertinentis is used, 50. franchises — what are, 47. instances, 47. corodies — what are, 47. pensions — what are, 47. 488 INDEX. CORPOREAL HEREDITAMENTS— C. RENTS, 43, et seq. See Incoepoeeal Hebeditaments. INDEX. 509 EEPLEADEK, 379. See Judgment. EEPLBVIN, 298. See Actions under head of — ^Ex Delicto. REPLICATION, 443. See Bulbs op Pleading ; and Equity Pleading. EE-PFBLICATI02Sr, 196. See Devise under head of ,— Purchase. EESCISSION AND CiilSrCELLATION. the jurisdiction for arises when, 426. the jurisdiction is exercised for what purpose, 426-'7. case where a vendor salted a mine, 427. inadequacy of price by itself no ground for, 427. EBTAINER. meaning of, 148, 204, 269. EETEOSPECTIVE LAWS. do not correspond fully with the definition oi a law, 40. sometimes void, 40. never favored, 40. retro-active effect not allowed unless in express terms retroac- tive. 40. ex post facto law defined, 40. laws impairing the obligation of contracts prohibited how, 40. touching civil remedies, 40. eevi:esion. definition of, 149. differs from a remainder, 139, 149-'50. incidents to, 149. may be granted how, 148. held by joint tenants, 152. See Eemaindees ; and Eents. EEVIIESIONAEY INTEEESTS, 249. See Husband and Wife. EEVOCATION. implied and express in respect to wills, 191-'6-'7. See Devise under the general head of, — Pubchasb. EULE. is perman ent, uniform and universal, 39'. not fluctuating nor transient like an order, 39. is coercive, not advisory, 39. commands and does not depend on assent, 39. in equity practice, 436. EULES OF PLEADING, (Common Law.) provisions of 4 and 5 Anne in respect to demm-rers, 333, 343, 346. one mode of defence in a plea at common law, 346, 348. enlargement of number of pleas by statute, 346. object of the rule — " pleadings must not be double," 346, 348. 510 INDEX. KULES OF PLEADIIiTG-, (Common Law) —Continued. 4 and 5 Anne does not extend to pleas in abatement — extends to replication in replevin and in case of set-oflF, 346-'7. matter cured by verdict, 342, 347. plea in bar and in abatement to same cause of action not al- lowed, 347. plea bad for two answers when one is ill-pleaded, 347. plea not bad for multifariousness when, 347. what may be stated in pleading, 347. pleas when declaration has several counts, 347. relaxation of rule against duplicity, 348. effect of failure to demur for duplicity, 348. number of counts in assumpsit and pleas thereto, 348. venue — ^its meaning, 345-'9. venue in local and transitory actions, 349-'52. jurors ariginally recognitors, 349. venue in the margin, 349, 352. venue in the body of the pleadings, 349, 352. provisions of 16 and 17 Car. II., and 4 Anne in respect to venue, 349, 352, venue in If . C, 352. diflference between singleness and certainty, 350. the allegata a.T\A probata must correspond, 350. " pleadings must have certainty of time " explained — examples, 350. when to use an alias when a name is in doubt, 350-'51. particularity in stating names, 351. particularity of counts in Ubel and slander, 351. protestation^ — use of, 351. use of mdelicit, 351. when time may not be laid under a mdelicit, 351, 354. certainty of time refers to traversable facts only, 354. pleas to the jurisdiction cannot be by attorney, 352. parol demurrer — ^meaning and use of, 352. parol demurrer abolished by 1 Wm. IV , 352. parol demurrer not used in IT. C, 352. judgment upon an issue in fact, 352. judgment in abatement is final, 352. rules respecting materiality, obscuiity and prolixity, 353-'4. departure, 353, issue when well tendered must be accepted, 337, 354. similiter and joinder in demurrer, 354. demurrer proper when issue is Ul-tendered, 354. whatever is descriptive or material in respect to time, or quantity, ' or value, must be proved as alleged, 354. examples of last doctrine, 354. meaning of — " pleadings must show title," 355. how to plead title in fees, 355. how to plead title in particular estates, 355. when title is stated as inducement, 355. when general freehold title is alleged, 355. when title of mere possession is sufficient, 355-'6. title proved as alleged, 356. generally time, quantity and value may be laid under a mdelicit, 356 exceptions to necessity of alleging title, 356. meaning of — " pleadings must show authority," 356. court ex officio takes notice of the common law, 356. INDEX. 511 RULES OF PLEADING, (COMMON IjAw).— Continued. not necessary to set forth a public statute in pleading, 356. private statutes must be pleaded and proved, 356. foreign laws must be proved as facts, 356. matters of fact ex officio noticed by the court, 356. it is not needful to allege circumstances which come from the other side, 357. it is not needful to allege what the law presumes, 357. when a general mode of pleading is sufficient, 357. plea of non damnificatus, 357. no more particularity required than the nature of the thing plead- ed will admit, 358. acts valid at common law pleaded as before statute, 358. pleadings must not be argumentative, 358. pleadmgs must not be in the alternative, 358. pleadings must be positive, 358. pleadings must state things according to legal effect, 359. how the statute of limitations is pleaded, 359. pleadings should observe ancient forms of expression, 359. pleas must be pleaded in due order, 359. the last doctrine illustrated, 359. pleas in abatement must give plaintiff a better writ, 359. formula for profert, 369. pleadings must have apt time, due form and proper matter, 388. See Pleading (Common Law) and Equity Pleading. SCAKDAL, 403. See Discovery. SCIElfTEE, 294. See Actions under head of— Ex Delicto. SCINTILLA JUEIS. meaning of, with illustrations, 116-'17. See Uses and Teusts. SCIBB FACLA.S. use of and meaning, 287-'8, 308. necessary allegation upon a bail bond, 323. pleas to by ball, when brought on their bond, 325. SCUT AGE. See Feudal System. SECONDARY CONVEYANCES, 165. See Puechase— Title by Alienation. SEIGNIORY. See Feudal System. SELF DEFENCE, 269. SERVANT, 257. See Master and Servant. SET-OFF, 289, etseq. See Actions under head of,— Ex Contractu. 512 IKDEX. SETTLEMENT. example of a strict, 144. See Kemaindebs and Perpetuities. SHELLEY'S CASE. See Eemaindebs. SHERIFE. acts in a ministerial capacity when, 42. acts in a judicial capacity when, 42. SLANDER. words actionable per se, 296. words not actionable per se, 296. meaning of libel, 296-'7. great number of counts in slander, 296, 351. See Rules op Pleading ; and Actions under,— Ex Delicto. SOCAGE. derivation of, 53. services in case of, &c., 52, 53. lauds held in N. C. by a kind of, 55. who was guardian in socage tenure and why, 56. why use of "/ree " and " common " in 12 Car. II., 57. guardianship only when lands came to the heir by descent, 57. curator and tutor, 57. may be when heir is seized of a rent, 57. See Feudal System. SPECIAL DEMURRER, defined, 333, 343, 346. See Pleading and Rules of Pleading. SPECIALTY. debts of, 286. See Actions under head of, — Ex Contractu. SPECIFIC PERFORMAlSrCE. eqviity does not follow the law in certain cases, 436. principle upon which part performance takes a case out of the Statute of Frauds, 436. equity enforces the contract for sale of land when improvements have been made, 436. payment of the purchase money does not answer to enforce part performance, 436. character of relief which equity affords in specific performance, 417. how jurisdiction of equity for enforcement of contracts, in some cases, arises, 417. requisites for specific performance, 417, 420, 431. valuable consideration, 420. instances of contracts for valuable consideration which equity will not enforce, 417-'18. when a contract for partnership will not be enforced, 417. grounds for 'equity interference in the enforcement of contracts in specie, 418, 420. INDEX. 513 SPECIFIC PEBFORMANCE— CoBi!m«e(7. lands of contracts whicli require a valuable consideration, 418. doctrine of part performance, 418-'19. betterments, 418. doctrine of part performance in N". C, 419, 421. instance where equity will not enforce the contract, 419-'20-'21. when the contract must be in writing, 420. applies to realty and personalty, 420. doctrine of allotsang time to make out a title beyond the day which the contract specifies, 421. doctrine of the equity allowing a conveyance with compensation for defects, 421. STATUTE. first limitation on actions for lands, 19. magna charta, 19. magna charta confirmed, 19. oldest English in existence, 19. first of mortmain,, 20. of waste, 20. of Gloucester, making waste punishable with treble damages and forfeiture of the place or thing wasted, 20, 151-'2, of Gloucester, 6 Ed. I., limiting the efi'ect of collateral warranty, 20, 181. of 3 and 4 Wm. IV., respecting pleas in abatement, 341. second of mortmain, 20. of DeDonis Conditionalibus, 13 Ed. I., 21. of De Mercatoribns, 13 Ed. I., 21. of Elegit, 13 Ed. I., 21. ■of Quia Emptores Terrarum, 18 Ed. I., 21. of 23 Ed. I., the real era when the House of Commons is recog- nized, 22. of 15 Ed. n. recognizing the House of Commons, 22. touching partition and account in favor of joint tenants and ten- ants in common, 135-'55. of 1 Ed. in. allowing tenants in capite to alien then- lands, 22. of 4 Ed. in. providing for annual parliaments, 22. of 23 Ed. III. defining treason, 22 touching the action, of replevin, 300. of 36 Ed. III. providing that proceedings in law be conducted in English and entered and enrolled in Latin, 22. of 43 Ed. ni — uses and trusts — their introduction, 22. of 50 Ed. Ill — the existence of uses recognized, 23. of 15 Bichard II., fourth statute of mortmain, 23. of 27 Hen. VIII. touching bargains and sales, 113. of 1 Ed. IV., confirming all judicial acts and private business trans- actions occurring in the time or times of Hen. IV., Hen. V., his son, and Hen. VI., 23. of 12 Ed. IV., Taltaruni'scase, 23. of 1 Bich. III., vesting lands where the King, while Duke of Glou- cester had been joint feoffee with the subject, in the subject ; and where he had been sole enfeoffed to uses, vesting the lands in the cestui qiie use, 103, et seq., 24. making consideration in deeds necessary in statutory conveyances, 177. of 11 Hen. VII., limiting the effect of collateral warranty by tenant in dower, in barring the husband's heir to the heritage de- scended from the dowress, 24, 181. 514 STATUTE— Continued. INDEX. of 19 Hen. TH. , whereby uses are subjected like legal estates to execution, 24. of 27 Hen. VIII., c. 10, called the statute of uses designed to abolish uses altogether, transferring the possession to the use, or con- verting uses into legal estates, 24, 103. of 32 Hen. VIII., allowing wills of lands when made in writing, (supplemented by 34 Hen. VIII.,) 24, 31, 189-'92, 231. of 32 Hen. VHI,, dissolving monasteries, 24, 46. of 5 and 6 Ed. VI., concerning the sale of offices, 24. of 4 and o Ph. and Mar., concerning the guardianship of infant females under sixteen, in respect of marriage, 24-'5, 264. of 43 Eliz., making vague and indefinite charities valid, 25. of 21 Jac. I., c. 16, the first general statute of limitations in Eng- land, 19, 25, 30. of 3 Gar. I., c. 1, known as " The Petition of Bight," 25. touching triennial parliaments, 25. touching the abolition of the tenm-e in chivalry, 26, 263. touching the repeal of the act providing for triennial parliaments, 26. ' touching costs, 321, 327. providing for the subject the benefit of the great writ of Habeas Corpus^ 26. touching Fraudulent Devises, 27, 195. touching capias in certain actions, 328. touching the re-establishment of triennial parliaments, 27. requiring sheriff to take bail, 322, 328. touchmg allowing counsel in indictments for treason, 27. touching assignment of baU bonds, 323. touching actions on bonds with collateral conditions, 27, 339, 407. requiring deed in partition by joint tenants, 158. touching the settlement of the crown of Great Britain upon the Princess Sopliia of Brunswick, 27. maldng the teniu-e of offices of judges to be during good behavior instead of during the King's pleasure, 27. abolishing parol demurrer, 352. touching promissory notes, 28. touching collateral warranties, 28. touoliing money bonds with a penalty, 28, 339-'40. respecting venue, 349, 352 touching pleas, as many as may be necessary allowed, 28, 846 touching joint tenants and tenants in common, making them liable for account, 28. touching descents in respect of native subjects, 161. consummating the union with Scotland, 29. touching provision for septennial parliaments, 29. touching allowance of counsel in parliamentary impeachments for treason, 29. touchmg the " change of the style," 29. touching the tenm-es of judges' offices— to be during good be- havior, 29 touching the imposition of stamp duties iipon the American Colo- nies, 29. touching the repeal of the stamp duty act, 29. touching the internal taxation of the colonies, 29. touching the abolition of duties on the colonists, except on tea, 29. touching the legislative union between Great Britain and Ire- land, 30. INDEX. 515 S T ATUTE— Continued. touching the definition of treason, 30. touching the aholition of the wager of battel, 30, 365. touching the bar of the statute of limitations unless the promise is m writing, &c., 30. touching the reformation of representation in Parliament, 30. touching the abolition of the ancient covenant real and all real actions, 30. touching the abolition of the trial by wager of law, 30, 364. changing and reforming the rules of pleading, 30. modifying the common law canons of descent, 31. allowing counsel in all criminal proceedings, 31. declaring that lands as to the immediate freehold thereof shall lie in grant as well as in livery, 31. giving the tenant the right to alien and taking away the right of subinfeudation, 41. allowing lands to be devised, 41. allowing the ordinary to appoint either the widow or next of kin, or both, to administer on the intestate's estate, 41. giving the creditor one-half of the debtor's lands, 41. giving the whole of the merchants lands, 41. giving rise to rent charge, 42. respecting amendments andjeqfailes, 378 giving rise to express instead of implied warranty, 42. touching the kind of rent reserved by tenant in tail, 44. touching entails does not include annuities, 47. touching the abolition of feudal tenures, 54. eiFecting lords and commons respectively, 54. touching alienation by tenants tn capitc, 54. touching the division into king, lords, and commons, 54. intended to restrain lords in case of wardship and the inadvertent use of "haeredes," 56. touching estates tail, 13 Ed. I., 61-'2. touching forfeiture of estates tail, 62. touching leases by tenants in tail, 62. de (lonis does not extend to all hereditaments, 65. making tenants for life or years liable for waste. 68. touching liability of tenant in case of burning, 68. touching endowment of felon's wives, 69. in K. C. touching leases, 81. touching damages for refusal of dower, 84. rendering terms for years ineffectual against the statutes of mort- main, 88. touching rights given to assignee of lessor, 90. respecting subjecting uses to debt. 102. requiring leases to be in writing, 81, 91. touching the taking of the debtor's lands, 91 providing damages for detention of wife's dower, 93-'4, 275. touching common recoveries in aid of mortmain policy, 101. making uses inalienable to clergy, 101. requiring all creations, &c., of uses to be proved in writing, 102. touching the abolition of usus, 103, et seq. giving cestui gue.use the right to alien the land without consent of terre-tenant, 103. making trusts subject to dower, 109. requiring trusts to evidenced and proved in writing. 111. giving rise to special demurrers, 333, 343, 346. 34 516 INDEX. STATUTE— Continued. touching conveyances voidable against creditors and purchasers, 25, 113-'14^'15, 195. touching enrollments, 113, 118. touching allowance of mesree profits to posthumous child in case of contingent remainders, 148. making trusts forfeitable, 110. touching attornments, 54, 150. giving remedies to joint tenants and tenants in common for waste, 21, 69, 151. touching special occupancy, 163. of 29 Car. II. touching conveyances and wills of lands, and execu- tory contracts for the sale of lands, 26, 82, 102, 167-'8, 192. making fines a bar to estates tail, 175. touching appointment of administrators, 41, 190, 234. touching distribution, 191 requiring signature and witnesses to wills, 192. making trusts subject to dower, 109. of jointure, 194^'5. making trusts subject to debt, 110. touching collateral warranties and the abolition of all wan-an- ties, 181. touching assignability of promissory notes & bonds, 220-'4^5'-'6-'7. touching pajTuent of debts of intestates, 234 of .31 Ed. lit and 21 Hen. VIII. touching administrations, 244. touching distributions, 23, 233, et seq. touching actions of account by executors and administrators, 236. touching limitations to real actions, 19, 25, 30, 277. touching devises to witnesses, 194. SUPERSEDEAS. use and meaning of, 386. See Appeaes. SUPPLEMENTAL BILL, 454. SUPPLEMENTAL BILL IN THE NATUEE OF REVIEW, 445. SURETIES, 287. one or all may be sued in England, any or all in N. C, 2S7. difler from guarantoi's, 287. SURRENDER, 169. See PuBCHASB under head of, — Subeendee. TENANTS IN ANCIENT DEMESNE. See Feudal System. TENANTS IN COMMON, 151, et seq. See Number and Connection op Tenants. TENANTS IN COPARCENARY, 151, et seq. See Number and Connection of Tenants. TENANT PARAVAIL. See Feudal System. TENENDUM. See Deeds. INDEX. 517 TESTATUM CAPIAS, 320. See Pkocess. TITHES, 46. See Incobpoeeal Hereditaments. TITLE. pleadings must show, %55. See KuLBS OF Pleading. by descent and by purchase, 159, 163. See PuECHASE ; and Descent. TRAVERSE, 334. See Pleading; and Rules of Pleading. TRAVERSE DE INJURIA, 335. See Pleading. TRESPASS Olf THE CASE, 293, et seq. See Actions— Ex Delicto. TRESPASS VI ET ARMIS, 283, et seq. See Actions under head of, — Ex Delicto. TRIAL. definition of, 363. kinds of, 363. mode of proof by record, 363. use of exemplification, 363. mode of proof by inspection, 363. instance of trial by inspection, 373. mode of proof by certificate, 363. by wager of battel, 365. wager of battel used in court martial, appeals of felony and writ of right, 365. wager of battel abolished, 365. by wager of law, 364-'5. when the latter was used, 364. wager of law aboUshed by statute, 364. by witnesses, 365. instance of last doctrine, 365. most usual mode is by jury, 365. where had, 365. proceedings in — tissue made up — ^venfa-e issues where, &c., 365-'6. reasons for trial at nisi prius, 366. when the jury is impanelled, 366. challenge — to the array — to the polls, 366. grounds for challenge to the array, 366. when a new venire issues to the coroner, 366. what are, and the kinds of, challenges to the polls, 366 jury must be composed of men except, 366. peremptory challenges in civU cases, 367. peremptory challenges in capital cases, 367. time for challenge, 367. tales, 367. oath of jurors, 367. proceedings after jury is impanelled, 367. 518 INDEX. TRIAL — Continued. definition of evidence, 368. evidence distinguished from testimony, 368. Icinds of evidence in tlie most general sense, 369. direct evidence, 369. presumptive evidence, 369. circumstantial evidence, 369. primary evidence, 369. secondary evidence, 369. prima facie evidence, 370. conclusive evidence, 370. hearsay, 370. what seems to be hut is not hearsay, 370. exceptions to the rule excluding hearsay, 370. effect of evidence, S70. provision of U. S. constitution touching public acts, records, l\:c., 370. object of evidence, 370. when exemplifications, examined copies, and ofiice copies are used, 371. private writings, 371. proof by witnesses, or oral evidence, 371-'2. when parol evidence is admissible to defeat WTitten, 872. how wills are proved, 372. how wills are admitted to probate in K. C, 372. what is a writ of ceitiorari, 372. what are records, 372. evidence rejected at common law, 373. credible and competent — meaning of, 373. dift'erenoe in want and defect of jurisdiction, 374 issues in law are determined at Westminster, 374. issues in fact determined at nisi prius, 374 proceedings at ninipiius, 374. writ of inquiry cannot be executed by deputy, 374 verdict — kinds of, 368 definition of a verdict, 368 TROVER. See Actions under head of — Ex Delicto. TRUSTS. mixed and constructive — merchants' assignment to prefer credit- ors, 125. could arise by deed, simple writing, or word of mouth till 29 Car. II., 126. resulting or implied trusts exceptions to 29 Car. II., 126. Direct trusts- — or uses not executed by the statute of 27 Hen. VIII., 106. intent of 27 Hen. VIII., 106. cases of direct trusts, 106. Indirect trusts — ■ resulting, implied and constructive, 106-'7. instances of each of the difterent kinds of trusts — direct and indirect, 106-'7-'8. difference botween a use and a trust since 27 Hen. VIII . and before, 108. INDEX. 519 TUVSTS— Continued. Indirect trusts — devisable but not subject to dower, 109. 3 and 4 Wm. IV., , and statute in N. C, make them subject to dower, 109. subject to curtesy and reasons, 109. subject to debt in equity, and in law, by 29 Car. II., 110. exceptions as to mixed and constructive trusts, 110. made forfeitable for treason by 33 Hen. VIII.. 110. made to arise at first by parol — changed by 29 Car. II., 111. conveyances under 27 Hen. VIII., 113. hargiiin, and sale — inroUment— the only general statute of reg- istry in England, 113. certains conveyances voidable by 13 and 27 Eliz., and their provisions, 113-'14. statute of inrollments did not apply to terms for years, 114. lease and release — how it arose and its method of operating, 114. See Uses ; Conditions ; and Executory Limitations . TEIJSTEES. are not allowed to speculate in trust property — instance of an ad- ministrator, 428. must account to cestui que ti-usts for all profits, 428. general doctrine of persons standing in a relation of special confi- dence, 429. e. g., attorney and client, minister and parisioner, guardian and ward, 439. doctrine as to the profits arising from investment by guardian of his own and the ward's funds, 427-'8. doctrine as to settlement by guardian with the ward a few days after ward's age, 428-'9. release by husband of ward to guardian a few days after mar- riage, 429. See Teusts; Uses; Guaedian and Waed. USES. definition of a use, 100. who has the legal estate — ^who performs the service, 100. remedy of cestui que use against terre-tenant, 100. introduced into England by whom, 100. what other things brought to England by ecclesiastics. 100 purpose of their introduction, 100. used by other persons than ecclesiastics, 101. descendible like estates at common law, 101. alienable and why, 101. effect of death of beneficiary without heu's, 101. passed by simple declaration, 102. all creations and declarations of to be proved in writing by stat- ute, 102. devisable, 102. not liable for debt under statute of elegit, 102. changes by statute as to debt, 102 not subject to dower or cmtesy, 102. where the land descends to heir of the feofffee, or goes to-his widow, 102. lands in hands of terre-tenant extendable for debt, 102. where terre-tenant was convicted of treason — and where the lands escheat, 103. 520 INDEX. USES — Continued. emls which occasioned statute of 27 Hen. VIII. — statute of uses, 103. provisions of 1 Kich III., 103. expediency for and necessity of 1 Kich. III., 103-'4. alienee of feoflfee to uses when liable to perform the trust, 103. prvvidons of 27 Hen. VIII., ax tu. 104. reason for the use of the words " body politic," 105. instances of resulting uses and the operation of statute of 27 Hen. Vni., 105, 116. 27 Hen VIII , codstrued strictly. 105 four instances where 27 Hen. VIII., does not operate, 105-'6. Direct trusts — (1.) use upon a use; (2.) special trusts ; (3.) uses declared upon a term for years, 106. Indirect trusts — including resulting, implied and constructive trusts, 106. instances of the various kinds of trusts. 106-'7-'8. difference in uses and trusts since and before 27 Hen. VIH., 108. raised by declaration or consideration, 110-'12. definition of resulting, 112. instance of, 112. kind of consideration to raise a use in bargain and sale, 112. agreement without consideration a nudum pactum, 112. may arise by simple contracts, 112. conveyances that arose from 27 Hen VIII., 113. arose by bargains and sales before 27 Hen. VIII., a new convey- ance since 27 Hen. VHI., why, 113. hargain and sale — inrollment necessary, 113. certain conveyances made voidable by 13 and 27 EUz., 113. provisions of 13 and 27 Eliz., 113-'14. use upon bargainee's estate, 115. conveyances operating with and without transmutation of posses- sion, 115-'16. raised upon a feoffment by declaration, 115. declaration of at time of feoffment or afterwards, 116. scintilla juris explained, 116-'17, 120. a use in fee limitable after a use in fee, 119. springing, shifting and resulting, 124. no fi'eehold necessary to support a future use — contra as to con- tingent remainders, 125. See DowEE, Cubtesy, Trusts, and Executory Limi- tations. VENIRE, 36o-'6. See Tbial. VENUE. meaning of, 345. See EuLBS op Pleading. VEBDICT, 368. See Trial, and Pleading. VEEIPICATION. of pleadings, 443-'4. See Equity Pleading. INDEX. 521 VIDELICIT. use of, 351. See EuLES OF Pleading. VILLEINS. See Feudal System. VILLEINAGE TENURES. See Feudal System. VOUCHER. example raf aad distinguished from aid pr lyer —see Aid Prayer, 140. another example ot, 144. See Warranty. WAGER OF BATTEL, trial by, 365. See Trial. WAGER OF LAW, 288, et seq. executors and administrators cannot wage their law, 289. See Actions under head of Ex-Oontractu. and Trial. WARDS, 262, etaeq. See Guardian and Ward. WARRANTY. express arose from quia emptor es, 42, 180. counterpart of implied, 44. lineal with assets bars entaUs, 65. definition of, 179. differs from guaranty, 179. covenant real to distinguish from personal, 179. express and implied, 179. implied grew out of tenure, 179. implied in partitions, exchanges, and grants by the words dedi et concessit 168, 179. reversioner has right to distrein, 180. express includes Uneal, collateral and warranty commencing by disseizin, 180. instance of collateral, 180. difference between binding and rebutting, 180. definitions of the three kinds of express warranties, 180-'l. examples, 181. changes in collateral warranties, 181. only instance of, 181-'2. statute abolishing all warranties — covenants real, 181. lineal rebuts when, 182. whether an executory devise may be defeated by wa rranty, (Spruill V. Leary), 182 conditional limitation stronger than wan-anty, 182. rebutter takes effect in N. C. in lineal warranty only, 183. voucher, 140, 144, 183, 186, 185-'8. warrantia chartce — uses of, 183, 187. warranties now are covenatits personal, 183-'4. the word warrant, 184, 522 INDEX. WARRANTY— Continued. covenant of quiet enjoyment, 184-'5. covenant of seizin, 184-'5. covenant against Incumbrances, 184-'5. covenant of further assurances, 184-'5. examples, 184-'5 difference between a general and special warranty, 186. by tenant for life 186. implied in sales of chattels, 186. effect of express before quia emptores, 186-'7. covenant of seizin does not pass with the estate, 187. covenant of quiet enjoyment passes with the laud, 187. warrantor and endorser must have an interest, 187. may bring action on covenant of seizin before impleaded, 187. warrantee recovers lands, covenantee, damages, 188. measure of damages, 188. See ExBCUTOEY Limitations. WASTE. punishable in all tenants for life or years by statute of 52 Hen. in., 20. ^ punishable with treble damages and forfeiture of the place wasted, by statute of Gloucester 6 Ed. I., 20. joint tenants allowed action for, 21. tenant in tail after possibility of issue extinct not liable for and why, 67. definition of, 68. voluntary, permissive and equitable, 68. when to bring action on the case in nature of, 68. conventional estates not liable for at common law, 68. who were liable for at common law, 68. statute making tenants for life or years liable for, 68. liability of tenant tor negligence m case of burning not altered by 6 Ann., 68, Blackstone's view as to such negligence in the last case, 69. mill taken away by freshet in N. 0. , 69. burning, whether by negligence or mischance, waste at common law, 69. no action for by one co-parcener against another, 69. action for by one tenant in common against the other by statute, 69. insufficiency of an action for the place wasted in a certain case in N. C, 69. as respects tenant by the curtesy initiate and consummate, 76. by tenant in dower or by the curtesy in North Carolina, 96. when action for joined in by tenant for life and remainderman, 97. joint tenants and tenants in common not liable for at common law — but both have action for by statute, 151. no action for allowed coparceners, 151. the use of the writ of waste, 280, 316. statutes touching waste, 280, 316. WAYS, 47. See Incorpokeal Herkditamekts. WIDOWS, 250-1. See Husband akd Wifk. INDEX. WIPE, 247, et seq. See Husband and Wife. WITNESSES. trial by, 365. See Trial. WRIT OF ERROR. principle of — use and meaning, S86. See Appeals. WRIT OF INQUIRY. definition. of, 377. issues to whom, 377. where the cause is tried, 377. See Judgment, and Tbial. WRITS IN CONSIMILI OASU, 303, .308. WRONG DOER. possession sufficient against a, 801-'2. 523