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Library of Congress Cataloging-in-Publication Data

Blackstone, William Sir, 1723-1780.

Blackstone's commentaries: with notes of reference to the constitution and laws, of the federal government of the United States, and of the Commonwealth of Virginia: in five volumes, with an appendix to each volume, containing short tracts upon such subjects as appeared necessary to form a connected view of the laws of Virginia as a member of the federal union / by St. George Tucker; with an introduction by Paul Finkelman and David Cobin. p. cm.

Originally published: Philadelphia: William Young Birch, Abraham Small, 1803.

Includes bibliographical references.

ISBN 1-886363-15-3 (set: alk. paper)

1. Law -- Great Britain. 2. Law -- United States. 3. Law -- Virginia. I. Tucker, St. George, 1752-1828. II. title. KF385.B55 1996 349.73-dc20

[347.3] 96-12566

CIP

BLACKSTONE'S COMMENTARIES:

WITH

NOTES OF REFERENCE,

TO

THE CONSTITUTION AND LAWS,

OF THE

FEDERAL GOVERNMENT OF THE UNITED STATES;

AND OF THE

COMMONWEALTH OF VIRGINIA.

IN FIVE VOLUMES.

WITH AN APPENDIX TO EACH VOLUME,

CONTAINING

SHOUT TRACTS UPON SUCH SUBJECTS AS APPEARED NECESSARY TO FORM A CONNECTED

VIEW OF THE LAWS OF VIRGINIA,

AS A MEMBER OF THE FEDERAL UNION.

BY ST. GEORGE TUCKER,

PROFESSOR OF LAW, IN THE UNIVERSITY OF WILLIAM AND MARYLAND ONE OF THE JUDGES OF THE GENERAL COURT IN VIRGINIA.

PHILADELPHIA:

PUBLISHED BY WILLIAM YOUNG BIRCH, AND ABRAHAM SMALL,

NO. 17, SOUTH SECOND-STREET.

ROBERT CARR, PRINTER.

1803.

District of Pennsylvania: to wit.

BE it remembered, That on the ninth day of May, in the twenty-seventh Year of the Independence of the United States of America, William Young Birch, and Abraham Small, of the said District, have deposited in this Office the Title of a Book, the right whereof they claim as Proprietors, in the words following, to wit: "Blackstone's Commentaries: with Notes of Reference, to the Constitution and Laws of the Federal Government of the United States; and of the Commonwealth of Virginia. In Five Volumes. With an Appendix to each Volume, containing, Short Tracts upon such Subjects as appeared necessary to form a connected View of the Laws of Virginia, as a Member of the Federal Union, By St. George Tucker, Professor of Law, in the University of William and Mary, and one of the Judges of the General Court in Virginia." In Conformity to the Act of the Congress of the United States, intituled, "An Act for the Encouragement of Learning, by securing the Copies of Maps, Charts, and Books, to the Authors and Proprietors of such Copies during the times therein mentioned," and also, to an Act entituled, "An Act supplementary to an Act, entituled, an Act for the Encouragement of Learning, by securing the Copies of Maps, Charts, and Books, to the Authors and Proprietors of such Copies, during the Times therein mentioned. And extending the Benefits thereof to the Arts of designing, engraving, and etching historical, and other Prints." (L. S.) D. CALDWELL,

Clerk of the District of Pennsylvania.

COMMENTARIES

ON THE

LAWS OF ENGLAND,

IN FOUR BOOKS.

BY SIR WILLIAM BLACKSTONE, knt.

ONE OF THE JUSTICES OF HIS MAJESTY'S COURT OF COMMON PLEAS.

WITH THE LAST CORRECTIONS OF THE AUTHOR,

ADVERTISEMENT.

The Editor having procured a copy of a late Edition of Blackstone's Commentaries, published in London, by Edward Christian, Esq. has made a selection of such of the Notes, contained in that Edition, as appeared to him most likely to be of use to an American Student .... .... In this Volume, the selection has been more copious than in any of the others: they are distinguished, by his name being subjoined to the end of each Note.

MAY 12, 1803.

TO THE READER.

Messrs. Pleasants and Pace, having, since this Edition of the Commentaries has been in the press, published a new collection of the laws of virginia, containing, not only, all the acts printed in the edition of 1794, but likewise, a very considerable number of acts passed since that period; the Editor avails himself of the opportunity, thereby afforded him, to assist the researches of the student, in consulting any act contained in that collection, which may be referred to in the notes, or appendices to this work. For this purpose, he has formed the following table, shewing, the correspondence between the edition of 1794, and subsequent sessions acts, and the chapters in the latter collection ; by means of which, any act contained in that collection, and referred to in the following notes, may readily be found.

TABLE.

N. B. The chapters in Peasant's and Pace's collection correspond with the chapters, as numbered in the edition of 1794, from chap. 1, to chap. 181, inclusive : the correspondence between the succeeding chapters and the Sessions acts, as published annually, will appear below.
Sessions Pace's Sessions Pace's Sessions Pace's Sessions Pace's
Acts. Edi. Acts Edi. Acts. Edi. Acts. Edi.
1795 c. 1 c. 182 c. 25 c. 216 c. 14 c. 250 c. 71 c. 284
c. 2 c. 183 c. 27 c. 217 c. 15 c. 251 1801 c. 1 c. 285
c. 3 c. 184 c. 28 c. 218 c. 19 c. 252 c. 2 c. 286
c. 5 c. 185 c. 42 c. 219 c. 23 c. 253 c. 3 c. 287
c. 8 c. 186 c. 45 c. 220 1799 c. 1 c. 254 c. 4 c. 288
c. 9 c. 187 1797 c. 2 c. 221 c. 2 c. 255 c. 5 c. 289
c. 10 c. 188 c. 4 c. 222 c. 3 c. 256 c. 7 c. 290
c. 11 c. 189 c. 5 c. 223 c. 8 c. 257 c. 8 c. 291
c. 13 c. 190 c. 6 c. 224 c. 11 c. 258 c. 9 c. 292
c. 14 c. 191 c. 7 c. 225 c. 17 c. 259 c. 10 c. 293
c. 15 c. 192 c. 8 c. 226 c. 23 c. 260 c. 11 c. 294
c. 16 c. 193 c 9 c. 227 c. 34 c. 261 c. 12 c. 295
c. 17 c. 194 c. 20 c. 228 c. 46 c. 262 c. 13 c. 296
c. 18 c. 195 c. 22 c. 229 c. 49 c. 263 c. 14 c. 297
c. 19 c. 196 c. 23 c. 230 c. 58 c. 264 c. 25 c. 298
c. 20 c. 197 c. 24 c. 23) c. 59 c. 265 c. 23 c. 299
c. 54 c. 198 c. 25 c. 232 c. 64 c. 265 c. 15 c. 300
1796 c. 1 c. 199 c. 26 c. 233 1800 c. 2 c. 267 c. 16 c. 301
c. 2 c. 200 c. 23 c. 234 c. 4 c. 260 c. 17 c. 302
c. 5 c. 201 c. 24 c. 235 c. 6 c. 269 c. 18 c. 303
c. 6 c. 202 c. 36 c. 236 c. 12 c. 270 c. 19 c. 304
c. 7 c. 203 c. 44 c. 237 c. 33 c. 271 c. 21 c. 305
c. 8 c. 204 c. 56 c. 238 c. 39 c. 272 c. 24 c. 304
c. 9 c. 205 c. 65 c. 239 c. 40 c. 273 c 28 c. 306
c. 11 c. 206 c. 108 c. 240 c. 43 c. 274 c. 84 c. 307
c. 12 c. 207 1798 c. 1 c. 241 c. 44 c. 275

c. 13 c. 208 c. 2 c. 242 c. 51 c. 276 October Appx.
c. 16 c. 209 c. 3 c. 243 c. 53 c. 277 1782 c 19 c. 1
c. 17 c. 210 c. 6 c. 244 c. 54 c. 278 1784 c. -- c. 2
c. 18 c. 211 c. 7 c. 245 c. 56 c. 279

c. 3
c. 19 c. 212 c. 9 c. 246 c. 59 c. 280

c. 4
c. 20 c. 213 c. 10 c. 247 c. 60 c. 281 1792 c. 20 c. 5
c. 23 c. 214 c. 11 c. 248 c. 61 c. 282 c. 27 c. 6
c. 24 c. 215 c. 13 c. 249 c. 70 c. 283



* There is a small error in the numbering of these three chapters in Pleasant and Pace's Edition; they are here referred to as numbered.

DIRECTIONS TO THE BINDER.

Table of Consanguinity, to face page.. .... .... .... .... .... .... .... 203

Table of Descents, to face page. .... .... .... .... .... .... .... .... .... 24O

Table of Descents, according to the course of law established in Virginia, to face the blank page in the Appendix... .... .... .... .... .... .... .... .... .... .... .... .... .... .... .... 52

Table of Descents in Parcenary in Virginia, to follow immmediately after the former.

CONTENTS. OF BOOK SECOND. .... PART SECOND.

OF THE RIGHTS Of THINGS.

CHAP. I. TO. Of Property, in general . .... .... .... .... .... I

CHAP. II.

Of Real Property; and first, of Corporeal Hereditaments ... 16

CHAP. III. Of Incorporeal Hereditaments . .... .... .... . .... 20

CHAP. IV.

Of the Feodal System .. .... .... .... .... .... 44

CHAP. V.

Of the antient English Tenures . .... .... .... .... 59

CHAP. VI. Of the modern English Tenures ... .... .... . . .... 78

CHAP, VII. Of Freehold Estates, of Inheritance .. .... .... .... 103

CHAP. VIII. Of Freeholds, not of Inheritance .... .... .... .... 120

CHAP. IX.

Of Estates less than Freehold . .... .... .... .... 140

CHAP. x. Of Estates upon Condition ... .... .... .... .... 152

CHAP. XI.

Of Estates in Possession, Remainder, and Reversion . .... 163

CHAP. XII.

Of Estates in Severally, Joint-Tenancy, Coparcenary, and Common .. .... . .... .... .... .... .... 179

CHAP. XIII. FO. Of the Title to Things Real, in general .... .... .... 195

CHAP. XIV. Of Title by Descent .. .... .... .... .... .... 200

chap. xv. Of Title by Purchase ; and, first, by Escheat . .... .... 241

CHAP. XVI. Of Title by Occupancy . .... .... .... .... .... 258

CHAP. XVII.

Of Title by Prescription .... .... .... .... .... 263

CHAP. XVIII.

Of Title by Forfeiture . .... .... .... .... .... 267

CHAP. XIX.

Of Title by Alienation . .... .... .... .... .... 287

CHAP. XX.

Of Alienation by Deed . .... .... .... .... .... 295

CHAP. XXI. Of Alienation by matter of Record ... .... .... .... 344

CHAP. XXII. Of Alienation by Special Custom .... .... .... .... 365

CHAP. XXIII. Of Alienation by Devise .... .... .... .... .... 373

CHAP. XXIV.

Of Things Personal... .... .... .... .... .... 384

CHAP. XXV. Of Property in Things Personal .... .... .... .... 389

CHAP. XXVI.

Of Title to Things Personal, by Occupancy .. .... .... 400

CHAP. XXVII.

Of Title by Prerogative, and Forfeiture .... .... .... 408

CHAP. XXVIII.

Of Title by Custom ... .... .... .... .... .... 422

CHAP. XXIX.

Of Title by Succession, Marriage, and Judgment ... .... 430

chap. xxx. Of Title by Gift, Grant, and Contract .... .... .... . 440

CHAP. XXXI.

Of Title by Bankruptcy . .... .... .... .... .... 471

CHAP. XXXII.

Of Title by Testament, and Administration .. .... .... 489

APPENDIX.

FO.

No. I. Vetus Carta Feoffamenti . .... .... .... .... i

No. II. A modern Conveyance by Lease and Release.

?. 1. Lease, or Bargain and Sale, for a Year . .... ii

?. 2. Deed of Release .... .... .... .... iii

No. III. An Obligation, or Bond, with Condition for the Payment of Money . .... .... .... .... .... .... xi

No. IV. A Fine of Lands, sur Cognizance de Droit, come ceo, &c.

§. 1. Writ of Covenant, or Praecipe .... .... xii

?. 2. The Licence to agree .... .... .... ibid.

?. 3. The Concord . .... .... .... .... ibid.

§. 4. The Note, or Abstract .... .... .... xiii

?. 5. The Foot,Chirograph,or Indentures of the Fine ibid. ?. 6. Proclamations, endorsed upon the Fine, according to the Statutes .. .... .... .... xiv

No. V. A common Recovery of Lands, with Double Voucher.

?. 1. Writ of Entry sur Disseisin in the Post; or

Praecipe ... .... .... .... .... xv

?. 2. Exemplification of the Recovery-Roll .... ibid.

THE EDITOR'S APPENDIX.

NOTE A.

Concerning the Tenure of Lands in Virginia, and the mode of acquiring them under the former and present Government .... .... .... .... .... .... .... 1

NOTE B.

Discourse concerning the Several Acts directing the Course of Descents, in Virginia ... .... .... .... .... 11

NOTE C.

Of the Right of Aliens to Purchase and hold Lands; with a View of the Laws concerning Escheats and Forfeitures from British Subjects, passed in Virginia, during the Revolutionary War .... .... .... .... .... .... .... 52

NOTE D.

The Manner of obtaining Grants of Land, under the Commonwealth of Virginia, and from the United States .. .... 66

note E. Of Slaves, considered as Property, in Virginia . .... .... 73

NOTE F.

Concerning Usury .... .... .... .... .... .... 98

COMMENTARIES

ON THE

LAWS OF ENGLAND.

BOOK THE SECOND.

PART THE SECOND.

COMMENTARIES ON THE LAWS OF ENGLAND.

BOOK THE SECOND.

OF THE RIGHTS OF THINGS.

CHAPTER THE FIRST. OF PROPERTY, IN GENERAL.

THE former book of these commentaries haying treated at large of the jura personarum, or such rights and duties as are annexed to the persons of men, the objects of our inquiry in this second book will be the jura rerum, or those rights which a man may acquire in, and to, such external things as are unconnected with his person. These are what the writers on natural law stile the rights of dominion, or property, concerning the nature, and original of which I shall first premise a few observations, before I proceed to distribute and consider it's several objects.

There is nothing which so generally strikes the imagination and engages the affections of mankind, as the right of property ; or that sole and despotic dominion which one man claims and exercises over the external things of the world, in total exclusion of the right of any other individual in the universe. And yet there are very few, that will give themselves the trouble to consider the original and foundation of this right. Pleased as we are with the possession, we seem afraid to look back to the means by which it was acquired, as if fearful of some defect in our title; or at best, we rest satisfied with the decision of the laws in our

favour, without examining the reason or authority upon which those laws have been built. We think it enough that our title is derived by the grant of the former proprietor, by descent from our ancestors, or by the last will and testament of the dying owner ; not caring to reflect that (accurately and strictly speaking) there is no foundation in nature, or in natural law, why a set of words upon parchment should convey the dominion of land; why the son should have a right to exclude his fellow creatures from a determinate spot of ground, because his father had done so, before him; or why the occupier of a particular field, or of a jewel, when lying on his death-bed and no longer able to maintain possession, should be entitled to tell the rest of the world which of them should enjoy it after him. These inquiries, it must be owned, would be useless and even troublesome in common life. It is well, if the mass of mankind will obey the laws, when made, without scrutinizing too nicely into the reasons of making them. But, when law is to be considered, not only as matter of practice, but also as a rational science, it cannot be improper or useless to examine more deeply the rudiments and grounds of these positive constitutions of society.

In the beginning of the world, we are informed by holy writ, the all-bountiful Creator, gave to man "dominion over all the earth : and over the fish of the sea, and over the fowl of the air, and over every living thing that moveth upon the earth a." This is the only true and solid foundation of man's dominion over external things, whatever airy metaphysical notions may have been started by fanciful writers upon this subject. The earth, therefore, and all things therein, are the general property of all mankind, exclusive of other beings, from the immediate gift of the Creator. And, while the earth continued bare of inhabitants, it is reasonable to suppose, that all was in common among them, and that every one took from the public stock to his own use such things as his immediate necessities required.

These general notions of property were then sufficient to answer all the purposes of human life ; and might, perhaps, still have answered them, had it been possible for mankind to have

a Gen. i. 28.

remained in a state of primeval simplicity: as may be collected from the manners of many American nations when first discovered by the Europeans; and from the antient method of living among the first Europeans themselves, if we may credit either the memorials of them preserved in the golden age of the poets, or the uniform accounts given by historians of those times, wherein "erant omnia communia et indivisa omnibus,veluti unum cunctus patrimonium esset b." Not that this communion of goods seems ever to have been applicable, even in the earliest ages, to ought but the substance of the thing ; nor could it be extended to the use of it. For. by the law of nature and reason, he, who first began to use it, acquired therein a kind of transient property, that lasted so long as he was using it, and no longer c: or, to speak with greater precision, the right of possession continued for the same time only that the act of possession lasted. Thus the ground was in common, and no part of it was the permanent property of any man in particular; yet whoever was in the occupation of any determined spot of it, for rest, for shade, or the like, acquired for the time a sort of ownership, from which it would have been unjust, and contrary to the law of nature, to have driven him by force ; but the instant that he quitted the use or occupation of it, another might seise it without injustice. Thus also a vine or other tree might be said to be in common, as all men were equally entitled to it's produce; and yet any private individual might gain the sole property of the fruit, which he had gathered for his own repast. A doctrine well illustrated by Cicero, who compares the world to a great theatre, which is common to the public, and yet the place which any man has taken is for the time his own d.

But when mankind increased in number, craft, and ambition, it became necessary to entertain conceptions of more permanent dominion; and to appropriate to individuals not the immediate use only, but the very substance of the thing to be used. Otherwise innumerable tumults must have arisen, and the good order of the world been continually broken and disturbed, while a va-

b Justin. 1. 43, c. 1. c Barbeyr. Puff.1. 4, c. 4. d Quemadmodum theatrum, cum commune sit, recte tamen dici potest, ejus esse eum locum quem quisque occuparit. De Fin. l. 2. c. 20.

riety of persons were striving who should get the first occupation of the same thing, or disputing which of them had actually gamed it. As human life also grew more and more refined, abundance of conveniences were devised to render it more easy, commodious, and agreeable ; as, habitations for shelter and safety, and raiment for warmth and decency. But no man would be at the trouble to provide either, so long as he had only an usufructuary property in them, which was to cease the instant that he quitted possession ; if, as soon as he walked out of his tent, or pulled off his garment, the next stranger who came by would have a right to inhabit the one, and to wear the other. In the case of habitations in particular, it was natural to observe, that even the brute creation, to whom every thing else was in common, maintained a kind of permanent property in their dwellings, especially for the protection of their young ; that the birds of the air had nests, and the beasts of the field had caverns, the invasion of which they esteemed a very flagrant injustice, and would sacrifice their lives to preserve them. Hence a property was soon established in every man's house and home-stall; which seem to have been originally mere temporary huts or moveable cabins, suited to the design of providence for more speedily peopling the earth, and suited to the wandering life of their owners, before any extensive property in the soil or ground was established. And there can be no doubt, but that moveables of every kind became sooner appropriated than the permanent substantial soil: partly because they were more susceptible of a long occupancy, which might be continued for months together without any sensible interruption, and at length by usage ripen into an established right; but principally because few of them could be fit for use, till improved and meliorated by the bodily labour of the occupant: which bodily labour, bestowed upon any subject which before lay in common to all men, is universally allowed to give the fairest and most reasonable title to an exclusive property therein.

The article of food was a more immediate call, and, therefore, a more early consideration. Such, as were not contented with the spontaneous product of the earth, sought for a more solid refreshment in the flesh of beasts, which they obtained by

hunting. But the frequent disappointments, incident to that method of provision, induced them to gather together such animals as were of a more tame and sequacious nature; and to establish a permanent property in their flocks and herds, in order to sustain themselves in a less precarious manner, partly by the milk of the dams, and partly by the flesh of the young. The support of these their cattle made the article of water also a very important point. And, therefore, the book of Genesis (the most venerable monument of antiquity, considered merely with a view to history) will furnish us with frequent instances of violent contentions concerning wells ; the exclusive property of which appears to have been established in the first digger or occupant, even in such places where the ground and herbage remained yet in common. Thus we find Abraham, who was but a sojourner, asserting his right to a well in the country of Abimelech, and exacting an oath for his security, "because he had digged that well c." And Isaac, about ninety years afterwards, reclaimed this his father's property; and, after much contention with the Philistines, was suffered to enjoy it in peace f.

All this while the soil and pasture of the earth remained still in common as before, and open to every occupant: except perhaps in the neighbourhood of towns, where the necessity of a sole and exclusive property in lands (for the sake of agriculture) was earlier felt, and therefore more readily complied with. Otherwise, when the multitude of men and cattle had consumed every convenience on one spot of ground, it was deemed a natural right to seise upon and occupy such other lands as would more easily supply their necessities. This practice is still retained among the wild and uncultivated nations that have never been formed into civil states, like the Tartars and others in the east; where the climate itself, and the boundless extent of their territory, conspire to retain them still in the same savage state of vagrant liberty, which was universal in the earliest ages; and which Tacitus informs us continued among the Germans till the decline of the Roman empire g. We have also a striking example of

e Gen. xxi. 30. f Gen. xxvi. 15, 18, &c. g Colunt discreti et diversi; ut fons, ut campus, ut nemus, placuit, De mor. Ger. 16.

the same kind in the history of Abraham and his nephew Lot h. When their joint substance became so great, that pasture and other conveniences grew scarce, the natural consequence was, that a strife arose between their servants; so that it was no longer practicable to dwell together. This contention Abraham thus endeavoured to compose : "let there be no strife, I pray thee, between thee and me. Is not the whole land before thee? Separate thyself, I pray thee, from me. If thou wilt take the left hand, then I will go to the right; or if thou depart to the right hand, then I will go to the left." This plainly implies an acknowledged right, in either, to occupy whatever ground he pleased, that was not pre-occupied by other tribes. "And Lot lifted up his eyes, and beheld all the plain of Jordan, that it was well watered every where, even as the garden of the Lord. Then Lot chose him all the plain of Jordan, and journeyed east; and Abraham dwelt in the land of Canaan."

Upon the same principle was founded the right of migration, or sending colonies to find out new habitations, when the mother-country was over-charged with inhabitants ; which was practised as well by the Phoenicians and Greeks, as the Germans, Scythians, and other northern people. And, so long as it was confined to the stocking and cultivation of desert uninhabited countries, it kept strictly within the limits of the law of nature. But how far the seising on countries already peopled, and driving out or massacring the innocent and defenceless natives, merely because they differed from their invaders in language, in religion, in customs, government, or in colour; how far such a conduct was consonant to nature, to reason, or to Christianity, deserved well to be considered by those, who have rendered their names . immortal by thus civilizing mankind.

As the world by degrees grew more populous, it daily became more difficult to find out new spots to inhabit, without encroaching upon former occupants: and, by constantly occupying the same individual spot, the fruits of the earth were consumed, and it's spontaneous produce destroyed, without any provision for a future supply or succession. It therefore became necessary to

h Gen. c. xiii.

pursue some regular method of providing a constant subsistence; and this necessity produced, or at least promoted and encouraged, the art of agriculture. And the art of agriculture, by a regular connexion and consequence, introduced and established the idea of a more permanent property in the soil, than had hitherto been received and adopted. It was clear that the earth would not produce her fruits in sufficient quantities, without the assistance of tillage: but who would be at the pains of tilling it, if another might watch an opportunity to seise upon and enjoy the product of his industry, art, and labour ? Had not, therefore, a separate property in lands, as well as moveables, been vested in some individuals, the world must have continued a forest, and men have been mere animals of prey; which, according to some philosophers, is the genuine state of nature. Whereas now (so graciously has Providence interwoven our duty and our happiness together) the result of this very necessity has been the ennobling of the human species, by giving it opportunities of improving it's rational faculties, as well as of exerting it's natural. Necessity begat property: and, in order to insure that property, recourse was had to civil society, which brought along with it a long train of inseparable concomitants ; states, governments, laws, punishments, and the public exercise of religious duties. Thus connected together, it was found that a part only of society was sufficient to provide, by their manual labour, for the necessary subsistence of all; and leisure was given to others to cultivate the human mind, to invent useful arts, and to lay the foundations of science.

The only question remaining is, how this property became actually vested: or what it is that gave a man an exclusive right to retain in a permanent manner that specific land, which before belonged generally to every body, but particularly to nobody. And, as we before observed, that occupancy gave the right to the temporary use of the soil, so it is agreed upon all hands that occupancy gave also the original right to the permanent property in the substance of the earth itself; which excludes every one else but the owner from the use of it. There is indeed some difference among the writers on natural law, concerning the reason why occupancy should convey this right, and invest one

with this absolute property: Grotius and Puffendorf insisting, that this right of occupancy is founded on a tacit and implied assent of all mankind, that the first occupant should become the owner ; and Barbeyrac, Titius, Mr. Locke, and others, holding, that there is no such implied assent, neither is it necessary that there should be; for that the very act of occupancy, alone, being a degree of bodily labour, is, from a principle of natural justice, without any consent or compact, sufficient of itself to gain a title. A dispute that savours too much of nice and scholastic refinement ! However, both sides agree in this, that occupancy is the thing by which the title was in fact originally gained; every man seising to his own continued use, such spots of ground as he found most agreeable to his own convenience, provided he found them unoccupied by any one else.

Property, both in lands and moveables, being thus originally acquired by the first taker, which taking amounts to a declaration that he intends to appropriate the thing to his own use, it remains in him, by the principles of universal law, till such time as he does some other act which shews an intention to abandon it; for then it becomes, naturally speaking publici juris once more, and is liable to be again appropriated by the next occupant. So if one is possessed of a jewel, and casts it into the sea or a public highway, this is such an express dereliction, that a property will be vested in the first fortunate finder that will siese it to his own use. But if he hides it privately in the earth or other secret place, and it is discovered, the finder acquires no property therein ; for the owner hath not by this act declared any intention to abandon it, but rather the contrary; and if he loses or drops it by accident, it cannot be collected from thence, that he designed to quit the possession ; and, therefore in such a case, the property still remains in the loser, who may claim it again of the finder. And this, we may remember, is the doctrine of the law of England, with relation to treasure trove i.

But this method, of one man's abandoning his property, and another seising the vacant possession, however well founded in

i See Vol. I. p. 295.

theory, could not long subsist in fact. It was calculated merely for the rudiments of civil society, and necessarily ceased among the complicated interests and artificial refinements of polite and established governments. In these it was found, that what became inconvenient or useless to one man, was highly convenient and useful to another; who was ready to give in exchange for it some equivalent, that was equally desirable to the former proprietor. Thus mutual convenience introduced commercial traffic, and the reciprocal transfer of property by sale, grant or conveyance : which may be considered either as a continuance of the original possession which the first occupant had; or as an abandoning of the thing by the present owner, and an immediate successive occupancy of the same by the new proprietor. The voluntary dereliction of the owner, and delivering the possession to another individual, amount to a transfer of the property ; the proprietor declaring his intention no longer to occupy the thing himself, but that his own right of occupancy shall be vested in the new acquirer. Or, taken in the other light, if I agree to part with an acre of my land to Titius, the deed of conveyance is an evidence of my intending to abandon the property: and Titius being the only or first man acquainted with such my intention, immediately steps in and seises the vacant possession: thus the consent, expressed by the conveyance, gives Titius a good right against me ; and possession, or occupancy, confirms that right against all the world besides.

The most universal and effectual way of abandoning property, is by the death of the occupant: when, both the actual possession and intention of keeping possession ceasing, the property which is founded upon such possession and intention, ought also to cease of course. For, naturally speaking, the instant a man ceases to be, he ceases to have any dominion: else if he had a right to dispose of his acquisitions one moment beyond his life, he would also have a right to direct their disposal for a million of ages after him; which would be highly absurd and inconvenient. All property must therefore cease upon death, considering men as absolute individuals, and unconnected with civil society: for then, by the principles before established, the next immediate occupant would acquire a right in all that

10

the deceased possessed. But as, under civilized governments, which are calculated for the peace of mankind, such a constitution would be productive of endless disturbances, the universal law of almost every nation (which is a kind of secondary law of nature) has either given the dying person a power of continuing his property, by disposing of his possessions by will; or, in case he neglects to dispose of it, or is not permitted to make any disposition at all, the municipal law of the country then steps in, and declares who shall be the successor, representative, or heir, of the deceased ; that is, who alone shall have a right to enter upon this vacant possession, in order to avoid that confusion, which it's becoming again common would occasionk. And farther, in case no testament be permitted by the law, or none be made, and no heir can be found so qualified as the law requires, still, to prevent the robust title of occupancy from again taking place, the doctrine of escheats is adopted in almost every country; whereby the sovereign of the state, and those who claim under his authority, are the ultimate heirs, and succeed to those inheritances, to which no other title can be formed.

The right of inheritance, or descent to the children and relations of the deceased, seems to have been allowed much earlier than the right of devising by testament. We are apt to conceive at first view that it has nature on it's side; yet we often mistake for nature what we find established by long and inveterate custom. It is certainly a wise and effectual, but clearly a political, establishment; since the permanent right of property, vested in the ancestor himself, was no natural, but merely a civil, right*. It is true, that the transmission of one's possessions to

k It is principally to prevent any vacancy of possession, that the civil law considers father and son as one person; so that upon the death of either, the inheritance does not so properly descend, as continue, in the hands of the survivor, Ff. 28. 2. 11.

* I cannot agree with the learned commentator, that the permanent right of property vested in the ancestor himself, (that is, for his life) is not a natural, but merely a civil right.

I have endeavoured to shew that the notion of property is universal, and is suggested to the mind of man by reason and nature, prior to all

posterity has an evident tendency to make a man a good citizen and a useful member of society: it sets the passions on the side of duty, and prompts a man to deserve well of the public, when he is sure that the reward of his services will not die with himself, but be transmitted to those with whom he is connected by the dearest and most tender affections. Yet, reasonable as this foundation of the right of inheritance may seem, it is probable that it's immediate original arose not from speculations altogether so delicate and refined; and, if not from fortuitous circumstances, at least from a plainer and more simple principle .... A man's children or nearest relations are usually about him on his death-bed, and are the earliest witnesses of his decease .... They became, therefore, generally, the next immediate occupants, till at length, in process of time, this frequent usage ripened into general law. And, therefore, also in the earliest ages, on failure of children, a man's servants, born under his roof, were allowed to be his heirs; being immediately on the spot when he died. For we find the old patriarch Abraham ex-

sitive institutions and civilized refinements: (See also, Vol. IV. p. 9. n. 4.) If the laws of the land were suspended, we should be under the same moral and natural obligation to refrain from invading each other's property, as from attacking and assaulting each other's persons. And I am obliged to differ from the learned Judge, and all writers upon general law, who maintain, that children have no better claim by nature to succeed to the property of their deceased parents than strangers ; and that the preference given to them, originates solely in political establishments. (See the Editor's distinctions between natural and positive laws, Vol. I. p. 58. n. 7.) I know no other criterion by which we can determine any rule or obligation to be found in nature, than it's universality; and by inquiring whether it is not, and has not been, in all countries and ages, agreeable to the feelings, affections, and reason of mankind .... The affection of parents towards their children, is the most powerful and universal principle which nature has planted in the human breast; and it cannot be conceived, even in the most savage state, that any one is so destitute of that affection and of reason, who would not revolt at the position, that a stranger has as good a right as his children to the property of a deceased parent.

Heredas successoresque sui cuique liberi, seems not to have been confined to the woods of Germany, but to be one of the first laws in the code of nature; though positive institutions may have thought it prudent to leave the parent the full disposition of his property after his death, or to regulate the shares of the children, when the parent's will is unknown. .... Christian.

pressly declaring, that "since God had given him no seed, his steward Eliazer, one born in his house, was his heir."

While property continued only for life, testaments were useless and unknown; and, when it became inheritable, the inheritance was long indefeasible, and the children or heirs at law were incapable of exclusion by will. Till at length it was found, that so strict a rule of inheritance made heirs disobedient and head-strong, defrauded creditors of their just debts, and prevented many provident fathers from dividing or charging their estates as the exigence of their families required. This introduced, pretty generally, the right of disposing of one's property, or a part of it, by testament; that is, by/written or oral instructions properly witnessed and authenticated, according to the pleasure of the deceased; which we therefore emphatically stile his will. This was established in some countries much later than in others. With us in England, till modern times, a man could only dispose of one third of his moveables from his wife and children; and, in general, no will was permitted of lands till the reign of Henry the eighth; and then only for a certain portion: for it was not till after the restoration that the power of devising real property became so universal as at present.

Wills, therefore, and testaments, rights of inheritance and successions, are all of them creatures of the civil or municipal laws, and accordingly are in all respects regulated by them; every distinct country having different ceremonies and requisites to make a testament completely valid: neither does any thing vary, more than the right of inheritance under different national establishments. In England, particularly, this diversity is carried to such a length, as if it had been meant to point out the power of the laws in regulating the succession to property, and how futile every claim must be, that has not it's foundation in the positive rules of the state. In personal estates the father may succeed to his children; in landed property he never can be their immediate heir, by any the remotest possibility: in general only the eldest son, in some places only the youngest, in others all the sons together, have a right to succeed to the inheritance: in real estates males are preferred to females, and the

eldest male will usually exclude the rest; in the division of personal estates, the females of equal degree are admitted together with the males, and no right of primogeniture is allowed.

This one consideration may help to remove the scruples of many well-meaning persons, who set up a mistaken conscience in opposition to the rules of law. If a man disinherits his son, by a will duly executed, and leaves his estate to a stranger, there are many who consider this proceeding as contrary to natural justice: while others so scrupulously adhere to the supposed intention of the dead, that if a will of lands be attested by only two witnesses instead of three, which the law requires, they are apt to imagine that the heir is bound in conscience to relinquish his title to the devisee. But both of them certainly proceed upon very erroneous principles, as if, on the one hand, the son had by nature a right to succeed to his father's lands; or as if, on the other hand, the owner was by nature entitled to direct the succession of his property after his own decease. Whereas the law of nature suggests, that on the death of the possessor the estate should again become common, and be open to the next occupant, unless otherwise ordered for the sake of civil peace by the positive law of society. The positive law of society, which is with us the municipal law of England, directs it to vest in such person as the last proprietor shall by will, attended with certain requisites, appoint; and, in defect of such appointment, to go to some particular person, who from the result of certain local constitutions, appears to be the heir at law. Hence it follows, that, where the appointment is regularly made, there cannot be a shadow of right in any one but the person appointed: and, where the necessary requisites are omitted, the right of the heir is equally strong and built upon as solid a foundation, as the right of the devisee, would have been, supposing such requisites were observed.

But after all, there are some few things, which, notwithstanding the general introduction and continuance of property, must still unavoidably remain in common; being such wherein nothing but an usufructuary property is capable of being had: and therefore they still belong to the first occupant, during the

time he holds possession of them, and no longer. Such (among others) are the elements of light, air, and water; which a man may occupy by means of his windows, his gardens, his mills, and other conveniencies: such also are the generality of those animals which are said to be ferae naturae, or of a wild and untameable disposition: which any man may seise upon and keep for his own use or pleasure. All these things, so long as they remain in possession, every man has a right to enjoy without disturbance; but if once they escape from his custody, or he voluntarily abandons the use of them, they return to the common stock, and any man else has an equal right to seise and enjoy them afterwards.

Again ; there are other things, in which a permanent property may subsist, not only as to the temporary use, but also the solid substance ; and which yet would be frequently found without a proprietor, had not the wisdom of the law provided a remedy to obviate this inconvenience. Such are forests and other waste grounds, which were omitted to be appropriated in the general distribution of lands: such also are wrecks, estrays, and that species of wild animals which the arbitrary constitutions of positive law have distinguished from the rest by the well-known appellation of game. With regard to these and some others, as disturbances and quarrels would frequently arise among individuals, contending about the acquisition of this species of property by first occupancy, the law has therefore wisely cut up the root of dissention, by vesting the things themselves in the sovereign of the state: or else in his representatives appointed and authorised by him, being usually the lords of manors. And thus the legislature of England has universally promoted the grand ends of civil society, the peace and security of individuals, by steadily pursuing that wise and orderly maxim, of assigning to every thing capable of ownership a legal and determinate owner.

CHAPTER THE SECOND.

OF REAL PROPERTY; AND, FIRST, OF CORPOREAL HEREDITAMENTS.

THE objects of dominion or property are things, as contradistinguished from persons: and things are by the law of England distributed into two kinds; things real, and things personal. Things real are such as are permanent, fixed, and immoveable, which cannot be carried out of their place; as lands and tenements: things personal are goods, money, and all other moveables; which may attend the owner's person wherever he thinks proper to go.

In treating of things real, let us consider, first, their several sorts or kinds; secondly, the tenures by which they may be holden; thirdly, the estates which may be had in them; and, fourthly, the title to them, and the manner of acquiring and losing it.

First, with regard to their several sorts or kinds, things real are usually said to consist in lands, tenements, or hereditaments. Land comprehends all things, of a permanent, substantial nature ; being a word of a very extensive signification, as will presently appear more at large. Tenement is a word of still greater extent, and though in it's vulgar acceptation is only applied to houses and other buildings, yet in it's original, proper, and legal sense, it signifies every thing that may be holden, provided it be of a permanent nature; whether it be of a substantial and sensible, or of an unsubstantial ideal kind. Thus liberum tenementum, franktenement, or freehold, is applicable not only to lands and other solid objects, but also to offices,

rents, commons, and the like a: and as lands and houses are tenements, so is an advowson, a tenement; and a franchise, an office, a right of common, a peerage, or other property of the like unsubstantial kind, are, all of them, legally speaking, tenements b. But an hereditament, says sir Edward Coke c, is by much the largest and most comprehensive expression: for it includes not only lands and tenements, but whatsoever may be inherited, be it corporeal, or incorporeal, real, personal, or mixed 1. Thus an heir-loom, or implement of furniture which by custom descends to the heir together with an house, is neither land nor tenement but a mere moveable: yet, being inheritable, is comprized under the general word hereditament: and so a condition, the benefit of which may descend to a man from his ancestor, is also an hereditament d.

Hereditaments then, to use the largest expression, are of two kinds, corporeal and incorporeal. Corporeal consist of such as affect the senses ; such as may be seen and handled by the body: incorporeal are not the object of sensation, can neither be seen nor handled, are creatures of the mind, and exist only in contemplation.

Corporeal hereditaments consist wholly of substantial and permanent objects ; all which may be comprehended under the general denomination of land only. For land, says sir Edward Coke e, comprehendeth in it's legal signification any ground, soil, or earth whatsoever; as arable, meadows, pastures, woods, moors, waters, marshes, furzes, and heath. It legally includeth also all castles, houses, and other buildings: for they consist, saith he, of two things ; land, which is the foundation, and structure thereupon : so that, if I convey the land or ground, the structure or building passeth therewith. It is observable that water is here mentioned as a species of land, which may seem a kind of sole-

a Co. Litt. 6. b Ibid. 19, 20, c 1. Inst. 6. d 3 Rep. 2. e 1 Inst. 4.

1. Villeins were hereditaments at the common law ; so also were slaves, in Virginia, under the acts of 1703, c. 3, and 1727, c. 4, Edi. 1769. But the act of 1792, declares that they shall hereafter be deemed personal estate. Edi. 1794, c. 103.

cism; but such is the language of the law : and, therefore, I cannot bring an action to recover possession of a pool or other piece of water, by the name of water only; either by calculating it's capacity, as, for so many cubical yards; or, by superficial measure, for twenty acres of water; or by general description, as for a pond, a watercourse, or a rivulet: but I must bring my action for that the land lies at the bottom, and must call it twenty acres of land covered with water f. For water is a moveable wandering thing, and must of necessity continue common by the law of nature ; so that I can only have a temporary, transient, usufructuary, property therein: wherefore, if a body of water runs out of my pond into another man's, I have no right to reclaim it. But the land, which that water covers, is permanent, fixed and immoveable: and, therefore, in this I may have a certain substantial property ; of which the law will take notice, and not of the other.

Land hath also, in it's legal signification, an indefinite extent, upwards as well as downwards. Cujas est solum, ejus est usque ad coelum, is the maxim of the law, upwards; therefore no man may erect any building, or the like, to overhang another's land: and, downwards, whatever is in a direct line, between the surface of any land and the center of the earth, belongs to the owner of the surface; as is every day's experience in the mining countries. So that the word "land" includes not only the face of the earth, but every thing under it, or over it. And, therefore, if a man grants all his lands, he grants thereby all his mines of metal and other fossils, his woods, his waters, and his houses, as well as his fields and meadows. Not but the particular names of the things are equally sufficient to pass them, except in the instance of water; by a grant of which, nothing passes but a right of fishing g: but the capital distinction is this; that by the name of a castle, messuage, toft, croft, or the like, nothing else will pass, except what falls with the utmost propriety under the term made use of ; but by the name of land, which is nomen generalissimum, every thing terrestrial will pass h.

f Brownl. 142.

g Co. Litt. 4.

h Ibid, 4, 5, 6.

CHAPTER THE THIRD.

OF INCORPOREAL HEREDITAMENTS.

AN incorporeal hereditament is a right issuing out of a thing corporate (whether real or personal) or concerning, or annexed to, or exercisible within, the same a. It is not the thing corporate itself, which may consist in lands, houses, jewels, or the like; but something collateral thereto, as a rent issuing out of those lands or houses, or an office relating to those jewels. In short, as the logicians speak, corporeal hereditaments are the substance, which may be always seen, always handled: incorporeal hereditaments are but a sort of accidents, which inhere in and are supported by that substance; and may belong, or not belong to it, without any visible alteration therein. Their existence is merely in idea and abstracted contemplation; though their effects and profits may be frequently objects of our bodily senses. And indeed, if we would fix a clear notion of an incorporeal hereditament, we must be careful not to confound together the profits produced, and the thing, or hereditament, which produces them. An annuity, for instance, is an incorporeal hereditament: for though the money, which is the fruit or product of this annuity, is doubtless of a corporeal nature, yet the annuity itself, which produces that money, is a thing invisible, has only a mental existence, and cannot be delivered over from hand to hand. So tithes, if we consider the produce of them, as the tenth sheaf or tenth lamb, seem to be completely corporeal; yet they are indeed incorporeal hereditaments: for they, being merely a contingent springing right, collateral to or issuing out of lands, can never be the object of sense : that casual share of the annual increase is not, till severed, capable of being shewn to the eye, nor of being delivered into bodily possession.

a Co. litt. 19, 20.

Incorporeal hereditaments are principally of ten sorts; advowsons, tithes, commons, ways, offices, dignities, franchises, corodies or pensions, annuities, and rents.

I. Advowson is the right of presentation to a church, or ecclesiastical benefice 1. Advowson, advocatio, signifies in clientelam recipere, the taking into protection; and therefore is synonymous with patronage, patronatus, and he who has the right of advowson is called the patron of the church. For, when lords of manors first built churches on their own demesnes, and appointed the tithes of those manors to be paid to the officiating ministers, which before were given to the clergy in common, (from whence, as was formerly mentioned b, arose the division of parishes,) the lord, who thus built a church, and endowed it with glebe or land, had of common right a power annexed of nominating such minister as he pleased (provided he were canonically qualified) to officiate in that church, of which he was the founder, endower, maintainer, or, in one word, the patron c.

This instance of an advowson will completely illustrate the nature of an incorporeal hereditament. It is not itself the bodily possession of the church and it's appendages; but it is a right to give some other man a title to such bodily possession. The advowson is the object of neither the sight, nor the touch ; and yet it perpetually exists in the mind's eye, and in contemplation of law. It cannot be delivered from man to man by any visible bodily transfer, nor can corporal possession be had of it. If the the patron takes corporal possession of the church, the church-b Vol. I. page 112.

c This original of jus patronatus, by building and endowing the church, appears also to have been allowed in the Roman empire. Nov. 26. t. 13. c. 2. Nov. 118. c. 23.

1. Some churches were built in Virginia by private individuals, but, I believe, in no instance was the right of presentation vested in them. The vestries for a certain period, and (if they failed to present within that period) the governor of Virginia possessed the right of presentation, L. V. 1748, c. 28, Edi. 1769. Consequently the doctrine relating to advowson* may be regarded as obsolete in Virginia.

yard, the glebe, or the like, he intrudes on another man's property ; for to these the parson has an exclusive right. The patronage can therefore be only conveyed by operation of law, by verbal grant, either oral or written, which is a kind of invisible mental transfer: and being so vested, it lies dormant and unnoticed, till occasion calls it forth: when it produces a visible, corporeal fruit, by entitling some clerk, whom the patron shall please to nominate, to enter and receive bodily possession of the lands and tenements of the church.

Advowsons are either advowsons appendant, or advowsons in gross. Lords of manors being originally the only founders, and of course the only patrons, of churches d, the right of patronage or presentation, so long as it continues annexed to the possession of the manor, as some have done from the foundation of the church to this day, is called an advowson appendant e: and it will pass, or be conveyed, together with the manor, as incident and appendant thereto, by a grant of the manor only, without adding any other words f. But where the property of the advowson has been once separated from the property of the manor by legal conveyance, it is called an advowson in gross, or at large, and never can be appendant any more; but is for the future annexed to the person of it's owner, and not to his manor and lands g.

Advowsons are also either presentative, collative, or donative h. An advowson presentative is where the patron hath a right of presentation to the bishop or ordinary, and moreover to demand of him to institute his clerk, if he finds him canonically qualified: and this is the most usual advowson. An advowson collative is where the bishop and patron are one and the same person: in which case the bishop cannot present to himself; but he does, by the one act of collation, or conferring the benefice, the whole that is done in common cases, by both presentation and institution. An advowson donative is when the king, or any subject by his licence, doth found a church or chapel, and ordains that it shall be merely in the gift or disposal of the patron; subject to his visitation only, and not to that of the ordi-

d Co. Litt. 119. e Ib. 121. f Ib. 307. g Ib. 120. h Ib.

nary; and vested absolutely in the clerk by the patron's deed of donation, without presentation, institution, or induction i. This is said to have been antiently the only way of conferring ecclesiastical benefices in England; the method of institution by the bishop not being established more early than the time of archbishop Becket in the reign of Henry II k. And therefore though pope Alexander III l, in a letter to Becket, severely inveighs against the prava consuetudo, as he calls it, of investiture conferred by the patron only, this however shews what was then the common usage. Others contend, that the claim of the bishops to institution is as old as the first planting of Christianity in this island; and in proof of it they allege a letter from the English nobility to the pope in the reign of Henry the third, recorded by Matthew Paris m, which speaks of presentation to the bishop as a thing immemorial. The truth seems to he, that, where the benefice was to be conferred on a mere layman, he was first presented to the bishop, in order to receive ordination, who was at liberty to examine and refuse him: but where the clerk was already in orders, the living was usually vested in him by the sole donation of the patron ; till about the middle of the twelfth century, when the pope and his bishops endeavoured to introduce a kind of feodal dominion over ecclesiastical benefices, and, in consequence of that, began to claim and exercise the right of institution universally, as a species of spiritual investiture.

However this may be, if, as the law now stands, the true patron once waves this privilege of donation, and presents to the bishop, and his clerk is admitted and instituted, the advowson is now become for ever presentative, and shall never be donative any more n. For these exceptions to general rules, and common right, are ever looked upon by the law in an unfavourable view, and construed as strictly as possible. If therefore the patron, in whom such peculiar right resides, does once give up that right, the law, which loves uniformity, will interpret it to be done with an intention of giving it up for ever; and will therefore reduce it to the standard of other ecclesiastical livings.

i Co. Litt. 344.

l Decretal. 1. 3. t. 7. c. 3.

n Co. Litt. 344. Cro. Jac. 63.

k Seld. tith. 12. §. 2. m A. D. 1239.

II. A second species of incorporeal hereditaments is that of tithes ; which are defined to be the tenth part of the increase, yearly arising and renewing from the profits of lands, the stock upon lands, and the personal industry of the inhabitants 2: the first species being usually called predial, as of corn, grass, hops, and wood o; the second mixed, as of wool, milk, pigs, &c. p, consisting of natural products, but nurtured and preserved in part by the care of man; and of these the tenth must be paid in gross; the third personal, as of manual occupations, trades, fisheries, and the like ; and of these only the tenth part of the clear gains and profits is due 1.

It is not to be expected from the nature of these general commentaries, that I should particularly specify, what things are titheable, and what not, the time when, or the manner and proportion in which, tithes are usually due. For this I must refer to such authors as have treated the matter in detail: and shall only observe, that, in general, tithes are to be paid for every thing that yields an annual increase, as corn, hay, fruit, cattle, poultry and the like ; but not for any thing that is of the substance of the earth, or is not of annual increase, as stone, lime, chalk, and the like; nor for creatures that are of a wild nature, or fer? natur?, as deer, hawks, &c. whose increase, so as to profit the owner, is not annual, but casual r. It will rather be our business to consider, 1. The original of the right of tithes. 2. In whom that right at present subsists. 3. Who may be discharged, either totally or in part, from paying them.

1. As to their original, I will not put the title of the clergy to tythes upon any divine right; though such a right certainly

o 1 Roll. Abr. 635. 2 Inst. 649. q 1 Roll. Abr. 6J6.

p Ibid.

r 2 Inst. 651.

2. The provision for the clergy in Virginia was always made by an assessment on the parishioners, generally in proportion to the number of males over sixteen, and of female slaves over the same age in every family ; these were called tytheables, V. L. 1661, c. 7. 1748, c. 28, 14. .... Tithes as a species of incorporeal hereditament never had existence in Virginia, and the whole doctrine respecting them may be regarded as obsolete.

commenced, and I believe as certainly ceased, with the Jewish theocracy. Yet an honourable and competent maintenance for the ministers of the gospel is, undoubtedly, jure divino; whatever the particular mode of that maintenance may be. For, besides the positive precepts of the new testament, natural reason will tell us, that an order of men, who are separated from the world, and excluded from other lucrative professions, for the sake of the rest of mankind, have a right to be furnished with the necessaries, conveniencies, and moderate enjoyments of life, at their expence, for whose benefit they forego the usual means of providing them. Accordingly all municipal laws have provided a liberal and decent maintenance for their national priests or clergy: ours, in particular, have established this of tithes, probably in imitation of the Jewish law; and, perhaps, considering the degenerate state of the world, in general, it may be more beneficial to the English clergy, to found their title on the law of the land, than upon any divine right, whatsoever, unacknowleged and unsupported by temporal sanctions.

We cannot precisely ascertain the time when tithes were first introduced into this country. Possibly they were contemporary with the planting of Christianity among the Saxons, by Augustin the monk, about the end of the sixth century. But the first mention of them, which I have met with in any written English law, is in a constitutional decree, made in a synod held A.D, 786 s, wherein the payment of tithes in general is strongly enjoined. This canon, or decree, which, at first bound not the laity, was effectually confirmed by two kingdoms of the heptarchy, in their parliamentary conventions of estates, respectively, consisting of the kings of Mercia, and Northumberland, the bishops, dukes, senators, and people. Which was a few years later than the time that Charlemagne established the payment of them in France % and made that famous division of them into four parts; one to maintain the edifice of the church, the second to support the poor, the third the bishop, and the fourth the parochial clergy u.

s Selden, c. 8. §. 2. t A.D. 778.

u Book I, c. 11, Selden, c. 6, §. 7, Sp. of Laws, b. 31, c. 12.

The next authentic mention of them is in the foedus Edwardi et Guthruni; or the laws agreed upon between king Guthrun the Dane, and Alfred and his son Edward the elder, successive kings of England, about the year 900. This was a kind of treaty, between those monarchs, which may be found at large in the Anglo-Saxon laws w : wherein it was necessary, as Guthrun was a pagan, to provide for the subsistence of the Christian clergy under his dominion; and, accordingly, we find x the payment of tithes not only enjoined, but a penalty added upon non-observance ; which law is seconded by the laws of Athelstan y, about the year 930. And this is, as much as can certainly be traced out, with regard to their legal original.

2. We are next to consider the persons to whom they are due. And upon their first introduction, (as hath formerly been observed z) though every man was obliged to pay tithes, in general, yet he might give them to what priests he pleased a; which were called arbitrary consecrations of tithes: or he might pay them into the hands of the bishop, who distributed among his diocesan clergy the revenues of the church, which were then in common b. But, when dioceses were divided into parishes, the tithes of each parish were allotted to it's own particular minister; first by common consent, or the appointments of lords of manors, and afterwards by the written law of the land c.

However, arbitrary consecrations of tithes took place again afterwards, and became in general use till the time of king John d. Which was probably owing to the intrigues of the regular clergy, or monks of the Benedictine and other rules, under arch-bishop Dunstan and his successors; who endeavoured to wean the people from paying their dues to the secular or parochial clergy, (a much more valuable set of men than themselves), and were then in hopes to have drawn, by sanctimonious pretences to extraordinary purity of life, all ecclesiastical profits to the coffers of their own societies. And this will naturally enough account for the number and riches of the mo-

w Wilkins, p. 51. x cap. 6.

y cap. 1. z Book I, Introd. §. 4.

a 2 Inst. 646. Hob. 296. b Selden, c. 9, §. 4.

c L.L. Edgar. c. 1 and 2, Canut. c. 11. d Selden, c. 11.

nasteries and religious houses, which were founded in those days, and which were frequently endowed with tithes. For a layman, who was obliged to pay his tithes, somewhere, might think it good policy to erect an abbey, and there pay them to his own monks; or grant them to some abbey already erected : since, for this dotation, which really cost the patron little or nothing, he might, according to the superstition of the times, have masses for ever sung for his soul. But, in process of years, the income of the poor laborious parish-priests being scandalously reduced by these arbitrary consecrations of tithes, it was remedied by pope Innocent the third e, about the year 1200, in a decretal epistle, sent to the arch-bishop of Canterbury, and dated from the palace of Lateran: which has occasioned Sir Henry Hobart and others to mistake it for a decree of the council of Lateran held A.D. 1179, which only prohibited what was called the infeodation of tithes, or their being granted to mere laymen f, whereas this letter of pope Innocent to the arch-bishop enjoined the payment of tithes to the parsons of the respective parishes where every man inhabited, agreeable to what was afterwards directed by the same pope in other countries g. This epistle, says Sir Edward Coke h, bound not the lay subjects of this realm; but, being reasonable and just, (and, he might have added, being correspondent to the antient law) it was allowed of, and so became lex terrae. This put an effectual stop to all the arbitrary consecrations of tithes; except some foot-steps which still continue in those portions of tithes, which the parson of one parish hath, though rarely, a right to claim in another: for it is now universally held i, that tithes are due, of common right, to the parson of the parish, unless there be a special exemption. .... This parson of the parish, we have formerly seen k, may be either the actual incumbent, or else the appropriator of the benefice : appropriations being a method of endowing monasteries, which seems to have been devised by the regular clergy, by way of substitution to arbitrary consecrations of tithes l.

e Opera Innocent, III, tom. 2, p. 452. f Decretal. l. 3, t. 30, c. 19. g Ibid. c. 26. h 2 Inst. 641. i Regist. 46. Hob. 296. k Book I, p. 385.

1 In extraparochial places the king, by his royal prerogative, has a right to all the tithes. See Book I, p. 113, 284.

3. We observed, that tithes are due to the parson of common right, unless by special exemption; let us, therefore, see, thirdly, who may be exempted from the payment of tithes, and how lands, and their occupiers, may be exempted or discharged from the payment of tithes, either in part or totally, first, by a real composition; or secondly, by custom or prescription.

First, a real composition is when an agreement is made between the owner of the lands, and the parson or vicar, with the consent of the ordinary and the patron, that such lands shall for the future be discharged from payment of tithes, by reason of some land or other real recompense given to the parson, in lieu and satisfaction thereof m. This was permitted by law, because it was supposed that the clergy would be no losers by such composition ; since the consent of the ordinary, whose duty it is to take care of the church in general, and of the patron, whose interest it is to protect that particular church, were both made necessary to render the composition effectual: and hence have arisen all such compositions as exist at this day by force of the common law. But, experience shewing that even this caution was ineffectual, and the possessions of the church being, by this and other means, every day diminished, the disabling statute 13 Eliz. c. 10, was made: which prevents, among other spiritual persons, all parsons and vicars from making any conveyances of the estates of their churches, other than for three lives or twenty one years. So that now, by virtue of this statute, no real composition made since the 13 Eliz. is good for any longer term than three lives, or twenty-one years, though made by consent of the patron and ordinary: which has indeed effectualy demolished this kind of traffic; such compositions being now rarely heard of, unless by authority of parliament.

Secondly, a discharge by custom or prescription, is where time out of mind such persons or such lands have been, either partialy or totally, discharged from the payment of tithes. And this immemorial usage is binding upon all parties; as it is in it's nature an evidence of universal consent and acquiescence, and with reason supposes a real composition to have been for-

m 2 Inst. 490. Regist. 38, 13 Rep. 40.

merly made. This custom or prescription is either de modo decimandi, or de non decimando.

A modus decimandi, commonly called by the simple name of a modus only, is where there is by custom a particular manner of tithing allowed, different from the general law of taking tithes in kind, which are the actual tenth part of the annual increase. This is sometimes a pecuniary compensation, as twopence an acre for the tithe of land: sometimes it is a compensation in work and labour, as that the parson shall have only the twelfth cock of hay, and not the tenth, in consideration of the owner's making it for him: sometimes, in lieu of a large quantity of crude or imperfect tithe, the parson shall have a less quantity, when arrived to greater maturity, as a couple of fowls in lieu of tithe eggs; and the like. Any means, in short, whereby the general law of tithing is altered, and a new method of taking them is introduced, is called a modus decimandi, or special manner of tithing.

To make a good and sufficient modus, the following rules must be observed. 1. It must be certain and invariable n, for payment of different sums will prove it to be no modus, that is, no original real composition; because that must have been one and the same, from it's first original to the present time. 2. The thing given, in lieu of tithes, must be beneficial to the parson, and not for the emolument of third persons only °: thus a modus, to repair the church in lieu of tithes, is not good, because that is an advantage to the parish only ; but to repair the chancel is a good modus, for that is an advantage to the parson. 3. It must be something different from the thing compounded for p : one load of hay, in lieu of all tithe hay, is no good modus: for no parson would bona fide make a composition to receive less than his due in the same species of tithe: and therefore the law will not suppose it possible for such composition to have existed. 4. One cannot be discharged from payment of one species of tithe, by paying a modus for another 1. Thus a modus of 1d. for every milch cow will discharge the tithe of milch kine, but

n 1 Keb. 602. p 1 Lev. 179.

o 1 Roll. Abr. 649.

q Cro. Eliz. 446. Salk. 65r.

not of barren cattle: for tithe is, of common right, due for both; and therefore a modus for one, shall never be a discharge for the other. 5. The recompense must be in it's nature as durable as the tithes discharged by it; that is, an inheritance certain r: and therefore a modus that every inhabitant of a house shall pay 4d. a year, in lieu of the owner's tithes, is no good modus; for possibly the house may not be inhabited, and then the recompence will be lost. 6. The modus must not be too large, which is called a rank modus: as if the real value of the tithes be 60l. per annum, and a modus is suggested of 40l. this modus will not be established; though one of 40s. might have been valid s. Indeed, properly speaking, the doctrine of rankness in a modus, is a mere rule of evidence, drawn from the improbability of the fact, and not a rule of law t. For, in these cases of prescriptive or customary modus's, it is supposed that an original real composition was antiently made; which being lost by length of time, the immemorial usage is admitted as evidence to shew that it once did exist, and that from thence such usage was derived. Now, time of memory hath been long ago ascertained by the law to commence from the beginning of the reign of Richard the first tt; and any custom may be destroyed by evidence of it's non-existence in any part of the long period from that time to the present 2; wherefore, as this real composition is supposed to have been an equitable contract, or the full value of the tithes, at the time of making it, if the modus set up is so rank and large, as that it beyond dispute exceeds the value

r 2 P. Wms. 462. s 11 Mod. 60.

t Pyke v. Doling. Hil, 19 Geo. III, C. B.

tt 2 Inst. 238, 239. This rule was adopted, when by the statute of Westm. 1. (5 Edw. I, c. 39,) the reign of Richard I, was made the time of limitation in a writ of right. But, since by the statute 32 Hen. VIII, c. 2, this period (in a writ of right) hath been very rationally reduced to sixty years, it seems unaccountable, that the date of legal prescription or memory, should still continue to be reckoned from an aera so very antiquated. See Litt. §. 170. 34 Hen. VI, 37. 2 Roll. Abr. 269. pl. 16.

2. From hence it appears, that there can be no legal custom in Virginia, the first settlement of which by our ancestors was near four hundred years posterior to the epoch here mentioned.

of the tithes in the time of Richard the first, this modus is (in point of evidence) felo de se and destroys itself. For, as it would be destroyed by any direct evidence to prove it's non-existence at any time since that aera, so also it is destroyed by carrying in itself this internal evidence of a much later original.

A prescription de non decimando is a claim to be entirely discharged of tithes, and to pay no compensation in lieu of them. Thus the king by his prerogative is discharged of all tithes u .... So a vicar shall pay no tithes to the rector, nor the rector to the vicar, for ecclesia decimas non solvit ecclesi? v. But these personal privileges (not arising from or being annexed to the land) are personally confined to both the king and the clergy: for their tenant or lessee shall pay tithes, though in their own occupation their lands are not generally titheable w. And, generally speaking, it is an established rule, that, in lay hands, modus de non decimando non valet x. But spiritual persons or corporations, as monasteries, abbots, bishops, and the like, were always capable of having their lands totally discharged of tithes, by various ways y; as, 1. By real composition : 2. By the pope's bull of exemption: 3. By unity of possession; as when the rectory of a parish, and lands in the same parish, both belonged to a religious house, those lands were discharged of tithes by this unity of possession: 4. By prescription; having never been liable to tithes, by being always in spiritual hands: 5. By virtue of their order; as the knights templars, cistercians, and others, whose lands were privileged by the pope with a discharge of tithes z. Though upon the dissolution of abbeys by Henry VIII, most of these exemptions from tithes would have fallen with them, and the lands become titheable again : had they not been supported and upheld by the statute 31 Hen. VIII. c. 13, which enacts, that all persons who should come to the possession of the lands of any abbey then dissolved, should hold them free and discharged of tithes, in as large and ample a manner as the abbeys themselves had formerly held them. And from this ori-

u Cro. Eliz. 511. v Cro. Eliz. 479. 511. Sav. 3. Moor 910.

w Ibid. 479. x Ibid. 511.

y Hob. 309. Cro. Jac. 308. z 2 Rep. 44. Seld. tith. c. 13 ?. 2.

ginal have sprung all the lands, which, being in lay hands, do at present claim to be tithe-free: tor, if a man can shew his lands to have been such abbey lands, and also immemorially discharged of tithes by any of the means before-mentioned, this is now a good prescription de non decimando. But he must shew both these requisites: for abbey lands, without a special ground of discharge, are not discharged of course; neither will any prescription de non decimanao avail in total discharge of tithes, unless it relates to such abbey lands.

III. Common or right of common, appears from it's very definition to be an incorporeal hereditament: being a profit which a man hath in the land of another; as to feed his beasts, to catch fish, to dig turf, to cut wood, or the like »3. And hence common is chiefly of four sorts; common of pasture, of piscary, of turbary, and of estovers.

1. Common of pasture is a right of feeding one's beasts on another's land: for in those waste grounds, which are usually called commons, the property of the soil is generally in the lord of the manor; as in common fields it is in the particular tenants. This kind of common is either appendant, appurtenant, because of vicinage, or in grossb.

Common appendant is a right, belonging to the owners or occupiers of arable land, to put commonable beasts upon the

a Finch, law. 157.

b Co. Litt. 122.

3. The right of common in the lands of another, except common of estovers, of which hereafter, I believ e does not exist in Virginia ; if it does, it can only be in a few cases, and must depend upon contract or grant. The act of 1779, c. 12, after reciting that several families, for their greater safety, have settled themselves in villages, or townships, under some agreement of laying off the same into town lots, to be divided among them, declares, that six hundred and forty acres of land whereon such villages and towns are situate, and to which no other person hath a previous legal claim, shall be reserved for the use and benefit of the said inhabitants, until a true representation of their case can be made to the general assembly. .... How far this law may lay the foundation of a future right of common in such villages, it is impossible at present to foresee.

lord's waste, and upon the lands of other persons within the same manor. Commonable beasts are either beasts of the plough, or such as manure the ground. This is a matter of most universal right: and it was originally permitted6, not only for the encouragement of agriculture, but for the necessity of the thing. For, when lords of manors granted out parcels of lands to tenants, for services either done or to be done, these tenants could not plough or manure the land without beasts ; these beasts could not be sustained without pasture ; and pasture could not be had but in the lord's wastes, and on the uninclosed fallow grounds of themselves and the other tenants. The law therefore annexed this right of common, as inseparably incident, to the grant of the lands; and this was the original of common appendant: which obtains in Sweden, and the other northern kingdoms, much in the same manner as in England"1. Common oppurtenant ariseth from no connexion of tenure, nor from any absolute necessity: but may be annexed to lands in other lorc'bhips% or extend to other beasts, besides such as ai e generally commonable ; as hogs, goats, or the like, which neither plough nor manure the ground. This not arising from any natural propriety or necessity, like common appendant, is therefore not of general right; but can only be claimed by immemorial usage and prescription^ which the law esteems sufficient proof of a spcci 4 grant or agreement for this purpose. Common because ofvkinage,or neighbourhood, is where the inhabitants of two townships which lie contiguous to each other, have usually intercommoned with one another; the beasts of the one otraying mutually into the other's fields, without any molestation from either. This is indeed only a permissive right, intended to excuse what in strictness is a trespass in both, and to prevent a multiplicity of suits: and, therefore, either township may enclose and bar out the other, though they have intercomraoned time out of mind. Neither hath any person of one town a right to put his beasts originally into the other's commons: but if they escape, and stray thither of themselves, the law winks at the trespass*. Common in gross, or at large, is such as is neither appendant nor nppur-

c 2 Inst. 86.

e Cro. Car. 482. 1 Jon. 397.

g Co. Litt. 122.

d Stiernh. dejurc Suemutfi, 1.2. c. 0. f Co. Litt. 121, 122.

tenant to land, but is annexed to a man's person; being granted to him and his heirs by deed; or it may be claimed by prescrip, tive right, as by a parson of a church, or the like corporation sole. This is a separate inheritance, entirely distinct from any landed property, and may be vested in one who has not a foot of ground in the manor.

All these species, of pasturable common, maybe, and usually are, limited as to number and time; but there are also commons without stint, and which last all the year. By the statute of Merton, however, and other subsequent statutes11, the lord of a manor may enclose so much pf the waste as he pleases, for tillage or woodground, provided he leaves common sufficient for such as are entitled thereto* This inclosure, when justifiable, is called in law " approving:" an ancient expression signifying the same as "improving1." The lord hath the sole interest in the soil; but the interest of the lord and commoner, in the common, are looked upon in law as mutual. They may both bring actions for damage done, either against strangers or each other; the lord for the public injury, and each commoner for his private damagek.

2,3. Common of piscary is a liberty of fishing in another man's water ; as common of turbary is a liberty of digging turf upon another's ground1. There is also a common of digging for coals, minerals, stones, and the like. All these bear a resemblance to common of pasture in many respects; though in one point they go much farther ; common of pasture being only a right of feeding on the herbage and vesture of the soil, which renews annually; but common of turbary, and those aforementioned, are a right of carrying away the very soil itself.

4. Common of estovers or estouvters, that is, necessaries (from estoffer, to furnish) is a liberty of taking necessary wood, for the use or furniture of a house or farm, from off another's estate. The Saxon word lote, is used by us as synonymous to

h 20 Hen. HI. c. 4.29 Geo. II. c. 36. arid 31 Geo. II. c. 41. i 2 Inst. 474. 1 Co- Litt. 122.

k 9 Rep. 113.

the French estovers: and therefore house-bote is a sufficient allowance of wood, to repair, or to burn in, the house; which latter is sometimes called fire-bote; plough-bote and cart-bote( are wood to be employed in making and repairing all instruments of husbandry : and hay-bote or hedge-bote is wood for repairing of hays, hedges, or fences. These botes or estovers must be reasonable ones; and such any tenant or lessee may take off the land let or demised to him.; without waiting for any leave, assignment, or appointment of the lessor, unless he be restrained by special covenant to the cpntrarym 4.

These several species of commons do all originally result from the same necessity as common of pasture j viz. for the maintenance and carrying on of husbandry: common of piscary being given for the sustenance of the tenant's family ; common of turbary and fire-bote for his fuel; and house-bote, plough-bote, cart-bote,, and hedge-bote, for repairing his house, his instruments of tillage, and the necessary fences of his grounds.

IV. A fourth species of incorporeal hereditaments is that of ways: or the right of going over another man's ground. I Apeak not here of the king's highways, which lead from town to town5; nor yet of common ways, leading from a village into the fields; but of private ways, in which a particular man may have an interest and a right, though another be owner of the soil .... This may be grounded on a special permission ; as when the pwner of the land grants to another a liberty of passing over his grounds, to go to church, to market, or the like : in which case the gift or grant is particular, and confined to the grantee alone; it dies with the person; and, if the grantee leaves the country, he cannot assign over his right to any other; nor can he justify

m Co. Litt. 41

4. Common of estovers, being such as any tenant or lessee may take off the land demised to him, remains in Virginia as set the cornJaw, and seems to be the only right of common, known to our laws,

5. See L. V. Edi. 1794, c. 19.

taking another person in his company"6. A way may be also by prescription; as if all the inhabitants of such a hamlet, or all the owners and occupiers of such a farm, have immemorially used to cross such a ground, for such a particular purpose : for this immemorial usage supposes an original grant, whereby a right of way thus appurtenanant to land or houses may clearly be created7. A right of way may also arise by act and operation of law: rv.', if a man grants me a piece of ground in the middle of his held, he at the same time tacitly and impliedly gives me a way to come at it; and I may cross his land for that purpose without trespass0''. For when the law doth give any thing to one, it giveth impliedly whatsoever is necessary for enjoying the samei". By the law of the twelve tables at Rome, where a man had the right of way over another's land, and the road was out of repair, he who had the right of way might go over any part of the land he pleased: which was the established rule in public as well as private ways. And the law of England, in both cases, seems to correspond with the Roman1).

V. Offices, which are a right to exercise a public or private employment, and to take the fees and emoluments thereunto belonging, are also incorporeal hereditaments: whether public as those of magistrates; or private, as of bailiffs, receivers, and the like. For a man may have an estate in them, either to him

n Finch, law 31.

o Finch, law. 63.

p Co. Litt. 56.

q Lord Kaym. 725. 1 Brownl. 212. 2 Show. 28. 1 Jon. 297.

6. Such a right of way as is before described, probably does not exist in Virginia.

7. As prescription means any usage beyond the time of memory, and as that time of memory, in legal acceptation, hath been ascertained to commence from the beginning of the reign of Richard the first (ante, p. 31), and any custom may be destroyed by the evidence of it's non-existence in any part of the period from that time to the present; and as prescription stands upon the same footing, it would seem that there can be neither custom nor prescription in Virginia, which was settled near four hundred years after the epoch above mentioned.

8. Herein the common law remains unaltered in Virginia.

and his heirs9, or for life, or for a term of years, or during pleasure only: save only that offices of public trust cannot be granted for a term of years, especially if they concern the administration of justice, for then they might perhaps vest in executors or administratorsr. Neither can any judicial office be granted in reversion ; because though the grantee may be able to perform it at the time of the grant, yet befoi e the office falls he may become unable and insufficient: but ministerial offices may be so granted"; for those may be executed by deputy. Also, by statute 5 & 6 Edw. VI. c. 16, no public office (a few only excepted) shall be sold, under pain of disability to dispose of or hold it10. For the law presumes that he, who buys an office, will by bribery, extortion, or other unlawful means, make his purchase good, to the manifest detriment of the public.

VI. Dignities bear a near relation to offices11. Of the nature of these we treated at large in the former book': it will therefore be here sufficient to mention them as a species of incorporeal hereditaments, wherein a man may have a property or estate.

VII. Franchises .are a seventh species. Franchise and liberty are used as synonymous terms : and their diffinition isu, a royal privilege, or branch of the king's prerogative, subsisting in

r 9 Rep. 97.

t See book I. c. 12.

s 11 Rep. 4. u Finch. L. 164.

9. No man can have an estate of inheritance in any public office in Virginia. Bill of rights, Art. 4. But all public officers, the tenure of whose office is during good behaviour, have freeholds in their offices. 1. Shower, 520, 523,525,531,557.

10. Herewith agree the laws of Virginia, Edi. 1794, c. 60. If two offices are incompatible, the acceptance of the latter vacates the former, even though a superior office. 2 Term. Rep. 81.

11. No man or setof men are entitled to exclusive or separate privileges from the community, but in consideration of public .servivices. Bill of rights, Art. 4. No title of nobility shall be granted by congress, or by any state, C. U. S. Art. 1. $. 9, 10.

the hands of a subject13. Being therefore derived from the crown, they must arise from the king's grant; or, in some cases, may be held by prescription, which, as has been frequently said, presupposes a grant. The kinds of them are various, and almost infinite: I will here briefly touch upon some of the principal; premising only, that they may be vested in either natural persons or bodies politic ; in one man, or in many: but the same identical franchise, that has before been granted to'one, cannot be bestowed en another, for that would prejudice the former grantw.

To be a county palatine is a franchise, vested in a number of persons. It is likewise a franchise for a number of persons to be incorporated, and subsist as a body politic; with a power to maintain perpetual succession and do other corporate acts : and each individual member of such corporation is also said to to have a franchise or freedom. Other franchises are, to hold a court leet: to have a manor or lordship; or, at least, to have waifs, wrecks, estrays, treasure-trove, royal fish, forfeitures, and deodands: to have a court of one's own, or liberty of holding pleas; and trying causes: -to-have the cognizance of pleas; and trying causes: to have the cognizance of pleas; which is a still greater liberty, being an exclusive right, so that no other court shall try causes arising within that jurisdiction: to have a bailiwick, or liberty exempt from the sheriff of the county; wherein the grantee only, and his officers, are to execute all process : to have a fair or market; with the right of taking toll, either there or at any other public places, as at bridges, wharfs, or the like; which tolls must have a reasonable cause-of commencement, (as in consideration of repairs, or the like,) else the franchise is illegal and void": or, lastly, to have a forest, chase,

w2Koll. Abr.I91. Keilw. 196.

x 2 Inst. 220,

12. The proprietors of the northern neck had many considerable franchises granted them, for which see the laws of Virginia, 1736, c. 3. Edi. 1794, c. 3. Such of them as might be deemed branches of the king's prerogative, I presume were abolished at the revolution. Bill of rights (ut sujiraj Art. 4.

park, warren, or fishery, endowed with privileges of royalty ; which species of franchise may require a more minute discussion.

As to a forest: this, in the hands of a subject, is properly the same thing with a chase; being subject to the common law, and not to the forest laws^. But a chase differs from a park, in that it is not inclosed, and also in that a man may have a chase in another man's ground as well as in his own ;, being indeed the liberty of keeping beasts of chase or royal game therein, protected even from the owner of the land with a power of hunting them thereon. A park is an inclosed chase, extending only over a man's own grounds. The word park indeed properly signifies an enclosure; but yet it is not every field or common, ivhich a gentleman pleases to surround with a wall or paling, andv stock with a herd of deer, that is thereby constituted a legal park: for the king's grant, or «t least immemorial prescription, is necessary to make it so". Though now the difference between a real park, and such enclosed grounds, is in many ^espects, not very material: only that it is unlawful at common law for any person to kill any beasts of park or chase*, except such as possess these franchises of forest, chase, or park. Free-warren is a similar franchise, erected for preservation or custody (which the word signifies) of beasts and fowls of warrenb; which, being ferae naturae, every one had a natural right to kill as he could: but upon the introduction of the forest laws, at the Norman conquest, as will be shewn hereafter, these animals being looked upon as royal game and the sole property of our savage monarchs, this franchise of free-warren was invented to protect them ; by giving the grantee a sole and exclusive power of killing such game so far as his warren extended, on condition of his preventing other persons. A man therefore that has the franchise of

y 4 Inst. 314.

z Co. Litt. 233. 2 Inst. 199.11 Rep. 85.

a These are properly buck, Joe, fox, martin and roe ; but in a common and legal sense extended likewise to all the beasts of the forest. which besides the other, are reckoned to be the hart, hind, hare, boar, and wolf, and in a word, all wild beascs of venary or hunting. (Co. Litt. 233.)

b The beasts are hares, coni;s, and roes: the fowls are either campestrcs, as partridges, rails, and quails; or syiixstrcs, as woodcocks and pheasants; or atjuatitef, as mallards and herons (Ibid).

warren, is 'in reality no more than a royal game-keeper: but no man, not even a lord of a manor, could by common law justify sporting on another's soil, or even on his own, unless he had the liberty of free-warrenc. This franchise is almost fallen into disregard, since the new statutes for preserving the game; the name being now chiefly preserved in grounds that are set apart for breeding hares and rabbits. There are many instances of keen sportsmen in antient times, who have sold their estates, and reserved the free-warren, or right of killing game, to themselves ; by which means it comes to pass that a man and his heirs have sometimes free-warren over another's ground*. A free fishery, or exclusive right of fishing in a public river^ is also a royal franchise; and is considered as such in all countries where the feodal polity has prevailed*: though the making such grants, and by that means appropriating what seems to be unnatural to restrain, the use of running water, was prohibited for the future by king John's great charter; and the rivers that were fenced in his time were directed to be laid open, as well as the forests to be disafforestedf. This opening was extended by the seconds and thirdh charters of Henry III, to those also that were fenced under Richard Il3; so that a franchise of free fishery ought now to be at least as old as the reign of Henry II. This differs from a several fishery; because he that has a several fishery must also be (or at least derive his right from) the owner of

c Salk. 637. d Brol Abr. tit. Warren. 3.

e Seld. Mar. Clauf. I. 24. Dufresne. V. 503. Crag, de yur.feod. II. 8, IS.

f cap. 47. edit. Oxon. g cap. 20. h 9 Hen. III. c. 16.

13. The act of 1784, c. 23, Edi. 1769, prohibited the making of hedges, or stone stops in any river, creek, or run, except where the person making them should possess the land on both sides of the' creek to the head, and no public landing were thereon established above the hedge or stops. And by the act of 1785, c. 82, the like prohibition is made general, except where leave is given for the working of some machine or engine useful to the public, in which cases, the same proceedings may be had as are directed in the case of water grist mills, and the court shall lay the party applying under such conditions for preventing the obstruction offish of passage and ordinary navigation, as to them shall seem right. Edi. 1794, c. 105.

the soil'14, which in a free fishery is not requisite. It differs also from a common of piscary before-mentioned, in that die free fishery is an exclusive right, the common of piscary is not so: and therefore, in a free fishery, a man has a property in the fish before they are caught; in a common of piscary not till afterwards1. Some indeed have considered a free fishery not as a royal franchise, but merely as a private grant of a liberty to fish in the several fisher}' of the grantor1. But to consider such right as originally a flower of the prerogative, till restrained by magna carta, and derived by royal grant (previous to the reign of Richard I.) to such as now claim it by prescription, and to distinguish it (as we have done) from a several and a common of fishery, may remove some difficulties in respect to this matter, with which our books are embarrassed. For it must be acknowledged, that the rights and distinctions of the three species of fishery are very much confounded in our law-books; and that there are not wanting respectable authorities111 which maintain, that a several fishery may exist distinct from the property of the soil, and that a free fishery implies no exclusive right, but is synonymous with common of piscary.

VIII. Corodies are a right of sustenance, or to receive certain allotments of victual and provision for one's maintenance". In lieu of which (especially when due from ecclesiastical persons) a pension or sum of money is sometimes substituted0 .... And these maybe reckoned another species of incorporeal hereditaments ; though not chargeable on, or issuing from, any corporeal inheritance, but only charged on the person of the owner in respect of such his inheritance'5. To these may be added,

iM. 17 Edw. IV. 6. P. 18 Edw- IV. 4. f. 10 Hen. K//.24, 26. Salk. 637.

k F. N. B. 88. Salk. 637. 1 2 Sid. 8.

m See them well digested in Margrave's notes on Co. Litt. 122.

n Finch. L. 162. o See book I. c. 8.

14. In order to constitute a several fishery in Virginia, the person claiming the same must possess the soil on both sides of a creek. See V. L. 1748, c. 1. Edi. 1794, c. 88.

15. Corodies were never known in Virginia. See Vol. I. p. 283.

IX. Annuities, which are much of the same nature; only that these arise from temporal, as the former from spiritual) persons. An annuity is a thing very distinct from a rent-charge, with which it is frequently confounded: a rent-charge being a burthen imposed upon and issuing out of lands, whereas an annuity is a yearly sum chargeable only upon the person of the grantor0. Therefore, if a man by deed grant to another the sum of 20/. per annum, without expressing out of what lands it shall issue, no land at all shall be charged with it; but it is a mere personal annuity: which is of so little account in the law, that, if granted to an eleemosynary corporation, it is not within the statutes of mortmain!"; and yet a man may have a real estate in it, though his security is merely personal16.

X. Rents are the last species of incorporeal hereditaments. The word rent or render, reditus, signifies a compensation or return, it being in the nature of an acknowledgement given for the possession of some corporeal inheritance1). It is defined to be a certain profit issuing yearly out of lands and tenements cor-, poreal. It must be aprojit; yet there is no occasion for it to be, as it usually is, a sum of money: for spurs, capons, horses, corn, and other matters maybe rendered, and frequently are rendered by way of rentr. It may also consist in services or manual operations ; as, to plough so many acres of ground, to attend the king or the lord to the wars, and the like; which services in the eye of the law are profits. This profit must also be certain ; or that which may be reduced to a certainty by either party. It must also issue yearly; though there is no occasion for it to issue every successive year; but it may be reserved every second, third, or fourth year1: yet, as it is to be produced out of the profits of lunds and tenements, as a recompense for being permitted to hold or enjoy them, it ought to be reserved yearly, because

o Co. Litt. 144. r Co. Litt. 142.

p Ibid. 2. s Ibid. 47.

q Hid. 144.

16. Few cases on the subject of annuities occur in Virginia, I believe: our laws have not noticed them; they therefore remain as tit the common law;

those profits do annually arise and a> ; annually renewed. It must issue out of the thing granted, and not be a part of the land or thing itself; wherein it differs from an exception in the grant, which is always of part of the thing granted'. It must, lastly, issue out of lands and tenements corporeal; that is, from some inheritance whereunto the owner or grantee of the rent may have recourse to distrain. Therefore, a rent cannot be reserved out of an advowson, a common, an office, a franchise, or the likeu. But a grant of such annuity or sum may operate as a personal contract, and oblige the grantor to pay the money reserved, or subject him to an action of debtw : though it doth not affect the inheritance, and is no legal rent in contemplation of law.

There are at common law" three manner of rents, rent-service, rent-charge, and rent-seekl7. Rent-service is so called because it hath some corporal service incident to it, as, at the least, fealty or the feodal oath of fidelity?18. For, if a tenant holds his land by fealty, and ten shillings rent; or by the service of ploughing the lord's land, and five shillings rent; these pecuniary rents,

t Plowd. 13. 8 Rep. 71 x Litt. Sec. 213.

u Co. Litt. 144. y Co. Litt. 142.

w Ibid. 47.

17. This appears to be an error, for it would seem that at common law all rents were distreinable of common right, and that the distinctionbetween rent-service,rent-charge, and rent-seek, was introduced by the statute of Quia etnfitorcti terrarum, 18 Edi. 1, c. 1, as Littleton expressly tells us,' Sec. 216.

18. As, by thecommon law, fealty was due from every tenant (except tenant at will) to his lord, which fealty carried with it some corporal service, as the taking the oath of fealty at least, for non-performance of which the lord might distrein of common right, when by the statute of Quia cm/itores, a distinction arose between rents to which distress was incident, and others, the former seem to have obtained the general name of rent-service, because to all these the corporal service of fealty, except in the case of a tenant at will, as before mentioned, was inseparably incident. But since the abolition of feudal tenures this notion of corporal service is become obsolete; and indeed seems to have been so,longbefore ; for if aman had leased lands for life, &c. rendering sixpence, in lieu of all manner of services, this was still called a rent-service. See Co. Litt. Rents.

being connected with personal services, are therefore called rent-service. And for these, in case they be behind, or arrere, at the day appointed, the lord may distrein of common right, without reserving any special power of distress ; provided he hath in himself the reversion, or future estate of the lands and tenements, after the lease or particular estate of the lessee or grantee is expiredz I9. A rent-charge, is where the owner of the rent hath no future interest, or reversion expectant in the land; as where a man by deed maketh over to others his tvhole estate in fee simple, with a certain rent payable thereout, and adds to the deed a covenant or clause of distress, that if the rent be arrere, or behind, it shall be lawful to distrein for the same. In this case the land is liable to the distress, not of common right, but by virtue of the clause in the deed: and therefore it is called a rent-charge, because in this manner the land is charged with a distress for the payment of ita 20. Rent-seek, reditus siccus, or barren rent, is in effect nothing more than a rent reserved by deed, but withoutany clause of distress21.

z Litt. Sec. 215.

a Co. Litt. 143,

19. Before the statute of Quia emfitores he might have distreined, as of common right, although he had parted with the wholeyee simple, and consequently had no reversion in him. Litt. Sec. 216.

20. And this, says Littleton, is by force of the statute of Quia cmli 'arrs tcrrarum: for before that statute, if a man had made a feoffnicnt in fee simple, by deed, or without tleed, yielding to him and to hit- beirs a certain rent, this was a rent-service, and for this he might have distreined of common right...Sec. 216. But now at this day, he proceeds, if there be a clause of distress in the deed, it is a rent charge, and if there be no clause of distress it is a rent-seek, for which he cannot have any distress. Ibid, Sec. 217.

21. After what has been observed in the preceding notes, it may t>e doubted whether any rent in Virginia can be rent-seek, that is, without a remedy by distress incident thereto, as of common right, although there be neither a reversion in him to whom the rent is payable, nor any clause of distress in the deed, by which the land was granted, and the rent reserved; inasmuch as the statute of Quia rm/noren terranim stands repealed in Virginia, by the act of 1792. Kdi. 1794, c. W.

There are'also other species of rents, which are reducible to these three22. Rents of assise are the certain established rents of the freeholders and ancient copyholders of a manor1, which cannot be departed from or varied 23. Those of the freeholders are frequently called chief rents, reditus caphales; and both sorts are indifferently denominated quit rents, quieti reditus; because thereby the tenant goes quit and free of all other services24. When these payments were reserved in silver or white money, they were antiently called white-rents, or blanch farms, reditus albic; in contradistinction to rents reserved in work, grain, or

b 2 Inst. 19.

c In Scotland this kind of small payment is called blancb-hoUing, oirt•ditus albae Jinnae.

22. Some have divided rents into four kinds ; rent-service, rent-charge, rent distreinable of common right, and rent-seek. Co. Litt. 141. The first and third seem to be considered as the same, by Littleton, as well as by the author of the commentaries.

23. There are no copyholds in Virginia.

24. Under the regal government, a quit-rent of two shillings for every hundred acres of land granted in Virginia was reserved to the crown, and if not paid for three years together, the lands were forfeited. 1748, c. 1, but these quit-rents were abolished by the act of May, 1779, c. 13, Edi. 1785. The tenants of lands held under the proprietor of the Northern Neck, were also subject to a quit-rent of two shillings for every hundred acre*, reserved in the proprietor's grants, with a clause of forfeiture in case the rent should be, at any time, more than two years in arrear. Upon the death of lord Fairfax, duringthe revolutionary war, the quit-rents were sequestered in the ' hands of the tenants; October, 1782, c. 8, J. 24. The next year, all arrears due before the death of lord Fairfax, were restored to his executors, or, in other words, the sequestration as to them was taken off; May 1783, c. 38, and so the matter rested until the year 1785, when an act was passed, declaring that the landholders within the district of the Northern Neck shall be forever thereafter exonerated and discharged from composition, and quit-rents, any law, usage, or custom to the contrary notwithstanding. Sessions acts of 1785, c. 47, $. 7. How far this act may be a contravention of the treaty of peace •with Great-Britain, is a subject which has not (yet, I believe) been drawn in question. It may, however, be of very serious importance to the landholders in the Northern Neck.

baser money, which were called reditus nigr't or black mail*. Rack' rent is only a rent of the full value of the tenement or near it. A fee-farm rent is a rent-charge issuing out of an estate in fee; of at least one fourth of the value of the lands, at the time of it's reservation6 : for a grant of lands, reserving so considerable a rent, is indeed only letting lands to farm in fee-simple instead of the usual methods for life or years.

These are the general divisions of rent; but the difference between them (in respect to the remedy for recovering them) is now totally abolished; and all persons may have the like remedy by distress for rents-seek, rents of assise, and chief-rents, as in case of rents reserved upon lease f2'.

Rent is regularly due and payable upon the.land from whence it issues, if no particular place is mentioned in the reservation * : but, in case of the king, the payment must be either to his officers at the exchequer, or to his receiver in the country h. And, strictly, the rent is demandable and payable before the time of sun-set of the day whereon it is reserved'86; though perhaps not absolutely due till midnightk.

With regard to the original of rents, something will be said Jn the next chapter; and, as to distresses and other remedies for

d 2 Inst. 19.

e Co. Litt. 143.

f Stat. 4Geo. II. c.28.

g Co. Litt. 201.

h 4 Rep. 73.

i Co. Litt. 302. 1 Anders. 253.

kl Saund. 287. Free. Chanc. 555. Salk. 578.

25. The statute of 4 George II. c. 28, here referred to, was never in force in Virginia. The act of 1792,1 apprehend, does not extend to give the remedy by distress in any case, where a distress is not, either incident to the rent, as of common right, or reserved in the deed. But if the repeal of the state of Quia emfitores, should have the effect hinted at in a former note (ante note 21.) the remedy by distress would lie, as well in the case of a rent-seek, as of rent-service, vi. Edi. 1794, c. 89.

26. If the lessor dies before sun-set on the day upon which the rent is demandable, it is clearly settled that the rent unpaid is due to his heir, and not to his executor ; but if he dies after sun-set, and before midnight, it seems to be the better opinion that it shall go to the executor, and not to the heir. 1. P. Wms. 178.,..Christian.

their recovery, the doctrine relating thereto, and the several proceedings thereon, these belong properly to the third part of our commentaries, which will treat of civil injuries, and the means whereby they are redressedar.

27. The student may refer to the Edi. of 1794, c. 89, for the statutory remedies which the laws of Virginia afford, in cases of rent arrear : they will be more fully noticed in tjie notes on the third Vol. of the commentaries.

CHAPTER THE FOURTH.

OF THE FEODAL SYSTEM l.

IT is impossible to understand, with any degree of accuracy, either the civil constitution of this kingdom, or the laws which regulate it's landed property, without some general acquaintance with the nature and doctrine of feuds, or the feodal law : a system so universally received throughout Europe upwards of twelve centuries ago, that Sir Henry Spelmana does not scruple to call it the law of nations in our western world, a Of Parliaments, 57.

1. As many of the maxims and rules respecting landed property, to be found in the common law, are derived from the feudal system, it will be proper for the, student attentively to peruse this, and the two following chapters. vl£ was expected that every trace of that system would have, been abolished in this country when the republic was established. The act of May 1779, c. 13, has this remarkable passage in it. « And that the proprietors of lands within this commonwealth may no longer be subject to any servile, feudal, or precarious tenure ; and to prevent the danger to a free state from perpetual revenue, Be it enacted, that the reservation of royal mines, of quit-rents, and all other reservations and conditions in the patents or grants of land from the crown of England, or Great-Britain, under the former government, shall be, and are hereby declared null and void; and that all lands thereby respectively granted, shall be held in absolute and unconditional property to all intents and purposes whatsoever, in the same manner with the lands hereafter to be granted by the commonwealth by virtue of this act." Edi. 1785, p. 98. The act of 1785, c. 60, in the same republican spirit, abolished the right of primogeniture ; the preference to males, and every other trace of feudal policy, in the inheritance of real estates ; but subsequent legislatures have shewn a strong disposition to revive some of the maxims of the feudal system, of which we shall hereafter have occasion more fully to take notice.

This chapter will be therefore dedicated to this inquiry. And though, in the course of our observations in this and many other parts of the present book, we may have occasion to search pretty highly into the antiquities of our English jurisprudence, yet surely no industrious student willimagine his time misemployed, when he is led to consider that the obsolete doctrines of our laws are frequently the foundation, upon which what remains is erected ; and that it is impracticable to comprehend many rules of the modern law, in a scholarlike scientifical manner, without having recourse to the antient. Nor will these researches be altogether void of rational entertainment as well as use: as in viewing the majestic ruins of Rome or Athens, of Balbec or Palmyra, it administers both pleasure and instruction to compare them with the draughts of the same edifices, in their pristine proportion and splendor.

The constitution of feuds b had its original from the military policy of the northern or Celtic nations, the Goths, the Huns, the Franks, the Vandals, and the Lombards, who all migrating from the same officina gentium, as Crag very justly entitles itc, poured themselves in vast quantities into all the regions" of Europe, at the declension of the Roman empire. It was brought by them from their own countries, and continued in their respective colonies as the most likely means to secure their new acquisitions: and, to that end, large districts or parcels of land were allotted by the conquering general to the superior officers of the army, and by them dealt out again in smaller parcels or allotments to the inferior officers and most deserving soldiers d. These allotments were called feoda, feuds, fiefs, or fees; which last appellation in the northern languages e signifies a conditional stipend or reward f. Rewards or stipends they evidently

b See Spelman of feuds, and Wright of tenures, per tot. c De jurefeott. 19, 20. d Wright, 7. e Spelm. Gl. 216 f Pontoppidan in his history of Norway, (page 290) observes, that in the •northern languages odh signifies proprietor and all totuin. Hence he derives 'the odhal right in those countries; and thence too perhaps is derived the tidal right in Finland, &c. (See Mac Doual Inst. part. 2.) Now the transposition of these northern syllables, allodji, will give us the true etymology of the allodium, or absolute property of the feudists: as, by a similar combination of the latter syllable with the word fee (which signifies, we have seen, a conditional reward or stipend) feeodii orjcodum will denote stipendiary property.

were : and the condition annexed to them was, that the possessor should do service faithfully, both at home and in the wars, to him by whom they were given; for which purpose he took thejuramentumjidelitatis, or oath of fealty *: and in case of the breach of this condition and oath, by not performing the stipulated service, or by deserting the lord in battle, the lands were again to revert to him who granted themh.

Allotments, thus acquired, naturally engaged such as accepted them to defend them: and, as they all sprang from the same right of conquest, no part could subsist independent of the whole; wherefore all givers as well as receivers were mutually bound to defend each others possessions. But, as that could not effectually be done in a tumultuous irregular way, government, and to that purpose subordination, was necessary. Every receiver of lands, or feudatory, was therefore bound, when called upon by his benefactor, or immediate lord of his feud or fee, to do all in his power to defend him. Such benefactor or lord was likewise subordinate to, and under the command of, his immediate benefactor or superior; and so upwards to the prince or general himself: and the several lords were also reciprocally bound, in their respective gradations, to protect the possessions they had given. Thus the feodal connection was established, a proper military subjection was naturally introduced, and an army of feudatories was always ready enlisted, and mutually prepared to muster, not only in defence of each man's own several property, but also in defence of the whole, and of every part of this their newly acquired country*; the prudence of which constitution was soon sufficiently visible in the strength and spirit, with which they maintained their conquests.

The universality and early use of this feodal plan, among all those nations, which in complaisance to the Romans we still call barbarous,' may appear from what is recorded k of the Cimbri and Teutones, nations of the same northern original as those whom we have been describing, at their first irruption into Italy

g See this oath explained at large in Feud. I. 2 t. 7. h Feud. I. 2. t. 24. i Wright, a k L. Fiona, I. 3. c. 3.

about a century before the Christian sera. Theydemanded of the Romans, " ut martins populus dllquid sibi terras darct, quasi stipendium: caeterum, ut vellet, manibus atque annis suis uteretur.^ The' sense of which may be thus rendered; they desired stipendiary lands (that is, feuds) to be allowed them, to be held by military and other personal services, whenever their lords should call upon them. This was evidently the same constitution, that displayed itself more fully about seven hundred years afterwards: when the Salii, Burgundians, and Franks broke in upon Gaul, the Visigoths on Spain, and the Lombards upon Italy; and introduced with themselves this northern plan of polity, serving at once to distribute and to protect the territories they had newly gained. And from hence too it is probable that the emperor Alexander Severus' took the hint, of dividing lands conquered from the enemy among his generals and victorious soldiery, duly stocked with cattle and bondmen, on condition of receiving military service from them and their heirs for ever.

Scarce had these northern conquerors, established themselves in their new dominions, when the wisdom of their constitutions, as well as their personal valour, alarmed all the princes of Europe ; that is, of those countries which had formerly been Roman provinces, but had revolted, or were deserted by their old masters, in the general wreck of the empire. Wherefore, most, if not all, of them thought it necessary to enter into the same or a similar plan of policy. For whereas, before, th« possessions of their subjects were perfectly allodial, (that is wholly independent, and held of no superior at all2) now they par-

1" Sola,quae de hostibus capta sunt, limitaneis ducibus & rniiitibiu donmit i ita ut eoruin ita essent, si haeredes illorum militarent, nee vnquam ad privates pertinerent; dice/is attentita illos militaturos, si eiiam sua nira defcn'krent. Addidit sane bis et animalia et servos, ut possent colere quod acceperant; neper, inopiam. bomimim vel per senectutem desererentur nira memo barbariae, quod turpissinwm tile dacebat." (~Ae\. Lamprid. in vita Alex. Sever!,

2. Lands in Virginia, by the act of May 1779, c. 13, abovementioned, are rendered perfectly allodial .... See note 1. p. 44. Yet there remains one incident to lands in Virginia, which was move peculiarly incidental to feudal tenures, viz. that they arc still liable to be escheated to the commonwealth. C. V. Art. 20, L. V.1794, c. 82. Forfeitures, another incident to feudal tenures have been entirely abolished. Edi. 1794, c. 74.

celled out their royal territories, or persuaded their subjects to surrender up and retake their own landed property, under the like feodal obligations of military fealty m. And thus, in the compass of a very few years, the feodal constitution, or the doctrine of tenure, extended itself over all the western world. Which alteration of landed property, in so very material a point, necessarily drew after it an alteration of laws and customs; so that the feodal laws soon drove out the Roman, which had hitherto universally obtained, but now became for many centuries lost and forgotten; and Italy itself (as some of the civilians, with more spleen than judgment, have expressed it) belluinas, atqueferinas, immanesque Longobardorum leges accepit".

But this feodal polity, which was thus by degrees established over all the continent of Europe, seems not to have been received in this part of our island, at least not universally and as a part of the national constitution, till the reign of William the Norman °. Not but that it is reasonable to believe, from abundant traces in our history and laws, that even in the times of the Saxons, who were a swarm from what sir William Temple calls the same northern hive, something similar to this was in use: yet not so extensively, nor attended with all the rigour that was afterwards imported by the Normans. For the Saxons were firmly settled in this island, at least as early as the year 600: and it was not till two centuries after, that feuds arrived to their full vigour and maturity, even on the continent of Europe p.

This introduction however of the feodal tenures into England, by king William, does not seem to have been effected immediately after the conquest, nor by the mere arbitrary will and power of the conqueror; but to have been gradually established by the Norman barons, and others, in such forfeited lands as they received from the gift of the conqueror, and afterwards universally consented to by the great council of the nation long after his title was established. Indeed from the prodigious slaughter of the English nobility at the battle of Hastings, and

m Wright, 10. n Gravin. Oiig. I. 1. Sec. 139. o Spelra. Gloss. 218. Bract. /. 2. c. 16. Sec. 7, p Crag. 1.1. t. 4.

the fruitless insurrections of those who survived, such numerous forfeitures had accrued, that he was able to reward his Norman followers with very large and extensive possessions: which gave a handle to the monkish historians, and such as have 'implicitly followed them, to represent him as having by right of the sword seised on all the lands of England, and dealt them out again to his own favourites. A supposition, grounded upon a mistaken sense of the word conquest; which, in its feodal acceptation, signifies no more than acquisition: and this has led many hasty writers into a strange historical mistake, and one which upon the slightest examination will be found to be most untrue. However, certain it is, that the Normans now began to gain very large possessions in England; and their regard for the feodal law, under which they had long lived, together with the king's recommendation of this policy to the English, as the best way to put them on a military footing, and thereby to prevent any future attempts from the continent, were probably the reasons that prevailed to effect it's establishment here by law. And, though the time of this great revolution in our landed property cannot be ascertained with exactness, yet there are some circumstances that may lead us to a probable conjecture concerning it. For we learn from the Saxon chronicle*, that in ihe nineteenth year of king William's reign an invasion was apprehended from Denmark; and the military constitution of the Saxons being then laid aside, and no other introduced in it's stead, the kingdom was wholly defenceless: which occasioned the king to bring over a large army of Normans and Bretons, who were quartered upon every landholder, and greatly oppressed the people. This apparent weakness, together with the grievances occasioned by a foreign force, might co-operate with the king's remonstrances, and the better incline the nobility to listen to his proposals for putting them in a posture of defence. For, as soon as the danger was over, the king held a great council to inquire into the state of the nation r ; the immediate consequence of which was the compiling of the great survey called domesday-book, which was finished in the next year: and in the latter end of that very year, the king was attended by all his

q A. D. 1085.

r Sex ttnttit magnum concilium, ft grams sermones babuit cum mis proceribus <fc i>ac terra ; quo modo iiicoleretur, et a quibus bominibus. Cbrm. Sax. ibid.

nobility at Sarum; where all the principal landholders submitted their lands to the yoke of military tenure, became the king's vasals, and did homage and fealty to his person!. This may possibly have been the aera of formally introducing the feodal tenures by law; and perhaps the very law, thus made at the council of Sarum, is that which is still extantf, and couched in these remarkable words: " statuimus, ut omnes llberi homines foedere et sacramento ajfirment, quod intra et extra universum regnum Angliae Wilhelmo regi domino suo jideks esse volunt ; terras et honores illius omni jidelitate ubique servare cum eo, et contra inimicos et alienigenas defendere.n The terms of this law (as sir Martin Wright has observed u) are plainly feodal: for, first, it requires the oath of fealty, which made in the sense of the feudists every man that took it a tenant or vasal: and, secondly, the tenants obliged themselves to defend their lord's territories and titles against all enemies foreign and domestic. But what clearly evinces the legal establishment of this system, is another law of the same collectionw, which exacts the performance of the military feodal services, as ordained by the general council. " Omnes comites, et barones, et milites, et servientes, et universi llberi homines totius regni nostri praedicti, habeant et teneant se semper bene in armis et in equis, ut decet et oportet: et sint semper promptlf et bene farati, ad servitium suum integrum nobis explendum et peragendum, cum opusfuerit; secundum quod nobis debent defoedis et tenementis suis de jure facer e, et sicut illis statuimus per commune concilium totius regni nostri praedicti"

This new polity, therefore, seems not to have been imposed by the conqueror, but nationally and freely adopted by the general assembly of the whole realm, in the same manneras other nations of Europe had before adopted it, upon the same principle of self-security. And, in particular, they had the recent example of the French nation before their eyes ; which had gradually sur-

s Omnes praedia tenentes, r/uotquot essent notae aielioru per totam Angliam, ejus hominesfacti sunt, ft otnncs se ill! subdidere, ejusquejacti sunt vasalli, ac ei Jidelitatis jttrainfnta praestiterunt, se contra alias quoscunque illi Jidosjuturos. \ Cbron. Sax. A. D. 1086.

t Cap. 52. Wilk. 228- * Tenures, 66.

w Gap- 58. Wilk. 288.

rendered up all it's allodial or free lands into the king's hands, who restored them to the owners as a benefcium or feud, to be held to them and such of their heirs as they previously nominated to the king: and thus by degrees all the allodial estates in France were converted into feuds, and the freemen became the vasals of the crown*. The only difference between this change of tenures in France, and that in England, was, that the former was effected gradually, by the consent of private persons; the latter was done at once, all over England, by the common consent of the nation?.

In consequence of this change, it became a fundamental maxim and necessary principle (though in reality a mere fiction) of our English tenures; "-that the king is the universal lord and original proprietor of all the lands in his kingdom2; and that no man doth or can possess any part of it, but what has mediately or immediately been derived as a gift from him, to be held upon feodal services." For, this being the real case in pure, original, proper feuds, other nations who adopted this system were obliged to act upon the same supposition, as a substruction and foundation of their new polity, though the fact was indeed far otherwise. And, indeed, by thus consenting to the introduction of feodal tenures, our English ancestors probably meant no more than to put the kingdom in a state of defence by establishing a military system; and to oblige themselves (in respect of their lands) to maintain the king's title and territories, with equal vigour and fealty, as if they had received their lands from his bounty upon these express conditions, as pure, proper, beneficiary .feudatories. But whatever their meaning was, the Norman interpreters, skilled in all the niceties of the feodal constitutions, and well understanding the import and extent of the feodal terms, gave a very different construction to this proceeding : and thereupon took a handle to introduce not only the rigorous doctrines which prevailed in the duchy of Normandy, but also such fruits and dependencies, such hardships and services,

x Montesq. Sp. L. b. SI, c. 8.

y Pfearaoh thus acquired the dominion of all the lands in Egypt, and granted them out to the Egyptians, reserving an annual render of the fifth •part of their value- (Gen. c. xlvii.)

z foutfuit inlity, et vient de Iny a! cotnmencement, (M, 24JiVra, Z//.65.)

as were never known to other nations*; as if the English had, in fact as well as theory, owed every thing they had to the bounty of their sovereign lord.

Our ancestors, therefore, who were by no means beneficiaries, but had barely consented to this fiction of tenure from the crown, as the basis of a military discipline, with reason looked upon these deductions as grievous impositions, and arbitrary conclusions from principles that, as to them, had no foundation in truthb. However, this king, and his son William Rufus, kept up with a high hand all the rigours of the feodal doctrines: but their successor, Henry I. found it expedient, when he set up his pretensions to the crown, to promise a restitution of the laws of king Edward the confessor, or antient Saxon system; and accordingly, in the first year of his reign, granted a charter0, whereby he gave up the greater grievances, but still reserved the fiction of feodal tenure, for the same military purposes which engaged his father to introduce it. But this charter was gradually broken through, and the former grievances were revived and aggravated, by himself and succeeding princes; till in the reign of king John they became so intolerable, that they occasioned his barons, or principal feudatories, to rise up in arms against him: which at length produced the famous great charter at Runing-mead, which, with some alterations, was confirmed by his son Henry III. And, though it's immunities (especially as altered on it's last edition by his sond) are very greatly short of those granted by Henry I, it was justly esteemed at the time a vast acquisition to English liberty. Indeed, by the farther alteration of tenures that has since happened, many of these immunities may now appear, to a common observer, of much less consequence than they really were when granted: but this properly considered, will shew, not that the acquisitions under John were small, but that those under Charles were greater. And from hence also arises another inference ; that the liberties of Englishmen are not (as some arbitrary writers would represent them) mere infringements of the king's prerogative, extorted from our princes by taking advantage of their weakness; but a restoration of that antient

a Spelm. of feuds, c. 23. c L L. Hen. I- c, 1.

b Wright, 81. d 9 Hen. IU.

constitution, of which our ancestors had been defrauded by the art and finesse of the Norman lawyers, rather than deprived by the force of the Norman arms.

Having given this short history of their rise and progress we will next consider the nature, doctrine, and principal laws of feuds; wherein we shall evidently trace the ground-work of many parts of our public polity, and also the original of such of our own tenures, as were either abolished in the last century, or still remain in force.

The grand and fundamental maxim of all feodal tenure is this; that all lands were originally granted out by the sovereign, and are, therefore, holden, either mediately or immediately, of the crown. The grantor was called the proprietor, or lord; being he who retained the dominion or ultimate property of the feud or fee: and the grantee, who had the use and possession, according to the terms of the grant, was stiled the feudatory or vasal, which was only another name for the tenant or holder of the lands; though, on account of the prejudices which we have justly conceived against the doctrines that were afterwards grafted on this system, we now use the word vasal opprobriously, as synonomous to slave or bondman. The manner of the grant was by words of gratuitous and pure donation, dedi et concessi; which are still the operative words in our modern infeodations or deeds of feoffment. This was perfected by the ceremony of corporal investiture, or open and notorious delivery of possession in the presence of the other vasals; which perpetuated among them the aera of the new acquisition, at a time when the art of writing was very little known: and, therefore, the evidence of property was reposed in the memory of the neighbourhood; who, in case of a disputed title, were afterwards called upon to decide the difference, not only according to external proofs, adduced by the parties litigant, but also by the internal testimony of their own private knowledge.

Besides an oath of fealty, or profession of faith to the lord, which was the parent of our oath of allegiance, the vasal or tenant upon investiture did usually homage to his lord; openly and

humbly kneeling, being ungirt, uncovered, and holding up his hands both together between those of the lord, who sate before him; and there professing that " he did become his man, from " that day forth, of life and limb and earthly honour:" and then: he received a kiss from his lord6. Which ceremony was denominated homagium, or manhood, by the feudists, from the stated • form of words, devenio vaster homo{.

When the tenant had thus professed himself to be the man of his superior or lord, the next consideration was concerning the service, which, as such, he was bound to render, in recompense for the land that he held. This, in pure, proper, and original feuds, was only twofold; to follow, or do suit to, the lord in his courts in time of peace ; and in his armies or warlike retinue, when necessity called him to the field. The lord was, in early times, the legislator and judge over all his feudatories: and, therefore, the vasals of the inferior lords were bound by their fealty to attend their domestic courts baron^, (which were instituted in every manor or barony, for doing speedy and effectual justice to all the tenants) in order as well to answer such complaints as might be alleged against themselves, as to form a jury or homage for the trial of their fellow tenants: and upon this account, in all the feodal institutions both here and on the continent, they are distinguished by the appellation of the peers of the court; fares curtis, or fares ciiriae. In like manner the barons themselves, or lords of inferior districts, were denominated peers of the king's court, and were bound to attend him upon summons, to hear causes of greater consequence in the king's presence and under the direction of his grand justiciary; till in many countries the power of that officer was broken and distributed into other courts of judicature, the peers of the king's court still reserving

e Lit. Sec. 85.

f It was an observation of Dr. Arbuthnot, that tradition was no where preserved so pure and incorrupt as among children, whose games and plays are delivered down invariably from one generation to another. (Warburton'j notes on Pope, vi. 131,8vo.) It will not, I hope, bethought puerile to remark (in confirmation of this observation) that in one of our antient juvenile pastimes (the ting lam. or basilinda of Julius Pollux, Onomattic, I. 9, c. 7,) the ceremonies and language of feodal homage are preserved with great exactness.

g Feud. I. 2, t. 55.

to themselves (in almost every feodal government) the right of appeal from those subordinate courts in the last resort. The military branch of service consisted in attending the lord to the wars, if called upon, with such a retinue, and for such a number of days, as were stipulated at the first denation, in proportion to ' the quantity of the land.

At the first introduction of feuds, as they were gratuitous, so also they were precarious, and held at the will of the lord h, who was then the sole judge whether his vasal performed his services faithfully. Then they became certain for one or more years. Among the antient Germans they continued only from year to year: an annual distribution of lands being made by their leaders in their general councils or assemblies'. This was professedly done, lest their thoughts should be diverted from war to agriculture; lest the strong should incroach upon the possessions of the weak ; and lest luxury and avarice should be encouraged by the erection of permanent houses, and too curious an attention to convenience and the elegant superfluities of life. But, when the general migration was pretty well over, and a, peaceable possession of the new-acquired settlements had introduced new customs and manners ; when the fertility of the soil had encouraged the study of husbandry, and an affection for the spots they had cultivated, began naturally to arise'in the tillers; a more permanent degree of property was introduced, and feuds began now to be granted for the life of the feudatory k. But still feuds were not yet hereditary ; though frequently granted, by the favour of the lord, to the children of the former possessor ; till, in process of time, it became unusual, and was, therefore, thought hard, to reject the heir, if he were capable to perform the services1: and, therefore, infants, women and professed monks, who were incapable of bearing arms, were also incapable

h Feud. l.l,t. 1.

i Thus Tacitus: (de inor. Germ. c. 26). " agri ab universis per vices oc. cupantur; ania per annos mutant. " And Cssar yet more fully.: (de bell. Gall. I. 6, c. 21J. " Neque quisquam agri modum certain, out fines proprios habet; ted magistratus et priiicipes, in annos tingulos, .gentibus et cognationikus iominum qui una eoierunt, quantum eis et quo loco iiisum at, attribuunt agri, ah que anno post olio transire copint. "

k Feud. 1. I, t. I. 1 Wright. 14.

of succeeding to a genuine feud. But the heir, when admitted to the feud which his ancestor possessed, used generally to pay a fine or acknowlegement to the lord, in horses, arms, money, and the like, for such renewal of the feud: which was called a relief, because it raised up and re-established the inheritance, or in the words of the feodal writers," incertam et caducam hereditatem relevabat." This relief was afterwards, when feuds became absolutely hereditary, continued on the death of the tenant, though the original foundation of it had ceased.

For, in process of time, feuds came by degrees to be universally extended, beyond the life of the first vasal, to his sons, or perhaps to such one of them as the lord should name; and in this case the form of the donation was strictly observed: for if a feud was given to a man and his sons, all his sons succeeded him in equal portions: and, as they died off, their shares reverted to the lord, and did not descend to their children, or even to their surviving brothers, as not being specified in the donation m. But when such a feud was given to a man and his heirs in general terms, then a more extended rule of succession took place; and when the feudatory died, his male descendants in injinitum were admitted to the succession. When any such descendant, who thus had succeeded, died, his male descendants were also admitted in the first place; and, in defect of them, such of his male colateral kindred as were of the blood or lineage of the first feudatory, but no others. For this was an unalterable maxim in feodal succession, that " none was capable of inheriting a feud, but such as was of the blood of, that is, lineally descended from, the first feudatory n." And the descent, being thus confined to males, originally extended to all the males alike; all the sons, without any distinction of primogeniture, succeeding to equal portions of the father's feud. But this being found upon many accounts inconvenient, (particularly, by dividing the services, and thereby weakening the strength of the feodal union) and honorary feuds (or titles of nobility) being now introduced, which were not of a divisible nature, but could only be inherited by the eldest son ° ; in imitation of these, military feuds (or those we are now describing) began also in most coun-

m Wright. 17, n Ibid. 183. o Feud. 2, t. 55.

tries to descend, according to the same rule of primogeniture, to the eldest son, in exclusion of all the rest p.

Other qualities of feuds were, that the feudatory could not aliene or dispose of his feud; neither could he exchange, nor yet mortgage, nor even devise it by will, without the consent of the lord *. For, the reason of conferring the feud being the personal abilities of the feudatory to serve in war, it was not fit he should be at liberty to transfer this gift, either from himself, or from his posterity who were presumed to inherit his valour, to others who might prove less able. And, as the feodal obligation was looked upon as reciprocal, the feudatory being entitled to the lord's protection, in return for his own fealty and service; therefore, the lord could no more transfer his seignory or protection without consent of his vasal, than the vasal could his feud without consent of his lord r : it being equally unreasonable, that the lord should extend his protection to a person to whom he had exceptions, and that the vasal should owe subjection to a superior not of his own choosing.

These were the principal, and very simple, qualities of the genuine or original feuds; which were all of a military nature, and in the hands of military persons: though the feudatories, being under frequent incapacities of cultivating and manuring their own lands, soon found it necessary to commit part of them to inferior tenants ; obliging them to such returns in service, corn, cattle, or money, as might enable the chief feudatories to attend their military duties without distraction: which returns, or reditus, were the original of rents. And, by these means the feodal polity was greatly extended j these inferior feudatories(who held what are called in the Scots law " rere-fiefs ") being under similar obligations of fealty, to do suit of court, to answer the stipulated renders or rent-service, and to promote the welfare of their immediate superiors or lords8... ....

But this at the same time demolished the antient simplicity of feuds; and an inroad being once made upon their constitution, it subjected them, in a course of time, to great varieties and innovations. Feuds began to be bought and sold, and deviations

p Wright. 32. q Ibid. 29. r Ibid. 30. s Ibid. 20.

were made from the old fundamental rules of tenure and succession ; which were held no longer sacred, when the feuds themselves no longer contined to be purely military. Hence these tenures began now to be divided intofeoda propria et impropria, proper and improper feuds; under the former of which divisions were comprehended such, and such only, of which we have before spoken; and under that of improper or derivative feuds, were comprised all such as do not fall within the other description : such, for instance, as were originally bartered and sold to the feudatory for a price; such as were held upon base or less honourable services, or upon a rent, in lieu of military service; such as were in themselves alienable, without mutual license; and such as might descend indifferently either to males or females. But, where a difference was not expressed in the creation, such new-created feuds did, in all respects follow the nature of an original, genuine, and proper feud *.

But, as soon as the feodal system came to be considered in the light of acivil establishment, rather than as a military plan, the ingenuity of the same ages, which perplexed all theology with the subtilty of scholastic disquisitions, and bewildered philosophy in the mazes of metaphysical jargon, began also to exert its influence on this copious and fruitful subject: in pursuance of which, the most refined and oppressive consequences were drawn from what originally was a plan of simplicity and liberty, equally beneficial to both lord and tenant, and prudently calculated for their mutual protection and defence. From this one foundation, in different countries of Europe, very different superstructures have been raised: what effect it has produced on the lauded property of England will appear in the following chapters.

t Feud. 2, t. 7-

CHAPTER THE FIFTH.

OF THE ANTIENT ENGLISH TENURES.

IN this chapter we shall take a short view of the antient tenures of our English estates, or the manner in which lands, tenements and hereditaments might have been holden ; as the same stood in force, till the middle of the last century. In which we shall easily perceive, that all the particularities, all the seeming and real hardships, that attended those tenures, were to be accounted for upon feodal principles and no other; being fruits of, and deduced from, the feodal policy.

Almost all the real property of this kingdom is by the policy of our laws supposed to be granted by, dependent upon, and holden of some superior lord, by and in consideration of certain services to be rendered to the lord by the tenant or possessor of this property. The thing holden is therefore stiled a tenement, the possessors thereof tenants, and the manner of their possession a tenure. Thus all the land in the kingdom is supposed to be holden, mediately or immediately, of the king; who is stiled the lord par amount, or above all. Such tenants as held under the king immediately, when they granted out portions of their lands to inferior persons, became also lords with respect to those inferior persons, as they were still tenants with respect to the king; and, thus partaking of a middle nature, were called mesne, or middle, lords. So that if the king granted a manor to A, and he granted a portion of the land to B, now B was said to hold of A, and A of the king; or in other words, B held his lands immediately of A, but mediately of the king. The king, therefore, was stiled lord paramount; A was both tenant and lord, who was a mesne lord ; and B was called tenantparavail, or the lowest tenant; being he who was supposed to make avail,

or profit of the land2. In this manner are all the lands of the kingdom holden, which are in the hands of subjects: for, according to sir Edward Cokeb, in the lawof England we have not properly allodium ; which, we have seenc, is the name by which the feudists abroad distinguish such estates of the subject, as are not holden by any superior. So that at the first glance we may observe, that our lands are either plainly feuds, or partake very strongly of the feodal nature.

All tenures being thus derived, or supposed to be derived, from the king, those that held immediately under him, in right of his crown and dignity, were called his tenants in capite, or in chief; which was the most honourable species of tenure, but at the same time subjected the tenants to greater and more burthensome services, than inferior tenures didd. This distinction ran through all the different sorts of tenure, of which I now proceed to give an account.

I. There seem to have subsisted among our ancestors four principal species of lay tenures, to which all others may be reduced : the grand criteria of which were the natures of the several services or renders, that were due to the lords from their tenants. The services, in respect of their quality, were either free or base services; in respect of their quantity and the time of exacting them, were either certain or uncertain. Free services were such as were not unbecoming the character of a soldier, or a freeman to perform; as to serve under his lord in the wars, to pay a sum of money, and the like. Base services were such as were fit only for peasants, or persons of a servile rank ; as to plough the lord's land, to make his hedges, to carry out his dung, or other mean employments, The certain services, whether free or base, were such as were stinted in quantity, and could not be exceeded on any pretence ; as, to pay a stated annual rent, or to plough such a field for three days. The uncertain depended upon unknown contingencies: as to do military\

a 2 Inst. 296. b 1 Inst. 1. c page 47.

d In the Germanic constitution, the electors, the bishops, the secular princes, the imperial cities, ttfc. which hold directly fiom the emperor, are called the immediate states of the empire j all other landholders being denominated mediate ones. Mod. Un. Hiit. xlii. 61.

service in person, or pay an assessment in lieu of it, when called upon; or to wind a horn whenever the Scots invaded the realm ; which are free services : or to do whatever the lord should command ; which is a base or villein service.

From the various combinations of these services have arisen the four kinds of lay tenure which subsisted in England, till the middle of the last century; and three of which subsist to this day. Of these, Bracton (who wrote under Henry the third) seems to give the clearest and most compendious account, of any author antient or modern6; of which the following is the outline or abstractf. " Tenements are of two kinds, frank-tenement, and villenage. And, of frank-tenements, some are held freely in consideration of homage and knight-service; others in free-socage with the service of fealty only." And again*', of villenages some are pure, and others privileged. He that holds in pure villenage shall do whatsoever is commanded him, and always be bound to an uncertain service. The other kind of villenage is called villein socage ; and these villein-socmen do villein services, but such as are certain and determined." Of which the sense seems to be as follows : first, where the service was free, but uncertain, as military service with homage, that tenure was called the tenure in chivalry, per servitium militare, or by knight-service. Secondly, where the service was not only free, but also certain, as by fealty only, by rent and fealty, &?c. that tenure was called liberum socagium, or free socage. These were the only free holdings or tenements ; the others were villenous or servile : as, thirdly, where the service was base in it's nature, and uncertain as to time and quantity, the tenure was purum villenagiwn, absolute or pure villenage. Lastly, where the service was base in it's nature, but

reduced to a certainty, this was still villenage, but distinguished

i • e 1. 4. tr. 1. c. 28.

f Tenementorum aliud liberum, aliud •ailtenagium. Item, litrrorum alisitl tenetur libeie pro homagin et servitio militari; aliud in llbero socagio cumjidelitatetantum.Sec.,1.

g Villcuagiorum aliud purum, aliud frivilegiatiim. %i tenet in pnro villenagiofaciet quiajuid ei praeceptutn fuerit, et semper icnebitur ad tnceita. Aim I genus villanagii dicitur vittumtm socagium t et hujusmodi villani tocmanni .... villanafaciunt servitia, sedceria. et determinate!. Sec. 5.

from the other by the name of privileged villenage, villenagium jirivilcgiatum; or it might be still called socage (from the certainty of it's sevvices) but degraded by their baseness into the inferior title ofvillanum socagium, villein-socage.

I. The first, most universal, and esteemed the most honourable species of tenure, was that by knight-service, called in Latin servitittm militare, and in law-French chivalry, or service de chivaler, answering to the fef cPhaubert of the Normans11, which name is expressly given it by the Mirrour1. This differed in very few points, as we shall presently see, from a pure and proper feud, being entirely military, and the general effect of the feodal establishment in England. To make a tenure by knight-service, a determinate quantity of land was necessary, which was called a knight's ke,feodum militare; the measure of which in 3 Edw. I, was estimated at twelve ploughlandsk, and it's value (though it varied with the times1), in the reigns of Edward I. and Edward IIm, was stated at 20/. per annum. And he who held this proportion of land (or a whole fee) by knight-service, was bound to attend his lord to the wars for forty days in every year, if called upon": which attendance was his reditus or return, his rent or service, for the land he claimed to hold. If he held only half a knight's fee, he was only bound to attend twenty days, and so in proportion1111. And there is reason to apprehend, that this service was the whole that our ancestors meant to subject themselves to ; the other fruits and consequences of this tenure being fraudulently superinduced, as the regular (though unforeseen) appendages of the feodal system.

This tenure of knight-service had all the marks of a strict and regular feud: it was granted by words of pure donation, dedi et concessi °; was transferred by investiture or delivering corporal possession of the land, usually called livery of seisin; and was perfected by homage and fealty. It also drew after it

U Spelm. Gloss.219.

i c. 2. Sec. 27".

k Pasch. S Edw. I. Co. Litt. 69.

1 2 Inst. 596,

m Stat.Westm, 1. c. 36 .Stat, tie milit. 1 Edw. II. Co. Litt. 69. n See writs for this purpose in Memorand. Scacch. 36. prefixed to Maynard's yearbook. Edw. II.

nn Litt. Sec. 95.

o Co. Litt. 9.

these seven fruits and consequences, as inseparably incident to the tenure in chivalry ; viz. aids, relief, primer seisin, wardship, marriage, fines for alienation, and escheat: all which I shall endeavour to explain, and shew to be of feodal original.

1. Aids were originally mere benevolences granted by the tenant to his lord, in times of difficulty and distress * ; but in process of time they grew to be considered as a matter of right, and not of discretion. These aids were principally three: first, to ransom the lord's person, if taken prisoner; a necessary consequence of the feodal attachment and fidelity : insomuch that the neglect of doing it, whenever it was in the vasal's power, was by the strict rigour of the feodal law an absolute forfeiture of his estate 1. Secondly, to make the lord's eldest son a knight; a matter that was formerly attended with great ceremony, pomp, and expense. This aid could not be demanded till the heir was fifteen years old, or capable of bearing armsr: the intention of it being to breed up the eldest son and heir apparent of the seignory, to deeds of arms and chivalry, for the better defence of the nation. Thirdly, to marry the lord's eldest daughter, by giving her a suitable portion: for daughters' portions were in those days extremely slender; few lords being able to save much out of their income for this purpose ; nor could they acquire money by other means, being wholly conversant in matters of arms: nor, by the nature of their tenure, could they charge their lands with this, or any other incumbrances. From bearing their proportion to these aids no rank or profession was exempted: and therefore even the monasteries, till the time of their dissolution, contributed to the knighting of their founder's male heir (of whom their lands were holden) and the marriage of his female descendants'. And one cannot but observe, in this particular, the great resemblance which the lord and vasal of the feodal law bore to the patron'and client of the Roman republic ; between whom also there subsisted a mutual fealty, or engagement of defence and protection. For, with regard to the matter of aids, there were three which were usually raised

p Auxiliafitmt tie gratia et non tie jure. .... cum depended/it ex gratia tenciitium et non ad vntuntateni dominoruni. Bracton,/. 2. tr. 1. c. 16. Sec. 8.

<1 Feud. t. 2. t. 24. r 2 Inst. 233. s 1'hilips's life of Pole I, 22j.

by the client; viz. to marry the patron's daughter; to pay his debts ; and to redeem his person from captivitye.

But besides these antient feodal aids, the tyranny of lords by degrees exacted more and more; as, aids to pay the lord's debts, (probably in imitation of the Romans,) and aids to enable him to pay aids or reliefs to his superior lord; from which last indeed the king's tenants in capite were from the nature of their tenure, excused, as they held immediately of the king, who had no superior. To prevent this abuse, king John's magna carta u ordained, that no aids be taken by the king without consent of parliament, nor any wise by inferior lords, save only the three antient ones above-mentioned. But this provision was omitted in Henry III's charter, and the same oppressions were continued till the 25 Edw. I, when the statute called con-

' t

firmatib chartarum was enacted ; which in this respect revived king John's charter, by ordaining that none but the antient aids should be taken. But though the species of aids was thus restrained, yet the quantity of each aid remained arbitrary and uncertain. King John's charter indeed ordered, that all aids taken by inferior lords should be reasonable w ; and that the aids taken by the king of his tenants in capite should be settled by parliament x. But they were never completely ascertained and adjusted till the statute Westm. 1, 3 Edw. I, c. 36, which fixed the aids of inferior lords at twenty shillings, or the supposed twentieth part of the annual value of every knight's fee, for making the eldest son a knight, or marrying the eldest daughter; and the same was done with regard to the king's tenant's in capite by, statute 25 Edw. III, c. 11. The other aid, for ransom of the lord's person, being not in it's nature capable of any Certainty, was therefore never ascertained.

2. Relief, relevium, was before mentioned as incident to every feodal tenure, by way of fine or composition with the lord

tErnt autem haec inter utrosque officiormn vichsitudo .... ut clientes ad collocandas ser.atoniinf'liasdesuocotiferrent; in aeris alieni dUsotutionem graluitam pecuniainciagaient; ct ab bostilnis in hello captos redhnerent. Paul Manutius de iciiatu £omana. c. 1.

n Ca(i. 12, 15.

w Cap. 15.

x Ibid. 14.

for taking up the estate, which was lapsed or fallen in by the death of the last tenant. But, though reliefs had their original while feuds were only life-estates, yet they continued after feuds became hereditary; and were therefore looked upon, very justly, as one of the greatest grievances of tenure: especially when, at the first they were merely arbitrary and at the will of the lord ; so that, if he pleased to demand an exorbitant relief, it was in effect to disinherit the heir *. The English ill brooked this consequence of their new adopted policy ; and therefore William the Conqueror by his laws z ascertained the relief, by directing (in imitation of the Danish heriots) that a certain quantity of arms, and habiliments of war, should be paid by the earls, barons, and vavasours respectively; and if the latter had no arms, they should pay 100*. William Rufus broke through this composition, and again demanded arbitrary uncertain reliefs, as due by the feodal laws: thereby in effect obliging every heir to new-purchase or redeem his land a: but his brother Henry I, by the charter before-mentioned, restored his father's law; and ordained, that the relief to be paid should be according to the law so established, and not an arbitrary redemption b. But afterwards, when by an ordinance in 27 Henry II. called the assise of arms, it was provided that every man's -armour should descend to his heir, for defence of the realm; and it thereby became impracticable to pay these acknowlegements in arms, according to the laws of the conqueror, the composition was universally accepted of 100.9. for every knight's fee ; as we find it ever after established c. But it must be remembered, that this relief was only then payable, if the heir at the death of his ancestor had attained his full age of one and twenty years,'

3. Primer seisin was a feodal burthen, only incident to the king's tenants in capite, and not to those who held of inferior or mesne lords. It was a right which the king had, when any of his tenants in capite died seised of a knight's fee, to receive of the heir (provided he were of full age) one whole year's profits

y W right. 99. z c. 22, 23, 24 a 2 Roll. Abr 514. b " Haeres non redimet ternim suain sicutfaciebat temporefratris inei, scj " legitima ctjusta lelecatione relevabit earn." ffcxt. Kojjeia. cap. 3! ) c Clanv. /. 9. c. 4. Litt. Sec. 112.

of the lands, if they were in immediate possesion; and half a year's profits, if the lands were in reversion expectant on an estate for life d. This seems to be little more than an additional relief, but grounded upon this feodal reason ; that, by the antient law of feuds, immediately upon the death of a vasal the superior was entitled to enter and take seisin or possession of the land, by way of protection against intruders, till the heir appeared to claim it, and receive investiture: during which interval the lord was entitled to take the profits; and, unless the heir claimed within a year and day, it was by the strict law a forfeiture e. This practice however seems not to have long obtained in England, if ever, with regard to tenure under inferior lords ; but, as to the king's tenures in capite, the prima selsina was expressly declared, under Henry III and Edward II, to belong to the king by prerogative, in contradistinction to other lords f. The king was entitled to enter and receive the whole profits of the land, till livery was sued j which suit being commonly made within a year and day next after the death of the tenant, in pursuance of the strict feodal rule, therefore the king used to take as an average thejirstfruits, that is to say, one year's profits of the land «. And this afterwards gave a handle to the popes, who claimed to be feodal lords of the church, to claim, in like manner from every clergyman in England the first year's profits of his benefice, by way ofprimitice, or first fruits.

4. These payments were only due if the heir was of full age; but if he was under the age of twenty-one, being a male, or fourteen, being a female h, the lord was entiled to the wardship of the heir and was called the guardian in chivalry. This wardship consisted in having the custody of the body and lands of such heir, without any account of the profits, till the age of twenty-one in males, and sixteen in females. For the law supposed the heir-male unable to perform knight-service till twenty-one; but as for the female, she was supposed capable at fourteen to marry, and then her husband might perform the service. The lord therefore had no wardship, if at the death of the ancestor

d Co. I.itt. 77.

f Stat. Marlbr. c. 16.17 Edw. II. c. 3.

h Litt. Sec. 103.

e Feud. I. 2, t. 24.

g Staundf. Prerog. 12.

the heir-male was of the full age of twenty-one, or the heir-female of fourteen: yet, if she was then under fourteen, and the lord once had her in ward, he might keep her so till sixteen, by virtue of the statute of Westm. 1. 3 Edw. I. c. 22, the two additional years being given by the legislature for no other reason but merely to benefit the lord'.

This wardship so far as it related to land, though it was not nor could be part of the law of feuds, so long as they were arbitrary, temporary, or for life only; yet, when they became hereditary, and did consequently often descend upon infants, who by reason of their age could neither perform nor stipulate for the services of the feud, does not seem upon feodal principles to have been unreasonable. For the wardship of the land, or custody of the. feud, was retained by the lord, that he might out of the profits thereof provide a fit person to supply the infant's services, till he should be of age to perform them himself. And, if we consider the feud in it's original import, as a stipend, fee, or reward for actual service, it could not be thought hard that the lord should withhold the stipend, so long as the service was suspended. Though undoubtedly to our English ancestors, where such a stipendiary donation was a mere supposition or figment, it carried abundance of hardship j and accordingly it was relieved by the charter 'of Henry I. before-mentioned, which took this custody from the lord, and ordained that the custody, both of the land and the children, should belong to the widow or next of kin. But this noble immunity did not continue many years.

The wardship of the body was a consequence of the wardship of the land ; for he who enjoyed the infant's estate was the properest person to educate and maintain him in his infancy: and also, in a political view, the lord was most concerned to give his tenant a suitable education, in order to qualify him the better to perform those services which in his maturity he was bound to render.

When the male heir arrived to the age of twenty-one, or the heir-female to that of sixteen, they might sue out their livery or

1 Ibidem.

mtsterkmain v ; that is, the delivery of their lands out of their guardian's hands. For this they were obliged to pay a fine, namely, half a year's profits of the land; though this seems expressly contrary to magna carta'. However, in consideration of their lands having been so long in ward, they were excused all reliefs, and the king's tenants also all primer seisins m. In order to ascertain the profits that arose to the crown by these fruits of tenure, and to grant the heir his livery, the itenerant justices, or justices in eyre, had it formerly in charge to make inquisition concerning them by a jury of the county n, commonly called an inquisitio post mortem; which was instituted to inquire (at the death of any man of fortune) the value of his estate, the tenure by which it was holden, and who, and of what age his heir was ; thereby to ascertain the relief and value of the primer seisin, or the wardship and livery accruing to the king thereupon. A manner of proceeding that came in process of time to be greatly abused, and at length an intolerable grievance; it being one of the principal accusations against Empson and Dudley, the wicked engines of Henry VII, that by colour of false inquisitions they compelled many persons to sue out livery from the crown, who by no means were tenants thereunto °. And, afterwards, a court of wards and liveries was erected p, for conducting the same inquiries in a more solemn and legal manner.

When the heir thus came of full age, provided he held a knight's fee in capite under the crown, he was to receive the order of knighthood, and was compellable to take it upon him, or else to pay a fine to the king. For, in those heroical times, no person was qualified for deeds of arms and chivalry wholiad not received this order, which was conferred with much preparation and solemnity. We may plainly discover the footsteps of a similar custom in what Tacitus relates of the Germans, who, in order to qualify their young men to bear arms, presented them in a full assembly with a shield and lance ; which ceremony, as was formerly hinted 1, is supposed to have been the

k Co. Lite. 77.

n Hoveden. sub. Sic. I.

p Stat. 32 Hen. VIII. c. 46.

1 9 Hen. 3, c. 3. o 4 Inst. 198. q Vol. I, p. 404.

ib Co. Litt. 77.

original of the feodal knighthoodr. This prerogative, of compelling the king's vasals to be knighted, or to pay a fine, as expressly recognized in parliament, by the statute de mihtibus, 1 Edw. II; was exerted as an expedient for raising money by many of our best princes, particularly by Edward VI and queen Elizabeth ; but yet was the occasion of heavy murmurs when exerted by Charles I: among whose many misfortunes it was, that neither himself nor his people seemed able to distinguish between the arbitrary stretch, and the legal exertion, of prerogative. However, among the other concessions made by that unhappy prince, before the fatal recourse to arms, he agreed to divest himself of this undoubted flower of the crown, and it was accordingly abolished by statute 16 Car. I. c. 20.

5. But, before they came of age, there was still another piece of authority, which the guardian was at liberty to exercise over his infant wards ; I mean the right of marriage (mart' tagium, as contradistinguished from matrimonium) which in it's feodal sense signifies the power, which the lord or guardian in chivalry had, of disposing of his infant ward in matrimony. For while the infant was in ward, the guardian had the power of tendering him or her a suitable match, without disparagement^ or, inequality : which if the infants refused, they forfeited the value of the marriage, valorem maritagii, to their guardian8; that is, so much as a jury would assess, or any one would bonafde give to the guardian for such an alliance': and, if the infants married themselves without the guardian's consent, they forfeited double the value, duplicem valorem maritagiiu. This seems to have been one of the greatest hardships of our antient tenures. There were, indeed, substantial reasons why the lord should have the restraint and control of the ward's marriage, especially of his female ward ; because of their tender years, and the danger of such female ward's intermarrying with the lord's enemyw: but no tolerable pretence could be assigned why the lord should have the sale, or value of the marriage. Nor indeed is this claim

r " In ipso concilia vet principum aliyuis, vet pater, vel propitiquus, scutojrameacriie juixnem ornant. Jfaec apud Him toga, hie primus juventae honos: ante hoc domus pars videntur; max reipublicae." De mor. Germ. cap. 13.

s Litt. §. 110.

u Litt. §. 110.

t Stat. Mcrt. c. 6, Co. Litt. 82. •w Bract. /. 2, c. 37, Sec. 6.

of strictly feodal origninal; the most probable account of it seeming to be this: that by the custom of Normandy the lord's consent was necessary to the marriage of his female wards x ; which was introduced into England, together with the rest of the Norman doctrine of feuds : and it is likely that the lords usually took money for such their consent, since, in the often-cited charter of Henry the first, he engages for the future to take nothing for his consent; which also he promises in general to give, provided such female ward were not married to his enemy. But this, among other beneficial parts of that charter, being disregarded, and guardians still continuing to dispose of their wards in a very arbitrary unequal manner, it was provided by king John's great charter, that heirs should be married without disparagement, the next of kin having previous notice of the contract v : or, as it was expressed in the first draught of that charter, ita maritentur ne disparagentur, etfer consilium propinquorum de consanguinitate sua *. But these provisions in behalf of the relations were omitted in the charter of Henry III: wherein * the clause stands merely thus !' haeredes maritentur absque disparagatione:" meaning certainly, by haeredes, heirs female, as there are no traces before this to be found of the lord's claiming the marriageb of heirs male; and as Glanvilc expressly confines it to heirs female. But the king and his great lords thenceforward took a handle (from the ambiguity of this expression) to claim them both, sive sit masculus sivefoemina, as Bracton more than once expresses itd; and also, as nothing but disparagement was restrained by magna carta, they thought themselves at liberty to make all other advantages that they coulde. And afterwards this right, of selling the ward in marriage or else receiving the price or value of it, was expressly declared by the statute of Merton f; which is the first direct mention of it that I have met with, in our own or any other law.

6. Another attendant or consequence of tenure by knight-service was that of fines due to the lord for every alienation, x Gr. Cust. 95. y cap. 6, edit. Oxon.

7. cap. S, ibid. a cap. 6.

b The words maritare and maritagium seem ex vi termini to denote the p/oviding of an husband;

c /. 9, c. 9 tf-12, tf /. 9, c. 4. d /. 2, c. 38. Sec. 1. e Wright. 97. f 20 Hen. III, c. 6.

whenever the tenant had occasion to make over his land to another. This depended on the nature of the feodal connexion; it not being reasonable nor allowed, as we have before seen, that a feudatory should transfer his lord's gift to another, and substitute a new tenant to do the service in his own stead, without the consent of the lord: and, as the feodal obligation was considered as reciprocal, the lord also could not alienate his seignory without the consent of his tenant, which consent of his was called an attornment. This restraint upon the lords soon wore away: that upon the tenants continued longer. For, when every thing came in process of time to be bought and sold, the lords would not grant a licence to their tenant, to aliene, without a fine being paid ; apprehending that, if it was reasonable for the heirtopaya fine or relief on the renovation of hispaternalestate, it was much more reasonable that a stranger should make the same acknowledgment on his admission to a newly purchased feud. With us in England, these fines seem only to have been exacted from the king's tenants in capite, who were never able to aliene without a licence: but, as to common persons, they were-at liberty, by magna cart«s,and the statute oiquia emptore&\ (if not earlier) to aliene the whole of their estate, to be holden of the same lord, as they themselves held it of before. But the king's tenants in capite, not being included under the general words of these statutes, could not aliene without a licence: for if they did, it was in antient strictness an absolute forfeiture of the land1 j though some have imagined otherwise. But this severity was mitigated by the statute 1 Edw. III. c. 12, which ordained, that in such case the lands should not be forfeited, but a reasonable fine be paid to the king. Upon which statute it was settled, that one third of the yearly value should be paid for a licence of alienation ; but if the tenant presumed to aliene without a licence, a full year's value should be paidk.

7. The last consequence of tenure in chivalry was escheat; which is the determination of the tenure, or dissolution-of the mutual bond between the lord and tenant, from the extinction of the blood of the latter by either natural or civil means : if he S cap. 32. h 18 Edw. I. c. 1. i 2 Inst. 66. k 2 Inst. 67.

died without heirs of Kis blood, or if his blood was corrupted and stained by commission of treason or felony; whereby every inheritable quality was entirely blotted out and abolished. In such cases the land escheated, or fell back, to the lord of the fee1; that is, the tenure was determined by breach of the original condition, expressed or implied in the feodal donation. In the one case, there were no heirs subsisting of the blood of the first feudatory or purchaser, to which heirs alone the grant of the feud extended; in the other, the tenant, by perpetrating an atrocious crime, shewed that he was no longer to be trusted as a vasal, having forgotten his duty as a subject; and therefore forfeited his feud, which he held under the implied condition that he should not be a traitor or a felon. The consequence of which in both cases was, that the gift, being determined, resulted back to the lord who gave itm *.

These were the principal qualities, fruits, and consequences of the tenure by knight-service : a tenure by which the greatest part of the lands in this kingdom were holden, and that principally of the king in capite, till the middle of the last century; and which'was created, as sir Edward Coke expressly testifies", for a military purpose; viz. for defence of the realm by the king's own principal subjects, which was judged to be much better than to trust to hirelings or foreigners. The description here given, is that of knight-service proper; which was to attend the king in his wars. There were also some other species of knight-service; so called, though improperly, because the service or render was of a free and honourable nature, and equally uncertain as to the time of rendering as that of knight-service proper, and because, they were attended with similar

1 Co. Lite. 13. m Feud. I. 2. t. 86. n 4 Inst. 192.

1. Lands are still liable to escheat in Virginia, upon the total extinction of blood, or affinity, to the person dying seized : but this event is rendered so remote, that it can scarcely ever happen but in the case of an unknown foreigner, who has never married, or had a wife in Virginia, Acts of 1785, c. 60, Edi. 1794, c. 93. Escheats arising from the corruption of the blood of the tenant, by committing trear son or felony, are abolished; as no attainder can work a corruption of blood, either in the federal or state government. C. U. S. Art. 3. L. V. Oct. 1776. c. 3. 1789, c. 30, Edi. IT'94, c, 74,136,

fruits and consequences. Such was the tenure by grand serjeanty per magnum servitium, whereby the tenant was bound, instead of serving the king generally in his wars, to do some special honorary service to the king in person; as to carry his banner, his sword, or the like ; or to be his butler, champion, or other officer, at his coronation °. It was in most other respects like knight-service p ; only he was not bound to pay aid 1, or escuager; and, when tenant by knight-service paid five pounds for a relief on every knight's fee, tenant by grand serjeantry paid one year's value of his land, were it much or little ». Tenure by carnage, which was, to wind a horn when the Scots or other enemies entered the land, in order to warn the king's subjects, was (like other services of the same nature) a species of grand serjeantyl.

These services, both of chivalry and grand serjaanty-, were all personal, and uncertain as to their quantity or duration. But, the personal attendance in knight-service growing troublesome and inconvenient in many respects, the tenants found means of compounding for it; by first sending others in their stead, and in process of time making a pecuniary satisfaction to the lords in lieu of it. This pecuniary satisfaction at last came to be levied by assessments, at so much for every knight's fee; and therefore this kind of tenure was called scittagium in Latin, or servitium scuti; scutum being then a well-known denomination for money: and, in like, manner, it was called, in our Norman French, escuage; being indeed a pecuniary, instead of a military, service. The first time this appears to have been taken was in the 5 Hen. II, on account of his expedition to Toulouse ; but it soon came to be so universal, that personal attendance fell quite into disuse. Hence we find in our antient histories, that, from this period, when our kings went to war, they levied scutages on their tenants, that is, on all the landholders of the kingdom, to defray their expenses, and to hire troops: and these assessments, in the time of Henry II, seem to have been made arbitrarily and at the king's pleasure. Which prerogative being greatly abused by his successors, it became mutter of national

o Litt. Sec.l 53. p Ibid. Sec. 158.

q 2 Inst. 233- r Litt. Sec. 15$.

s Ibid. Sec. 154. t Ibid. Set. 156.

clamour; and king John was obliged to consent, by his magna carta, that no scutage should be imposed without consent of parliament". But this clause was omitted in his son Henry III's charter; where we only find w, that scutages or escuage should be taken as they were used to be taken in the time of Henry II: that is, in a reasonable and moderate manner. Yet afterwards by statute 25 Edw. I, c. 5 and 6, and many subsequent statutes x it was again provided, that the king should take no aids or tasks but by the common assent of the realm: hence it was held in our old books, that escuage or scutage could not be levied but by consent of parliament *; such scutages being indeed the groundwork of all succeeding subsidies, and the land-tax of later times.

Since therefore escuage differed from knight-service in nothing, but as a compensation differs from actual service, knight-service is frequently confounded with it. And thus Littleton * must be understood, when he tells us, that tenant by homage, fealty, and escuage, was tenant by knight-service: that is, that this tenure (being subservient to the military policy of the nation) was respected a as a tenure in chivalry b. But as the actual service was uncertain, and depended upon emergencies, so it was necessary that this pecuniary compensation should be equally uncertain, and depend on the assessments of the legislature suited to those emergencies. For had the escuage been a settled invariable sum payable at certain times, it had been neither more nor less than a mere pecuniary rent: and the tenure, instead of knight-service, would have then been of another kind, called sbcage c, of which we shall speak in the next chapter.

For the present I have only to observe, that by the degenerating of knight-service, or personal military duty, into escuage, or

u Nut/urn scutagimn ponatur in regno nostro, nisi per commune consi/ium regni nostii. cap. 12.

w Cap. 37. x See Vol. I. page 140.

y Old Ten. tit. Eicuage, 2 Sec. 103.

a Wright. 122.

b Profeoilo tnilitati ieputatur. Flet. /. 2. c. 14. Sec. 7.

e Litt. Sec. 97. 120.

pecuniary assesments, all the advantages (either promised or real) of the feodal constitution were destroyed, and nothing but the hardships remained. Instead of forming a national militia •composed of barons, knights, and gentlemen, bound by their interest, their honour, and their oaths, to defend their king and country, the whole of this system of tenures now tended to nothing else, but a wretched means of raising money to pay an army of occasional mercenaries. In the mean time, the families of all our nobility and gentry groaned under the intolerable burthens, which, (in consequence of the fiction adopted after the conquest) were introduced and laid upon them by the subtlety and finesse of the Norman lawyers. For, besides the scutages to which they were liable in defect of personal attendance, which,hovvever, were assessed by themselves in parliament, they might be called upon by the king or lord paramount for aids, whenever his eldest son was to be inighted or his eldest daughter married; not to forget the ransom of his own person. The heir, on the death of his ancestor, if of full age, was plundered of the first emoluments arising from his inheritance, by way of relief and primer seisin; and, if under age, of the whole of his estate during infancy. And then, as sir Thomas Snaithd, very feelingly complains, " when he came to his own, after he was out of -wardship, his woods decayed, houses fallen down, stock wasted and gone, lands let forth and ploughed to be barren," .to reduce him still farther, he was yet to pay half a year's profits as a fine for suing out his livery; and also the price or value of his marriage, if he refused such wife as his lord and guardian had bartered for, and imposed upon him ; or twice that value, if he married another woman. Add to this, the untimely and expensive honour of knighthood, to make his poverty more completely splendid. And when by these deductions his fortune was so shattered and ruined, that perhaps he was obliged to sell his patrimony, he had not even that poor privilege allowed him, without paying an exorbitant fine for a license of alienation.

A slavery so complicated, and so extensive as this, called aloud for a remedy in a nation that boasted of it's freedom. Pal-

d Commonw. 1. 3, c. 5.

liati ves were from time to lime applied by successive acts of parliament, which assuaged some temporary grievances. Till at length the humanity of king James I consented6, in consideration of a proper equivalent, to abolish them all; though the plan proceeded not to effect; in like manner as he had formed a scheme, and began to put it in execution, for removing the feodal grievance of heritable jurisdictions in Scotland*, which has since been pursued and effected by the statute 2O Geo. II. c. 43«. King James's plan for exchanging our military tenures seeins to have been nearly the same as that which has been since pursued; only with this difference, that, by way of compensation for the loss which the crown and other lords would sustain, an annual fee-farm rent was to have been settled and inseparably annexed to the crown, and assured to the inferior lords, payable out of every knight's fee within their respective seignories. An expedient, seemingly much better than the hereditary excise, which was afterwards made the principal equivalent for these concessions. For at length the military tenures, with all their heavy appendages (having during the usurpation been discontinued) were destroyed at one blow by the statute 12 Car. II. c. 24, which enacts, that the court of ward and liveries, and all wardships, liveries, primer seisins, and ouster-lemains, values and forfeitures of marriages, by reason of any tenure of the king or others, be totally taken away. And that all fines for alienations, tenures by homage, knights-service, and escuage, and also aids for marrying the daughter or knighting the son, and all tenures of the king in capite, be likewise taken away. And that all sorts of tenures, held of the king or others, be turned into free and common socage; save only tenures in frankalmoign, copyholds, and the honorary services (without the slavish part) of grand serjeant}'." A statute, which was a greater acquisition to the civil property of this kingdom than even magna carta itself: since that only pruned the luxuriances that had grown out of the military tenures, and thereby preserved them in vigour: but the

c 4 Inst. 202.

f Dalrymp. of feuds, 292.

g By another statute of the same year, (20 Geo. II. c. 50,) the tenure of^ v>ard-holdinj[ (equivalent to the knight-service of England) is for ever abolished in Scotland.

statute of king Charles extirpated the whole, and demolished both root and branches2.

2. Since military tenures were in force in England at the first settlement of the colony of Virginia, it may naturally be asked, if the laws relative thereto were not in force in the colony, and whether they have ever been formally abolished. The answer seems to be, that king Charles the second, by his charter bearing date October 10,1676, did expressly " declare and grant, that, for the encouragement of such of our subjects as shall from time to time go to dwell in the said plantation, there shall be assigned, out of the lands not already appropriated, to every person so coming to dwell, fifty acres, according as hath been used and allowed since the first plantation, to be held of us, our heirs and successors, as of our manor of East Greenwich within our county of Kent infrce and common socage," The charter of king James the first, and perhaps that of queen Elizabeth to sir Walter Raleigh, contain the same identical words*. The laws relative to military tenures not being adapted to colonists holding lands of the crown in free and common socage, were not necessarily a part of the colonial code, and were too oppressive ever to have been voluntarily adopted. Hence it will appear that the rigours of the feudal .system were never felt in the colonies, even at the time that the parent state groaned under their oppression.. .... We must not, however,

forget, that socage tenure, by which lands in Virginia were held, until the abolition of all feudal tenures in May, 1779, c. 13, was a branch, though the least burthensome, of JJiat oppressive system. See note, page 102.

* See Jefferson's Notes, p 197. Edi. Paris.

CHAPTER THE SIXTH.

OF THE MODERN ENGLISH TENURES.

ALTHOUGH, by the means that were mentioned in the preceding chapter, the oppressive or military part of the feodal constitution was happily done away, yet we are not to imagine that the constitution itself was utterly laid aside, and a new one introducedin it's room: since by the statute 12 Car. II. the tenures of socage and frankalmoign, the honorary services of grand serjeanty, and the tenure by copy of court roll were reserved; nay all tenures in general, except frankalmoign, grand serjeanty, and copy hold, were reduced to one general species of tenure, then well known and subsisting, called free and common socage *. And this, being sprung from the same feodal original as the rest, demonstrates the necessity of fully contemplating that antient system ; since it is that alone to which we can recur, to explain any seeming or real difficulties, that may arise in our present mode of tenure.

The military tenure, or that by knight-service, consisted of what were reputed the most free and honourable services, but which in their nature were unavoidably uncertain in respect to the time of their performance. The second species of tenure, orfree-socage, consisted also of free and honourable services ; but such as were liquidated and reduced to an absolute certainty. And this tenure not only subsists to this day, but has in a manner absorbed and swallowed up (since the statute of Charles the second) almost every other species of tenure. And to this we are next to proceed.

1. See the last note on the preceding chapter.

II. Socage, in it's most general and extensive signification, seems to denote a tenure by any certain and determinate service. And in this sense it is by our antient writers constantly put in opposition to chivalry, or knight-service, where the render was precarious and uncertain. Thus Bracton" ; if a man holds by a rent in money, without any escuage or serjeanty, " id tenementum did fotest socagium:" but if you add thereto any royal service, or escuage to any, die smallest, amount, "illiddici poterit feodem militare" So too the author of Fletab; " ex donationibus, servitia militaria vel magnae serjantiae non continentibus, oritur nobis quoddam nomen generate, quod est secaghimS' Littleton alsoc defines it to be, where the tenant holds his tenement of the lord by any certain service, in lieu of all other services ; so that they be not services of chivalry, or knight-service. And therefore afterwards"1 he tells us, that whatsoever is not tenure in chivalry is tenure in socage : in like manner as it is defined by Finch", a tenure to be done out of war. The service must therefore be certain, in order to denominate its socage ; as to hold by fealty and 20*. rent; or, by homage, fealty, and 20s. rent; or by homage and fealty without rent; or, by fealty and certain corporal service, as ploughing the lord's land for three days; or, by fealty only without any other service : for all these are tenures in socagef.

But socage, as was hinted in the last chapter, is of two sorts : y"cee-socage, where the services are not only certain, but honourable : and u/7/ezn-socage, where the services, though certain, are of a baser nature. Such as hold by the former tenure are called in Glanvill, and other subsequent authors, by the name of liberi sokemanni, or tenants in free-socage. Of this tenure we are first to speak ; and this, both in the nature of it's service, and the fruits and consequences, appertaining thereto, was always by much the most free and independent species of any .... And therefore I cannot but assent to Mr. Somner's etymology of the word1': who derives it from the Saxon appellation s<?c,

a /. 2. c. 16. Sec 9. c Sec. 117. e L. 147. g/. 3. c. 7.

b /. 3. c. 14. Sec. 9.

d Sec. 118.

fLitt. Sec. 117, 118,119.

h Gavclk. 138.

which signifies liberty or privilege, and, being joined to a usual termination, is called socage, in Latin socagium; signifying thereby a free or privileged tenure'. This etymology seems to be much more just than that of our common lawyers in general, who derive it from soca, an old Latin word denoting (as they tell us) a plough : for that in antient time this socage tenure consisted in nothing else but services of husbandry, which the tenant was bound to do to his lord, as to plough, sow, or reap for him; but that in process of time, this service was changed into an annual rent by consent of all parties, and that, in memory of it's original, it still retains the name of a socage or plough-service11. But this by no means agrees with what Littleton himself tells us1, that to hold by fealty only, without paying any rent, is tenure in socage; for here is plainly no commutation for plough-service. Besides, even services, confessedly of a military nature and original, (as escuage, which, while it remained uncertain, was equivalent to knight-service,) the instant they were reduced to a certainty changed both their name and nature, and were called socagem. It was the certainty therefore that denominated it a socage tenure; and nothing sure could be a greater liberty or privilege, than to have the service ascertained, and not left to the arbitrary calls of the lord, as in the tenures of chivalry. Wherefore also Britton, who describes lands in socage tenure under the name offraunke fcrme", tells us, that they are " lands and tenements, whereof the nature of the fee is changed " by feoffment out of chivalry for certain yearly services, and in " respect whereof neither homage, ward, marriage, nor relief " can be demanded." Which leads us also to another observation, that if socage tenures were of such base and servile original, it is hard to account for the very great immunities which the tenants of them always enjoyed ;'so highly superior to those of the tenants by chivalry, that it was thought, in the reigns of both Edward I and Charles II, a point of the utmost importance and value to the tenants, to reduce the tenure by knight-service

i In like manner Skene in his exposition of the Scots' law, title socage, tells us, that it is' ane kind of holding of lands, quhen ony man is infef tfreely,' tfc.

k Litt. Sec. 19. 1 Sec. 118.

k\ Litt. Sec. 98,120. n c. 66.

tofraunkeferme or tenure by socage. We may therefore, I think, fairly conclude in favour of Somner's etymology, and the liberal extraction of the tenure in free socage, against the authority even of Littleton himself.

Taking this then to be the meaning of the word, it seems probable that the socage tenures were the relics of Saxon liberty; retained by such persons as had neither forfeited them to the king, nor been obliged to exchange their tenure, for the more honourable, as it was called, but at the same time more burthensome, tenure of knight-service. This is peculiarly remarkable in the tenure which prevails in Kent, called gavelkind, which is generally acknowledged to be a species of socage tenure0 ; the preservation whereof inviolate from the innovations of the Norman conqueror is a fact universally known. And those who thus preserved their liberties were said to hold in free and common socage2.

As, therefore, the grand criterion and distinguishing mark of this species of tenure are, the having it's renders or services ascertained, it will include under it all other methods of holding free lands by certain and invariable rents and duties: and, in. particular, petit serjeanty, tenure in bur gage, and gavelkind.

We may remember, that by the statute 12 Car. II. grand serjeanty is not itself totally abolished, but only the slavish appendages belonging to it; for the honorary services (such as carrying the king's sword or banner, officiating as his butler, carver, &?c. at the coronation) are still reserved. Now petit serjeanty bears a great resemblance to grand serjeanty ; for as the one is a personal service, so the other is a rent or render, both tending to some purpose relative to the king's person. .... Petit serjeanty, as defined by LittletonP, consists in holding lands of the king by the service of rendering to him annually, some small implement of war, as a bow, a sword, a lance, an

o Wright. 211

p Sec. 159.

2. See the notes before on this subject, p. 43, 47, and 77.

arrow, or the like5. This, he says"J, is but socage in effect; for it is no personal service, but a certain rent: and, we may add, it is clearly no predial service, or service of the plough, but in all respects llberum et 'commune socagium; only being held of the king, it is by way of eminence dignified with the title ofparvum servitium regis, or petit serjeant)'. And magna carta respected it in this light, when it enactedr, that no wardship of the lands or body should be claimed by the king in virtue of a tenure by petit serjeanty.

Tenure in burgage is described by Glanvil", and is expressly said by Littleton1, to be but tenure in socage ; and it is where the king or other person is lord of an antient borough, in which the tenements are held by a rent certain". It is indeed only a kind of town socage; as common socage, by which other lands are holden, is usually of a rural nature. A borough, as we have formerly seen, is usually distinguished from other towns by the right of sending members to parliament: and, where the right of election is by burgage tenure, that alone is a proof of the antiquity of the borough. Tenure in burgage, therefore, or burgage tenure, is where houses, or lands, which were formerly the scite of houses, in an antient borough, are held of some lord in common socage, by a certain established rent. And these seem to have withstood the shock of the Norman encroachments principally on account of their insignificancy, which made it not worth while to compel them to an alteration of tenure; as an hundred of them put together would scarce have amounted to a knight's fee. Besides, the owners of them, being chiefly artificers and persons engaged in trade, could not, with any tolerable propriety, be put on such a military establishment, as the tenure in chivalry was. And here also we have again an instance, where a tenure is confessedly in socage, and yet could not possibly have been held by plough-service; since the tenants must have been

q Sec. 160.

s lib. 7. cap. 3.

u Lite. Sec- 162, 163.

r cap. 27. t Sec. 162.

3. The tributary Indians settled in some of the lower parts of Virginia, hold their lands by a similar render of a bow and arrows, either annually, or once in three or four years, in lieu of all other services.

citizens or burghers, the situation frequently a walled town, the tenement a single house; so that none of the owners was probably master of a plough, or was able to use one if he had it. The free socage, therefore, in which these tenements are held, seems to be plainly a remnant of Saxon liberty; which may also account for the great variety of customs, affecting many of these tenements so held in antient burgage: the principal and most remarkable of which is that called Borough-English, so named in contradistinction, as it were, to the Norman customs, and which is taken notice of by Glanvilw, and by Littlcton* : viz. that the youngest son, and not the eldest, succeeds to the burgage tenement on the death of his father4. For which Littletony gives this reason ; because the younger son, by reason of his tender age, is not so capable as the rest of his brethren to help himself .... Other authors2 have indeed given a much stranger reason for this custom, as if the lord of the fee had antiently a right of concubinage with his tenant's wife on her wedding night; and that therefore, the tenement descended not to the eldest, but the youngest son; who was more certainly the offspring of the tenant. But I cannot learn that ever this custom prevailed in England, though it certainly did in Scotland, (under the name ofmercheta or marcheta) till abolished by Malcolm III*. And perhaps a more rational account than either may be fetched (diough at a sufficient distance) from the practice of the Tartars; among whom, according to father Duhalde, this custom of descent to the youngest son also prevails. That nation is composed totally of shepherds and herdsmen; and the elder sons, as soon as they are capable of leading a pastoral life, migrate from their fadier with a certain allotment of cattle; and go to seek a new habitation. The youngest son, therefore, who continues latest with the father, is naturally the heir of his house, the rest being already provided for. And thus we find that, among many other north.

w ubi supra. x Sec. 165. y Sec. 211. z 3 Mod. Pref. a Seld. tit. of hon. 2. 1. 47. Reg. Mag. I. 4. c. 31.

4. As this species of tenuue dependent upon local and accidental circumstances and customs, it could never have obtained in Virgiginia, even if the colonial charters had been silent on the subject of the tenure of lands. See note 7. p. 36.

em nations, it was the custom for all the sons but one to migrate from the father, which one became his heirb. So that possibly this custom, wherever it prevails, may be the remnant of that pastoral, state of our British and German ancestors, which Caesar and Tacitus describe. Other special customs there are in different burgage tenures; as that, in some, the wife shall be endowed of all her husband's tenements0, and not of the third part only, as at the common law: and that, in others, a man may dispose of his tenements by willd, which, in general, was not permitted after the conquest till the reign of Henry the eighth; though in the Saxon times it was allowable6. A pregnant proof that these liberties of socage tenure were fragments of Saxon liberty.

The nature of the tenure in gavelkind affords us a still stronger argument *. It is universally known what struggles the Kentish men made to preserve their antient liberties and with how much success those struggles were attended. And as it is principally here that we meet with the custom of gavelkind, (though it was and is to be found in some other parts of the kingdom f ) we may fairly conclude that this was a part of those liberties; agreeably to Mr Selden's opinion, that gavelkind before the Norman conquest was the general custom of the realms. The distinguishing properties of this tenure are various: some of the principal are these; 1. The tenant is of age sufficient to aliene his estate by feoffment at the age of fifteenh. 2. The estate does not escheat in case of an attainder and execution for felony: their maxim being, " the father to the bough, the son to " the plough'." 3. In most places he had a power of devising lands by will, before the statute for that purpose was made k.

b Pater cunctos Jilios adultos a se petlebat, praeter unum quern baeredem sue juris relinquebat. fWalsingb. Upodigm. Neustr. c. 1.)

c Litt. Sec. 166. d Sec. 167. e Wright. 172.

£ Stat. 32 Hen. VIII, c. 29, Kitch. of courts, 200.

g In toto regno ante duds adixntimiffrequens et usitatafuit: posted caeterit adempta, sed privatis quoruiulam locorum consuetudinibus alibi posted regerminans: Car.tianis solum Integra etinviolata remanslt. (Z Anetcct. I. 2. c. T.)

h Lamb. Peramb. 614. i Lamb. 614

k F. N. B. 198. Cro. Car. 561.

5. This species of tenure also, depending upon local and accidental circumstances never had existence in Virginia.

4. The lands descend, not to the eldest, youngest, or any one son only, but to all the sons together' ; which was indeed antiently the most usual course of descent all over England m, though in particular places, particular customs, prevailed. These, among other properties, distinguished this tenure in a most remarkable manner: and yet it is said to be only a species of a socage tenure, modified by the custom of the country ; the lands being holden by suit of court and fealty, which is a service in it's nature certain ". Wherefore, by a charter of king John0, Hubert archbishop of Canterbury was authorised to exchange the gavelkind tenures holden of the see of Canterbury into tenures by knight's-service; and by statute 31 Hen. VIII, c. 3. for disgavelling the lands of divers lords and gentlemen in the county of Kent, they are directed to be descendible for the future like other lands which were never holden by service of socage. Now the immunities which the tenants in gavelkind enjoyed were such, as we cannot conceive shoud be conferred upon mere ploughmen and peasants : from all which I think it sufficiently clear, that tenures in free socage are in general of a nobler original than is assigned by Littleton, and after him by the bulk of our common lawyers.

Having thus distributed and distinguished the several species of tenure in free socage, I proceed next to shew that this also partakes very strongly of the feodal nature. Which may probably arise from it's antient Saxon original; since (as was before observed p) feuds were not unknown among the Saxons, though they did not form a part of their military policy, nor were drawn out into such arbitrary consequences as among the Normans. It seems therefore reasonable to imagine, that socage tenure existed in much the same state before the conquest as after; that in Kent it was preserved with a high hand, as our histories inform us it was; and that the rest of the socage tenures dispersed through England escaped the general fate of other property, partly out of favour and affection to their particular owners, and partly from their own insignificancy: since I

1 Lit, Sec. 210. n Wright. 211. p Page 48.

m Glanvil. /. 7. c. 3.

o Spelm. cod, vet. leg. 355.

do not apprehend the number of socage tenures soon after the conquest to have been very considerable, nor their value by any means large ; till by successive charters of enfranchisement granted to the tenants, which are particularly mentioned by Britton 1, their number and value began to swell so far, as to make a distinct, and justly envied, part of our English system of tenures.

However this may be, the tokens of their feodal original will evidently appear from a short comparison of the incidents and consequences of socage tenure with those of tenure in chivalry ; remarking their agreement or difference as we go along.

1. In the first place, then, both were held of superior lords; one of the king, either immediately, or as lord paramount, and (in the latter case) of a subject or mesne lord between the king and the tenant6.

2. Both are subject to the feodal return, render, rent, or service of some sort or other, which arose from a supposition of an original grant from the lord to the -tenant. In the military tenure, or more proper feud, this was from it's nature uncertain ; in socage, which was a feud of the improper kind, it was certain, fixed, and determinate, (though perhaps nothing more than bare fealty) and so continues to this day7.

3. Both were, from their constitution, universally subject (over and above all other renders) to the oath of fealty, or mu-

q c. 66.

6. All the landholders in Virginia, except those in the northern neck held immediately of the king, in free and common socage see note page 77. The landholders in the northern neck held immediately of the proprietor of that territory, but mediately of the king as lord paramount of the soil, V. L. 1736, c. 3 .... 1748, c. 41. Edi. 1794, c. 3, 4.

7. Lands in Virginia, holden of the crown were subject to a quit rent of two shillings sterling for every hundred acres ; together with a reservation of one fifth of all royal mines which should be found therein. These were abolished in May 1776, c. 13. The proprietary tenants in the northern neck were also subject to a similar quit-rent, &c. 1736, c. 3. 1748, c. 41. Edi. 1794, c. 3, 4. •

tual bond of obligation between the lord and tenantr. Which oath of fealty usually draws • after it suit to the lord's court8. And this oath every lord, of whom tenements are holden at this day, may and ought to call upon his tenants to take in his court baron ; if it be only for the reason given by Littleton % that if it be neglected, it will by long continuance of time grow out of memory (as doubtless it frequently hath done) whether the land be holden of the lord or not j and so he may lose his seignory, and the profit which may accrue to him by escheats and other contingencies'.

4. The tenure in socage was subject, of common right, to aids9 for knighting the son and marrying the eldest daughter": which were fixed by the statute Westm. 1. c. 36, at 20*. for every 20/. per annum so held; as in knight-service. These aids, as in tenure by chivalry, were originally mere benevolences, though afterwards claimed as matter of right; but were all abolished by the statute 12 Car. II,

5. Relief is due upon socage tenure, as well as upon tenure in chivalry: but the manner of taking it is very different. The relief on a knight's fee was 5 /. or one quarter of the supposed value of the land ; but a socage relief is one year's rent or render, payable by the tenant to the lord, be the same either great or small w; and, therefore, Bracton" will not allow this to be properly a relief, but quaedam praestatio loco relevii in recogniti-

r Litt. §. 117,131. s§. 130.

t Eo maximc praestandum est, tie dubium reddatur jus damini et vetuttatc temporii obscuretur. ( Coroin. jus feod. I. 2. t, 7.J

u Co. Litt. 91. w Litt. Sec. 126, x /. 2, c. 37, Sec. 8.

8. The proprietors of the northern neck, among other franchises, were authorised to hold courts baron, tovestablish manors, 8cc. I believe these powers were never exercised in any great extent, as no court-baron was ever established, that I have heard of. The oath of fealty seems to have been perfectly obsolete in this country, and if the right of exacting it, ever did exist here, it was abolished, May 1779, c. 13.

9. As the lands in Virginia were held immediately from the crown, this incident to socage tenure could never have existed in Virginia.

onemdomini. So too the statute 28 Edw. I. c. 1, declares, that a free sokeman shall give no relief, bj.it shall double his rent after the death of his ancestor, according to that which he hath used to pay his lord, and shall not be grieved above measure. Reliefs in knight-service were only payable, if the heir at the death of his ancestor was of full age : but in socage they were due even though the heir was under age, because the lord has no wardship over him ?. The statute of Charles II, reserves the reliefs incident to socnge tenures ; and, therefore, wherever lands in fee simple are holden by a rent, relief is still due of common right upon the death of a tenant110.

6. Primer seisin was incident to the king's socage tenants in capite, as well as to those by night-service a. But tenancy in capite as well as primer seisins are, among the other feodal burthens, entirely abolished by the statute11.

7. Wardship is also incident to tenure in socage ; but of a nature very different from that incident to knight-service. For if the inheritance descend to an infant under fourteen, the wardship of him does not, nor ever did, belong to the lord of the fee; because, in this tenure, no military or other personal service being required, there was no occasion for the lord to take the profits, in order to provide a proper substitute for his infant tenant: but his nearest relation (to whom the inheritance cannot descend) shall be his guardian in socage, and have the custody of his land and body till he arrives at the age of fourteen. The guardian must be such a one, to whom the inheritance" by no possibility can descend; as was fully explained, together with the reasons for it, in the former book of these commentaries1112.

y Lift. Sec. 127. z 3 Lev. 145. a Co. Lift. 77. b Vol. I, p. 461.

10. Charles II, by his Charter, granted to the people of Virginia that all lands escheated might be relieved on paying a composition of two pounds of tobacco, per acre. This was certainly a very high composition. It was abolished, May 1779, c. 13.

11. Primer seisins, do not appear to have been reserved, or exacted in Virginia.

12. Guardians in socage arc expressly recognized by our laws .... 1748, c, 2. 1794, c. 95. Yet it may at this day be doubted who such guardian in socage shall be.

At fourteen this wardship in socage ceases; and the heir may oust the guardian, and call him to account for the rents and profits'1 : for at this age the law supposes him capable of chusing a guardian for himself. It was in this particular, of wardship, as also in that of marriage,and in the certainty of the render or service, that the socage tenures had so much the advantage of the military ones. But as the wardship ceased at fourteen, there was this disadvantage attending it; that young heirs, being left at so tender an age to chuse their own guardians till twenty-one, might make an improvident choice. Therefore, when almost all the lands in the kingdom were turned into socage tenures, the same statute 12 Car. II, c. 24, enacted, that it should be in . the power of any father by will to appoint a guardian, till his child should attain the age of twenty-one. And, if no such appointment be made, the court of chancery will frequently interpose, and name a guardian, to prevent an infant heir fromimprovidently exposing himself to ruin ".

8. Marriage, or the valor maritagil, was not in socage tenure any perquisite or advantage to the guardian, but rather the reverse. For, if the guardian married his ward under the age of fourteen, he was bound to account to the ward for the value of the marriage, even though he took nothing for it, unless he married him to advantage d. For, the law, in favour of infants, is always jealous of guardians, and, therefore, in this case it made them account, not only for what they did, but also for what they might, receive on the infant's behalf; lest by some collusion the guardian should have received the value, and not brought it to account: but, the statute having destroyed all values of marriages, this doctrine of course hath ceased with them. At fourteen years of age the ward might have disposed of himself in marriage, without any consent of his guardian, till the late act for preventing clandestine marriages". These doctrines of wardship and marriage in socage tenure were so diametrically opposite to those in knight-service, and so entirely agree with

c Litt. Sec. 123, Co. Litt. 89.

d Litt. Sec. 123.

13. L. V. 1748, c. 2. 1785, c. 8G. 1794, c. 9Jf. Accordant.

14. L. V. 1794, c. 104, requires the consent of the guardian till the age of twenty-one years.

those parts of king Edward's laws, that were restored by Henry the first's charter, as might alone convince us that socage was of a higher original than the Norman conquest.

9. Fines for alienation were, I apprehend, due for lands holden of the king in capite by socage tenure, as well as in case of tenure by knight-service : for the statutes that relate to this point, and sir Edward Coke's comment on then?.e, speak generally of all tenants in capita, without making any distinction: but now all fines for alienation are demolished by the statute of Charles the second15.

10. Escheats are equally incident to tenure in eocage, as they were to tenure by knight-service : except only in gavel-kind land, which are, (as is before mentioned) subject to no escheats for felony, though they are to escheats for want of heirs'16.

Thus much for the two grand species of tenure, under which almost all the free lands of the kingdom were holden till the restoration in 1660, when the former was abolished and sunk into the latter: so that lands of both sorts are now holden by the one universal tenure of free and common socage.

The other grand division of tenure, mentioned by Bracton as cited in the preceding chapter, is that of villenage, as contradistinguished from liberum tenementum, or frank-tenure. And this (we may remember) he subdivides into two classes, pure and privileged villenage: from whence have arisen two other specjes of our modern tenures.

III. From the tenure of pure villenage have sprung our present copyhold tenures, or tenure by copy of court roll at the

e 1 Inst. 43, 2 Inst. 65. 66, 6"._____f Wright, 210.______ __

15. Fines for alienation appear not to have been due in Virginia.

16. Lands are still liable to esr.lieat in Virginia, for want of heirs, though the event by which an escheat may happen must, under our present laws rarely happen. C. V. Art. 20. L. V. 1794, c. 82, c. 93, }. 14. As there can be no corruption of blood, in consequence of an attainder for felony, escheats can no longer happen on that account.. ....

Edi. 1794, c. 74. C. U. S. Art. 3. L. U. S. 1 Coiig. 2 Suss. c. 9.

will of the lord " : in order to obtain a clear idea of which, it will be previously necessary to take a short view of the original and nature of manors.

Manors are in substance as antient as the Saxon constitution, though perhaps differing a little, in some immaterial circumstances, from those that exist at this day b : just as we observed of feuds, that they were partly known to our ancestors, even before the Norman conquest. A manor manerium, a manendo, because the usual residence of the owner, seems to have been a district of ground, held by lords, or great personages ; who kept in their own hands so much land as was necessary for the use of their families, which were called terrae dominicales or demesne lands ; being occupied by the lord, or dominus manerii, and his servants. The other, or tenemental, lands they distributed among their tenants: which from the different modes of tenure were distinguished by two different names. First, book-land^ or charter land, which was held by deed under certain rents and free services, and in effect differed nothing from free socage lands h: and from hence have arisen most of the freehold tenants who hold of particular manors,and owe suit and service to the same. The other species was csl\\z& folk-right, which was held by no assurance in writing, but distributed among the common folk or people at the pleasure of the lord, and resumed at his discretion ; being indeed land held in villenage, which we shall presently describe more at large. The residue of the manor, being uncultivated, was termed the lord's waste, and served for public roads, and for common of pasture to the lord and his tenants. Manors were formerly called baronies, as they still are lordships : and each lord or baron was empowered to hold a domestic court, called the court-baron, for redressing misdemesnors and nuisances within the manor, and for settling disputes of property among the tenants. This court is an inseparable ingredient of every manor ; and if the number of suitors should so fail as not to leave sufficient to make a jury or homage, that is, two tenants at the least, the manor itself is lost.

g Co. Cop. Sec. 2 {•)• 10.

h Ibid. Sec. 3.

17. Copyholds are entirely unknown to the laws of Virginia.

In the early times of our legal constitution, the king's greater barons, who had a -large extent of territory held under the crown, granted out frequently smaller manors to inferior persons to be holden of themselves; which do therefore now continue to be held under a superior lord, who is called in such cases the lord paramount over all these manors; and his seignory is frequently termed an honour, not a manor, especially if it hath belonged to an antient feodal baron, or hath been at any time in the hands of the crown. In imitation whereof, these inferior lords began to carve out and grant to others still more minute estates, to be held as of themselves, and were so proceeding downwards in infinitum ; till the superior lords observed, that by this method of subinfeudation they lost all their feodal profits, of wardships, marriages, and escheats, which fell into the hands of these mesne or middle lords, who were the immediate superiors of the terre-tenant, or him who occupied the land : and also that the mesne lords themselves were so impoverished thereby, that they were disabled from performing their services to their own superiors. This occasioned, first, that provision in the thirty-second chapter of magna carta, 9 Hen. III. (which is not to be found in the first charter granted by that prince, nor in the great charter of king John') that no man should either give or sell his land, without reserving sufficient to answer the demands of his lord; and, afterwards the statute of Westm. 3, or quia emptores, 18 Edw. I. c. 1, which directs, that, upon all sales and feoffments of land, the feoffee shall hold the same, not of his immediate feoffbr, but of the chief lord of the fee, of whom such feoffor himself held it. But these provisions, not extending to the king's own tenants in captte, the like law concerning them is declared by the statutes of prerogativa regis, 17 Ed. II. c. 6, and of 34 Edw. III. c. 15, by which last all subinfeudations, previous to the reign of king Edward I, were confirmed: but all subsequent to that period were left open to the king's prerogative. And from hence it is clear, that all manors existing at this day, must have existed as early as king Edward the first: for it is essential to a manor, that there be tenants who hold of the lord; and, by the operation of these statutes, no tenant in capite since the accession of that i See the Oxford editions of the charters.

prince, and no tenant of a common lord since the statute oiquia emptores, could create any new tenants to' hold of himself.

Now with regard to the folk-land, or estates held in villcnage, this was a species of tenure neither strictly feodal, Norman, or Saxon; but mixed and compounded of them allk: and which also, on account of the heriots that usually attend it, may seem to have somewhat Danish in it's composition. Under the Saxon government there were, as sir William Temple speaks', a sort of people in a condition of downright servitude, used and employed in the most servile works, and belonging, both they, their children, and effects, to the lord of the soil, like the rest of the cattle or stock upon it. These seem to have been those who held what was called the folk-land, from which they were removable at the lord's pleasure. On the arrival of the Normans here, it seems not improbable, that they, who were strangers to any other than a feodal state, might give some sparks of enfranchisement to such wretched persons as fell to their share, by admitting them, as well as others, to the oath of fealty, which conferred a right of protection, and raised the tenant to a kind of estate superior to downright slavery, but inferior to every other condition m. This they called villenage, and the tenants villeins, either from the word vilis, or else, as sir Edward Coke tells us n, « villa; because they lived chiefly in villages, and were employed in rustic works of the most sordid kind: resembling the Spartan helotes, to whom alone the culture of the lands was consigned; their rugged masters, like our northern ancestors, esteeming war the only honorable employment of mankind.

These villeins, belonging principally to lords of manors, were either villeins regardant, that is, annexed to the manor or land : or else they were in gross, or at large, that is, annexed to the person of the lord, and transferrable by deed from one owner to another". They could not leave their lord without his permission ; but, if they ran away, or were purloined from him, might be claimed and recovered by action, like beasts or other chat-

' k Wright. 215. < 1 Introd. Hist. Engl. 59. mWright, 217. n 1 Inst. 116. o Litt. Sec. 181.

tels 1S. They held indeed small portions of land by way of sustaining themselves and families; but it was at the mere will of the lord, who might dispossess them whenever he pleased ; and it was upon villein services, that is, to carry out dung, to hedge and ditch the lord's demesnes, and any other the meanest offices!1: and their services were not only base, but uncertain both as to their time and quantity"). A villein, in short, was in much the same state with us, as Lord Molesworth r describes to be that of the boors in Denmark, and which Stiernhook» attributes also to the traals or slaves in Sweden ; which confirms the probability of their being in some degree monuments of the Danish tyranny. A villein could acquire no property either in lands or goods : but, if he purchased either, the lord might enter upon them, oust the villein, and seise them to his own use, unless he contrived to dispose of them again before the lord had seised them ; for the lord had then lost his opportunity'.

In many places also a fine was payable to the lord, if the villein presumed to marry his daughter to any one without leave from the lord u: and, by the common law, the lord might also bring an action against the husband for damages in thus purloining his property w. For the children of villeins were also in the same state of bondage with their parents ; whence they were called in Latin, nativi19, which gave rise to the female appellation of a villein, who was called a neife*. In case of a marriage between a freeman and a neife, or a villein and a freewoman, the

p Litt. Sec. 172.

q Ille f/ui tenet in mllenagiofaciet quicquid et praceptunifoent, nee tcire debet sero quidfacere debet in crastino, et semper tenebitur ad incerta. Bracton, /. 4. tr. 1. c. 28.)

r c. 8. s dcjure Suomim, I. 2.- c. 4.

t Litt. Sec. 177. u Co. Litt. 140.

w Litt. Sec. 202. x Litt. Sec 187.

18. Thus far villeins appear to resemble slaves in Virginia, when the laws had declared them to be real estate. See V. L. 1705, c. 3. 1727,c. 4. Sec. 12. Edi. 1769.

19. That villeins were stiled nativi in Latin, creates a strong presumption that all the natives of England, were at one period or other reduced to that condition. See 1 Inst. 116. a. 307. a. Barrington on the Statutes, viz. Magna Charta, c. 4, as also vol. 4, p. 419, 420, of the Commentaries. Appendix to vol. 1» part 2, note H.

issue followed the condition of the father, being free if he was free, and villein if he was villein ; contrary to the maxim of the civil law, that partus sequitur ventrem. But no bastard could be born a villein, because by another maxim of our law he is nullius JiKus; and as he can gain nothing by inheritance, it were hard that he should lose his natural freedom by it y. The law, however, protected the persons of villeins, as the king's subjects, against atrocious injuries of the lord: for he might not kill, or maim his villein x; though he might beat him with impunity, since the villein had no action or remedy at law against his lord, but in case of the murder of his ancestor, or the maim of his own person. Neifes indeed had also an appeal of rape, in case the lord violated them by force».

Villeins might be enfranchised by manumission, which is cither express or implied: express ; as where a man granted to the villein a deed of manumission b : implied ; as where a man bound himself in a bond to his villein for a sum of money, granted him an annuity by deed, or gave him an estate in fee, for life or years0; for this was dealing with his villein on the footing of a freeman, it was in some of the instances giving him an action against his lord, and in others vesting in him an ownership entirely inconsistent with his former state of bondage. So also, if the lord brought an action against his villein, this enfranchised him d; for, as the lord might have a short remedy against his villein, by seising his goods, (which was more than equivalent to any damages he could recover) the law, which is- always ready to catch at any thing in favour of liberty,presumed, that by bringing this action he meant to set his villein on the same footing with himself, and therefore held it an implied manumission. But, in case the lord indicted him for felony, it was otherwise ; for the lord could not inflict a capital punishment on his villein, without calling in the assistance of the law.

Villeins, by these and many other means, in process of time gained considerable ground on their lords ; and, in particular, strengthened the tenure of their estates to that degree, that they

y Litt. Sec. 187,183. z Ibid. Sec. 189, 194.

a Ibid. Sec. 190. b Ibi'I. Sec. 204.

c Sec. 204, 5, 6. A Sec. 208.

came to have in them an interest in many places full as good, in others better than their lords. For the good-nature and benevolence of many lords of manors having, time out of mind, permitted their villeins and their children to enjoy their possessions without interruption, in a regular course of descent, the common law, of which custom is the life, now gave them title to prescribe against their lords; and, on performance of the same services, to hold their lands, in spightof any determination of the lord's will. For, though in general they are still said to hold their estates at the will of the lord, yet it is such a will as is agreeable to the custom of the manor; which customs are preserved and evidenced by the rolls of the several courts baron in which they are entered, or kept on foot by the constant immemorial usage of the several manors in which the lands lie. And, as such tenants had nothing to shew for their estates but these customs, and admissions in pursuance of them, entered on those rolls, or the copies of such entries witnessed by the steward, they now began to be called tenants by copy of court roll, and their tenure itself a copyhold'.

Thus copyhold tenures, as sir Edward Coke observes f, although very meanly descended, yet come of an ancient house j for, from what has been premised, it appears, that copyholders are in truth no other but villeins, who, by a long series of immemorial encroachments on the lord, have at last established a customary right to those estates, which before were held absolutely at the lord's will. Which affords a very substantial reason for the great variety of customs that prevail in different manors, with regard both to the descent of the estates, and the privileges belonging to the tenants. And these encroachments grew to bo so universal, that when tenure in villenage was virtually abolished, (though copyholds were reserved) by the statute of Charles II, there was hardly a pure villein left in the nation. For sir Thomas Smith * testifies, that in all his time (and he was secretary to Edward VI) he never knew any villein in gross throughout the realm ; and the few villeins regardant that were then remaining were such only as had belonged to bishops, monasteries, e F. N. li. 12. f Cop. Sec. 32. £ Commonwealth, b. 3, c. 10.

or other ecclesiastical corporations, in the preceding times of popery. For he tells us, that" the holy fathers, monks, and friars, had in their confessions, and specially in their extreme and deadly sickness, convinced the laity how dangerous a practice it was (for one Christian man to hold another in bondage: so that temporal men, by little and little, by reason of that terror in their consciences, were glad to manumit all their villeins. But the said holy fathers, with the abbots and priors, did not in like sort by theirs ; for they also had a scruple in conscience to empoverish and despoil the church so much, as to manumit such as were bond to their churches, or to the manors which the church had gotten ; and so kept their villeins still." By these several means the generality of villeins in the kingdom have long ago sprouted up into copyholders : their persons being enfranchised by manumission or long acquiescence; but their estates, in strictness, remaining subject to the same servile conditions and forfeitures as before ; though, in general, the villein services are usually commuted for a small pecuniary quit-rent11.

As a farther consequence of what has been premised, we may collect these two main principles, which are held * to be the supporters of the copyhold tenure, and without which it cannot exist; 1. That the lands be parcel of, and situate within that manor, under which it is .held. 2. That they have been demised, or demisable, by copy of court roll immemorially. For immemorial custom is the life of all tenures by copy; so that no new copyhold can, strictly speaking, be granted at this day.

In some manors, where the custom hath been to permit the heir to succeed the ancestor in his tenure, the estates are stiled copyholds of inheritance; in others, where the lords have been more vigilant to maintain their rights, they remain copyholds for

h In some manors the copyholders were bound to perform the most servile offices, as to hedge and ditch the lord's grounds, to lop his trees, and reap his corn, and the like; the lord usually finding them meat and drink, and sometimes (as is still the use in the highlands of Scotland) a minstrel or piper for their diversion. (Roil. Maner. rle JEdgware Com. Midd.) As in the kingdom of Whidah, on the slave coast of Africa, the people are bound to cut and carry in the king's corn from off his demesne lands, and are attended by music during all the time of theirlabour. (Mod. Un. Hist. xvi. 439.)

i Co. Litt. 58.

life only: for the custom of the manor has in both cases so far superseded the will of the lord, that, provided the services he performed or stipulated for by fealty, he cannot, in the first instance, refuse to admit the heir of his tenant upon his death; nor, in the second, can he remove his present tenant so long as he lives, though he holds nominally by the precarious tenure of his lord's will.

The fruits and appendages of a copyhold tenure, that it hath in common with free tenures, are fealty, services, (as well in rents as otherwise) reliefs, and escheats. The two latter belong to copyholds of inheritance; the former to those for life also. But, besides these, copyholds have also heriots, wardship, and fines. Heriots, which I think are agreed to be a Danish custom, and of which we shall say more hereafter k, are a render of the best beast or other good (as the custom may be) to the lord on the death of the tenant. This is plainly a relic of villein tenure ; there being originally less hardship in it, when all the goods and chattels belonged to the lord, and he might have seised them even in the villein's lifetime. These are incident to both species of copyhold; but wardship and fines to those of inheritance only. Wardship, in copyhold estates, partakes both of that in chivalry and that in socage. Like that in chivalry, the lord is the legal guardian; who usually assigns some relation to the infant tenant to act in his stead: and he, like guardian in socage, is accountable to his ward for the profits. Of fines, some are in the nature of primer seisins, due on the death of each tenant, others are mere fines for alienation of the lands j in some manors, only one of these sorts can be demanded, in some both, and in others neither. They are sometimes arbitrary and at the will of the lord, sometimes fixed by custom: but, even when arbitrary, the courts of law, in favour of the liberty of copyholders, have tied them down to be reasonable in their extent; otherwise they might amount to a disherison of the estate. No fine therefore is allowed to be taken upon descents and alienations, (unless in particular circumstances) of more than two years improved value of the estate k k. From this instance we may judge of the favourable disposition of that law of England

k Sec cli. 28.

kk2Ch, Uep.154.

(which is a law of liberty) hath always shewn to this species of tenants ; by removing, as far as possible, every real badge of slavery from them, however some nominal ones may continue. It suffered custom very early to get the better of the express terms upon which they held their lands; by declaring, that the will of the lord was to be interpreted by the custom of the.manor: and where no custom has been suffered to grow up to the prejudice of the lord, as in this case of arbitrary fines, the law itself interposes with an equitable moderation, and will not suffer the lord to extend his power so far, as to disinherit the tenant.

Thus much for the antient tenure of pure villenage, and the modern one of copyhold at the will of the lord, which is lineally descended from it.

IV. There is yet a fourth species of tenure, described by Bracton under the name sometimes of privileged villenage, and sometimes of villein-socage20. This, he tells us', is such as has been held of the kings of England from the conquest downwards: that the tenants herein, " villanafaciunt servitia, sed cer.ta et determinate ;'' that they cannot aliene or transfer their tenements by grant or feoffment, any more than pure villeins can: but must surrender them to the lord or his steward, to be again granted out and held in villenage. And from these circumstances we may collect that what he here describes is no other than an exalted species of copyhold, subsisting at this day, viz. the tenure in antient demesne; to which, as partaking of the baseness of villenage in the nature of it's services, and the freedom of socage in their certainty, he has therefore given a name compounded out of both, and calls it villamtm socagium.

Antient demesne consists of those lands or manors, which, though now perhaps granted out to private subjects, were actually in the hands of the crown in the time of Edward the confessor, or William the conqueror; and so appear to have been by the great survey in the exchequer called domesday-book01. The

1 /. 4. tr. 1. c. 28. m F. N. IJ. 14.16.

20. This species of tenure never had existence in Virginia.

tenants of these lands, under the crown, were not all of the same order or degree. Some of them, as Britton testifies", continued for a long time pure and absolute villeins, dependent on the will of the lord: and those who have succeeded them in their tenures now differ from common copyholders in only a few points0. .... Others were in great measure franchised by the royal favour: being only bound in respect of their lands to perform some of the better sort of villein services, but those determinate and certain ; as, to plough the king's land for so many days, to supply his court with such a quantity of provisions, or other stated services ; all of which are now changed into pecuniary rents: and in consideration hereof they had many immunities and privileges granted to them?; as, to try the right of their property in a peculiar court of their own, called a court of antient demesne, by a peculiar process denominated a writ of right close* ; not to pay toll or taxes; not to contribute to the expences of knights of the shire; nor to be put on juries; and the liker.

These tenants therefore, though their tenure be absolutely copyhold, yet have an interest equivalent to a freehold: for, notwithstandingtheir services were of a base and villenous original', yet the tenants were esteemed in all other respects to be highly privileged villeins ; and especially, for that their services were fixed and determinate, and that they could not be compelled (like pure villeins) to relinquish these tenements at the lord's will, or to hold them against their own: " et idea, says Bracton, " dicuntur liberi." Britton also, from such their freedom, calls them absolutely sokemans, and their tenure sokemanries; which he describes' to be " lands and tenements, which are not held by knight-service, nor by grand serjeanty, nor by petit, but by simple services, being as it were, lands enfranchised by the king or his predecessors from their antient demesne." And the same name is also given them in Fleta". Hence Fitzherbert observes™, that no lands are antient demesne, but lands holden in socage: that is, not in free and common socage, but in this

nc. 66. oF. N. B. 228.

p 4 Inst. 269. qF.N.B. 11.

r Ibid. 14. s Gilb. hist, of exch. 16 &. 30.

tc. 66, u A I.e. 8. wN.B. 13.

amphibious subordinate class of villein-socage. And it is possible, that as this species of socage tenure is plainly founded upon predial services, or services of the plough, it may have given cause to imagine that all socage tenures arose from the same original; for want of distinguishing, with Bracton, between free-socage or socage of frank-tenure, and villein-socage or socage of antient demesne.

• Lands holden by this tenure are therefore a species of copyhold, and as such preserved and exempted from the operation of the statute of Charles II. Yet they differ from common copyholds, principally in the privileges before-mentioned: as also they differ from freeholders by one especial mark and tincture of villenage, noted by Bracton and remaining to this day; viz. that they cannot be conve)-ed from man to man by the general common law conveyances of feoffment, and the rest; but must pass by surrender to the lord or his steward, in the manner of common copyholds: yet with this distinction", that, in the -surrender of these lands in antient demesne, it is not used to say " to hold at the will of the lord" in their copies, but only, " to hold according to the custom of the manor.'*

Thus have we taken a compendious view of the principal and fundamental points of the doctrine of tenures, both antient and modern, in which we cannot but remark the mutual connexion and dependence that all of them have upon each other. And upon the whole it appears, that, whatever changes and alterations these tenures have in process of time undergone, from the Saxon aera to the 12 Car. II, all lay tenures are now in effect reduced to two species ; free tenure in common socage, and base tenure by copy of court roll.

I mentioned lay tenures only; because there is still behind one other species of tenure, reserved by the statute of Charles II, which is of a spiritual nature, and calleji the tenure in frank-almoign.

V. Tenure in frankalmoign, in libera eleemosyna, or free alms, is that, whereby a religious corporation, aggregate or »ole,

x Kitchin on courts, 194.

holdeth lands of the donor to them and their successors for ever*. The service which they were bound to render for these lands was not certainly defined : but only in general to pray for the souls of the donor and his heirs, dead or alive; and therefore they did no fealty, (which is incident to all other services but this1) because this divine service was of a higher and more exalted nature*. This is the tenure, by which almost all the antient monastries and religious houses held their lands; and by which the parochial clergy, and very many ecclesiastical and eleemosynary foundations, hold them at this dayb ; the nature of the service being upon the reformation altered, and made conformable to the purer doctrines of the church of England. It was an old Saxon tenure; and continued under the Norman revolution, through the great respect that was shewn to religion and religious men in antient times. Which is also the reason that tenants in frankalmoign were discharged of all other services, except the trinodn neccssitas, of repairing the highways, building castles, and repelling invasions6 : just as the Druids, among the antient Britons, had omnium return immunitatem* .... , And, even at present, this is a tenure of a nature very distinct from all others j being not in the least feodal but merely spiritual. For if the service be neglected, the law gives no remedy by distress or otherwise to the lord of whom the lands are holden; but merely a complaint to the ordinary or visitor to correct ite. Wherein it materially differs from what was called tenure by divine service; in which the tenants were obliged to do some special divine services in certain; as to sing so many masses, to distribute such a sum in alms, and the like: which, being expressly defined and prescribed, could with no kind of propriety be called free alms; especially as for this, if unperformed, the lord might distrein, without any complaint to the visitorf. All such donations are indeed now out of use: for, since the statute of quia emptores, 18 Edw. I, none but the king can give lands to be holden by this tenures. So that I only mention them, because frankalmoign is excepted by name in the statute of Charles II, and therefore subsists in many instances at this day. Which is

y Litt. Sec. 133. z Lilt. 131.

a Ibid. 135, b Bracton. /. 4 tr. 1. c. 28. Sec. 1.

c Scld. Jan. 1, 42. «1 Casar tie Ml. Gat. I. 6. c. 13.

e Lilt. Sec. 136. f Litt. 137. g Ibid. 140.

all that shall be remarked concerning it; herewith concluding our observations on the nature of tenures*1.

21. The statute of quia emfitorea terrarum being prior to the settlement of Virginia, tenure in frankalmoign, was obsolete in practice even in England, at that time, and no traces remain of it's having ever been introduced into the colonial code.

Oj> See appendix, note A. as to the tenure of lands in Virginia, with the manner of acquiring them under the former, and present government.

CHAPTER THE SEVENTH.

OF FREEHOLD ESTATES, OF INHERITANCE.

THE next objects of our disquisitions are the nature and properties of estates. /An estate in lands, tenements and hereditaments, signifies such interest as the tenant hath therein :J so that if a man grants all his estate in Dale to A and his heirs, every thing that he can possibly grant shall pass thereby*. It is called in Latin status; it signif) ing the condition, or circumstance, in which the owner stands, with regard to his property. And, to ascertain this with proper precision and accuracy, estates may be considered in a threefold view: first, with regard to the quantity of interest which the tenant has in the tenement: secondly, with regard to the time at which that quantity of interest is to be enjoyed : and, thirdly, with regard to the number and connections of the tenants.

First, with regard to the quantity of interest which the tenant has in the tenement, this is measured by it's duration and extent. Thus, either his right of possession is to subsist for an uncertain period, during his own life, or the life of another man ; to determine at his own decease, or to remain to his descendants after him : or it is circumscribed within a certain number of years, months, or days : or, lastly, it is infinite and unlimited, being vested in him and his representatives for ever. And this occasions the primary division of estates, into such as are freehold, and such as are less than freehold. '

An estate of freehold, liberum tenemcntum, or franktencment, is defined by Brittonb to be, u the possession of the soil by a free-

a Co. Litt. 34$.

b c. 32.

man." And St. Germync tells us, that " the possession of the and is called in the law of England the franktenement or free-hold." Such estate,therefore, and no other, as requires actual possession of the land, is legally speaking freehold: which actual possession can, by the course of the common law, be only given by the ceremony called livery of seisin, which is the same as the feodal investiture. And from these principles we may extract this description of a freehold; that it is such an estate in lands as is conveyed by livery of seisin, or, in tenements of an incorporeal nature, by what is equivalent thereto. And, accordingly, it is laid down by Littletond, that where a freehold shall pass, it behoveth to have livery of seisin. As, therefore, estates of inhe« ritance and estates for life could not by common law be conveyed without livery of seisin, these are properly estates of freehold; and, as no other estates were conveyed with the same solemnity, therefore no others are properly freehold estates.

Estates of freehold (thus understood) are either estates of inheritance, or estates not of inheritance. The former are again divided into inheritances absolute or fee-simple; and inheritances limited, one species of which we usually call fee-tail.

I. Tenant in fee-simple (or, as he is frequently stiled, tenant in fee) is he that hath lands, tenements, or hereditaments, to 1 hold to him and his heirs for evere a generally, absolutely, and simply; without mentioning what heirs, but referring that to his own pleasure, or to the disposition of the law. •. The true meaning of the word fee (feodum) is the same with that of feud or fief, and in it's original sense-it is taken in contradistinction to allodium*; which latter the writers on this subject define to be every man's own land, which he possesseth merely in his own right, without owing any renter service to any superior'. This is property in it's highest degree ; and the owner thereof hath

c l)r. and Stud. b. 2. d. 22. e Litt. Sec. 1.

d Sec. 59.

f See pages 45, 47.

. 1. Lands held of the crown, formerly, or granted by the commonwealth of Virginia since the revolution, are now allodial. V. L. May Session, 1779, c. 13. Edi. 1785, vi. note 2, p. 47. Note 1, p. 44.

absolution et directum dominium^and therefore is Said to be seised thereof absolutely in dominico suo, in his own demesne. But feodum, or fee, is that which is held of some superior, on condition of rendering him service; in which superior the ultimate property of the land resides. And, therefore, sir Henry Spelman e defines a feud or fee to be the right which the vasal or tenant hath in lands, to use the same, and take the profits thereof to him and his heirs, rendering to the lord his due services ; the mere allodial propriety of the soil always remaining in the lord. This allodial property no subject in England hash ; it being a received, and now undeniable, principle in the law, that all the lands in England are holden mediately or immediately of the king. The king, therefore, only hath absolutum et directum dominium1: but all subjects' lands are in the nature of feodum or fee; whether derived to them by descent from their ancestors, or purchased for a valuable consideration: for they cannot come to any man by either of those ways, unless accompanied with those feodal clogs, which were laid upon the first feudatory when it was originally granted. A subject, therefore, hath only the usufruct, and not the absolute property of the soil; or, as sir Edward Coke expresses itk, he hath dominium utile, but not dominium directum. And hence it is, that, in the most solemn acts of law/we express the strongest and highest estate that any subject can have, by these words; " he is seised thereof in his demesne, as of fee." It is a man's demesne, dominicum, or property, since it belongs to him and his heirs for ever: yet this dominicum, property, or demesne, is strictly not absolute or allodial, but qualified or feodal: it is his demesne, as of fee; that is, it is not purely and simply his own, since it is held of a superior lord, in whom the ultimate property resides.

This is the primary sense and acceptation of the word fee, But (as sir Martin Wright very justly observes1) the doctrine, " that all lands are holden," having been for so many ages a fixed and undeniable axiom, our English lawyers do very rarely (of late years especially) use the word fee in this it's primary original

g of feuds, c. 1. h Co. Litt. 1.

i Praedium damini regis est directum dominium, cujut nullus est author nisi Deus. . Ibid.

k Ibid.

1 of ten. 148,

sense, in contradistinction to allodium or absolute property, with which they have no concern ; but generally use it to express the continuance*- or quantity of estate. A fee, therefore, in general, signifies an estate of inheritance ; being the highest and most extensive interest that a man can have in a feud: and, when the term is used simply, without any other adjunct, or has the adjunct of simple annexed to it, (as a fee, or a fee simple) it is used in contradistinction to a fee conditional at the common law, or a fee-tail by the statute; importing an absolute inheritance, clear of any condition, limitation, or restrictions to particular heirs, but descendible to the heirs general, whether male or female, lineal or collateral. And in no other sense than this is the king said to be seised in fee, he being the feudatory of no manm 2.

Taking, therefore,^ for the future, unless where otherwise explained, in this it's secondary sense, as a state of inheritance, it is applicable to, and may'be had in, any kind of hereditaments either corporeal or incorporeal". Butjhere is this distinction between the two species of hereditaments; that, of a corporeal inheritance a man shall be said to be seised in his demesne, as of fee,- of an incorporeal one, he shall only be said to be seised as of fee, and «ot in his demesne0. For, as incorporeal hereditaments are in their nature collateral to, and issue out of, lands and housesP, their owner hath no property, dominicum, or demesne, in the thing itself, but hath only something derived out of it; resembling the servitutes, or services, of the civil lawi. The dominicum or property is frequently in one man, while the appendage or service is in another. Thus Gaius may be seised as of fee of a way leading over the land, of which Titius is seised in his demesne as of fee.

%

The fee-simple or inheritance of lands and tenements is generally vested and resides in some person or other ; though di-

m Co. Litt. 1.

n Feodum est craadquis tenet sibi et haeredibus suis, she sit tenenientiim,sit>e reditus, &c. Flet. /. 5. ,c. 5, Sec. 7.

o Litt. Sec. 10- p See page 20.

q Scroitus est jus, quo res mea alteriiu rei vel peraonae servit. Ff. 8. 1. 1.

2. The term fee aimfile, must now be understood in the same sense in Virginia, and for the same reason, for the landholders in Virginia do not hold their lands of any superior.

vers inferior estates may be carved out of it. As if one grants a lease for twenty-one years, or for one or two lives, the fee-simple remains vested in him and his heirs; and after the deterinitiation of those years or lives, the land reverts to the grantor or his heirs, who shall hold it again in fee-simple. Yet some* times the fee may be in abeyance, that is (as the word signifies) in expectation, remembrance, and contemplation in law j) there being no person in esse, in whom it can vest and abide: -mough the law considers it as always potentially existing, and ready to vest whenever a proper owner appears. Thus, in a grant to John for life, and afterwards to the heirs of Richard, the inheritance is [,-iainly neither granted to John nor Richard, nor can it vest in the heirs of Richard till his death, nam. nemo est haeres viventis: it remains, therefore, in waiting or abeyance, during the life of Richard r'. This is, likewise, always the case of a parson of a church, who hath only an estate therein for the term of his life; and the inheritance remains in abeyance •. And

•not only the fee, but the freehold also, may be in abeyance ; as, when a parson dies, the freehold of his glebe is in abeyance, untill a successor be named, and then it vests in the successorl.

The word, heirs, is necessary in the grant or donation, in order to make a fee, or inheritance 4. For if land be given to

r Co. Lilt. 342. s Ibid. Sec. 646. t Hid. Sec. 6, 7.

3. That is to say, during the joint lives of Richard and John, the tenant for life ; for if Richard dies during the life of John, then the fee-simple is no longer in abeyaiice, but the remainder presently take* place in the heirs of Richard, but if John dies during the life of Richard the remainder is become totally void, there being no person in

•whom it can vest during the life of Richard, for the reason above given, and the estate settles again in the. donor, or his heirs, as if no limitation in vemainder had been made. 4. Ba. Abr. 306. fearne on Cont. Rem. 275. See also Fearne, 513, and 526. (4. Edi.)

4. Herein the law is altered, V. L. 1785, c. 62, which took effect the first day of January, 1787. That act declares, that every estate in lands, Vrfhich should be thereafter granted, conveyed, or devised to one, although other words heretofore necessary to transfer an estate of inheritance be not added, shall be deemed a fee-simple, if a Jess estate be not limited by express words, or do not appear to have been grant* ed, conveyed or devised by construction, or operation of lav/| Edi,

iry-i, c. so. $. 12.

a man for ever, or to him and his assigns for ever, this vests in him but an estate for life u. This very great nicety about the insertion of the word " heirs " in all fcoffments and grants, in order to vest a fee, is plainly a relic of the feodal strictness: by •which we may remember", it was required that the form of the donation should be punctually pursued; or that, as Crag x, expresses it in the words of Baldus, u donationes sint stricti juris, " ne quisplus donassepraesumatur quam in donations txpresserit" And, therefore, as the personal abilities of the donee were originally supposed to be the only inducements to the gift, the donee's estate in the land extended only to his own person and subsisted no longer than his life: unless the donor, by an express provision in the grant, gave it a longer continuance, and extended it also to his heirs. But this rule is now softened by many exceptions ?.

For, 1. It does not extend to devises by will; in which as they were introduced at the time when the feodal rigor was apace wearing out, a more liberal construction is allowed: and, therefore, by a devise to a man for ever, or to one and his assigns for ever, or to one in fee-simple, the devisee hath an estate of inheritance; for the intention of the devisor is sufficiently, plain from the words of perpetuity annexed, though he hath omitted the legal words of inheritance; But if the devise be to a man and his assigns, without annexing words of perpetuity, there the devisee shall take only an estate for life ; for it does not appear that the devisor intended any more. 2. Neither does this rule extend to fines or recoveries, considered as a species of conveyance ; for, thereby, an estate, in fee, passes by act and operation of law without the word " heirs:" as it does also, for particular reasons, by certain other methods of conveyance, which have relation to a former grant m estate, wherein the word " heirs " was expressed *. 3. In creations of nobility by writ, the peer so created hath an ineritance in his title, without expressing the word " heirs ;" for heirship is implied in the creation, unless it be otherwise specially provided: but in creations by patent,

u Lilt. Sec. 1.

x /. 1, t. 9, Sec. 17:

z Kid. 9.

w See p. 56. y Co. Litt. 9, 10.

which are stricti juris, the word " heirs" must be inserted, otherwise there is no inheritance. 4. In grants of lands to sole corporations and their successors, the word " successors »' supplies the place of " heirs;" for as heirs take from the ancestor, so doth the successor from the predecessor. Nay, in a grant to a bishop, or other sole spiritual corporation, in frankalmoign; the word " frankalmoign " supplies the place of l' successors " (as the word " successors" supplies the place of " heirs ") ex vi terminii; and in all these cases a fee-simple vests in such sole corporation. But, in a grant of lands to a corporation aggregate, the word " successors " is not necessary, though usually inserted: for, albeit such simple grant be strictly only an estate for life, yet as that corporation never dies, such estate for life is perpetual, or equivalent to a fee-simple, and .therefore, the law allows it to be one ». 5. Lastly, in the case of the king, a fee simple will vest in him, without the word " heirs" or *' successors" in the grant; partly from prerogative royal, and partly from a reason similar to the las,t, because the king in judgment of law never diesb. But the general rule is, that the word " heirs" is necessary to create an estate of- inheritance *.

II. We are next to consider limited fees, or such estates of inheritance as are clogged and confined with conditions, or qualifications, of any sort. And these we may divide into two sorts j 1. Qualified, or base fees: and 2. Fees conditional, so called at the common law ; and afterwards fees-tail, in consequence of the statute de donis,

1. A base, or qualified fee, is such a one as has a qualification subjoined thereto, and which must be determined whenever the qualification annexed to it is at an end. As, in the case of a grant to A and his heirs, tenants of the manor of Dale; in this instance, whenever the heirs of A cease to be tenants of that manor, the grant is entirely defeated. So, when Henry VI granted to John Talbot, lord of the manor of Kingston-Lisle in Berks,

a See Vol. I. page 484

b Ibid. 249.

5. See note 4, page 107.

that he and his heirs, lords of the said manor, should be peers of the realm, by the title of barons of Lisle ; here John Talbot had a base or qualified fee in that dignity c, and, the instant he or his heirs quitted the seignory of this manor, the dignity was at an end. This estate is a fee, because by possibility it may endure for ever in a man and his heirs ; yet as that duration depends upon the concurrence of collateral circumstances, which qualify and debase the purity of the donation, it is, therefore, a qualified or base fee.

2. A conditional fee, at the common law, was a fee restrained to some particular heirs, exclusive of others: " donatio stricta et coarctata d; sicut certis haeredibus, quibusdam a successione exclusis:" as to the heirs of a man's body, by which only his lineal descendants were admitted, in exclusion of collateral heirs : or, to the heirs male of his body, in exclusion both of collaterals, and lineal females also. It was called a conditional fee, by reason of the condition expressed or implied in the donation of it, that if the donee died without such particular heirs, the land should revert to the donor. For this was a condition annexed by law to all .grants whatsoever; that, on failure of the heirs specified in the grant, the grant should be at an end, and the land return to it's antient proprietor e. Such conditional fees were strictly agreeable to the nature of feuds, when they-first ceased to be mere estates for life, and were not yet arrived to be absolute estates in fee-simple6. And we find strong traces of these limited, conditional fees, which could not be alienated from the lineage of the first purchaser, in our earliest Saxon laws f.

Now, with regard to the condition annexed to these fees by the common law, our ancestors held, that such a gift (to a man

c Co. Litt. 27. d Flet. /. 3. c. 3. Sec. 5. . e Plowd. 241.

fSi quit terrum haereditariain babeat, cam non vendat a cogndtis bacredibus mis, «' illi oiroprohibition sit, qui earn ab initio acquiiivit, ut itafacere nequeat, LL. Aelfred, c. 37.

6. Conditional fees at the common law are utterly abolished in Virginia. V. L. 1785, c. 62, which took effect January 1, 1787, EdU 1794, c. 90. §. 9.

and the heirs of his body) was a gift upon condition, that H should revert to the donor, if the donee had no heirs of his body; but, if he had, it should then remain to the donee. They therefore called it a fee-simple, on condition that he had issue. Now we must observe, that, when any condition is performed, it is thenceforth entirely gone ; and the thing to which it was before annexed, becomes absolute, and wholly unconditional. So that, as the grantee had an issue born, his estate was supposed to become absolute, by the performance of the condition; at least, for three purposes: 1. To enable the tenant to aliene the land, and thereby to bar not only his own issue, but also the donor of his interest in the reversions. 2. To subject him to forfeit it for treason: which he could not do, till issue born, longer than for his own life ; lest thereby the inheritance of the issue, and reversion of the donor, might have been defeated k. 3. To empower him to charge the land with rents, commons, and certain other incrumbrances, so as to bind his issue'. And this was thought the more reasonable, because, by the birth of issue, the possibility of the donor's reversion was rendered more distant and precarious: and his interest seems to have been the only one which the law, as it then stood, was solicitous to protect; without much regard to the right of succession intended to be vested in the issue. However, if the tenant did not in fact aliene the land, the course of descent was not altered by this performance of the condition; for if the issue had afterwards died, and then the tenant, or original grantee, had died, without making any alienation ; the land, by the terms of the donation, could descend to none but the heirs of his body, and therefore, in defanlt of them, must have reverted to the donor. For which reason, in order to subject the lands to the ordinary course of descent,'the donees of these conditional fee-simples took care to aliene as soon as they had performed the condition by having issue ; and afterwards re-purchased the lands, which gave them a fee-simple absolute, that would descend to the heirs general, according to the course'of the common law. And thus stood the old law with regard to conditional fees : which things, says sir Edward Cokek, though they seem antient, are yet necessary to be known;

g Co. Litt. 19. 2 Inst. 233. h Co. Litt. ibid. 2 Inst. 234.

i Co. Litt. 19. k 1 Inst. 19.

as well for the declaring how the common law stood in such cases, as for the sake of annuities, and such like inheritances, as are not within the statutes of entail, and, therefore, remain as at the common law.

The inconveniences, which attended these limited and settered inheritances, were probably what induced the judges to give way to this subtile finesse of construction, (for such it undoubtedly was) in order to shorten ihe duration of these conditional estates. But, on the-other hand, the nobility, who were willing to perpetuate their possessions in their own families, to put a stop to this practice, procured the statute of Westminster the second1, (commonly called the statute de donis condition* alibusj to be made; which paid a greater regard to the private will and intentions of the donor, than to the propriety of such intentions, or any public considerations whatsoever7. This statute revived in some sort the antient feodal restraints which were originally laid on alienations, by enacting, that from thenceforth the will of the dontr be observed: and that the tenements so given, (to a man and the heirs of his body) should, at all events, go to the issue, if there were any; or, if none, should revert to the donor. >

Upon the construction of this act of parliament, the judges determined that the donee had no longer a conditional fee-simple, which became absolute and at his own disposal, the instant any issue was born ; but they divided the estate into two parts, leaving in the donee a new kind of particular estate, which they denominated &fee-tailm; and vesting in the donor the ultimate fee-simple of the land, expectant on the failure of issue;

1 13 Edw. I. c. 1. .

m The expression fee-tail, or feodum talliatvm, was borrowed from the feudists; (See Crag. /. 1.1.10. Sec. 24, 25.) among whom it signified any mutilated or truncated inheritance, from which the heirs general were cut off; being derived from the barbarous verb tatiare, to cut j from which the French taiUer and the Italian lag-flora are formed. (Spelm. Glass. 531.)

7. The statute de donis conditionalibus was repealed in Virginia. Oct. 1776, c. 26. Edi. ms. See Edi. 1794, c. 90. \. 9.

which expectant estate is what we now call a reversion". And hence it is that Littleton tells us0, that tenant in fee-tail is by virtue of the statute of Westminster the second.

Having thus shewn the original of estates tail, I now proceed to consider, what things may, or may not, be entailed under the statute de donis. Tenements is the only word used in the statute: and this sir Edward Coke? expounds to comprehend all corporeal hereditaments whatsoever; and also all incorporeal hereditaments which savour of the realty, that is which issue out of corporeal ones, or which concern, or are annexed to, or may be exercised within the same ; as, rents, estovers, commons, and the like8. Also offices and dignities, which concern lands, or have relation to fixed and certain places, may be entailedi'. But mere personal chattels, which savour not at all of the realty, cannot be entailed. Neither can an office, which merely relates to such personal chattels1; nor an annuity, which charges only the person, and not the lands, of the grantor. But in these last, if granted to a man and the heirs of his body, the grantee hath still a fee conditional at common law, as before the statute ; and by his alienation (after issue born) may bar the heir or reversionerr *. An estate to a man and his heirs for ano-

n 2 Inst.35. p 1 Inst. 19, 20. r Co. Litt. 19,20'

o Sec. 13. q 7 Rep. 33.

' If an annuity is granted out of personal property to a man and the heirs of his body, it is a fee-conditional at common law, and there can be no remainder or further limitation of it j and when the grantee has issue, he has the full power of alienation, and of barring the possibility of it's reverting to the grantor by the extinction of his issue. 2 Ves. 170. 1 Bro. 335.

But out of a term of years, or any personal chattel, except in the instance of an annuity, neither a fee-conditional nor an estate-tail can be created ,• for if they are granted or devised by such words as would convey an estate-tail in real propeity, the grantee or devisee has the entire and absolute interest without having issue j and as soon as such an interest is vested in any one, all subsequent limitations of consjcjucnce become null and void. 1 Bro. 274. Harg. Co. Lilt. 20. Fearne, 3-i5.3d. edi. Cbitliaa.

8. Slaves were made subject to entails. V. L. 1727, c. 4. Edi. 1769. But that act was repealed in substance by the act of 1796, Oct. Sess. c. 26.

9. This must be understood of private offices ; of which no instance probably has occurred in Virginia, where they have been granted to

ther's life cannot be entailed': for this is strictly no estate of in-' heritance, (as will appear hereafter) and therefore not within the statute de donis. Neither can a copyhold estate be entailed by virtue of the statute; for that would tend to encroach upon and restrain the will of the lord ; but, by the special custom of the manor, a copyhold may be limited to the heirs of the body'; for here the custom ascertains and interprets the lord's will. ,

Next, as to the several species of estates-tail, and how they are respectively created. Estates-tail, are either general or special. Tail-general is where lands and tenements are given to one, and the heirs of his body begotten; which is called tail-general, because, how often soever such donee in tail be married, his issue in general by all and every such marrriage is, in successive order, capable of inheriting the estate-tail, per -formam doni*. Tenant in tail-special is where the gift is restrained to certain heirs of .the donee's body, and does not go to all of them in general. And this may happen several ways w. I shall instance in only one; as where lands and tenements are given to a man and the heirs of his body, on Mary his now wife to be begotten: here no issue can inherit, but such special issue as is engendered between them two; not such as the husband may have by another wife: and therefore it is called special tail10. And here we may observe, that the words of inheri-

s 2 Vern. 225. u Litt. Sec. 14,15. x Ibid. Sec. 21, 22.

t 3 Rep. 8.

w Litt. Sec. 16. 26, 27,28,29.

a man and to his heirs. As to public offices, these, by our Bill df Rights, can not be inherited, and dignities are proscribed by our constitution. See note 9. p. 56. note 11. p. 37.

10. This by virtue pf the act for docking all estates tail; would now be a fee-simple ; but suppose the devise were to a man, and his •wife and the heirs of their two bodies begotten, which was also an estate in special tail formerly ; in this case, as the law now stands, the husband and wife would have, during their joint lives a kind of joint etsate in fee : and it would seem, that upon the death of either, the heirs of the person dying would be entitled to a moiety of the lands, and the other moiety, upon the death of the survivor would go to the heirs of the survivor. For inasmuch as these words, would by the common law, have vested an estate-tail, both in the husband and wife,

• tance (to him and his heirs) give him an estate in fee ; but they being heirs to be by him begotten, this makes it a fee-tail; and the person being also limited, on whom such heirs shall be begotten, (viz. Mary his present wife} this makes it a fee-tail special.

the act of 1776, c. 26. 1794, c. 90. Sec. 9, would now convert that estate-tail into a fee simple, in both, notwithstanding the limitation to the heirs of their two bodies begotten, which by those acts, is rendered null and void. They would therefore be a sort of joint-tenants in fee; as described hereafter page 182, and according to the ancient law, the survivor should have had the whole in fee; but in this respect also, the law now seems to be altered, by the act of 178t>, c. 60, which took effect the first day cf July 1787, by which the right of survivorship is abolished, and the joint-estate shall descend and pass as if had been a tenacy in common, Edi. 1794, c. 24. The following case may shew how materially the law is now altered from what it was before the revolution.

A. by a former marriage having two sons, marries B. who by a former marriage had two daughters. .... After the marriage, lands are given to A. and B. and to the heirs male of their two bodies begotten. A. and B. have a son, and a daughter. The daughter by the common law can never inherit the lands, not being within the words of the gift which is limited to the issue male. A. dies; B. is now tenant in tail of the whole, with remainder to her son born of the marriage with A. and after her death, that son, and no other child of A. or B. shall inherit the lands, by the course of the common law. .... But at this day, upon the death of A. one half of the lands should go to B. in fee simple, and the other half should be equally divided between all the children of A. though born of different mothers, and of different sexes, subject nevertheless to B's dower in that moiety, for she would be endowed threof equally as of any other estate. .... After the death of B. her moioty would be equally divided between her children in like manner : so that the children of the marriage between A. and B. would eventually have larger portions than any of the others, because they would inherit trom both parents.

It may seem very hard that an estate given by words which so clearly manifest the donors intention towards a particular set of persons, should be defeated by a general rule of law. But we must remember that all laws relative to property are juris fioaitivi, and the legislature from the experience of ages being sensible of the bad policy of suffering perpetuities yi estates to be created by any set form of words, probably found it would be unsafe to permit any evasion of the act for preventing entails to be introduced by any set form of words, or device whatsoever. To guard against this great and general evil which they apprehend m ight

Estates, in general and special tail, are farther diversified by the distinction of sexes in such entails ; for both of them may either be in tail male or \M\female. As if lands be given to a man, and his heirs male of his body begotten, this is an estate in tail male general; but if to a man and his \\e\rsfemale of his body on his present wife begotten, this is an estate in tail female special. And., in case of an entail male, the heirs female shall never inherit, nor any derived from them; nor e converse, the heirs male, in case of a gift in tail female x. Thus, if the donee in tail male, hath a daughter, who dies leaving a son, such grandson in this case cannot inherit the estate-tail; for he cannot deduce his descent wholly by heirs male y. And as the heir male must convey his descent wholly by males, so must the heir female wholly by females. And, therefore, if a man hath two estates-tail, the one in tail male, the other in tail female; and he hath issue a daughter, which daughter hath issue a son; this grandson can succeed to neither of the estates; for he cannot convey his descent wholly either in the male or female line *.

As the word h°.;rs is necessary to create a fee, so in farther limitation of the strictness of the feodal donation, the word body,

xLitt. Sec. 21,22.

y Ibid. Sec. 24.

z Co. Litt. 25.

be continued, they have laid down a general rule, which perhaps may in one or two instances be inconvenient in its application : but this inconvenience, possibly might be avoided, if instead of a devise to a man and the heirs of his body on Mary his now wife to be begotten, the devise were to a man and his children* by Mary his now wife ; although the sense would be expressly the same in common understanding, yet it is not impossible that a court would now interpret this to be a devise to the father for life, with remainder to his children by Mary his wife as joint-tenant; the word children, fee. being in this case to be interpreted as designatio personae, and consequently words of purchase, whereas the word heirs, in the case put by Mr. Blackstone, has always been construed as a word of descent; whereby the quantity and duration of the estate, and the interest of the donee, were as well intended to be ascertained, as the course in which the inheritance should descend.

• A devise to a man and his children, if he had no children at the time of the devise will create an estate ta'l, 6. Co. 17. Therefore, %.«.

or some other words of procreation, are necessary to make it a fee-tail, and ascertain to what heirs in particular the fee is limited. If therefore either the words of inheritance or words of procreation be omitted, albeit the others are inserted in the grant, this will not make an estate tail. As, if the grant be to a man and his issue of his body, to a man and his seed, to a man and his children, or offspring; all these are only estates for life, there wanting the words of inheritance, his heirs a. So, on the other hand, a gift to a man, and his heirs male, or female, is an estate in fee-simple, and not in fee-tail; for there are no words to ascertain the body out of which they shall issue b. Indeed, in last wills and testaments, wherein greater indulgence is allowed, an estate-tail may be created by a devise to a man and his seed, or to a man and his heirs male; or by other irregular modes of Expression e *.

There is still another species of entailed estates, now indeed grown out of use, yet still capable of subsisting in law; which are estates in Kbero maritagio, or frankmarriage. These are defined4 to be, where tenements are given by one man to another, together with a wife, who is the daughter or cousin of the donor, to hold in frankmarriage. Now by such gift, though nothing but the word frankmarriage is expressed, the donees shall have the tenements to them, and the heirs of their two bodies begotten ; that is, they are tenants in special tail. For this one word, frankmarriage, does ex vi termini not only create an inheritance, like the \\orAfrankalmoign, but likewise limits that inheritance ; supplying not only words of descent, but of procreation also. Such donees in frankmarriage are liable to no service but fealty; for a rent reserved thereon is void, until the fourth degree of consanguinity be past between the issues of the donor and donee e.

The incidents to a tenancy in tail, under the statute Westm. 2, are chiefly these f. 1. That a tenant in tail may commit waste a Co Litt. 20. b Litt. Sec. 31. Co. Litt. 27. c Co. Litt. 9. 27. d Litt. Sec. 17. e Ih. Sec. 19,20 f Co. Litt. 224.

* Or to a man and his children, if he has no children at the time of the devise (6 Co. 17.) or not to a man and his posterity (ff. Bl. 447.) or by any other words, which shew an intention to restrain the inheritance to the descendants of the devisee. See 381. post .... Christian.

on the estate-tail, by felling timber, pulling down houses, or the like, without being impeached, or called to account, for the same. 2. That the wife of the tenant in tail shall have her dower, or thirds, of the estate-tail. 3. That the husband of a female tenant in tail may be tenant by the curtesy of the estate-tail. , 4. That an estate-tail may be barred, or destroyed by a fine, by a common recovery ", or by lineal warranty descending with assets to the heir. All which will hereafter be explained at large.

Thus much for the nature of estates-tail: the establishment of which family law (as it is propeily stiled by Pigotts) occasioned infinite difficulties and disputesh. Children grew disobedient when they knew they could not be set aside: farmers were ousted of their leases made by tenants in tail; for, if such leases had been valid, then under colour of long leases the issue might have been virtually disinherited: creditors were defrauded of their debts; for, if tenant in tail could have charged his estate with their payment, he might also have defeated his issue, by mortgaging it for as much as it was worth: innumerable latent entails were produced to deprive purchasers of the lands they had fairly bought; of suits in consequence of which our antient books are full: and treasons were encouraged; as estates-tail were not liable to forfeiture, longer than for the tenant's life. So that they were justly branded, as the source of new contentions, and mischiefs unknown to the common law; and almost universally considered as the common grievance of the realm *. But as the nobility were always fond of this statute, because it preserved their family estates from forfeiture, there was little hope of procuring a repeal by the legislature ; and therefore, by the connivance of an active and politic prince, a method was devised to evade it.

About two hundred years intervened between the making of the statute de ntfns, and the application of common recoveries

g Com. llecov. 5. hi Rep. 131.

i Co. Litt. 19. Moor. 156. 10 Rep. 38. _____________

11. So much were estates tail favoured in Virginia, tthat the act of mo, c. 13. Edi. 1733, declares, that fines and recoveries for the purpose of docking entails of land shall be absolutely null and void, and that no estate tail should thereafter be^efeated, but by act of assembly. This clause was re-enacted in 1748, c. 1. Edi. 1769.

to this intent, in the twelfth year of Edward IV; which were then openly declared by the judges to be a sufficient bar of an estate-tailk. For though the courts had, so long before as the rcign of Edward III, very frequently hinted, their opinion that a bar might be effected upon these principlesl, yet it never was carried into execution ; till Edward IV observing m (in the disputes between the houses of York and Lancaster) how little effect attainders for treason had on families., whose estates were protected by the sanctuary of entails, gave his countenance to this proceeding, and suffered Taltarum's case to be brought before the court" : wherein, in consequence of the principles then laid down, it was in effect determined, that a common recovery suffered by tenant in tail should be an effectual destruction there of. What common recoveries are, both in their nature and consequences, and why they are allowed- to be a bar to the estate tail, must be reserved to a subsequent inquiry. At present I shall only say, that they are fictitious proceedings, introduced by a kind of pia fraus, to elude the statute de donis, which was found so intolerably mischievous, and which yet one branch of the legislature would not then consent to repeal: and, that these recoveries, however clandestinely introduced, are now become by long use and acquiescence a most common assurance of lands ; and are looked upon as the legal mode of conveyance, by which tenant in tail may dispose of his lands and tenements: so that no court will suffer them to be shaken or reflected on, and even acts of parliament0 have by a sidewind countenanced and established them.

This expedient having greatly abridged estates-tail with regard to their duration, others were soon invented to strip them of other privileges. The next that was attacked was their freedom from forfeitures for treason. For, notwithstanding the large advances made by recoveries, in the compass of about threescore years, towards unfettering these inheritances, and thereby subjecting the lands to forfeiture, the rapacious prince then reigning, finding them frequently re-settled in a similar manner, to

k 1 Rep. 131. 6 Rep. 40. 110 Rep. 37, 38. ' m Pigott, 8.

n Year book. 12 Edw. IV. 14,19. Fitzh. Mr. lit faux recov. 20 Bro.,^Ar. ibid. 30. tit. recov. in value. 19. tit. taite, 36.

o 11 Hen. VII. c. 20. 7 Hen. VIH. c. 4. 35 and35Hen. VIII. c. 20.14 Eliz. 6.8. 4 & 5 Ann. c. 1C. 14 Geo. II. c. 20.

suit the convenience of families, had address enough to procure a statute p, whereby all estates of inheritance (under which general words estates-tail were covertly-included) are declared to be forfeited to the king upon any conviction of high treason.

The next attack which they suffered in order of time, was by the statute 32 Hen. VIII. c. 28, whereby certain leaser made by tenants in tail, which do not tend to the prejudice of the issue, were allowed to be good in law, and to bind the issue in tail. But they received a more violent blow, in the same session of parliament, by the construction put upon the statute of fines 1, by " the statute 32 Hen. VIII. c. 36, which declares a fine duly levied by tenant in tail to be a complete bar to him and his heirs, and all other persons,, claiming under such entail. JThis was evidently agreeable to the intention of Henry VII, whose policy it was (before common recoveries had obtained their full strength and authority) to lay the road as open as possible to the alienation of landed property, in order to weaken the overgrown power of his nobles. But as they, from the opposite reasons, were not easily brought to consent to such a provision, it was therefore couched, in his act, under covert and obscure expressions. And the judges, though willing to construe that statute as favourably as possible for the defeating of entailed estates, yet hesitated at giving fines so extensive a power by mere implication, when the statute de donis had expressly declared, that they should not be a bar to estates-tail. But the statute of Henry VIII, when the doctrine of alienation was better received, and the will of the prince more implicitly obeyed than before, avowed and established that intention. Yet, in order to preserve the property of the crown from any danger of infringement, all estates-tail created by the crown, and of which the crown has the reversion, are excepted out of this statute. And the same was done with regard to common recoveries, by the statute 34 and 35 Hen. VIII. c. 20, which enacts, that no feigned recovery had against tenants in tail, where the estate'was created by the crown r, and the remainder or reversion continues still in the crown, shall be of any force and effect. Which is allowing, indirectly and collateral!}',

p 36 Hen. VIII. c. 13. i Co. Litt. 372,

<1 4 Hen. VII. c. 24.

their full force and effect with respect to ordinary estates-tail) where the royal prerogative is not concerned.

Lastly, by a statute of the succeeding year ', all estates-tail are rendered liable to be charged for payment of debts due to the king by record or special contract; as since, by the bankrupt laws', they are also subjected to be sold for the debts contracted by a bankrupt '*„ And, by the construction put on the statute 43 Eliz. c. 4, an appointmentu by tenant in tail of the lands entailed, to a charitable use, is good without fine or recovery.

Estates-tail, being thus by degrees unfettered, are now reduced again to almost the same state, even before issue born, as conditional fees were in at common law, after the condition was performed, by the birth of issue. For, first, the tenant in tail is now enabled to aliene his lands and tenements by fine, by recovery, or by certain other means; and thereby to defeat the interest as well of his own issue, though unborn, as also of the reversioner, except in the case of the crown: secondly, he is now liable to forfeit them for high treason: and, lastly, he may charge them with reasonable leases1S, and also with such of his debts as are due to the crown on specialties, or have been contracted \Vith his fellow-subjects in a course of extensive commerce14.

s 33 Hen. VIII. c. 39. Sec. 75. t Stat. 21 Jac. I. c. 19. u 2 Vern. 453. Clian. Free. 16.

12. L. U. S. 6 Cong. 1 Sess. c. 19. Sect. 11, accordant.

13. The act of 1764, c. 14, authorised tenants in tail to make leases not exceeding three lives, or twenty-one years. Edi. 1769.

14. Entails, as was before observed, were formerly greatly favoured in Virginia ; the statute de donis conditionalibus, extending to the colony, no act of assembly authorising entails of lands, occurs in our code. In 1710, as we have seen, they were protected from being defeated by a fine and recovery. In 1727, slaves were subjected to limitations in tail, by being annexed to lands entailed, and were to descend and pass in possession, reversion, and remainder, with the lands themselves, c. 4. Sec. 12. Edi. 1769. By the act of 1734, c. 6, Sessions acts, an abstract of which is preserved in Mercer's abridgment, title, entails, " any person seised in fee-tail of any lands, tenements, or hereditaments, not exceeding the value of 20(W. sterling, and not being parcel of, or contiguous to other entailed lands of the same party, might sue out a writ from the secretary's office in the nature

of an ad quod damnum to the sheriff of the county, commanding him to inquire, by the oaths of good and lawful men of his county, of the value of such lands, and whether, &c. and if such lands shall be found not to exceed the value as aforesaid, and to be a separate parcel, and an inquisition to that effect be made and returned to the office, then a deed of bargain and sale reciting the title, and such inquisition, wherein a valuable consideration shall be expressed, and bonafide paid, acknowledged, or proved by three witnesses, before the general court, within eight monthsafter the date thereof, should be sufficient in law to pass the fee simple estate to the purchaser, and the right of the issue of the vender, and all other persons in remainder or reversion, should be barred, &c." This act was amended by the act of 1748, c. 1. J. 16, which requires the surveyor of the county to attend and survey the lands in the presence of the jury, and to give them an account of the number of acres. And where the tenant in tail had no issue capable of inheriting the lands, if there were a remainder over, the remainder man, or, if an infant, his guardian or next friend should have notice to attend the survey, and see that the valuation was fairly made ; and the deed of bargain and sale was to be recorded in the general court within eight months. Edi. 1769. Estates, .above the value of 200/. sterling, were barred by private acts of assembly passed for that special purpose.

But when the revolution took place, a different mode of thinking succeeded ; it was found that entails would be the means of accumulating and preserving great estates in certain families, which would, not only introduce all the evils complained of in England, but be utterlj incompatible with the genius and spirit of onr constitution and government. At the first session, therefore, after the declaration of independence, an act passed, declaring tenants of lands, or slaves in tail, to hold the same in fee simple. This act avoids all estates tail in possession, reversion, or remainder theretofore created by deed, will, act of assembly, or any other ways or means, or thereafter to be created, any words, limitations, or conditions in the deed, will, or act of assembly, or other instrument to the contrary notwithstanding ; and further declares, that every estate, so created, shall be held in full and absolute fee simple. This act is further confirmed by the acts of 1785 and 1792, which declare, that every estate in lands which hath been , limited since the seventh day of October, V76, or hereafter, shall be limited, so that as the law aforetime was, such estate would have been an estate tail, shall be deemed to have been, and continue an estate in fee simple. The act of May, 1783, declares, that all estates in lands or slaves which have become, or shall become escheatable to the commonwealth, by virtue of the " act declaring tenants of lands or slaves in tail, to hold the same in fee simple," for defect of blood, shall descend, and be deemed to have descended agreeable to the limitations of the deed or will creating the same. But that act does not extend to

lands or slaves which had been escheated anil sold. L. V. Oct. 1776, C. 26. May 1783, c. 27. Edi. 1785. Sessions acts of 1785, c. 62. Edi. 1794, c. 90. Sect. 9,10,11.

In the construction of these artst it has been decided, that by the act of October 1776, for docking entails, all remainders, as well contingent as vested, arc utterly barred, whether the entail be created before or after passing the act. And though executory devises of lands, after a devise thereof in fee simple, may still be created as before that statute, yet the court will not, in order to avoid the effect of the statute, construe that to be an executory devise, which, before, would have been held tobe a contingent remainder. Carter, vs. Tylcr, and also 1 Call's Rep. 165.

And in this case, Pendleton, president, said, a parent may guard against an improvident child's wasting his estate, by limiting his interest in, or power over it. He may give an estate for life, and limit remainders over, upon it; but how far he may go in limiting estates for life, one after another, so as to effect a perpetuity, we leave to be decided when the experiment shall be made. At present, we can safely say, that whenever the conveyance gives an estate-tail in lands, the act vests in that tenant, an cstatein fee simple. Ibidem, 185.

See also Hunters v. Haynes. 1 Wash. Hep. 71. Where a devise to A. for life, with remainder to B. and the heirs of his body lawfully begotten for ever; but in case B. should die without such issue, then to C. and his heirs for ever. In this case the court decided, that although B. died without issue in the life-time of A. yet his next heir should have the land in preference to C. the next remainder man. For, by the operation of the act of 1776, B.'s vested remainder in tail, was turned into an absolute fee simple, and descended to his heirs after the death of the tenant for life.

CHAPTER THE EIGHTH.

OF FREEHOLDS, NOT OF INHERITANCE.

WE are next to discourse of such estates of freehold, as are not of inheritance, but for life only. And of these estates for life, some are conventional, or expressly created by the acts of the parties; others merely legal, or created by construction and operation of law8. We will consider them both in their order.

I. Estates for life, expressly created by deed or grant, (which

•alone are properly conventional) are where a lease 'is made of lands or tenements to a man, to .hold for the term of his own life, or for that of any other person, or for more lives than one: in any of which cases .he is stiled tenant for life; only, when he .holds the estate by the life of another, he is usually called tenant

•pur outer vie b. These estates for life are, like inheritances, of a feodal nature; and were, for some time, the highest estate that 'any man could have in a feud, which (as, we have before seen c) was not in it's original hereditary. They are given or conferred by the same feodal rights and solemnities, the same investiture or livery of seisin, as fees themselves are ; and they are held by fealty, if demanded, and such conventional rents and services as the lord or lessor, and his tenant or lessee, have agreed on.

Estates for life may be created, not only by the express words beforementioned, but alsoiy a general grant, without denning or limiting any specific estate. As, if one grants to A. B. the manor of Dale, this makes him tenant for lifed. For .though, as there are no words of inheritance, or heirs, men-

a Wright. 190. b Litt. §. 56. c page 55. d Co. Litt. 42.

tioned in the grant, it cannot be construed to be a fee1, it shall, however, be construed to be as large an estate as the words of the donation will bear, and, therefore, an estate for life. Also such a grant at large, or a grant for term of life generally, shall be construed to be an estate for the life of the grantee"; in case the grantor hath authority to make such a grant: for an estate for a man's own life is more beneficial and of a higher nature than for any other life ; and the rule of law is, that all grants are to b'e taken most strongly against the grantor*, unless in the case of the king.

Such estates for life will, generally speaking, endure as long as the life for which they are granted: but there are some estates e Co. Litt. 42. f Ibid. 36.

1. This rule of construction is now altered, the word heirs, not being necessary to create a fee simple in a deed, or grant, as was before observed, p. 107, note 4. The act of 1785, c. 62, by which this rule of construction was changed, took effect, January 1, 1787. See Edi. 1794, c. 90. J. 12. And by the act of 1785, c. 62, cited in the last note, any estate limited in such manner, as to have been an estate-tail, according to the former rules of construction, shall now be deemed a fee-simple. These two rules taken together, render an attention to the manner in which any limita ion in a deed or will may be created, almost, (perhaps equally) as necessary at this day, as formerly. For it has been held that where a dc vise was," to Launcelot Hicks, for and during the term of his natural life, and no longer; and after his decease to such son as he shall have lawfully to be begotten; and for want of such issue, a devise over," that this devise gave to Launcelot Hicks an estate in tail male, notwithstanding the express estate devised to him for life, and no longer. 1. Burrow 51. This decision seems to be founded upon that antient rule of law, which is cited in Shelbey's case, 1 Co. 104. That when the ancestor by any gift or conveyance, taketh an- estate of freehold, and in the same gift or conveyance, an estate is limited either mediately or immediately to his heirs in fee, or in tail, that always, in such cases, the heirs are words of limitation of the estate, and not words of purchase ; that is, the word heirs, in this case, enures so as to encrease the estate of the ancestor from atennancy for life, to a fee simple, or fee tail. Post 242. But if the limitation be to the heir in the singular number upon a lease for life, there the heir taketh an estate for life, by purchase, and the ancestor hath only an estate for life, in the lease. 1 Co. 1C4. Taking all these rules together, it would seem as difficult to limit an estate for life, only, at this day, as it was formerly, to limit an estate of inheritance in exact conformity to the donor's intention.

for life which may determine upon future contingencies, before the life, for which they are created, expires. As, if an estate be granted to a woman during her widowhood, or to a man until he be promoted to a benefice; in these, and similar cases, whenever the contingency happens, when the widow marries, or when the grantee obtains a benefice, the respective estates are absolutely determined and gones. Yet, while they subsist, they are reckoned estates for life; because, the time for which they will endure being uncertain, they may by possibility last for life, if the contingencies upon which they are to determine do not sooner happen. And, moreover, in case an estate be granted to a man for his life, generally, it may also determine by his civil death: as if he enters into a monastery, whereby he is dead in lawh: for which reason in conveyances the grant is usually made " for the term of a man's natural life ;" which can only determine by his natural death1.

The incidents to an estate for life, are principally the following ; which are applicable not only to that species of tenants for life, which are expressly created by deed; but also to those, which are created by act and operation of law.

1. Every tenant for life, unless restrained by covenant or agreement, may of common right take upon the land demised to him reasonable estovers31 or bates*. For he hath a right to the full enjoyment and use of the land, and all it's profits, during his estate therein. But he is not permitted to cut down timber or do other waste upon the premises1": for the destruction of such things, as are not the temporary profits of the tenement, is not necessary for the tenant's complete enjoyment of his estate; but tends to the permanent and lasting loss of the person entitled to the inheritance.

2. Tenant for life, or his representatives, shall not be prejudiced by any sudden determination of his estate, because such a determination is contingent and uncertain". Therefore, if a

g Co. Litt. 42. 3 Rep. 20. h 2 Rep. 48. i See Vol. I. p. 132. k See p. 35. 1 Co. Litt. 41. • m Ibid. 52. n Kid. 55.

tenant for his own life sows the lands, and dies before harvest, his executors shall have the emblements, or profits of the crop2: for the estate was determined by the act of God; and it is a maxim in the law, that actusDei nemini facit injuriam. The represen-

2. This most just and reasonable rule of law was altered in Virginia by the act of 1785, c. 61, which took effect January 1,1787. .... By that act, if a person die after the first day of March, all the emblements severed before the thirty-first day of December following, shall go to the executors; but the emblements growing on that day, or at the death of the person between the thirty-first of December, and the first day of March, shall pass with the land to the heir, devisee, reversioner, or remainderman. Wheat and all other winter crops, must have been sown, before the thirty-first of December, and cannot be severed for some time after the first day of March. The seed, and expence of putting it into the ground, costs more than any other crop ; after that is done, nothing remains but to preserve the enclosures, and to reap the crop. It seems not easy to reconcile to good policy, or justice, a law which gives to the reversioner or remainderman the profits of the labour of a tenant whom the act of God, only, hath prevented from reaping what he had sown.

By the samepct, if any person die after the first day of March, his slaves, whether held for life, or other interest, which were employed in making a crop, shall be continued on the plantation of the deceased, until the last day of December following; and their crops shall go to the executors, and be subject to debts, legacies, and distribution; the levies and taxes, their tools, expence of supporting them, and (heir families, and delivering them well clothed, being first deducted ; and if the slaves were held for life only, the executor shall be obliged to deliver to the remainderman, or reversioner, three barrels of Indian corn, for each slave, old and young, to be allowed in his accounts of administration. This clause, except the latter part of it, agrees pretty nearly with the act of 1748, c. 3, which required all slaves above ten years of age, to be delivered well clothed, but did not require any corn to be delivered with them. The act of 1785 further provides, that if there be tenant for life of lands, or slaves let, or hired to another, if the tenant for life die after the first day of March, the lessee, or person hiring, shall hold the lands and slaves until the last day of December following, paying rent, or hire to that time, and delivering the slaves well clothed : and further, that the rent of land, or hire of slaves shall be apportioned between the executor of the tenant for life, or other uncertain interest, who shall die before the rent or hire becomes due, and the heir, devisee, reversioner, or remainderman,unlessin the case of a devisee the testator shall otherwise direct. See V. L. 1748, c. 3,

tatives, therefore, of the tenant for life shall have the emblements, to compensate for the labour and expence of tilling, manuring, and sowing the lands; and also for the encouragement of husbandry, which being a public benefit, tending to the encrease and plenty of provisions, ought to have the utmost security and privilege that the law can give it. Wherefore by the feodal law, if a tenant for life died between the beginning of September and the end of February, the lord, who was entitled to the reversion, was also entitled to the profits of the whole year; but, if he died between the beginning of March and the end of August, the heirs of the tenant received the whole0. From hence our law of emblements seems to have been derived, but with very considerable improvements. So it is also, if a man be tenant for the life of another, and cestuy ynevie^ar he on whose life the land is held, dies after the corn sown, the tenant pur outer vie shall have the emblements3. The same is also the rule, if a life-estate be determined by the act of law. Therefore, if a lease be made to husband and wife during coverture, (which gives them a determinable estate for life) and the husband *ows the land, and afterwards they are divorced a vinculo matrimonii, the husband shall have the emblements in this case; for the sentence of divorce is the ast of law*. But if an estate for life be determined by the tenant's own act (as, by forfeiture for waste committed; or, if a tenant during widowhood thinks proper to marry) in these, and similar cases, the tenants, having thus determined the estate br their own acts, shall not be entitled to take the emblements'J. The doctrine of emblements extends not only to corn sown, but to roots planted, or other annual artificial profit, but it is otherwise of fruit-trees, grass, and the like; which are not planted annually at the expence and labour of the tenant, but are either a

o Feud. I. 2. t. 28.

p 5 Hep. 116.

q Co. Litt. 55,

J. 30, 31, 32. Edi. 1769. Acts of 1785, c. 61, $. 43, 44, 45,46. Edi. 1794, c. 92, ^. 46, &c.

Although the words of the above act are general, yet by an act of the same session, it is provided, that widows may bequeath the crops of their ground; as well of their dowers, as of other their lands and tenements. Sessions acts, 1785, c. 65. Edi. 1794, c. 94.

3. Herein I presume the law remains unaltered, in Virginia.

permanent, or natural, profit of the earthr. For when a man plants a tree, he cannot be presumed to plant it in contemplation of any present profit; but merely with a prospect of it's being useful to himself in future, and to future successions of tenants. The advantages also of emblements are particularly extended to the parochial clergy by the statute 28 Hen. VIII. c. II4. For all persons, who are presented to any ecclesiastical benefice, or to any civil office, are considered as tenants for their own lives, unless the contrary be expressed in the form of donation.

3. A third incident to estates for life relates to the under, tenants or lessees. For they have the same, nay greater indulgencies than their lessors, the original tenants for life. The same; for the law of estovers and emblements, with regard to the tenant for life, is also law with regard to his under-tenant, who represents him and stands in his place1: and greater; for in those cases where tenant for life shall not have the emblements, because the estate determines by his own act, the exception shall not reach his lessee who is a third person*. As in the case of a woman who holds durante viduitate: her taking husband is her own act, and therefore deprives her of the emblements: but if she leases her estate to an under-tenant, who sows the land, and she then marries, this her act shall not deprive the tenant of his emblements, who is a stranger and could not prevent her1. The lessees of tenants for life had also at the common law another most unreasonable advantage ; for, at the death of their lessors the tenants for life, these under-tenants might if they pleased quit the premises, and pay no rent to any body for the occupation of the land since the last quarter day, or other day assigned for payment of rent". To remedy which it is now enacted*, that the

r Co. Litt. 55, 56. 1 Roll. Abr. 728.

s Co. Litt. 55. t Cro Eliz. 461. 1 Roll Abr, 727.

u 10 llep. 127. v Stat. 11 Geo. II. c. 19, Sec. 15

4. This statute is repealed in Virginia. Edi. 1794, c. 147. ' 5. Quaere, If the law dies not i:i this respect remain unaltered, notwithstanding the act of 1785, c. 61. For as that, so far as relates to the emblements growing between the thirty-first of December and the first of March, is unquestionably a hard law, it seems reasonable that it should not be extended beyond the strict letter ; and the case of a lessee of tenant for life seems not to be within it.

executors or administrators of tenant for life on whose death any lease determined, shall recover of the lessee a ratable proportion of rent, from the last day of payment to the death of such lessor".

II. The next estate for life is of a legal kind, as contradistinguished from conventional; viz. that of tenant in tail after possibility of issue extinct. This happens, where one is tenant in special tail, and a person, from whose body the issue was to spring, dies without issue ; or, having left issue, that issue becomes extinct: in either of these cases the surviving tenant in special tail becomes tenant in tail after possibility of issue extinct. As, where one has an estate to him and his heirs on the body of his present wife to be begotten, and the wife dies without issuew ; in this case the man has an estate-tail, which cannot possibly descend to any one ; and therefore the law makes use of this long periphrasis, as absolutely necessary to give an adequate idea of his estate. For if it had called him barely tenant in fee-tail special, that would not have distinguished him from others ; and besides he has no longer an estate of inheritance, or feex, for he can have no heirs, capable of taking performam doni. Had it called him tenant in tail without issue, this had only related to the present fact, and would not have excluded the possibility of future issue. Had he been stiled tenant in tail without possibility of issue, this would exclude time past as well as present, and he might under this description never have had any possibility of issue. No definition, therefore, could so exactly mark him out, as this of tenant in tail after possibility of issue extinct, which (with a precision peculiar to our own law) not only takes in the possibility of issue in tail which he once had, but also states that this possibility is now extinguished and gone.

w Litt. Sec. 32. x 1 Roll. Rep. 184. 11 Rep. 80.

6. The act of 1785, c. 61, declares that the rent in this case shall be apportioned between the executor of the tenant for life, and the person to whom the land shall belong. But it seems defective, in not giving them an action against the lessee of the land. So that the inconvenience which is noticed above still remains, perhaps, without remedy. See Edi. 1794, c. 92, §. 49. But quaere, if the executors may not have a special action on the case against the tenant, founded upon this act ?

This estate must be created by the act of God, that is, by the death of that person out of whose body the issue was to spring; for no limitation, conveyance, or other human act can make it. For, if land be given to a man and his wife, and the heirs of their two bodies begotten, and they are divorced a vinculo »za«rz«0n/V,theyshallneitherofthemhave this estate,butbe barely tenants for life, notwithstanding the inheritance once vested in them''. A possibility of issue is always supposed to exist, in law, unless extinguished by the death of the parties ; even, though the donees be each of them an hundred years oldz.

This estate is of an amphibious nature, partaking pardy of an estate-tail, and partly of an estate for life. The tenant is, in truth, only tenant for life, but with many of the privileges of a tenant in tail; as, not to be punishable for waste, &?c.»: or, he is tenant in tail, with many of the restrictions of a tenant for life; as, to forfeit his estate if he alienes it in fee-simple b : whereas such alienation by tenant in tail, though voidable by the issue, is no forfeiture of the estate to the reversioner : who is not concerned in interest, till all possibility of issue be extinct. But in general, the law looks upon this estate as equivalent to an estate for life only; and, as such, will permit this tenant to exchange his estate with a tenant for life; which exchange can only be made, as we shall see hereafter, of estates that are equal in their nature7.

III. Tenant by the curtesy of England, is where a man marries a woman seised of an estate of inheritance, that is, of lands and tenements in fee-simple or fee-tail; and has by her issue, born alive, which was capable of inheriting her estate. In this

j Co Lite. 28. z Litt. Sec. 34. Ce. Litt. 28.

a/iW. 27. b/4iV.28.

7. This, as well as every other species of estates tail, was abolished, by the act of October, 1776, c. 26. Edi. 1785, acts of 1785, c. 62. Edi. 1794, c. 90. And it would seem that under the operation of the act for abolishing entails, which includes estates in special, as well as general tail, that the tenant in tail after possibility of issue extinct, would have an estate in fee simple vested in him by that act, notwithstanding what is here said.

case, he shall, on the death of his wife, hold the lands for his life, as tenant by the curtesy of England c.

This estate, according to Littleton, has it's denomination, because it is used within the realm of England only; and it is said in the mirrour d to have been introduced by king Henry the first; but it appears also to have been the established law of Scotland, wherein it was called curialitas % so that probably our word curtesy was understood to signify rather an attendance upon the lord's court or curtis, (that is, being his vasal or tenant) than to denote any peculiar favour belonging to this island. And therefore it is laid down* that by having issue, the husband shall be entitled to do homage to the lord, for the wife's lands, alone: whereas, before issue had, they must both have done it together. It is likewise used in Ireland, by virtue of an ordinance of king Henry III s. It also appears h to have obtained in Normandy; and was likewise used among the antient Almainsor German's1. And yet it is not generally apprehended to have been a consequence of feodal tenurek, though I think some substantial feodal reasons may be given for its introduction. For, if a woman seised of lands hath issue by her husband, and dies, the husband is the natural guardian of the child, and as such is in reason entitled to the profits of the lands in order to maintain it: for which reason the heir apparent of a tenant by the curtesy could not be in ward to the lord of the fee, during the life of such .tenant1. As soon, therefore, as any child was born, the father began to have- a permanent interest in the lands, he became one of the pares curtis, did homage to the lord, and was called tenant by the curtesy initiate; and this estate being once vested in him by the birth of the child, was not suffered to determine by the subsequent death or coming of age of the infant.

There are four requisites necessary to make a tenancy by the curtesy; marriage, seisin of the wife, issue, and death of

c Litt. Sec. 35, 52. d c. 1, S«c. 3.

c Crag. 1. 2, «. 19, Sec. 4. f Litt. Sec. 90, Co. Litt. 30,67.

g Pat. 11, H. III, w. 30, in 2 Bac, Abr. 659.

h Grand Coattiim.^. 119. i Lindenbrog. LL. Alman. t. 92.

k Wright, 294. 1 F. N. B. 143.

the wife m. 1. The marriage must be canonical and legal8. .... 2. The seisin of the wife must be an actual seisin, or possesssion of the lands: not a bare right to possess, which is a seisin in law, but an actual possession, which is a seisin in deed. And, therefore, a man shall not be tenant by the curtesy, of a remainder or reversion. But of some incorporeal hereditaments a man may be tenant by the curtesy, though there have been no actual seisin of the wife: as in case of an advowson, where the church has not become void in the life-time of the wife; which a man may hold by the curtesy, because it is impossible ever to have actual seisin of it, and impotentia excusat legem*. If the wife be an ideot, the husband shall not be tenant by the curtesy of her lands; for the king by prerogative is entitled to them, the instant she, herself, has any title; and since she could never be rightfully seised of the lands, and the husband's title depends entirely upon her seisin, the husband can have no title as tenant by the curtesy ° ». 3. The issue must be born alive. Some have had a notion that it must be heard to cry; but that is a mistake. Crying, indeed, is the strongest evidence of it's being born alive j but it is not the only evidence p. The issue also must be born during the life of the mother; for, if the mother dies in labour, and the Caesarean operation is performed, the ' husband in this case shall not be tenant by the curtesy: because

m Co. Litt. 30.

o Ibid. 30, Plowd. 263.

n Ibid. 29.

p Dyer, 25, 8 Hep. 34.

8. It certainly is not necessary that a marriage should be canonical in Virginia, to make a tenancy by curtesy. Edi. 1794, c. 104. }. 5, 7, and c. 169, and Sessions Acts of 1796, c. 28. It may also be questioned whether the marriage must be strictly legal: for marriages without licence or publication of banns, are to certain purposes illegal, yet it would seem that the validity of the marriage is not affected thereby, as perhaps it may be England, where the parties are under age. But if the wife be under the age of fourteen years, at the time of her marriage, and shall have been married contrary to the will or consent of her father or guardian, and without legal publication of the banns, and the next of kin enter for the forfeiture, the husband, I apprehend, could not be tenant by the curtesy. See L. V. Edi. 1794, c. 104, §. 15. But, quaere, if there were no entry made by the next of kin ?

9. Perhaps a better reason may be, that an ideot is not capable of contracting marriage, for want of that portion of understanding which is necessary to the completion of all contracts, vide post. p. 130. "

at the instant of the mother's death, he was clearly not entitled, as having had no issue born, but the land descended to the child while he was yet in his mother's wombj and the estate being once so vested, shall not afterwards be taken from him i. In gavelkind lands, a husband may be tenant by the curtesy without having any issuer. But, in general, there must be issue born; and such issue as is also capable of inheriting the mother's estate'. Therefore, if a woman be tenant in tail male, and hath only a daughter born, the husband is not thereby entitled to be tenant by the curtesy; because such issue female can never inherit the estate in tail male'. And this seems to be the principal reason, why the husband cannot be tenant by the curtesy of any lands of which the wife was not actually seised: because, in order to entitle himself to such estate, he must have begotten issue that may be heir to the wife; but no one, by the standing rule of law, can be heir to the ancestor of any land, whereof the ancestor was not actually seised; and, therefore, as the husband hath never begotten any issue that can be heir to those lands, he shall not be tenantHjf them by the curtesy u 10. And hence, we may observe, with fibw much nicety and consideration the old rules of law were framed j and how closely they are connected and interwoven together, supporting, illustrating, and demonstrating one another. The time when the issue was born is

q Co. Litt. 29. 8 Litt. Sec. 56: u Mid. 40.

r Ibid. 30. t Co. Litt. 29.

10. Upon similar reasons to these it was a maxim of the common law, that a man should not be tenant by curtesy of an estate, in which the wife at the time of her death was joint-tenant with another person ; because, by the jus accrescendi, or right of survivorship between joint-tenants, the whole estate vested immediately upon her death in the surviving joint-tenant, and the issue of the person dying;, although h were a joint tenancy in fee simple, was forever excluded from the inheritance: therefore, inasmuch as the issue was incapable of succeeding to the estate, the husband was incapable of being tenant by the curtesy .... But the law is now altered in Virginia, by the act of 1786, c. 60. Edi. 1794, c. 24, which took effect July 1, 1787. Since which period estates held in joint-tenancy in Virginia, are subject to curtesy, and dower, and shall in other respects descend and pass to the heirs of the several joint-tenants as if thevjiad been'held in common. '

immaterial, provided it were during the coverture: for, whether it were born before or after the wife's seisin of the lands, whether it be living or dead, at the time of the seisin, or at the time of the wife's decease, the husband shall be tenant by the curtesy w. The husband by the birth of the child becomes (as was before observed) tenant by the curtesy initiate x, and may do many acts to charge the lands; but his estate is not consummate till the death of the wife " ; which is the fourth and last requisite to make a complete tenant by the curtesy *.

IV. Tenant in dower is where the husband of a woman is seised of an estate of inheritance, and dies ; in this case, the wife shall have the third part of all the lands and tenements whereof he was seised at any time during the coverture, to hold to herself for the term of her natural life212.

w Co. Litt. 29 x Ibid. 30. y Ibid. z Litt. §. 36.

11. Where any person, to whose use, or in trust for whose benefit another is seized of lands, tenements., or hereditaments, hath such an estate in the use or trust, as if it were a legal1 estate, would be subject to curtesy or dower, the husband or wife shall recover curtesy or dower, therein, as if it had been a legal estate. Acts of 1785, c. 62, Edition of 1794, c. 90. In the case of tenant by the curtesy, the law seems to have always been, that he shall be tenant by the curtesy of a trust estate, in some cases where the wife shall not be endowed of such an estate. For if the wife make a mortgage in fee before marriage, the husband shall be tenant by curtesy of the equity of redemption. 1. Atkyns, 603. But if the husband had made a mortgage in fee of his lands, and afterwards married, the wife could not be endowed of this equity of redemption. 1. Brown's rep. in Ch. 328.

12. Lord Coke says, that all kinds of dowers were instituted for the subsistence of the wife, which right of dower is not only a legal, but a moral right; the relation of husband and wife, as it is the nearest, so it is the earliest, and therefore the wife is the proper object of the care and kindness of her husband ; the husband is bound by the law of God and man to provide for her during his life, and after his death the moral obligation is not at an end, but he ought to take care of her provision during her own life. .... This is the more reasonable, as during the coverture she can acquire no property of her own ; .... if before her marriage she had a real estate, this by the coverture ceases to be hers, and the right thereto, whilst she is married vests in the husband; her personal estate becomes his absolutely; so that unless she have a real estate of her pwn, which is the case of but few,

Dower is called in Latin by the foreign jurists doarium, but by Bracton and our English writers dos: which among the Romans signified the marriage portion, which the wife brought to her husband; but with us is applied to signify this kind of estate, to which the civil law, in it's original state, had nothing that bore a resemblance : nor indeed is there any thing in general

she may by his death be destitute of the necessaries of life, unless provided for out of his estate, either by a jointure or dower; as to the husbands personal estate, unless restrained by special custom, which very rarely takes place, he may give it all away from her * ; so that his real estate, if he has any, is the only plank she can lay hold of to prevent her sinking under her distress ; thus is the wife said to have a moral right of dower. .... Dower also is a legal right created by law, which settles the quality of the estate out of which the wife's dower arises, and.likewise settles the quantum thereof. The common law says, a third part is rationabilis dos ; it likewise ascertains dower with respect to the nature and quantity of the husbands estate ; it says it must come out of such an estate as would descend to the issue by that wife, and gives dower of the husband's seisin, though not actual, or reduced into possession. It annexes privileges to dower, as not to be liable to distress for the husband's debt to the king, much less for any due to the subject .... Dower is also an equitable right, and such a one as is a foundation for relief in a court of equity; it arises from a contract made upon a valuable consideration ; marriage being in its nature a civil, and in its celebration a sacred contract; and the obligation is a consideration moving from each of the contracting parties to the other; from this obligation arises an equity to the wife, in several cases, without any previous agreement; as to make good a defective execution of a power, or a defective conveyance ; in which cases the court relieves the wife, and makes a provision for her, where it is not unreasonable, or injurious with respect to others. By the common law, where the husband had an inheritable estate, it was part of the marriage contract that the wife should have her dower, instead of which the general words of endowing with all his worldly goods, in the office of matrimony now in use, have come in : from whence it is to be inferred, that dower is, and time out of mind has been, a part of the marriage contract, when it came to be publickly solemnized, and is therefore, an equitable right founded in contract. .... Sir Joseph Jekyl's (master of the rolls,) argument in the case of Banks and Sutton, 2. p. Wms. 634.

* Though a man can not in Virginia, by his will deprive his wife of her proportion of his personal estate, yet, if so disposed, he may give it all away from her in his lifetime ; and she can have no part thereof until after the payment of his debts, which often swallow up the whole

more different, than the regulation of landed property according to the English and Roman laws. Dower out of lands seems also to have been unknown in the early part of our Saxon constitution ; for, in the laws of king Edmond% the wife is directed to be supported wholly out of the personal estate. Afterwards, as may be seen in gavelkind tenure, the widow became entitled to a conditional estate in one half of the lands ; with a proviso that she remained chaste and unmarried b: as is usual also in copyhold dowers, or free bench. Yet some c have ascribed the introduction of dower to the Normans, as a branch of their local tenures; though we cannot expect any feodal reason for its invention, since it was not a part of the pure, primitive, simple law of feuds, but was first of all introduced into that system (wherein it was called triem, tertia d, and dotalitium} by the emperor Frederick the second e ; who was contemporary with our king Henry III. It is possible, therefore, that it might be with us the relic of a Danish custom: since, according to the historians of that country, dower was introduced into Denmark by Swein, the father of our Canute the great, out of gratitude to the Danish ladies, who sold all their jewels to ransom him when taken prisoner by the Vandals f. However this be, the reason, which our law gives for adopting it, is a very plain and sensible one ; for the sustenance of the wife, and the nurture and education of the younger children &.

In treating of this estate, let us, first, consider, who may be endowed; secondly, of what she may be endowed; thirdly, the manner how she shall be endowed; and fourthly, how dower may be bar red or prevented.

1. Who may be endowed. She must be the actual wife of the party at the time of his decease. If she be divorced a vinculo matrimonii, she shall not be endowed ; for ubi nullum matrimonium, ibl nulla dosh. But a divorce a mensa et thoro only

a Wilk. 75. . b Somner. Gavelk. 51. Co. Litt. 33. Bro. Dower. 70,

c Wright. 192. d Crag. /. 2. t. 22. §. 9. , c Hid. f Mod. Un. Hist, xxxii. 91. S Bract. /. 2. c. 39. Co. Litt. 30. h Bract. I. 2. c. 39. §. 4.

doth not destroy the dower'; no, not even for adultery itself by the common law k. Yet now by the statute Westm. 2'. if a woman voluntarily leaves (which the law calls eloping from) her husband, and lives with an adulterer, she shall lose her dower, unless her husband be voluntarily reconciled to her13. It was formerly held, that the wife of an idiot might be endowed, though the husband of an idiot could not be tenant by the curtesy m: but as it seems to be at present agreed, upon principles of sound sense and reason, that an idiot cannot marry, being incapable of consenting to any contract, this doctrine cannot now take place. By the antient law the wife of a person attainted of treason or felony could not be endowed; to the intent, says Staunforde n, that if the love of a man's own life cannot restrain him from such atrocious acts, the love of his wife and children may: though Britton ° gives it another turn ; viz. that it is presumed the wife was privy to her husband's crime. However, the statute 1 Edw. VI, c. 12, abated the rigour of the common law in this particular, and allowed the wife her dower. But a subsequentstatuteP revived this severity against the widows of traitors, who are now barred of their dower, (except in the case of certain modern treasons relating to the coin i) but not the widows of felons ". An alien also cannot be endowed, unless she be queen consort; for no alien is capable of holding lands'. The wife must be above nine years old at her husband's death, otherwise she shall not be endowed •: though in Bracton's time the age was indefinite, and dower was then only due "«' uxor possit dotem promereri, etvirum sustinere*."

i Co. Litt. 32.

k Yet, among the antient Goths, an adulteress was punished by the Iocs of her dotalitii et trientis ex banis mobilibus viri. (Stiernh. /. 3. c. 2.)

113 Edw. I, c. 34. m Co. Litt. 31.

n P. C. b. 3. c. 3. oc.,110.

p S and 6 Edw. 6. c. 11.

q Stat. 5 Eliz. c. 11. 18Ellz. c. 1. 8 and9 W. III, c. 26. 15 and 16 G«o. 11, c. 28. r Co. Litt. 31.

s Litt. Sec. 36 t /. 2. c. 9. Sec. 3.

13. L. V. 1785, c. 65. Edi. 1794. c. 94. accordant.

14. No forfeiture of dower is incurred in Virginia either by treason or felony, October 1776, c. 3, 1794. c. 74. $. 31. C. U. S. Art. 3. In. U. S. 1 Cong. 2. Sess. c. 9.

2. We are next to inquire, of what a wife may be endowed. And she is now by law entitled to be endowed of all lands and tenements, of which her husband was seised in fee-simple or fee-tail, at any time during the coverture ; and of which any issue, which she might have had, might, by possibility, have been heiru '*. Therefore, if a man, seised in fee-simple, hath a son by his first wife, and after marries a second wife, she shall be endowed of his lands ; for her issue might by possibility have been heir, on the death of the son by the former wife. But, if there be a donee in special tail, who holds lands to him and the heirs of his body begotten on Jane his wife j though Jane may be endowed of these lands, yet if Jane dies, and he marries a second wife, that second wife shall never be endowed of the lands entailed ; for no issue, that she could have could, by any possibi-

U Litt. Sec. 36,53.

IS. She shall be endowed of one full and equal third part of all the lands, tenements, and other real estate whereof her husband, or any other to his use, was seised of an estate of inheritance at any time during the coverture, to which she shall not have relinquished her right of dower, by deed executed, acknowledged, and recorded in the manner prescribed by law. V. L. 1705, c. 7. 1785, e. 60. Edi. 1794, c. 94.

The wife shall be endowed of an estate of inheritance in which the hnsband, at the time of his death, was joint-tenant with another, which by the common, law she could not be endowed of. 1786, c. 60. • Edi. 1794, c. 24.

When slaves were declared to be real estate in Virginia, the widow was dowable thereof, and might have a writ of dower to recover her right and possession of such slaves. But she was not authorised to carry or send them out of the colony, without consent of him in the reversion, under penalty of forfeiting her whole dower therein. 1705, c. 3. Edi. 1769. But slaves being now personal estate, she has no longer a right of dower therein, but she is nevertheless entitled to an interest resembling dower, inasmuch as her interest is only to the use of the slave during her life. Edi. 1794, c. 92, 103.

By the act of 1785, c. 62. Edi. 1794, c. 90. }. 16, it is further declared, that where any person to whose use, or in trust for whose benefit another is seised of lands, tenements, or hereditaments, hath such an inheritance in the use or trust as, that if it had been a legal estate,

lity, inherit them v ("). A seisin in law of the husband will be as effectual as a seisin in deed, in order to render the wife do\vable ; for it is not in the wife's power to bring the husband's title to an actual seisin, as it is in the husband's power to do with regard to the wife's lands : which is one reason why he shall not be tenant by the curtesy, but of such lands whereof the wife, or he himself in her right, was actually seised in deed w. The seisin of the husband, for a transitory instant only, when the same act which gives him the estate conveys it also out of him again, (as where by a fine, land is granted to a man, and he immediately renders it back by the same fine) such a seisin will not entitle the wife to dower x: for the land was merely in transita, and never rested in the husband ; the grant and render being one continued act. But, if the land abides in him, for the interval of but a single moment, it seems that the wife shall be endowed

v Litt. Sec. 53. w Co. Litt. 31. x Cro. Jac. 615. 2 Rep. 67. Co. Litt. 31.

the husband or wife would have been entitled to curtesy, or dower,

they shall have, and may recover curtesy or dower of such lands, &c.

In consequence of this act, it would seem that a wife might now be endowed of a trust estate, in some cases where it was formerly held that she could not be endowed. For now, I presume, she should be endowed of an equity of redemption, of which the husband, in a parallel case, would have been tenant by the curtesy. See page 128, note 11. 1 Ath. 603. 1 Brown's Rep. in Ch. 328. So of a trust term against a purchaser, as well as against an heir, which it seems she could not formerly. Shower's Ca. in Park. 69. 2 P. Wms. 639. So of a trust created by the husband himself, which it was held would bar her right of dower, though it was held otherwise if the term were created by another person. 2 P. Wms. 640, 642. So of a trust attending the whole inheritance, as well as of a trust term attending the inheritance. 2 P. Wms. 646. Shower's Ca. in Park. 69 .... See, also, 1 P. Wms. 108, 121, 137. Cases time of Talbot, 138. S-jlk. 291. 1 Atk. 208, 209, 526. In the case last cited, lord Hardwicke lays it down as an established doctrine at that day, that a wife is not dowable of a trust estate; and that she was not dowable of an use before the statute 27 H. 8. c. 10. See, also, 1 Eg. Ca. Abr. Title Dower. 2 Eg. Ca. Title, Dower, and Jointure. 3 P. Wms. 229, 245, 365.

- (15.) But herein the law is now altered, inasmuch as such donee in special tail would now have an absolute and unconditional estate iu fee simple, of which the wife would consequently be enti.led to dower. L. V. Edi. 1794. c. 90. &. 9.

thereof t l*. And, in short, a widow may be endowed of all her husband's lands, tenements, and hereditaments, corporeal or incorporeal, under the restrictions before mentioned ; unless there be some special reason to the contrary. Thus, a woman shall not be endowed of a castle, built for defence of the realm z: nor of a common without stint; for, as the heir would then have one portion of this common, and the widow another, and both without stint, the common would be doubly stocked a. Copyhold estates are also not liable to dower, being only estates at the lord's will; unless by the special custom of the manor, in which case it is usually called the widow's free-benchb. But, where dower is allowable, it matters not though the husband aliene the lands during the coverture ; for he aliens them liable to dower c »7.

3. Next, as to the manner in which a woman is to be endowed. There are now subsisting four species of dower; the fifth, mentioned by Littleton d, de la phis belle, having been abolished together with the military tenures, of which it was a consequence. 1. Dower by the common law, or that which is before described. 2. Dower by particular custom e ; as that- the wife should have half the husband's lands, or in some places the whole, and in some only a quarter, 3. Dower ad ostium eccle-

y This doctrine was extended very far by a jury in Wales, where the father and son were both hanged in one cart, but the son was supposed to have survived the father, by appearing to struggle longest; whereby he became seised of an estate in fee by survivorship, in consequence of which seisin his widow had a verdict for her dower. (Cro. Eliz. 503.

z Co. Lilt. 31. 3 Lev. 401. a Co. Litt. 32. 1 Jon. 315.

b 4 Rep. 22. c Co. Litt. 32.

d Sec 48, 49. e Litt. §. 37.

16. The widow of a mortgagee in fee shall not be endowed of the mortgaged premises, if the mortgage be not foreclosed in the life-time of the husband ; for, until the foreclosure, the mortgage is only in the nature of a pledge. Hardr. 466. Yet it was long doubted, whether the wife of a mortgagee in fee, especially after the day of payment was past, should not be endowed of the mortgaged premises. Post. 158.

17. Unless she renounces her right thereto, and her privy examination be made of record. V. L. 1748, c. 1. Edi. 1794, c. 90. J. 7; and c. 94.

tiaef: which is where tenant in fee-simple of full age, openly at the church door, where all marriages were formerly celebrated, after affiance made and (sir Edward Coke in his translation of Littleton adds) troth plighted between them, doth endow his wife with the whole, or such quantity as he shall please, of his lands ; at the same time specifying and ascertaining the same: on which the wife, after her husband's death, may enter-without farther ceremony. 4. Dower ex assensu patris *; which is only a species of dower ad ostium eccksiae, made when the husband's father is alive, and the son by his consent, expressly given, endows his wife with parcel of his father's lands. In either of these cases, they must (to prevent frauds) be made h in facie eccleslae et ad ostium eccksiae ; nonenim valentfacta in lecto mortali, nccin camera, out alibi ubi clandestina fuere conjugia.

It is curious to observe the several revolutions which the doctrine of dower has undergone, since its introduction into England. It seems first to have been of the nature of the dower in gavelkind, before-mentioned; viz. a moiety of the husband's •lands, but forfeitable by inconstancy or a second marriage. By the famous charter of Henry I, this condition, of widowhood and chastity, was only required in case the husband left any issue': and afterwards we hear no more of it. Under Henry the second, according to Glanvilk, the dower ad ostium eccksiae was the most usual species of dower; and here, as well as in Normandy1, it was binding upon the wife, if by her consented to, at the time of marriage. Neither in jhose days of feodal rigor, was the husband allowed Jo endow her ad ostium eccksiae with more than the third part of the lands whereof he then was seised, though he might endow her with less ; lest by such liberal endowments the lord should be defrauded of his v/ardships and other feodal profits"1. But if no specific donation was made at the church porch, then she was endowed by the common law

{ Litt. Sec.39. g Litt. Sec 40.

h Bracton, I. 2 c. 49. Sec. 4.

i 5V mortuo viro uxor ejus rcmamcrit, et tine liberiifuerit, dotam iuam habebit .... si vero uxor cum Itberis renianterit, dotem qutdeiti habebit, duin corf us tuumlegitime tervaverit. (Can. Hen. I. A. D. 1101. Introd. to great charter. edit. Oxon. page iv )

k /. 6. c. 1 y 2. 1 Gr. Couttum. c. 101.

m Bract. /. 2. c, 39. Sec. 6.

of the third part (which was called her dos rationabllls) of such lands and tenements, as the husband was seised of, at the time of the espousals, and no other; unless he specially engaged before the priest to endow her of his future acquisitions": and, if the husband had no lands, an endowment in goods, chattels, or money, at the time of espousals, was a bar of any dower" in lands which he afterwards acquiredP. In king John's magna carta, and the first charter of Hemy IIIi, no mention is made of any alteration of the common law, in respect of the lands subject to dower: but in those of 1217, and 1224, it is particularly provided, that a widow shall be entitled for her dower to the third part of all such lands as the husband had held in his life-timer: yet, in case of a specific endowment of less ad ostittm ecdesiae, the widow had still no power to waive it after her husband's death. And this continued to be law, during the reigns of Henry

n De tfiestu suo. (Glunv. ib.} JDe terns acquisitii et acquirendis- (Bract. Hi.} o Glanv. c. 2.

p Whan special endowments were made ad ostiuin ecclesiae, the husband, after affiance made, and troth plighted, used to declare with what specific lands he meant to endow his wife, (ijitadilotateam tie tali manerio cum pfrtinentiis, t9*c. Bract. ibid.) and therefore in the eld York utual (Seld. Ux. Hebr. I 2. c. 27.) there is, at this part of the matrimonial service, the following rubric; " tacerdos interroget doteni mulieris; etsitciraei in doteni dettir, tune dicaturpsalmiis isle, &c." When the wife was endowed generally, fubi quis uxorem suain dataverit in generalise omnibus terriset tenementis; Biact.j'iiW.) the husbandsee'ms to have said," with all m> lands and tenements I thee endow;" and then they all become liable toner dower. When heendowed her with personalty only.he' used to say, " with all my worldly goods (or, as the Salisbury ritual has it, with all my -worldly chattel) I thee endow :" which intitled the wife to her thirds, or pan rational/His, of his personal estate, which is provided for by magna carta, cap. 26. and will be farther treated of in the concluding chapter of this book ; though the retaining this last expression in our modern liturgy, if of any meaning at all, can now refer only to the right of maintenance, which she acquires during coverture, out of her husband's personalty 18.

q A. D. 1215, c. 7. edit. Oxon.

r Assignetur autem ei pro dote sua tertia pars totitis terrae mariti siti quae sua Jiiit in vita sun, niti de minori dotatafeurit adostium ecclesiae. c. 7- (Ibid}.

18. Sir Joseph Jekyl, master of the rolls in England, Anno, 1732, considers these words as giving to the wife, an equitable right of dower, founded in contract. See his argument in the case of Banks and Sutton, 3 P. Wms. 637. See note 12, page 129.

III and Edward I1. In Henry IV's time it was denied to be law, that a woman*can be endowed of her husband's goods and chattels1: and, under Edward IV, Littleton lays it down expressly, that a woman may be endowed ad outturn ecclesia with more than a third part"; and shall have her election, after her husband's death, to accept such dower or refuse it, and betake herself'to her dower at common laww. Which state of uncertainty was probably the reason, that these specific dowers, ad ostium ecclesiae and ex assensu patris, have since fallen into total disuse.

I proceed, therefore, to consider the method of endowment, or assigning dower, by the common law, which is now the only usual species. By the old law, grounded on the feodal exactions, a woman could not be endowed without a fine paid to the lord: neither could she marry again without his licence; lest she should contract herself, and so convey part of the i'cud, to the lord's enemy*. This licence the lords took care to be well paid for; and, as it seems, would sometimes force the dowager to a second marriage in order to gain the fine. But, to remedy these oppressions, it was provided, first by the charter of Henry I y, and afterwards by magna carta*, that the widow shall pay nothing for her marriage, nor shall be distreined to marry afresh, if she chooses to live without a husband; but shall not however marry against the consent of the lord; and farther, that nothing shall be taken for assignment of the widow's dower, but that she shall remain in her husband's capital mansion-house for forty days after his death, during which time her dower shall be assigned19.

s Bract, ubi mpr. Britton. c. 101, 102. 'Flct. l.S.c. 23. Sec. 11, 12 t P. 7 Hen. IV. 13, 14. u Sec. 39. F. N. B. 150. Sec. 41. x Mirr. c. 1. Sec. 3. y ubi supra.. z cap. 7.

19. Until dower be assigned, the widow may remain in the manlion-house, and plantation thereunto belonging, without being chargeable to the heir to pay any rent for the same, any law, custom, or usage to the contrary notwithstanding. V. L. 1705, c. 7. Edi. 1763 .... Edi. 1794, c. 94. And if she be thereof in the mean time deforced, she shall have a -vicentiel writ, in the nature of a writ de quarentina habcnda, the proceedings on which will be hereafter noted in the third book of the commentaries. If the husband during the coverture

These forty days are called the widow's quarentine,• a term made use of in law to signify the number of forty days, whether applied to this occasion, or any othera. The particular lands, to be held in dower, must be asssignedb by the heir of the husband, or his guardian; not only for the sake of notoriety, but also to entitle the lord of the fee to demand his services of the heir, in respect of the lands so holden. For the heir by this entry becomes tenant thereof to the lord, and the widow is immediate tenant to the heir, by a kind of subinfeudation, or under-tenancy, completed by this investiture or assignment; which tenure may still be created, notwithstanding the statute of quia emptores, because the heir parts not with the fee-simple, but only with an estate for life. If the heir or his guardian do not assign her dower within the term of quarentine, or do assign it unfairly, she has her remedy at law, and the sheriff is appointed to assign itc 20. Or if the heir (being under age) or his guardian assign

a It signifies, in particular, the forty days, which persons coming from infected countries arc obliged to wait, before they are permitted to land in England.

b Co. Litt. 84, 35. c Co. Litt, 34, 35. '

aliene his lands, the wife not consenting thereto, she may have a writ of dower, wide nihil habet, where the whole lands are aliened, or a •writ of rig/it of dower, where a part only have been aliened, against the purchaser. And the same remedy lies for her against the heir, if she be deforced from her dower in the lands descended. Treatise of Dower, 367. V. L. 1794, c. 94.

The ordinary method of assigning dower, in Virginia, is by bill in chancery, in the county courts; this practice probably arose from the method of assigning to widows dower in the slaves of their husbands, pursuant to the act of 1727, c. 4. J 18, which declares that where any person shall have a right to demand dower of slaves, Such person may exhibit a bill in equity for that purpose; and the court before whom the bill shall be exhibited may compel the defendants to answer, and may proceed upon such bill and answer, although any of the defendants may be under twenty-one years of age according to the course and rules of equity, and shall make such decree for the assignment of such dower in such manner as shall be most agreeable to equity : and such asssignment of dower shall be as effectual as if the same were in the ordinary methods of the common law. Edition of 1769.

20. Or, she may remain in the mansion-house, and plantation without paying any vent for it, until her dower be assigned, at her election. V. L. 1705, c.' 7. Edi. 1794, c. 94.

more than she ought to have, it may be afterwards remedied by writ of admeasurement of dower d. If the thing of which she is endowed be divisible, her dower must be set out by metes and hounds ; but if it be indivisible, she must be endowed specially ; as of the third presentation to a church, the third toll-dish of a mill, the third part of the profits of an office, the third sheaf of tithe, and the likec.

Upon preconcerted marriages, and in estates of considerable consequence, tenancy in dower happens very seldom: for, the claim of the wife to her dower at the common law diffusing itself so extensively, it became a great clog to alienations, and was otherwise inconvenient to families. Wherefore, since the alter-

•ation of the antient law respecting dower ad ostium ecclesiae, which hath occasioned the entire aisuse of that species of dower, jointures 21 have been introduced in their stead, as a bar to the claim at common law. Which leads me to inquire, lastly,

4. How dower may be barred or prevented. A widow may be barred of her dower not only by elopement, divorce, being an alien, the treason of her husband, and other disabilities before-mentioned22, but also by detaining the title deeds, or evidences of the estate from the heir, until she restores them f: and, by the statute of Glocester e, if a dowager alienes the land assigned her

d F. N. B. 148. Finch. L. 314. Stat. Westm. 2. 13 Edw. I. c. 7. e Co. Litt 32. f Kid. 39. g 6 Edw. I. c. 7-

• 21. Jointur .s are very rare in Virginia, consequently the right of dower occurs in almost every case where a man leaves a widow in this country, where land is so abundant, that very few men of any substance are wholly without some property therein, of which the

•wife may be endowed.

22. See notes 13 and 14, p. 130,131 .... also, if any widow possessed of a slave or slaves, as of the dower of her husband, shall remove or voluntarily permit to be removed out of the commonwealth such slave or slaves, or any of their increase without the consent of him or her in reversion, such widow shall forfeit all and every such slave or slaves, and all other the dower, which she holds of the endowment of her husband's estate, unto the person or persons that shull have the reversion thereof, any law, custom or usage to the contrary notwithstanding. And if the husband of such widow shall do the like,

for dower, she forfeits it ipso facto, and the heir may recover it by actiona3. A woman also may be barred of her dower, by levying a fine, or suffering a recovery of the lands, during her coverture1124. But the most usual method of barring dowers is by jointures, as regulated by the statute 27 Hen. VIII. c. 10.

A jointure, which, strictly speaking, signifies a joint estate, limited to both husband and wife, and in common acception, extends also to a sole estate, limited to the wife only, is thus defined by sir Edward Coke'; " a competent livelyhood of freehold for the wife, of lands and tenements j to take effect, in profit or possession, presently after the death of her husband; for the life of the wife at least." This description is framed from the purview of the statute 27 Hen. VIII. c. 10, beforementioned ; commmonly called the statute^of ws«, of which we shall speak fully hereafter. At present I have only to observe, that before the making of that statute, the greatest part of the land of England was conveyed to uses: the property or possession of the soil being vested in one man, and the use, or profits thereof, in another j whose directions, with regard to the disposition thereof, the former was in conscience obliged to follow, and might be compelled by a court of equity to observe. Now, though a husband had the use of lands in absolute fee-simple, yet the wife

h Pig. of recov. 66.

i 1 inst. 36.

he in the reversion may enter into, possess, and enjoy all the estate which such husband holdeth in right of his wife's dower, for and during the life of the said husband .... V. L. 1705, c. 3. Edi. 1769. 1785, c. 61. Edi. 1794, c. 103. Sec. 44.

23. This statute is repealed. V. L. Edi. 1794, c. 147. But if a tenant by the curtesy,ov tenant in dower, commit waste in the houses, woodsy or any other thing belonging to the tenements so held, without special licence in writing so to do, they shall be subject to an action of waste, and moreover lose, the thing wasted, and recompence the party injured in three times the amount of the damages assessed. L. V. 1794, c. 139.

24. But in this case she must be a party to the fine, consequently her consent must be of record .... but fines and recoveries may be considered as obsolete in Virginia j they were formerly prohibited, where the intent was to bar an estate tail .... but that prohibition may now be considered as at an end. See V. L. 1710, c. 13. 1748, c. 1.

was not entitled to any dower therein; he not being seised thereof: wherefore it became usual, on marriage, to settle by express deed some special estate to the use of the husband and his wife, for their lives in joint-tenancy, or jointure ; which settlement would be a provision for the wife in case she survived her husband. At length the statute of uses ordained, that such as had the use of lands, should, to all intents and purposes, be reputed and taken to be absolutely seised and possessed of the soil itself3*. In consequence of which legal seisin, all wives would have become dowable of such lands as were held to the use of their husbands, and also entitled at the same time to any special' lands that might be settled in jointure: had not the same statute provided that upon making such an estate to the wife before marriage, she shall be for ever precluded from her dowerk 26. But then these four requisites must be punctually observed, 1. The jointure must take effect immediately on the death of the husband. 2. It must be for her own life at least, and not pur outer iiie, or for any term of years, or other smaller estate. S."~It must be made to herself, and no other in trust for her. 4. It must be made, and so in the deed particularly expressed to be (a)27 in satisfaction of her whole dower, and not of any particular part of it. If the jointure be made to her after marriage, she has her election after her husband's death, as in dower adostium ecclesiae, and may either accept it, or refuse it and betake herself to her dower at common law; for she was not capable of consenting to

k 4 Rep. 1,2.

(a) Or it may be averred to 6e, Co. Litt. 36. b. 4 Rep. 3. An assurance wasmade to a woman, to the intent it shouldbe for her jointure, but it was not so expressed in the deed. And the opinion of the court •was, that it might be averred that it was for a jointure, and that such averment was traversable. Owen, 33. (*).

(») L. V. 1785, c. 65. Edi. 1794, c. 94, agree herewith.

25. L. V. 1785, c. 62. Edi. 1794, c. 90. J. 14. Accordant.

26. L. V. 1785, c. 65. Edi. 1794, c. 94. Accordant. , 27. And if not so expressed, itjmay be averred. L. V, 1785, c. 65. Edi. 1794, c. 94.

it during coverture*. And if, by any fraud or accident, a jointure made before marriage proves to be on a bad title, and the jointress is evicted, or turned out of possession, she shall then (by the provisions of the same statute) have her dower pro tanto at the common law1 J8.

There are some advantages attending tenants in dower that do not extend to jointresses ; and so vice versa, jointresses are in some respects more privileged than tenants in dower.

1 These settlements, previous to marriage, seem to have been in use among the antient Germans, and their kindred nation the Gauls. Of the former Tacitus gives us this account. " Datum non uxor marito, sed ttxari maritus affert: " intersunt parentes et propinqui, et munera probant." (demar. Germ. c. 1S.J And Cssar (de hello Galileo, I. 6. c. 18.) has given us the terms of a marriage settlement among the Gauls, as nicely calculated as any modern jointure. Yiri, quantas petunias nbuxoribus dotis nomine ticcepentnt, tantcis ex suis bonis aeitimationefacta, cum ctotibus communicant. Hujus amnis pecuniae conjunctiin ratio ha!>etur,fructusque servantar. Uter eonan vita juperavit, odeum pars utriusque cum fructibus superiorum temporum pcnxnit." The dauphin's commentator on Ciesar supposes that this Gaulish custom was the ground of the new regulations made by Justinian (~Nov. 79.) with regard to the provision for widows among the Romans ; but surely there is as much reason to suppose, thai it gave the hint for our statutablcjointures.

* And where a devisee is expressed tobe given in lieu and satisfaction of dower, or where that is, the clear and manifest intention oi the testator, the \vife shall not have both, but shall have her choice, Harg. Co. Lift. 36. 6.

28. In addition to these statutory provisions, with which our law agrees, it is declared, that when any conveyance intended to be in lieu of dower, shall, through any defect, fail to be a legal barthereto, and the widow availing herself of such defect, shall demand her dower, the estate and interest conveyed to such widow, with intention to bar her dower, shall thereupon cease and determine. V. L. 1785, c. 6$. Ecli. 1794. c. 94.

The act of 1727, c. 4, provided that a widow not satisfied with the provision made for her by her husband's will, might within nine months, by deed, executed before two witnesses, or by declaration made before the court where the will should be proved, renounce all benefit and advantage which she might claim under such will, and thereupon might recover her dower of the husband's slaves, itli her distributaable share of his personal estate ; but if such declaration be not made within that time, she was thereby barred to claim any other /tart of her husband's estate than was given or bequeathed by such will. It

Tenant in dower by the old common law is subject to no tolls or taxes29; and hers is almost the only estate on which, when derived from the king's debtor, the king cannot distrein for his debt; if contracted during the coverture"1 3o. But, on the other hand, a widow may enter at once, without any formal process, on her jointure land ; as she also might have done on dower ad ostium ecclesiae, which a jointure in many points resembles; and the resemblance was still greater, while that species of dower continued in it,'s primitive state : whereas no small trouble, and a very tedious method of proceeding, as necessary to compel a legal assignment of dower"31. And, what is more, though dower be forfeited by the treason of the husband32, yet lands settled in jointure remain unimpeached to the widow". Wherefore sir Edward Coke very justly gives it the preference, as being more sure and safe to the widow, than even dower ad ostium ecclesiae, the most eligible species of any.

m Co. Litt. 31. a. F. N. B. 150. n Kill. 36. o Ibid. 37

seems to have been a popular opinion, that under these general words, she was bar.red of her dower in lands, unless she renounced all benefit under the will. But that the act ought not to be construed to extend to lands, we have the authority of the present chancellor. Wythe's Rep. in Chanc. 11, in notis. The law is still the same in respect to slaves and personal estate, except that the declaration of the widow may now be made within one year. V. L. 1785, c. 61. Edi. 1794, c. 92. \. 25.

29. Herein the common law seems to be obsolete in Virginia.

30. By the act of 1787, c. 40. The lands and tenements of public collectors, and their securities may be taken and sold in execution upon all judgments obtained in behalf of the commonwealth after the first of January, 1788.; there is no reservation of the right of dower in that act, which was re-enacted in 1792. See Edi. 1794, c. 84. J. 9. On the other hand, the act concerning dower, which was re-enacted in the same session, gives the wife dower in all the estates of inheritance, of which the husband was seized during the coverture, to which, she has not relinquished her right of dower. Edi. 1794, c. 94.

31. For these the student must, for the present, be referred to the third volume of the commentaries, p. 183, 194 ; as also to the Edi, 1794, c. 94.

32. See note 14. p. 131.

CHAPTER THE NINTH.

OF ESTATES LESS THAN FREEHOLD.

OF estates that are less than freehold, there are three sorts i 1. Estates for years: 2. Estates at will: 3. Estates by suflerance.

I. An estate for years is a contract for the possession of lands or tenements, for some determinate period: and it takes place where a man letteth them to another for the term of a certain number of years, agreed upon between the lessor and the lessee*, and the lessee enters thereonb. If the lease be but for Haifa year, or a quarter, or any less time, this lessee is respected as a tenant for years, and is stiled so in some legal proceedings; a year being the shortest term which the law in this case takes notice ofc. And this may, not improperly, lead us into a short digression, concerningthe division and calculation of time by the English law.

The space of a year is a determinate and well-known period, consisting commonly of 365 days: for,though in bissextile or leap years it consists properly of 366, yet by the statute 21 Hen. III. the increasing day in the leap-year, together with the preceding

a We may here remark, once for all, that the terminations of " .... or" and " ...ee" obtain, in law, the one an active, the other a passive signification; the former usually denoting the doer of any act, the latter him to whom it is done, The feoffer is he that maketh a feoffment j the feoffee is he to whom it is made: the donor is one that giveth lands in tail; the donee is he who receiveth it: he thatgranteth alease is denominated the lessor; and he to whom it is granted the lessee. (Litt. Sec. 57.)

b Ibut. 58. <. Ibid. ST.

day, shall be accounted for one day onlyl. That of a month is more ambiguous : there being, in common use, two ways of calculating months ; either as lunar, consisting of twenty-eight days, the supposed revolution of the moon, thirteen of which make a year: or, as calendar months of unequal lengths, according to the Julian division in our common almanacs, commencing at the calends of each month, whereof in a year there are only twelve. A month in law is a lunar month, or twenty-eight days, unless otherwise expressed; not only because it is alw ays one uniform period, but because it falls naturally into a quarterly division by weeks. Therefore, a lease for " twelve months" is only for forty-eight weeks j but if it be for " a twelvemonth" in the singular number, it is good for the whole yeard. For herein the law recedes from it's usual calculation, because the ambiguity between the two methods of computation ceases ; it being generally understood that by the space of time called thus, in the singular number, .a twelvemonth, is me'ant the whole year, consisting of one solar revolution. In the space of a day all the twenty-four hours are usually reckoned; the law generally rejecting all fractions of a day, in order to avoid disputes'. Therefore, if I am bound to pay money on any certain day, I discharge the obligation if I pay it before twelve o'clock at night; after which the following day commences. But to return to estates for years.

These estates were originally granted to mere farmers or husbandmen, who every year rendered some equivalent in money, provisions, or other rent, to the lessors or landlords; but, in order to encourage them to manure and cultivate the ground, they had a permanent interest granted them, not determinable at the will

d 6 Rep. 61.

e Co. Litt. 135.

1, This statute stands repealed by the general law repealing all British statutes, Edi. 1794, c. 147. The committee of revisors appointed in 1776, reported-a bill for " regulating the commencement of the year and the computation of time," which never passed in the general assembly. The present popular mode of computing time in Virginia is founded upon a British statute passed in the year 1752, for the alteration of the stile. As no act of parliament subsequent to the 4th of Jas. I. is admitted to be in force here, some legislative provision on the subject seems necessary.

of the lord. And yet their possession was esteemed of so little consequence, that they were rather considered as the bailiffs or servants of the lord, who were to receive and account for the profits at a settled price, than as having any property of their own. And, therefore, they were not allowed to have a freehold estate: but their interest (such as it was) vested after their deaths in their executors, who were to make up the accounts of their testator with the lord, and his other creditors, and were entitled to the stock upon the farm. The lessee's estate might also, by the antient law, be at any time defeated by a common recovery suffered by the tenant of the freeholdf; which annihilated all leases for years then subsisting, unless afterwards renewed by the recoveror, whose title was supposed superior to his by whom those leases were granted.

While estates for years were thus precarious, it is no wonder that they were usually very short, like our modern leases upon rack rent; and indeed we are told « that by the antient law no leases for more than forty years were allowable, because any longer possession (especially when given without any livery declaring the nature and duration of the estate) might tend to defeat the inheritance. Yet this law, if ever it existed, was soon antiquated ; for we may observe, in Madox's collection of antient instruments, some leases for years of a pretty early date, which considerably exceed that periodh; and longterms, for three hundred years or a thousand, were certainly in use in the time of Edward III', and probably of Edward Ik. But certainly, when by the statute 21 Hen. VIII. c. 15*,'the termor (that is,he who is entitled to the term of years) was protected against these fictitious recoveries, and his interest rendered secure and permanent, long terms began to be more frequent than before ; and were afterwards extensively introduced, being found extremely convenient

f Co. Litt. 46. g Mirror, c. 2. Sec. 27. Co. Litt. 45, 46.

h MzdoxFormulare Anglican, no. 239,/o/. 140. Demise for eighty years, 22 Ric. \l .... Ibid. no. 245, fat. 146, for the like term. A. D. 1429 .... /AiW, no. 248,/o/ 148, for fifty >cars, 7 Edw. IV.

i 32 Ass. pi. C. Bro. abr. t. inonlaumestar, 42, spoliation, 6.

k Stat, of mortmain, 7 Edw. I,

2. This statute is now repealed. V. L. Edi. 1794, c. 147.

for family settlements and mortgages: continuing subject, however, to the same rules of succession, and with the same inferio- 143 rity to freeholds, as when they were little better than tenancies at the will of the landlord.

Every estate which must expire at a period certain and prefixed, by whatever words created, is an estate for years. And therefore this estate is frequently called a term, terminus, because it's duration or continuance is bounded, limited, and determined : for every such estate must have a certain beginning, and certain end1. But id cerium est, quod certum reddi potest: therefore if a man make a lease to another, for so many years as J. S. shall name, it is a good lease for years™; for though it is at present uncertain, yet when J. S. hath named the years, it is then reduced to a certainty. If no day of commencement is named in the creation of this, estate, it begins from the making, or delivery, of the lease". A lease for so many years as J. S. shall live, is void from the beginning0; for it is neither certain, nor can ever be reduced to a certainty, during the continuance of the lease. And the same doctrine holds, if a parson make a lease of his glebe for so many years as he shall continue parson of Dale; for this is still more uncertain. But a lease for twenty or more years, if J. S. shall so long live, or if he should so long continue parson, is good p : for there is a certain period fixed, beyond which it cannot last; though it may determine sooner, on the death of J. S. or his ceasing to be parson there.

we have before remarked, and endeavoured to assign the reason of, the inferiority in which the law places an estate for years, when compared with an estate for life, or an inheritance: observing, that an estsate for life, even if it be pur outer vie, is a freehold; but that an estate for a thousand years is only a chattie, and reckoned part of the personal estate «. Hence it follows, that a lease for years may be made to commence in futuro, though a lease for life cannot. As if I grant lands to Titius to hold from Michaelmas next for twenty years, this is good; but

1 Co. Litt. 45. n Co. Litt, 46, p Hid.

hi 6 Rep. 35. o Co Litt. 45. q Ibid. 46.

to hold from Michaelmas next for the term of his natural life, is void. For no estate of freehold can commence in futuro; because it cannot be created at common law without livery of setsin, or corporal possession of the land: and corporal possession cannot be given of an estate now, which is not to commence now, but hereafter'. And, because no livery of seisin is necessary to a lease for years, such lessee is not said to be seised, or to have true legal seisin of the lands. Nor indeed does the bare lease vest any estate in the lessee; but only gives him a right of entry'on the tenement, which right is called his interest in the term or interesse termini: but when he has actually so entered, and thereby accepted the grant,' the estate is then, and not before, vested in him, and he is possessed, not properly of the land, but of the term of years8; the possession or seisin of the land remaining still in him who hath the freehold. Thus the word, term, does not merely signify the time specified in the 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, forfeiture, and the like. For which reason, if I grant a lease to A for the term of three years, and after the expiration of the said term to B for six years, and A surrenders or forfeits his lease at the end of one year, B's interest shall immediately take effect: but if the remainder had been to B from and after the expiration of the said three years, or from and after the expiration of the said time, in this case B's interest will not commence till the time is fully elapsed, whatever may become of A's term*.

Tenant for term of years hath incident to and inseparable from his estate, unless by special agreement, the same estovers, which we formerly observed™ that tenant for life was entitled to; that is to say, house-bote, fire-bote, plough-bote, and hay-botew ; terms which have been already explained".

With- regard to emblements, or the profits of lands sowed by tenant for years, there is this difference between him, and tenant

r 5 Rep. 94, t Co. Litt. 45. w Ibid. 45.

s Co. Litt. 46. u page 122. x page 35.

for life: that where the term of tenant for years depends upon a certainty, as if he holds from midsummer for ten years, and in the last ) ear he sows a crop of corn, and it is not ripe and cut before midsummer, the end of his term, the landlord shall have it; for the tenant knew the expiration of his term, and therefore it was his own folly to sow what he never could reap the profits oiV. But where the lease for years depends upon an uncertainty ; as, upon the death of the lessor, being himself only tenant for life, or being a husband seised in right of his wife ; or if the term of years be determinable upon a life or lives ; in all these cases, the estate for years not being certainly to expire at a time foreknown, but merely by the>act of God, the tenant, or his executors, shall have the emblements in the same manner that a tenant for life, or his executors, shall be entitled thereto * 3. Not so, if it determine by the act of the party himself: as if tenant for years does any thing that amounts to a forfeiture: in which case the emblements shall go to the lessor, and not to the lessee, who hath determined his estate by his own default*.

II. The second species of estates not freehold, are estates at will. An estate at will is where lands and tenements are let by one man to another, to have and to hold, at the will of the lessor; and the tenant by force of this lease obtains possession11. Such tenant hath no certain indefeasible estate, nothing that can be assigned by him to any other; because the lessor may determine his will, and put him out whenever he pleases. But every estate at will is at the will of both parties, landlord and tenant; so that either of them may determine his will, and quit his connexions with the other at his own pleasure c. Yet this must be understood with some restriction. For, if the tenant at will sows his land, and the landlord before the corn is ripe, or before it is reaped, puts him out, yet the tenant shall have the emblements, and free ingress, egress, and regress, to cut and carry away the profits d. And this for the same reason, upon which all the cases of emblements turn; viz. the point of uncertainty ;

y Litt. Sec. 68. a Co. Litt. 55. c Ibid. 55.

z Co. Litt. 56. b Litt. Sec. 68. d Ibid. 56.

3 See note 2. p. 122, and note 5. p. 124. vol. in. Y

since the tenant could not possibly know when his landlord would determine his will, and therefore could make no provision against it; and having sown the land; which is for the good of the public, upon a reasonable presumption, the law will not suffer him to be a loser by it. But it is otherwise, and upon reason equally good, where the tenant himself determines the will j for in this case the landlord shall have the profits of the land".

What act does, or does not, amount to a determination of the will on either side, has formerly been matter of great debate in our courts. But it is now, I think, settled, that (besides the express determination of the lessor's will, by declaring that the lessee shall hold no longer; which must either be made upon the land f, or notice must be given to the lessee 8) the exertion of any act of ownership by the lessor, as entering upon the premises and cutting timber h, taking a distress for rent and impounding it thereon *, or making a feoffment, or lease for years of the land to commence immediately k j any act of desertion by the lessee, as assigning his estate to another, or committing waste, which is an act inconsistent with such a tenure '; or, which is instar omnium, the death or outlawry of either lessor or lessee m ; puts an end to, or determines the estate at will.

The law is however careful, that no sudden determination of the will by one party, shall tend to the manifest and unforeseen prejudice of .the other. This appears in the case of emblements before-mentioned ; and, by a parity of reason, the lessee, after the determination of the lessor's will, shall have reasonable ingress and egress to fetch away his goods and utensils n. And, if rent be payable quarterly or half yearly, and the lessee determines the will, the rent shall be paid to the end of the current quarter or half-year °. And, upon the same principle, courts of law have of late years leaned as much as possible against construing demises, where no certain term is mentioned, to be tenancies at will j but have rather held them to be tenancies from

e Co. Litt. 55. g 1 Vcntr. 248. i Co. Litt. ST. J Kid. 55. n Litt. Sec. 69.

f Co. Litt. 55.

\\Md.S5.

k 1 Roll. Abr. 860. 2. Lev. 88.

m Rep 116. Co. Litt. 57, 62,

o Salk. 414. 1 Sid- 339.

year to year so long as both parties please, especially where an annual rent is reserved: in which case they will not suffer either party to determine the tenancy even at the end of the year, without reasonable notice to the other, which is generally understood to be six months f.

There is one species of estates at will that deserves a more particular regard than any other; and that is, an estate held by copy of court roll: or, as we usually call it, a copyhold estate 4. This, as was before observed 1, was in it's original and foundation nothing better than a mere estate at will. But, the kindness and indulgence of successive lords of manors having permitted these estates to be enjoyed by the tenants and their heirs, according to particular customs established in their respective districts ; therefore, though they still are held at the will of the lord, and so are in general expressed in the court rolls to be, yet that will is qualified, restrained, and limited, to be exerted according to the custom of the manor. This custom, being suffered to grow up by the lord, is looked upon as the evidence and interpreter of his will: his will is no longer arbitrary and precarious; but fixed and ascertained by the custom to be the same, and no other, that has time out of mind been exercised and declared by his ancestors. A copyhold tenant is therefore now full as properly a tenant by the custom, as a tenant at will: the custom having arisen from a series of uniform wills. And therefore it is rightly observed by Calthorper, that " copyholders and customary tenants differ not so much in nature as in name : for although some be called copyholders, some customary, some tenants by the virge, some base tenants, some bond tenants, and some by one name and some by another; yet do they all agree in substance and kind of tenure : all the said lands are holden in one general kind, that is, by custom and continu-

p This kind of lease was in use as long ago as the reign of Henry VIII. when half a year's notice seems to have been required to determine it. (T. 13 Hen. VIII. 15,16.)

q page 93. r On copyholds, 51, 54.

4. There are no cofiyhold estates in Virginia, as has'been already noticed. Note 17, page 90.

" ance of time ; and the diversity of their names doth not alter " the nature of their tenure."

Almost every copyhold tenant being therefore thus tenant at. the will of the lord according to the/ustom of the manor ; which customs differ as much as the humour and temper of the respective antient lords, (from whence we may account for their great variety) such tenant, I say, may have, so far as the custom warrants, any other of the estates or quantities of interest, which we have hitherto considered, or may hereafter consider, and hold them united with this customary estate at will. A copyholder may, in many manors, be tenant in fee-simple, in fee-tail, for life, by the curtesy, in dower, for years, at sufferance, or on condition : subject however to be deprived of these estates upon • the concurrence of those circumstances which the will of the lord, promulged by immemorial custom, has declared to be a forfeiture or absolute determination of those interests; as in some manors the want of issue male, in others the cutting down timber, the non-payment of a fine, and the like. Yet none of these interests amount to freehold j for the freehold of the whole manor abides always in the lord only8, who hath granted out the use and occupation, but not the corporeal seisin or true legal possession, of certain parcels thereof, to these his customary tenants at will.

The reason of originally granting out this complicated kind of interest, so that the same man shall, with regard to the same land, be at one and the same time tenant in fee-simple and also tenant at the lord's will, seems to have arisen from the nature of villenage tenure ; in which a grant of any estate of -freehold, or even for years absolutely, was an immediately enfranchisement of the villein1. The lords therefore, though they were willing to enlarge the interest of-their villein's, by granting them estates which might endure for their lives, or sometimes be descendible to their issue yet not caring to manumit them entirely, might probably scruple to grant them any absolute freehold ; and for that reason it seems to have been contrived, that a pow-

c Litt. Sec. 81. 2 Inst. 325. t Mirr. c. 2, Sec. 28. Lilt. Sec. 204, S, 6.

er of resumption at the will of the lord should be annexed to these grants, whereby the tenants were still kept in a state of villenage, and no freehold at all was conveyed to them in their respective lands: and of course, as the freehold of all lands must necessarily rest and abide somewhere, the law supposed it still to continue and remain in the lord. Afterwards, when these villeins became modern copyholders, and had acquired by custom a sure and indefeasible estate in their lands, on performing their .usual services, but yet continued to be stiled in their admissions tenants at the will of the lord .... the law still supposed it an absurdity to allow, that such as were thus nominally tenants at will could have any freehold interest: and therefore continued and now continues to determine, that the freehold of lands so holden abides in the lord of the manor, and not in the tenant; for though he really holds to him and his heirs for ever, yet he is also said to hold at another's will. But with regard to certain other copyholders, of free or privileged tenure, which are derived from the antient tenants in villein-socage u, and are not said to hold at the will of the lord, but only according to the custom of the manor, there is no such absurdity in allowing them to be capable of enjoying a freehold interest: and therefore the law doth not suppose the freehold of such lands to rest in the lord of whom they are holden, but in the tenants themselves v; who are sometimes called customary freeholders, being allowed to have a freehold interest, though not a freehold tenure.

However, in common cases, copyhold estates are still ranked (for the reasons above-mentioned) among tenancies at will ; though custom, which is the life of the common law, has established a permanent property in the copyholders, who were formerly nothing better than bondmeni equal to that of the lord himself, in the tenements holden of the manor : nay sometimes even superior; for we may now look upon a copyhold of inheritance, with a fine certain, to be little inferior to an absolute

u See page 98, f3"c.

v Fitz. Alir. tit. corone. 310. custom. 12. Bra. Mr. tit. custom. 22,17. tenant par topic. 22. 9 Rep. 76. Co. Litt. 59. Co. Copyh. Sec. 32. Cro. Car. 229. IRqll. Abr. 562. 2 Vcntr. 143 Carth. 432.Lord Raym. 1225.

freeholder in point of interest, and in other respects, particularly in the clearness and security of his title, to be frequently in a better situation.

III. An estate at sufferance, is where one comes into possession of land by lawful title, but keeps it afterwards without any title at all. As if a man takes a lease for a year, and, after the year is expired, continues to hold the premises without any fresh leave from the owner of the estate. Or, if a man maketh a lease at will, and dies, the estate at will is thereby determined ; but if the tenant continueth possession, he is tenant at sufferance w *. But, no man can be tenant at sufferance against the king, to whom no laches, or neglect, in not entering and ousting the tenant, is ever imputed by law: but his tenant, so holding over, is considered as an absolute intruder *. But, in the case of a subject, this estate may be destroyed whenever the true owner shall make an actual entry on the lands and oust the tenant: for, before entry, he cannot maintain an action of trespass against the tenant by sufferance, as he might against a stranger ?: and the reason is, because the tenant being once in, by a lawful title, the law (which presumes no wrong in any man) will suppose him to continue upon a title equally lawful; unless the owner of the land by some public and avowed, act, such as entry is, will declare his continuance to be tortious, or, in common language, wrongful.

Thus stands the law, with regard to tenants by sufferance; and landlords are obliged in these cases to make formal entries upon their landsl, and recover possession by the legal process of ejectment: and at the utmost, by the common law, the tenant •was bound to account for the profits of the land so by him detained. But now, by statute 4 Geo. II. c. 28, in case Any tenant

•w Co. Litt. 57. y Ibid.

y. Ibid.

i 5 Mod. 384-

* A lease at will being now considered a lease from year to year, which cannot be vacated without half a year's notice to quit, upon the death of the lessor the tenant cannot be ejected without half a year's notice from his heir. 2. !T. J?. 159. And it has also been decided, that it is necessary to give that notice to the personal representative of the lessee. 3 Wits. 25.

for life or years or other person claiming under or by collusion with such tenant, shall wilfully hold-over after the determination of'the term, and demand made and notice in writing given, by him to whom the remainder or reversion of the premises shall belong, for delivering the possession thereof; such person, so holding over or keeping the other out of possession, shall pay for the time he detains the lands, at the rate of double their yearly value. And, by statute 11 Geo. II. c. 19, in case any tenant, having power to determine his lease, shall give notice of his intention to quit the premises, and shall not deliver up.the possession at the time contained in such notice, he shall thenceforth pay double the former rent, for such time as he continues in possession5. These statutes have almost put an end to the practice of tenancy by sufferance, unless with the tacit consent of the owner

of the tenement.

\

5. These statutes were never in force in Virginia, nor have we any similar provision in our code, a circumstance jvhich merits the attention of the legislature.

CHAPTER THE TENTH.

OF ESTATES UPON CONDITION.

BESIDES the several divisions of estates, in point of interest, which we have considered in the three preceding chapters, there is also another species still remaining, which is called an estate -upon condition; being such^vhose existence depends upon, the happening or not happening of some uncertain event, whereby the estate maybe either originally created, or enlarged, or finally defeated1.) And these conditional estates I have chosen to reserve till last, because they are indeed more properly qualifications of other estates, than a distinct species of themselves ; seeing that any quantity of interest, a fee, a freehold, or a term of years, may depend upon these provisional restrictions. Estates then upon condition, thus understood, are of two sorts: 1. Estates upon condition implied: 2. Estates upon condition expressed: under which last may be included, 3. Estates held in vadio,gage, or pledge: 4. Estates by statute merchant or statute staple: 5. Estates held by elegit.

I. Estates upon condition implied in law, are where a grant of an estate has a condition annexed to it inseparably, from it's essence and constitution, although no condition be expressed in words. As if a grant be made to a man of an office, generally, without adding other words; the law tacitly annexes hereto a secret condition, that the grantee shall duly execute his office1", on breach of which condition it is lawful for the grantor, or his heirs, to oust him, and grant it to another person0. For an office, either public or private, may be forfeite.d by mis-user or non-user, both of which are breaches of this implied condition. 1. By misuser, or abuse: as if a judge takes a bribe_, ora park-keeper

a" Co. Litt. 201.

b Litt. Sec. 378.

' c Litt. Sec. 379. ,

kills deer without authority. 2. By non user, or neglect; which in public offices, that concern the administration of justice, or the commonwealth, is of itself a direct and immediate cause of forfeiture : but non-user of a private office is no cause of forfeiture, unless some special damage is proved to be occasioned thereby d. For in the one case delay must necessarily be occasioned in the affairs of the public, which require a constant attention : but, private offices not requiring so regular and unremitted a service, the temporary neglect of them is not necessarily productive of mischief: upon which account some special loSs must be proved, in order to vacate these. Franchisesl also, being regal privileges in the hands of a subject, are held to be granted on the same condition of making a proper use of them ; and therefore they may be lost and forfeited, like offices, either by abuse or by neglect'.

Upon the same principle proceed all the forfeitures which are given by law of life estates and otfiers; for any acts done by the tenant himself, that are incompatible with the estate which he holds. • As if tenants for life or years enfeoff a stranger in fee-simple : this is, by the common law, a forfeiture of their several estates; being a breach of the condition which the law annexes thereto, viz. that they shall not attempt to create a greater f estate than they themselves are entitled tof 2. So if any tenants^ for years, for life, or in fee, commit a felony; the king or other t lord of the fee is entitled to have their tenements, because their estate is determined by the breach of the condition, " that theyj

d Co. Lilt. 233. f Co. Litt. 215.

e 9 Rep. 50.

1. Franchises (in the sense here spoken of) were totally abolished in Virginia, at the revolution. See Bill of Rights, art. .4.

2. AH alienations and warranties of lands made by any person, purporting to pass or assure a greater right or estate than such person may lawfully pass or assure, shall operate as alienations or warranties of so much of the right and estate in such lands, as such person might lawfully convey, but shall not pass or bar the residue of the said right or estate purported to be conveyed or assured. V. L. 1785, c. 67. Edi. 1794, c. 13. Quere, whether the common law, as to the forfeiture be not thereby repealed ?

" shall not commit felony," which the law tacitly annexes to every feodal donation 3.

II. An estate on condition expressed in the grant itself, is where an estate is granted, either in fee-simple or otherwise^ with an express qualification annexed, whereby the estate granted shall either commence, be enlarged, or be defeated, upon performance or breach of such qualification or condition s. .... These conditions are therefore either precedent, or subsequent. Precedent are such as must happen or be performed before the estate can vest or be enlarged: subsequent are such, by the failure or non-performance of which an estate already vested may be defeated. Thus, if an estate for life be limited to A upon his marriage with B, the marriage is a precedent condition, and till that happens no estate1' is vested in A. Or, if a man grant to his lessee for years, that upon payment of a hundred marks within the term he shall have the fee, this also is a condition precedent, and the fee-simple passeth not till the hundred marks be paid'. But if a man grant an estate in fee-simple, reserving to himself and his heirs a certain -rent; and, that, if such rent be not paid at the times limited, it shall be lawful for him and his heirs to re-enter, and avoid the estate: in this case the grantee and his heirs have an estate upon condition subsequent, which is defeasible if the condition be not strictly performed k. To this class may also be referred all base fees, and fee-simples conditional at the common law' 4. Thus an estate to a man and his heirs tenants of the manor of Dale, is an estate on condition that he and his heirs continue tenants of that manor.

g Co. Litt. 201. h Show. Parl. Cas. 83, &c.

i Co. Lilt. 217. k Litt. Sec. 325. 1 See pag. 109,110, 111.

3. No forfeiture ensues upon conviction of any felony, nor evei) of treason, in Virginia, or under the federal government. L.V. Edi. 1776, c. 3, Edi. 1794, c. 74, $ 31. C.U. S. Art. 3. L. U. S. 1 Cong. 2. Sess. c.9. .But where the owner of lands neglects to pay the taxes thereon for three years, this operates as a forfeiture under our present laws, 1790, c. 5. Edi. 1794, c. 83. Sec. 34,35, and L. U. S. 5. Cong. c. 92.Sec. 13. And this seems to be upon the principle implied in every government, that those who enjoy property under it, shall contribute to support it.

4. Of this kind were the conditions of seating and planting all lands granted by the crown, within a limited time, inserted formerly in all patents in this country ; such also were the conditions contained

And so, if a personal annuity be granted at this day to a man and the heirs of his bodyj as this is no tenement within the statute of Westminster the second, it remains, as at common law, a fee-simple on condition that the grantee has heirs of his body. Upon the same principle depend all the determinable estates of freehold, which we mentioned in the eighth chapter: as duran'e viduitate, £s?c. these are estates upon condition that the grantees do not marry, and the like. And, on the breach of any of these subsequent conditions, by the failure of these contingencies; by the grantees's not continuing tenant of the manor of Dale, by not having heirs of his body, or by not continuing sole ; the estates which were respectively vested in each grantee are wholly determined and void.

A distinction is however made between a condition In deed and a limitation, which Littleton m denominates also a condition in law. For when an estate is so expressly confined and limited by the words of it's creation, that it cannot endure for any longer time than till the contingency happens upon which the estate is to fail, this is denominated a limitation : as when land is granted to a man, so long as he is parson of Dale, or while he continues unmarried, or untill out of the rents, and profits he shall have made 50O/. and the like". In such case the estate determines as soon as the contingency happens, (when he ceases to be parson, marries a wife, or has received the 500/.) and the next subsequent estate, which depends upon such determination, becomes immediately vested, without any act to be done by him who is next in expectancy. But when an estate is, strictly speaking, upon condition in deed (as if granted expressly upon condition to be void upon the payment of 4O/. by the grantor, or so that »the grantee continues unmarried, or provided he goes to York, &?c.°) the law permits it to endure beyond the time when such

m Set. "80. 1 Inst. 234. n 10 Rep. 41. o Kid. 42.

in Lord Fairfax's grants, containing a clause of forfeiture in case the quit-rents should not be paid for two years together. All persons holding lands under grants from tfie crown are .discharged from the former by the act of May 1779, c. 13. Edi. 1785 .... The act of 1? 85, c. 47, likewise declares that the landholders in the northern neck shall be forever thereafter discharged from composition, and quit-rents.

contingency happen?, unless the grantor or his heirs or assigns •take advantage of the breach of the condition, and make either an entry or a claim in order to avoid the estate ?. Yet, though strict words of condition be used in the creation of the estate, if on breach of the condition the estate be limited over to a third person, and does not, immediately revert to the grantor or his representatives, (as if an estate be granted by A to B, on condition that within two years B intermarry with C, and on failure thereof then to D and his heirs) this the law construes to be a limitation and not a condition 1 : because, if it were a condition, then, upon the breach thereof, only A or his representative* could avoid the estate by entry, and so D's remainder might be defeated by their neglecting to enter ; but, when it is a limitation, the estate of B determines, and that of D commences, and he may enter on the lands, the instant that the failure happens. So also, if a man by his will devises land to his heir at law, on condition that he pays a sum of money, and for non payment devises it over, this shall be considered as a limitation; otherwise no advantage could be taken of the non-payment, for none but the heir himself could have entered for a breach of condition' J.

In all these instances, of limitations or conditions subsequent, it is to be observed, that so long as the condition, either express or implied, either in deed or in law, remains unbroken, the grantee may have an estate of freehold, provided the estate upon which such condition is annexed be in itself of a freehold nature ; as if the original grant express either an estate of inheritance, or for life, or no estate, at all, which is constructively an estate for life. For the breach of these conditions being contingent and uncertain, this uncertainty preserves the freehold •; because the estate is capable to last for ever, or at least for the life of the tenant, supposing the condition to remain unbroken.

p Litt. Sec. 347. Sta t. 32 Hen. VIII. c. 34.

q 1 Ventr. 202. r Cro. Eliz. 205. 1 Roll. Abr. 411.

s Co. Litt. 42.

5. The case of Gulliver on the demise of Corrie, alias Wykes vs. Ashby, contains much information on this subject. 4. Burr. 1929. 2. Blacks, rep. 607. See also Co. Litt. 214.

But where the estate is at the utmost a chattel interest, which muit determine at a time certain, and may determine sooner, (as a grant for ninety-nine years, provided A, B, and C, or the survivor of them, shall so long live) this still continues a mere chattel, and is not, by such it's uncertainty, ranked among estates of freehold.

These express conditions, if they be impossible at the time of their creation, or afterwards become impossible by the act of God or the act of the feoffor himself, or if they be contrary to law, or repugnant to the nature of the estate, are void. In any of which cases, if they be conditions subsequent, that is, to be 'performed after the estate is vested, the estate shall become absolute in the tenant. As, if a feoffment be made to,a man in fee-simple, on condition that unless he goes to Rome in twenty-four hours; or unless he marries with Jane S. by such a day; (within which time the woman dies, or the- feoffor marries her himself) or unless he kills another; or in case he alienes in fee; that then and in any of such cases the estate shall be vacated and determine: here the condition is void, and the estate made absolute in the feoffee. For he hath by the grant the estate vested in him, which shall not be defeated afterwards by a condition either impossible, illegal, or repugnant'. Sat if the condition be precedent, or to be performed before the estate vests, as a grant to a man that, if he kills another, or goes to Rome in a day, he shall have an estate in fee ; here, the void condition being precedent, the estate which depends thereon, is also void, and the grantee shall take nothing by the grant: for he hath no estate until the condition be performed °.

There are some estates defeasible upon condition subsequent, that require a more peculiar notice. Such are

III. Estates held in vadio, in gage, or pledge; which are of two kinds vivum vadium, or living pledge; and mortuum vadium, dead pledge, or mortgage.

Vivum vadium, or living pledge, is when a man borrows a Bum (suppose 200/.) of another; and grants him an estate, as, of t Co. Litt. 206. u Ibid.

201. per annum, to hold till the rents and profits shall repay the sum so borrowed. This is an estate conditioned to be void, as soon as such sum is raised. And in this case the land or pledge is said to be living: it subsists, and survives the debt; and, immediately on the discharge of that, results back to the borrower". But mortuitm vadium, a dead pledge, or mortgage, (which is much more common than the other) is where a man borrows of another a specific sum (e. g. 200/.) and grants him an estate in fee, on condition that if he, the mortgager, shall repay the mortgagee the said sum of 200/.) on a certain day mentioned in the deed, and then the mortgager may re-enter on the estate so ^granted in pledge; or, as is now the more usual way, and then the mortgage .shall re-convey the estate to the mortgagor: in this case the land, which is so put in pledge, is by law, in case of non-payment at the time limited, for ever dead and gone from the mortgagor; and the mortgagee's estate in the lands is then no longer conditional, but absolute. But, so long as it continues conditional, that is, between the time of lending the money and the time allotted for payment, the mortgagee is called tenant in mortgage*. But, as it was formerly a doubt*, whether, by taking such estate in fee, it did not become liable to the wife's dower, aud other incumbrances, of the mortgagee (though that doubt has been long ago overruled by our courts of equity') it therefore became usual to grant only a long term of years by way of mortgage; with condition to be void on re-payment of the mortgage-money: which course has been since pretty generally continued, principally because on the death of the mortgagee, such term becomes vested in his personal representatives, who alone are entitled in equity to receive the money lent, of whatever nature the mortgage may happen to be.

As soon as the estate is created, the mortgagee may immediately enter on the lands; but is liable to be disposessed, upon performance of the condition by payment of the mortgage-money, at the day limited. And, therefore, the usual way is to agree that the mortgagor shall hold the land till the day assigned for

•w Co. Litt.205.

y Itit!. Sec. 357. Cto. Car. 191.

x Litt. Sec. 532. z Hardt. 466.

payment6: when, in case of failure, whereby the estate becomes absolute, the mortgagee may enter upon it and take possession, without any possibility at law of being afterwards evicted by the mortgagor, to whom the land is now forever dead7. But here

6. When the mortgagor is left in possession, the true inference to be drawn is an agreement that he shall possess the premises at will in the strictest sense, and therefore no notice is ever given him to quit, and he is not even entitled to reap the crop, as other tenants at will are, because all is liable for the debt; on payment of which, the mortgagees's title ceases. The mortgagor has no power, express or implied, to let leases, not subject to every circumstance of the mortgage. If by implication, the mortgagor had such a power, it must go to a great extent; to leases where a fine is taken on renewal for lives. The tenant stands exactly in the situation of the mortgagor. Per Lord Mansfield, in the case of Keech vs. Hall .... Douglas's rep. 22.

A mortgagee after giving notice of the mortgage to the tenant in possession under a lease prior to the mortgage, is entitled to the rent in arrear at the time of the notice, as well as to what accrues afterwards, and mayxlistrein for it. after such notice. And in this case Lord Mansfield observed, that since the statute 4. Ann. c. 16. (to

•which our act of 1785, c. 62. Edi. 1794, c. 90, Sec. 17. corresponds) the conveyance is complete without the attornment of the tenant. See the case of Moss v. Galliroore, Doug. rep. 269.

7. Although the estate of the mortgagee is said to be absolute at law after failure in paying the money, yet by a devise of all lands, tenements and hereditaments, made by a mortgage in fee, after the • day of payment and failure,, a mortgage in fee will not pass, unless the equity of redemption be foreclosed ; and if after such devise made, a foreclosure is had, yet such estate does not pass, by those general words,

•because a foreclosure is considered as a new purchase of the land. 1. Atk. 605, 606. The interest of the land must be somewhere; but it is not in the mortgagee, and therefore must remain in the mortgagor. It is certain the mortgagee is not barely a trustee to the mortgagor ; but to some purposes, viz. with regard to the inheritance, he certainljr is, till a foreclosure. 1. Atk. 606.

Therefore, although the mortgagee brings an ejectment and enters into possession, yet until after foreclosure in consideration of a court of equity and notwithstanding the form, the mortgagee is considered as having but a chattel, and the mortgage is only a security ; the morgagor is the real owner. It follows of course that the mortgagee before foreclosure cannot exercise any act of ownership over the property, which may encumber the mortgagor. He can make no lease

•f the lands for years to an under tenant. Powel on Mortgages, 86,

again the courts of equity interpose ; and, though a mortgage be thus forfeited, and the estate absolutely vested in the mortgagee at the common law, yet they will consider the real value of the tenements compared with the sum borrowed. And, if the estate be of greater value than the sum lent thereon, they will allow the mortgagor at any reasonable time to recall or redeem his estate*; paying to the mortgagee his principle,interest, and expences : for otherwise, in strictness of law, an estate worth 1OOO/. might be forfeited for non-payment of 100/. or a less sum. This reasonable advantage, allowed to mortgagors, is called the equity of redemption :8 and this enables a mortgagor to call on the mortgagee, who has possession of his estate, to deliver it back and account for the rents and profits received, on payment of his whole debt and interest: thereby turning the mortuum. into a kind of vivum vadium. But, on the other hand, the mortgagee may either compel the sale of the estate, in order to get the whole of his money immediately; or 'else call upon the mortgagor to redeem his estate presently, or, in default thereof, to be

* In general, if the mortgagee has been twenty years in possession, the court of chancery, in conformity'to the time of bringing an ejectment, will not permit the mortgagor to redeem, unless during part of the time the mortgagor has been an infant or a married woman; or unless the mortgagee admits he holds the estate as a mortgage; or he has kept accounts upon it and treated it as redeemable w ithin twenty years; or there is some other special circumstance which forms an exception to the general rule. £7. Ca. Abra. 313. 2 JBro. 399. 2 Ves.jun. 83. Where two different estates are mortgaged by the owner to the same person, one cannot be redeemed without the other. Amb. 733.

Neither can he justify in equity the commission of any act which may injure the estate ; therefore, though at law a mortgagee in fee may commit waste, yet he will be restrained in equity, unless the security be defective ; for in that case the court will not restrain a just creditor from his legal privileges ; but then the timber when cut down must be applied to ease the estate, and not to the mortgagee's benefit. Powel on Mortgages 87, 88.

8. An equity of redemption is considered as an estate in the land, for it may be devised, granted, or entailed with remainders, and such entail and remainders, may be barred by fine and recovery, and there, fore cannot be considered as a mere right, only, but such an estate •whereof there may be seisin; the person therefore intitled to the equity of redemption is considered as the owner of the land, and a mortgage in fee is considered as personal assets. 1. Atk. 605.

forever foreclosed from redeeming the same ; that is, to lose his equity of redemption without possibility of recall. And also, in some cases of fraudulent mortgages3, the fraudulent mortgagor forfeits all equity of redemption whatsoever*. It is not, however, usual for mortgagees to take possession of the mortgaged estate, unless where the security is precarious, or small ; or where the mortgagor neglects even the payment of interest: when the mortgagee is frequently obliged to bring an ejectment*, and take the land into his own hands, in the nature of a pledge, or the pignus of the Roman law: whereas, while it remains in the hands of the mortgagor, it more resembles their hypotheca, which was where the possession of the thing pledged remained with the debtorbl0 .... But, by statute 7 Geo. II. c. 20, after payment or tender by the mortgagor of principal, interest, and costs, the mortgagee can maintain no ejectment; but may be compelled to re-assign his securities11. In Glanvil's time, when the universal method of conveyance was by livery of seisin or corporal tradition of the lands, no gage or pledge of lands was good unless possession was

a Stat. 4, and 5. W. and M. c. 16.

b Pignoris appcllatione earn (n-oprie rem contineri dicimus, qaae siinul etiam traditur creditor}. At earn, quae sine traditione nuda conventions tenetur, proprie bypothecae appellatione contineri dicimus. Inst. I. 4. t. 6. Sec. 7.

• The mortgagee is not now obliged to bring an ejectment to recover the rents and profits of th& estate, for it has been determined that where there is a tenant in possession, by a lease prior to the mortgage, the mortgagee may at any time give him notice to pay the rent to him; and he may distrain for all the rent which is due at the time of the notice, and also for all that accrues afterwards. Moss v. Gallimore, Doug. 266. The mortgagor has no interest in the premises, but by the mere indulgence of the mortgagee; he has not even the estate of a tenant at will, for it is held he may be prevented from carrying away the emblements, or the crops which he himself has sown.

1 Christian.

9. The statute 4, and 5. W. t5*M. c. 16, here referred to, was never in force in Virginia.

10. On this subject the student may consult a very excellent treatise on mortgages, by John Joseph Powel, Esq. c. 3, and 4. See also the cases of Keech v. Hall, Doug. 21, and Moss v. Gallimore, ib. 266. See also 1. Wash. rep. 18, 125,177. 1. Call's rep. 188, and 280, and 2. Call 421, 206.

11. This statute was never in force in Virginia, nor is there any similar provision in our law.

also delivered to the creditor; "«' nonsequater ipsius vadii Iraditto, curia domini regls hujusmodi privatas convent/ones tueri non solct:" for \vhidi the reason given is, to prevent subsequent and fraudulent pledges of the same land: " cum in tali casu fossil caa'ftn res plitribus aliis creditoribus turn prius turn poslerius invadiari*." And the frauds which have arisen, since - the exchange of these public and notorious conveyances for more private and secret bargains12, have well evinced the wisdom of our antient law*. % c /. 10. c. 8. d See book I.e. 8.

* It has been said by a learned judge to be an established rule of equity, that a second mortgagee, who has the title deeds without notice of any prior incumbrance, shall be preferred, because if a mortgagee lend money upon real property without taking the title deeds, he enables the mortgagor to commit a fraud. 1 1'. K. 162. But lord Thurlow afterwards observed upon this, that he did not conceive that the not taking the deeds was alone sufficient to postpone the first mortgagee •, if it were so, there could be no such thing as a mortgage of a reversion j and he held that the second mortgagee in possession of the title deeds, was preferred only in cases where the first had been guilty of fraud or of gross negligence. 3 Bio. 652.

Out I should be inclined to think that fraud or gross negligence would be presumed, unless the first mortgagee could shew that it was impossible for him to obtain the possession of the title deeds, or that he had used all due and neceslary dilligcnce for that purpose.

Whatever may be the value of the estate, it is of great importance to those who lend money upon real security, to be certain that there is no prior mortgage upon the estate; for it has been long settled, that if a third mortgagee, who at the time of his mortgage had no notice of the second, purchases the first mortgage even pending a bill filed by the second to redeem the lirst, both the first and third mortgages shall be paid out of the estate, before any share of it can be appropriated to the second : and the reason assigned is, that the third, by thus obtaining the legal estate, has both law and equity on his side, which snpercede the equity of the second* And even lord Hale held it right, that the third should seize what ho cr.lled the tabula in naiifragio, a plank in the shipwreck, and thus leave the second to perish. But a subbequent mortgagee can obtain no advantage over a prior one, if at the time of lending his money, he had notice of the prior incumbiancc. 1 ?' It. 763. But among mortgagees,

12. All deeds of trust and mortgages (whether of lands, slaves, or chattel:,,) are void as to all creditors and subsequent purchasers, unless they be acknowledged by the parties wproved by three witnesses before the general court or the court of that district, county, city, or corporation in which the lands conveyed, or some part thereof lie, (except in case of persons absent from the commonwealth, tyhose

IV. A fourth species of estates, defeasible on condition subsequent, are those held by statute merchant, and statute staple; which are very nearly related to the vivum vadium before-mentioned, or estate held till the profits thereof shall discharge a debt liquidated or ascertained13. For both the statute merchant and

where none has the legal estate, the rule in equity is, jui prior est tempore, potibr tstjure. 2 P. Wm*. 491. 1 Bro. 63.

As this is the equity which is intelligible to ordinary understandings, if it were not presumptuous to reflect a censure upon a doctrine so long sanctioned by illustrious names, it might be observed that the equity of the second ought to have outweighed both the law and the equity of the third; for it can hardly be reconciled with substantial justice, that the third 1>v any contrivance or combination should be permitted to run away with the whole estate, and leave nothing to the second, who had fairly and honestly advanced his property. But this, if wrong, can only be corrected by the authority of the legislature. .... Christ.

deeds maybe proved within two years after execution, and of persons not residing within the district or county, whose acknowledgment may be taken in the court of the district, See. where the party may reside) and recorded within eight months according to the, directions of the several acts of 1748, c. 1. and 1785, c. 62. 1794, c. 90. Or if the mortgage be of slaves or chattels, it would seem that the mortgage should be recorded in the general court, or court of the county, or district in which one of the parties lives .... Edi. 1794, c. 10. But in the case of Clayborne v. Hill, 1. Wash. rep. 177, the court seem to have thought that a mortgage of slaves might be recorded in any other county. If a deed be re-acknowledged within eight months from its date, and recorded within four months from the re-acknowledgment, it is good even as against creditors, from the date of the re-acknowledgment, although there may be more than eight months between the first execution of it, and the time of recording. 2. Call's rep. 183,184. Our laws likewise require that a docket, containing the dates, acknowledgments, and probates, names, surnames, and additions of the parties, in alphabetical order, and the quantities and situation of lands contained in any deed, be transmitted by the clerks of the district and county courts, to the clerk of the general court, annually, to be there recorded. See also p. 309. n. 13.

If A give a mortgage on lands to B, and then the agent of B and A, agree to convey those lands to C, on his securing the mortgage money, and afterwards C gives a deed of trust on sundry slaves, for-that and other debts to a succeeding agent of B, the first mortgage is thereby discharged, though B never conveyed the lands to C. Towler v. Buchanan, &c. 1. Call 187.

13. These estates are unknown in Virginia ; the statutes under which they were created in England, are now repealed in this country. V. L. 1794, c. 147.

statute staple are securities for money; the one entered into before the chief magistrate of some trading town, pursuant to the statute 13 Edw. I. de mcrcatoribus, and thence called a statute merchant; the other pursuant to the statute 27" Edw. III. c. 9, before the mayor of the staple, that is to say, the grand mart for the principle commodities or manufactures of the kingdom, formerly held by act of parliament in certain trading towns'1, from whence this security is called a statute staple. They are both, I say, securities for debts acknowledged to be due ; and originally permitted only among traders, for the benefit of commerce ; whereby not only the body of the debtor may be imprisoned, and his goods seised in satisfaction of the debt, but also his lands may be delivered to the creditor, till out of the rents and profits of them the debt may be satisfied: and, during such time as the creditor so holds the lands, he is tenant by statute merchant or statute staple. There is also a similar security, the recognizance in the nature of a statute staple, acknowledged before either of the chief justices, or (out of term) before their substitutes, the mayor of the staple at Westminster and the recorder of London; whereby the benefit of this mercantile transaction is extended to all the king's subjects in general, by virtue of the statute 23 Hen. VIII. c. 6, amended by 8 Geo. I. 9. 25, which direct such recognizances to be enrolled and certified into chancery. But these by the statute of frauds, 29 Car. II. c. 3, are only binding upon the lands in the hands of bonafde purchasers, from the day of their enrollment, which is ordered to be marked on the record.

V. Another similar conditional estate, created by operation of law, for security and satisfaction of debts, is called an estate by elegit. "\yhat an flegit is, and why so called, will be explained in the third part of these commentaries. At present I need only mention, that it is the name of a writ, founded on the statute* of Westm. 2, by which, after a plaintiff has obtained judgment for his debt at law, the sheriff gives him possession of one half of the defendant's lands and tenements, to be occupied and enjoyed, until his debt and damages are fully paid: and, during the time

4 See Book I, c. 8.

e 13 Edw. I. c. 18.

he so holds them, he is called tenant by elegit*4. It is easy to observe, that this is also a mere conditional estate, defeasible as soon as the debt is levied. But it is remarkable, that the feodal restraints of alienating lands, and charging them with the debts of the owner, were softened much earlier and much more effectually for the benefit of trade and commerce, than for any other consideration. Before the statute of quia cmptoreif, it is generally thought that the proprietor of lands was enabled to alienate no more than a moiety of them:. the statute therefore of Westm. 2, permits only so much of them to be affected by the process of law, as a man was capable of alienating by his own deed. But by the statute de mercatorihus (passed in the same years) the whole of a man's lands was liable to be pledged in a statute merchant, for a debt contracted in trade: though only half of them was liable to be taken in execution for any other debt of the owner.

I shall conclude what I had to remark of these estates, by statute merchant, statute staple, and elegit, with the observation of sir Edward Cokeh, " These tenants have uncertain interests

in lands and tenements, and yet they have but chattels and no freeholds j" (which makes them an exception to the general rule) " because though they may hold an estate of inheritance, or for life, ut liberum tenementum, until their debt be paid ; yet it shall go to their executors: for ut- is similitudinary ; and though, to recover their estates, they shall have the same remedy (by assise) as a tenant of the freehold, shall have', yet

it is but the similitude of a freehold, and nullum simile est idem.'" This indeed only proves them to be chattel interests, because they go to the executors, which is inconsistent with the nature of a freehold: but it does not assign the reason why these estates,in contradistinction tootheruncertain interests, shall

f 18 Edw. I. gUEdw.I. h 1 Inst, 42,4j. i The words of the statute de inercatoribus are," puisseporter brefde navelc " disseisins,auxi sicnm defrankter.emerit."

14. The provisions of the statute of Westm. 2, were introduced into our code, at least, so long ago as the year 172C, c. 3, and have been continued to this day, 1748, c. 8. 1794, c. 151.

vest in the executors of the tenant and not the heir; which is probably owing to this: that being a security and remedy provided for'personal debts due to the deceased, to which debts the executor is entitled, the law has therefore thus directed their succession; as judging it reasonable, from a principle of natural equity, that the security and remedy should be vested in those to whom the debts if recovered would belong. For, upon the same principle, if lands be devised to a man's executor, until out of their profits the debts due from the testator be discharged, this interest in the lands shall be a chattel interest, and on the death of such executor shall go to his executork: because they, being liable to pay the original testator's debts, so far as his assets will extend, are in reason entitled to possess that fund, out of which he has directed them to be paid.

k Co. Litt. 42.

CHAPTER THE ELEVENTH.

OF ESTATES IN POSSESSION, REMAINDER, AND REVERSION.

HITHERTO we have considered estates solely with regard to their duration, or the quantity of interest, which the owners have therein. We are now to consider them in another view 4 with regard to the time of their enjoyment, when the ac-~ tual pernancy of the profits (that is, the taking, perception, or receipt, of the rents and other advantages, arising therefrom) begins. Estates, therefore, with respect to this consideration, may either be in possession, or in expectancy; and of expectancies there are two sorts; one created by the act of the parties, called a remainder; the other by act of law, and called a reversion.

I. Of estates in possession, (which are sometimes called estates executed, whereby a present interest passes to, and resides in the tenant, not depending on any subsequent circumstance or contingency, as in the case of estates executory} there is little, or nothing, peculiar to be observed. All the estates we have hitherto spoken of, are of this kind; for, in laying down general rules, we usually apply them to such estates as are then actually in the tenant's possession. But the doctrine of estates in expectancy contains some of the nicest and most abstruse learning in the English law. These will, therefore, require a minute discussion, and demand some degree of attention.

II. An estate, then, in remainder may be defined to be, an estate limited to take effect and be enjoyed after another estate is determined.) As if a man seised in fee-simple granteth lands to A for twenty years, and, after the determination of the said

term, then to B and his heirs for ever: here A is tenant for years, remainder to B in fee. In the first place an estate for years is created or carved out of the fee, and given to A ; and the residue, or remainder of it is given to B. But both these interests are in fact only one estate; the present term of years and the remainder afterwards, when added together, being equal only to one estate in fee*. They are, indeed, different parts, but they constitute only one whole: they are carved out of one and the same inheritance: they are both created, and may both subsist, together: the one in possession, the other in expectancy. So, if land be granted to A for twenty years, and after the determination of the said term to B for life; and after the determination of B's estate for life, it be limited to C and his heirs for ever: this makes A tenant for years, with remainder to B for life, remainder over to C in fee. Now here the estate of inheritance undergoes a division into three portions: there is first A's estate for years, carved out of it; and after that B's estate for life ; and then the whole that remains is limited to C and his heirs. And here also the first estate, and both the remainders, for life and in fee, are one estate only; being nothing but parts or portions of one entire inheritance, and if there were a hundred remainders, it would still be the same thing; upon a principle grounded in mathematical truth, that all the parts are equal, and no more than equal, to the whole. And hence, also, it is easy to collect, that no remainder can be limited after the grant of an estate in fee-simple b: because a fee-simple is the highest and largest estate, that a subject is capable of enjoying; and he that is tenant in fee hath in him the whole of the estate: a remainder, therefore, which is only a portion, or residuary fart of the estate, cannot be reserved after the whole is disposed of. A particular estate, with all the remainders expectant thereon, is only one fee-simple; as 4O/. is part of 100/. and 60/. is the remainder of it: wherefore, after a fee-simple once vested, there can no more be a remainder limited thereon, than after the whole 100/. is appropriated there can be any residue subsisting.

Thus much being premised, we shall be the better enabled to comprehend the rules that are laid down by law to be observ-

a Co. Litt. 143. b Plowd. 29. Vaugli. 269.

ed in the creation of remainders, and the reasons upon which those rules are founded.

1. And, first, there must necessarily be some particular estate, precedent to the estate in remainderc. As, an estate for years to A, remainder to B for life ; or, an estate for life to A, remainder to B in tail. This precedent estate is called the particular estate, as being only a small part, or farticitla, of the inheritance ; the residue or remainder of which is granted over to another. The necessity of creating this preceding particular estate, in order to make a good remainder, arises from this plain reason ; that remainder is a relative expression, and implies that some part of the thing is previously disposed of: for where the whole is conveyed at once, there cannot possibly exist a remainder : but the interest granted, whatever it be, will be an estate in possession.

An estate created to commence at a distant period of time, without any intervening estate, is therefore properly no remainder : it is the whole of the gift, and not a residuary part. And such future estates can only be made of chattel interests, which were considered in the light of mere contracts by the antient law d, to be executed either now or hereafter, as the contracting parties should agree i but an estate of freehold must be created to commence immediately. For it is an antient rule of the common law, that an estate of freehold cannot be created to commence in futuro ; but it ought to take effect presently either in possession or remaindere : because at common law no freehold in lands could pass without livery of seisin; which must operate either immediately, or not at all. It would therefore be contradictory, if an estate, which is not to commence till hereafter, could be granted by a conveyance which, imports an immediate possession. Therefore though a lease to A for seven years, to commence from next Michaelmas, is good; yet a conveyance to B of lands, to hold to him and his heirs for ever from the end ot three years next ensuing, is void. So that'when it is intended to grant an estate of freehold, whereof the enjoyment shall be defered till a future time, it is necessary to create a previous pnrti-

c Co. Litt. 49. Plowd. 25. d Raym, 151. c S Rep 94.

cular estate, which may subsist till that period of time is completed ; and for the grantor to deliver immediate possession of the land to the tenant of this particular estate, which is construed to be given possession to him in remainder, since his estate and that of the particular tenant are one and the same estate in law. As, where one leases to A for three years, with remainder to B in fee, and makes livery of seisin to A ; here by the livery the freehold is immediately created, and vested in B, during the continuance of A's term of years. The whole estate passes at once from the grantor to the grantees, and the remainder-man is seized of his remainder at the same time that the termor is possessed of his term. The enjoyment of it must indeed be deferred till hereafter; but it is to all intents and purposes an estate commencing in praesenti, though to be occupied and enjoyed in futuro.

As no remainder can be created, without such a precedent particular estate, therefore the particular estate is said to support the remainder. But a lease at will is not held to be such a particular estate, as will support a remainder overf. For an estate at will is of a nature so slender and precarious, that it is not looked upon as a portion of the inheritance; and a portion must first be taken out of it, in order to constitute a ren-ainder. Besides, if it be a freehold remainder, livery of seisin must be given at the time of it's creation; and the entry of the grantor, to do this, determines the estate at will in the very instant in which it is madeS; or, if the remainder be a chattel interest, though perhaps the deed of creation might operate as & future contract, if the tenant for years be a party to it, yet it is void by way of remainder : for it is a seperate independent contract, distinct from the precedent estate at will; and every remainder must be part of one and the same estate, out of which the preceding particular estate is taken11. And hence it is generally true, that if the particular estate is void in it's creation, or by any means is defeated afterwards, the remainder supported thereby shall be defeated also1: as where the particular estate is an estate for the life of a person not in essek ; or an estate>for life upon condition, on

f 8 Rep. 75. g Dyer. 18. h Raym. 151. i Co. Litt. 298. k 2 Roll. Abr. 413.

breach of which condition the grantor enters and avoids the estate1 ; in either of these cases the remainder over is void.

2. A second rule to be observed is this; that the remainder must commence or pass out of the grantor at the time of the creation of the particular estate"1. As, where there is an estate to A for life, with remainder to B in fee: here B's remainder in fee passes from the grantor at the same time that seisin is delivered to A of his life estate in possession. And it is this, which induces the necessity at common law of livery of seisin being made on the particular estate, whenever a freehold remainder is created. For, if it be limited even on an estate for years, it is necessary that the lessee for years should have livery of seisin, in order to convey the freehold from and out of the grantor; otherwise the remainder is void". Not that the livery is necessary to strengthen the estate for years; but, as livery of the land is requisite to convey the freehold, and yet cannot be given to him in remainder without infringing the possession of the lessee for years, therefore the law allows such livery, made to the tenant of the particular estate, to relate and inure to him in remainder, as both are but one estate in law0.

3. A third rule respecting remainders is this; that the remainder must vest in the grantee during the continuance of the particular estate or eo instanti that it determines!". As, if A be tenant for life, remainder to B in tail; here B's remainder is vested in him, at the creation of the particular estate to A for life: or, if A and B be tenants for their joint-lives, remainder to the survivor in fee ; here, though during their joint-lives the remainder is vested in neither^ yet, on the death of either of them the remainder vests instantly in the survivor: wherefore, both these are good remainders. But, if an estate be limited to A for life, remainder to the eldest son of B in tail, and A dies before B hath any son; here the remainder will be void, for it did not vest in any one during the continuance, nor at the determination, of the particular estate: and, even supposing-that B

1 IJon. 58:

n Litt. Sec. 60.

p I'lowd. 25. 1 Hep. 66.

m Litt. Sec. 671. Plowd. 25. o Co. Litt. 49.

should afterwards have a son, he shall not take by this remainder ; for, as it did not vest at, or before the end of the particular estate, it never can vest at all, but is gone for ever'. And this depends upon the pihiciple before laid down, that the precedent particular state, and the remainder, are one estate in law; thty must, therefore, subsist and be in ease at one and the same instant of time, either during the continuance of the first estate or at the very instant when that determines, so that no other estate can possibly come between them. For there can be no intervening estate between the particular estate, and the remainder supported therebyr: the thing supported must fall to the ground, if once its support be severed from it.

It is upon these rules, but principally the last, that the doctrine of contingent remainders depends. For remainders are either vested or contingent. Vested remainders (or remainders executed, whereby, a present interest passes to the party, though to be enjoyed in futuro} are, where the estate is invariably fixed to remain to a determinate person, after the particular estate is spent. As if A be tenant for twenty years, remainder to B in fee; here B's is a vested remainder, which nothing can defeat, or set aside.

Contingent or executory remainders (whereby no present interest passes) are where the estate in remainder is limited to take effect, either to a dubious and uncertain person, or upon a dubious and uncertain event; so that the particular estate may chance to be determined, and the remainder never take effect'.

First, they may be limited to adubious and uncertain person. As if A be tenant foiylife, with remainder to B's eldest son (then unborn) in tail; this is a contingent remainder, for it is uncertain whether B will have a son or no : but the instant that a son is born, the remainder is no longer contingent, but vested. Though, if A had died before the contingency happened, that is, before B's son was born, the remainder would have been absolutely gone ; for the particular estate was determined before the remainder could vest. Nay, by the strict rule of law, if A

q 1 Kep. 138.

r 3 Rep. 21.

I Ibid. 20.

were tenant for life, remainder to his own eldest son in tail, and A died without issue born, but leaving his wife enseint or big with child, and after his death a posthumous son was born, this son could not take the land, by virtue of this remainder ; for the particular estate determined before there was any person in esse, in whom the remainder could vest'. But, to remedy this hardship, it is enacted by statute 1O and 11 W. III, c. 16, that posthumous children shall be capable of taking in remainder, in the same manner as if they had been boni in their father's lifetime: that is, the remainder is allowed to vest in them, while yet in their mother's womb u l.

This species of contingent remainders, to a person not in being, must however be limited to some one, that may by common possibility, or potentia propinqna, be in esxe at or before the particular estate determines w. As if an estate be made to A for life, remainder to the heirs of B : now, if A dies before B, the remainder is at an end ; for during B's life he has no heir, nemo est haeres viventis : but if B dies first, the remainder then immediately vests in his heir, who will be entitled to the land on the death of A. This is a good contingent remainder, for the possibility of B's dying before A is potentia propinqua, and therefore allowed in law x. But a remainder to the right heirs of B (if there be no such person as B in esse) is void t. For here there must two contingencies happen ; first, that such a person as B shall be born ; and, secondly, that he shall also die during the continuance of the particular estate ; which make it potentia remotessimd, a most improbable possibility. A remainder to a man's eldest son, who hath none (we have seen) is good; for by common possibility he may have one ; but if it be

t Salk. 228. 4 Mod. 282. w 2 Rep. 51. y Hob. 33.

u See Vol. I. page 130. x Co. Litt. 578.

1. The act of 1785, c. 62. Edi. 1794. c. 90. $. 13, accordant : it took effect January 1, 1787. And it has been decided in England tl\at such posthumous child, by virtue of the statute, is entitled to the intermediate profits from the death of the father, 3 Atk. 203. It is otherwise in the case of a descent divided by the birth of a posthumous child. 3 Wilson 526.

limited in particular to his son John, or Richard, it is bad, if he have no son of that name; for it is too remote a possibility, that he should not only have a son, but a son of a particular name ". A limitation of a remainder to a bastard before it is born, is not good a: for though the law allows the possibility of having bastards, it presumes it to be a very remote and improbable contingency. Thus may a remainder be contingent, on account of the uncertainty of the person who is to take it.

A remainder may also be contingent, where the person to whom it is limited is fixed and certain, but the event upon which it is to take effect is vague and uncertain. As, where land is given to A for life, and in case B survives him, then with remainder to B in fee : here B is a certain person, but the remainder to him is a contingent remainder, depending upon a dubious event, the uncertainty of his surviving A. During the joint lives of A and B it is contingent; and if B dies first, it never can vest in his heirs, but is for ever gone : but if A dies first, the remainder to B becomes vested.

Contingent remainders of either kind, if they amount to a freehold, cannot be limited on an estate for years, or any other particular estate, less than a freehold. Thus if land be granted to A for ten years, with remainder in fee to the right heirs of B, this remainder is void b : but if granted to A for life, with a like remainder, it is good. For, unless the freehold passes|Out of the grantor at the time when the remainder is created, such freehold remainder is void: it cannot pass out of him, without vesting somewhere ; and in the case of a contingent remainder it must vest in the particular tenant, else it can vest no where : unless therefore the estate of such particular tenant be of a freehold nature, the freehold cannot vest in him, and consequently the remainder is void.

Contingent remainder may be defeated, by destroying or determining the particular estate upon which they depend, before the contingency happens whereby they become vested0. There-

z 5 Rep. 51. b 1 Rep. 130.

a Cro. Eliz. 509. c 1 Hep. 66, 135.

fore when there is tenant for life, with divers remainders in contingency, he may, not only by his death, but by alienation2, surrender, or other methods, destroy and determine his own life-estate, before any of those remainders vest; the consequence of which is that he utterly defeats them all. As if there be tenant for life, with remainder to his eldest son unborn in tail, and the tenant for life, before any son is born, surrenders his life-estate, he by that means defeats the remainder in tail to his son : for his son not being in esse, when the particular estate determined, the remainder could not then vest: and, as it could not vest then, by the rules before laid down, it never can vest at all. In these cases therefore it is necessary to have trustees appointed to preserve the contingent remainders; in whom there is vested an estate in remainder for the life of the tenant for life, to commence when his estate determines. If therefore his estate for life determines otherwise than by his death, the estate of the trustees, for the residue of his natural life, will then take effect, and become a particular estate in possession, sufficient to support the remainders depending in contingency. This method is said to have been invented by sir Orlando Bridgman, eir Geoffrey Palmer, and other eminent council, who betook themselves to conveyancing during the time of the civil wars; in order thereby to secure in family settlements a provision for the future children of an intended marriage, who before were usually left at the mercy of the particular tenant for life d : and d See Moos. 486. 2 Roll. Abr. 797. pi. 12 2. Sid. 159. 2 Chan. Rept. 170.

2. Quaere, how far the law in this case may be altered by the provisions contained in the act of 1785, c. 67, concerning wrongful alienations, Edi. 1794, c. 13, which declares that all alienations or warranties of lands, tenements and hereditaments made by any, purporting to pass or assure a greater right or estate than such person may lawfully pass or assure, shall operate as alienations or warranties of so much of the right and estate M such lands, &c. as such person might lawfully convey ; but shall not pass, or bar, the residue of the said right or estate purported to be conveyed or assured.

But a conveyance of a greater estate than he has, by bargain and sale or by lease and release, is no forfeiture, and will not defeat a contingent remainder, 2 Leon. CO. 3. Mod. 151. But it is otherwise, if the conveyance be made by feoffment, or by a fine, or by a rcco\ ery, 1. Co. 66. Cro. Eliz. 630.1. Salk. 224.

when, after the restoration, those gentlemen came to fill the first offices of the law; they supported this invention within reasonable and proper bounds, and introduced it into general use *.

* We have seen before, in chapter vii. that, in a grant of a fee-simple to A, it is necessary to give it to A and his heirs; of a fee-tail, to A and the heirs of his body; and that a grant to A, without any additional words, gives him only an estate for life. Hence the word heirs in the first case, and the words heirs of the body in the second, are said to be words of limitation, because they limit or describe what interest A takes by the giant, viz. in one case, a fee-simple, in the other, a fee-tail: and the heirs in both instances take no interest any farther than as the ancestor may permit the estate to descend to them. But if a remainder is granted, orestate devised to the heirs of A, where no estate of freehold is at the same time given to A, the heir of A cannot take by descent from A j but he takes by purchase, under the grant, in the same manner as if the estate had been given to him by his proper name. Here the word heirs is called a word of purchase. Having premised the distinction between words of limitation and words of purchase, I may observe, that the much-talked-of rule in Shelly's case, \Co. 104 is this, viz. " when theancestor, by any gift or conveyance, takes an estate of freehold, and in the same gift or conveyance an estate is limited, either mediately or immediately, to his heirs in fee or in tail, that always in such cases the heirs are words of limitation, and not words of purchase :" and the remainder is said to be executed in the ancestor, where there is no intermediate estate; or vested, when an estate for life or in tail intervenes.

As if an estate be given to A for life, and after his death to the heirs of his body; this remainder is executed in A, or it unites with his estate for life; and the effect is the same as if the estate had at once been given to A and the heirs of his body ; which expression limits an estate tail to A, and the issue have no indefeasible interest conveyed to them, but can only take by descent from A. So also if an estate be given to A for life, with remainder to B for life or in tail, remainder to the heirs, or the heiis of the body, of A .... A takes an estate for life, in this case, <yith a vested remainder in fee or in tail; and his heir under this grant can only take by descent at his death. Fearne, 21. But when the estate for life, and the remainder in tail or in fee unite and coalesce, and heirs is a word of limitation, the two estates must be created by the same instrument, and must be either both legal, or both trust estates. Doug. 490. 2 f. S. 444, But an appointment in pursuance of a power, when exe. cuted, is to be considered as if it had been inserted in the original deed by which the power of appointment was created. 7 f. R. 347. The rule with regard to the execution or coalition of such estates seems now to be the same-in equitable as in legal estates. 1 Bra. 206. And in all these cases where a person has an estate tail or a vested remainder in tail, he can cut off the expectations or inheritance of his issue, by a fine, or a recovery. Daug. 32J. In order, therefore, to secure a certain provision for childien, the method was invented of granting the estate to the father fur life, and, after his death, to his first and other son*

Thus the student will observe how much nicety is required in creating and securing a remainder ; and I trust he will in some measure see the general reasons, upon which this nicety is founded. It were endless to attempt to enter upon the parti-

in tail j for the words ton or daughter were held to be words of purchase, and the remainder to them did not, like the remainder to heirs, unite with the prior estate of freehold. But if the son was unborn, the remainder was contingent, and might have been defeated by the alienation of the father by feoffmerit, fine, or recovery: to prevent this, it was necessary to interpose trustees, to whom the estate is given upon such a determination of the life-estate, and in whom it rests, till the contingent estate, if at all, comes into existence; and thus they are said to support and preserve the contingent remainders. Thisiscalled a strict settlement, and is the only mode (executory devises excepted) by which a certain and indefeasible provision can be secured to an unborn child. But in the case of articles or covenants before marriage, for making a settlement upon the husband and wife, and their offspring, if there be a limitation to the parents for life, wilh a remainder to the heirs of their bodies, the latter words are generally considered as words of purchase, and not of limitation j and a court of equity will decree the articles to be executed in strict settlement. See Fearne, 124, and examples there cited. It being the great object of such settlements to secure fortunes for the issue of the marriage, it would be useless to give the parents an estate tail, of which they would almost immediately have the absolute disposal. And, therefore, the courts of equity will decree the estate to be settled upon the parent or parents for life; and upon the determination of that estate by forfeiture, to trustees to support contingent remainders for their lives; and after their decease, to the first and other sons successively in tail, with remainder to all the daughters nvtail as tenants in common, with subsequent remainders or provisions according to the occasions and intentions of the parties. In these strict settlements, the estate is unalienable till the first son attains the age of 21, who, if his father is dead, has then, as tenant in tail, full power over |he estate j or if his father is living, he then can bar his own issue, by a fine, independent of the father. Cruise, 161. But the .father, and the sou at that age, can cut off all the subsequent limitations, and dispose of the estate in any manner they please by joining in a common rccoveiy. This is the origin of the vulgar error, that a tenant of an estate.tail must havethe consent of Ins eldest son to enable him to cut off the entail; for that is necessary where the father has only a life-estate, and his eldest son has the remainder in tail. But there is no method whatever of securing an estate to the grandchildren of a person, who is without children at the time of the settlement; for the law will not permit a perpetuity; and Lord Thurlow has defined a perpetuity to be " any extension of an estate beyond a life in being, and 21 years after." 2 Bro. 30. See n. 4. Hence, wherein a settlement the father has a power to appoint an estate to or amongst hiSjdiildren, he cannot afterwards give this to his children in strict settlement, or give any of his sons an estate for life, with a iemainder in tail to His eldest son; for if he could do this, a perpetuity wouU be created by the original settlement. 2 T. R. 241. The,

172

THE RIGHTS

BOOK II.

cular subtilties and refinements, into which this doctrine, by the variety of cases which have occurred in the course of many centuries, has been spun out and subdivided: neither are they consonant to the design of these elementary disquisitions. I must not however omit, that in devises by last will and testament, (which, being often drawn up when the party is inops consilii, are always more favoured in construction than formal deeds, which are presumed to be made with great caution, forethought, and advice) in these devises, I say, remainders may be created in some measure contrary to the rules before laid down: though our lawyers will not allow such dispositions to be strictly remainders; but call them by another name, that of executory devises, or devises hereafter to be executed.

An executory devise of lands is such a disposition of them by will, that thereby no estate vests at the death of the devisor, but only on some future contingency. It differs from a remainder in three very material points : 1. That it needs not any particular estate to support it. 2. That by it a fee-simple or other less estate, may be limited after a fee-simple. 3. That by this means a remainder may be limited of a chattel interest, after a particular estate for life created in the same.

1. The first case happens when a man devises a future estate to arise upon a contingency; and, till that contingency happens, does not dispose of the fee-simple, but leaves it to descend to his heir at law. As if one devises land to a feme-sole and her heirs, upon her day of marriage : here is in effect a contingent remainder without any particular estate to support it; a freehold commencing in futuro. This limitation, though it would be void in a deed, yet is good in a will, byway of executory devise8. ....

e 1 Sid. 153.

The student, who -wishes to obtain a dear and comprehensive knowledge of this abstruse branch of legal learning, cannot bestow too great attention upon Mr. Fearne's treatise upon Contingent Remainders and Executory Devises, where itislearnedl) and pel spicuoiibly'discussed and methodized. I have thought it proper to select and to subjoin here these important distinctions, as in innumerable instances, from the ignorance of the persons employed, family settlements, particularly in wills, have pi oved abortive, and the intentions of parents and testaters have been unhappily disappointed .... Chnttian.

CHAP. XI.

OF. THINGS.

175

For, since by a devise a freehold may pass without corporal tradition or livery of seisin, (as it must do, if it passes at all) therefore it may commence in- futuro: because the principal reason why it cannot commence in futuro in other cases,-is the necessity of actual seisin, which always operates in praesenti. And, since it may thus commence in futuro, there is no need of a particular estate to support tit; the only use of which is to make the remainder, by it's unity with the particular estate, a present interest. And hence also ir. follows, that such an executory devise, not being a present interest, cannot be barred by a recovery, suffered before it commencesf.

2. By executory devise a fee, or other less estate, may be limited after a fee. And this happens where a devisor devises his whole estate in fee, but limits a remainder thereon to commence in a future contingency. As if a man devises land to A and his heirs: but, if he dies before the age of twenty-one, then to B and his heirs: this remainder though void in a deed, is good by way of executory devise^. But, in both these species of executory devises, the contingencies ought to be such as may happen within a reasonable time; as within one or more life or lives in being, or within a moderate term of years; for courts of justice will not indulge even wills, so as to create a perpetuity, which the law abhors1*: because by perpetuities, (or the settlement of an interest, which shall go in the succession prescribed, without any power of alienation') estates are made incapable of answering those ends, of social commerce, and providing for the sudden contingencies of private life, for which property was at first<established. The utmost length that has been hitherto allowed for the contingency of an executory devise of either kind to happen in, is that of a life or lives in being, and one and twenty years afterwards. As when lands are devised to such unboni son of a feme-covert, as shall first attain the age of twenty-one, and his heirs ; the utmost length of time that can happen before the estate can vest, is the life of the mother and the subsequent infancy of her son: and this hath been decreed to be a good executory devisek.

f Cro. Jac. 593.

h 12 Mod. 287. 1 Vern. 164.

g 2 Mod. 289 i Salk. 229.

Ic Forr. 233

3. By executory devise a term of years may be given to one man for his life, and afterwards limited over in remainder to another, which could not be done by deed: for by law the first grant of it, to a man for life, was a total disposition of the whole , term ; a life estate being esteemed of a higher and larger nature than any term of years1. And, at first, the courts were tender, even in the case of a will, of restraining the devisee for life from aliening the term; but only held, that in case he died without exerting that act of ownership, the remainder over should then take place*" : for the restraint of the power of alienation, especially in very long terms, was introducing a species of perpetuity. But, soon afterwards, it was held", that the devisee for life hath no power of aliening the term, so as to bar the remainder-man : yet in order to prevent the danger of perpetuities, it was settled0, that though such remainders may be limited to as many persons successively as the devisor thinks proper, yet they must all be in esse during the life of the first devisee ; for then all the candles are lighted and are consuming together, and the ultimate remainder is iii reality only to that remainder-man who happens to survive the rest: and it was also settled, that such remainder may not be limited to take effect, unless upon such contingency as must happen (if at all) during the life of the first deviseei"*.

Thus much for such estates in expectancy, as are created by the express words of the'parties themselves; the most intri-

1 8 Uep. 95.

n Dyer. 358. 8 Rep. 96.

pSkinn. 341. 3 P. Wms. 358.

• m Bvo. tit. chattelcs. 23. Dyer. 74. o 1 Sid. 451.

* It has long been fully settled that a tei-m for years, or any chattel interest, may be given by an executory devise to an unborn child of a person in existence, when it attains the age of twenty-one j and that the limits of executory devises of real and personal property are precisely the same. Fearr.e, 320. It is very common to bequeath chattel interests to A and his issue, and if he dies without ibsue, to B. It seems now to be determined, that where the words are such as would have given A an estate-tail in real property, in personal property the subsequent limitations are void, and A has the absolute interest: but if it appears from any clause or circumstance in the will, that the testator intended togiveit over only incase A had no issue living at the time of his death, upon that event the subsequent limitation will be good as an executory devise. See Fcanie, 371, and cases referred to in 3 Coxe's P. Wms. <282..,.Ckristian.

cate title in the law'. There is yet another species, which is created by the act and operation of the law itself, and this is called a Reversion.

III. An estate in reversion is the residue of an estate left in the grantor, to commence in possession after the determination of some particular estate granted out by hiini. Sir Edward Coker describes a reversion to be the returning of land to the grantor, or his heirs after the grant is over. As, if there be a gift in tail, the reversion of the fee is, without any special reservation, vested in the donor by act of law : and so also.the reversion, after an estate ,for life, years, or at will, continues in the lessor. For the fee-simple of all lands must abide somewhere; and if he, who was before possessed of the whole, carves out of it any smaller estate, and grants it away, whatever is not so granted remains in him. A reversion is never therefore created by deed or writing, but arises from construction of law; a remainder can never be limited, unless by either deed or devise. But both are equally transferrable, when actually vested, being both estates in praesenti, though taking effect in futuro.

The doctrine of reversions is plainly derived from the feocldal constitution. For, when a feud was granted to a man for

q Co. Litt. 22.

r 1 Inst. 142.

3. The doctrine of contingent remainders and executory devises is well illustrated in an essay on the subject by Charles Fearne, Esq. to which I must refer the student for further information upon this nice and intricate subject. See also, p. 119, note 14.

The court, will not construe a devise of lands, which before the act for docking estates tail (V. L. 1776, c. 26.) would have been construed as a contingent remainder, after an estate tail, to be an 'executory devise, after njee-simfile, in virtue of that act. For such a construction would probably frustrate the intention of the act, which was to defeat all perpetuities. 1 Call. 165. Carter v. Tyler.

A man devises his whole estate to his son, and if he die before twenty.-one or lawful heirs, then to be equally divided between the children of B and C. This is good by way of executory devise, for the death of A, before twenty-one determines both events. But only the children of B and C, who were in esse, at the time of the testators death are entitled under this devise, and they take per capita, and not jier stirjicn. Brewer v. Opie, 1 Call. 214.

life, or to him and his issue male, rendering either rent, or other services; then, on his death or the failure of issue male, the feud was determined and resulted back to the lord or proprietor, t<5 be again disposed of at his pleasure. And hence the usual incidents to reversions are said to be fealty and rent. When no rent is reserved on the particular estate, fealty however results of course, as an incident quite inseparable, and may be demanded as a badge of tenure, or acknowledgment of superiority j being frequently the only evidence that the lands are holden at all. .... Where rent is reserved, it is also incident; though not inseparably so, to the reversion*. The rent may be granted away, reserving the reversion ; and the reversion may be granted away, reserving the rent; by special words: but by a general grant of the reversion, the rent will pass with it, as incident thereunto; though by the grant of the rent generally, the reversion will not pass. The incident passes by the grant of the principal, but not e converse: for the maxim of law is, " accessorium non ducit, sect " sequitur^ suumprincipale*"

These incidental rights of the reversioner, and the respective modes of descent, in which remainders very frequently differ from reversions, have occasioned the law to be careful in distinguishing the one from the other, however inaccurately the parties themselves may describe them. For if one, seised of a paternal estate in fee, makes a lease for life, with remainder to himself and his heirs, this is properly a mere reversion", to which rent and fealty shall be incident; and which shall only descend to the heirs of his father's blood, and not to his heirs general, as a remainder limited to him by a third person would have donew: for it is the old estate, which was originally in him, and never yet was out of him. And so likewise, if a man grants a lease for life to A, reserving rent, with reversion to B and his heirs, 'B hath a remainder descendible to his heirs general, and not a reversion to which the rent is incident; but the grantor shall be entitled to the rent, during the continuance of A's estate*.

g Co. Litt. 143. u Cro.Eliz. 3^1. x 1 And, 23.

t Co. Litt. 151, 152. w:, Lev. 40".

In order to assist such persons as have any estate in remainder, reversion, or expectancy, after the death of others, against fraudulent concealments of their deaths, it is enacted by the statute 6 Ann. c. 18, that all persons, on whose lives any lands or tenements are holden, shall (upon application to the courtof chancery and order made thereupon) once in every year, if required, be produced to the court, or it's commissioners ; or, upon neglect or refusal, they shall be- taken to be actually dead, and the person entitled to such expectant estate may enter upon and hold the lands and tenements, till the party shall appear to be living*.

Before we conclude the doctrine of remainders and rever* sions, it may be proper to observe, that whenever a greater estate and a less coincide and meet in one and the same person, without any intermediate estate *, the less is immediately annihilated ; or, in the law phrase, is said to be merged, that is, sunk or drowned in the greater. Thus, if there be tenant for years, and the reversion in fee-simple descends to or is purchased by him, the term of years is merged in the inheritance, and shall never exist any more. But they must come to one and the same person in one and the same right; else, if the freehold be in his own right, and he has a term in right of another (en outer droifj there is no merger. Therefore, if tenant for years dies, and makes him who hath the reversion in fee his executor, whereby the term of years vests also in him, the term shall not merge ; for he hath the fee in his own right, and the term of years in the right of the testator, and subject to his debts and legacies. So also, if he who hath the reversion in fee marries the tenant for years, there is no merger; for he hath the inheritance in his own right, the lease in the right of his wife1. An estate-tail is an .exception to this rule: for a man may have in his own right both an estate tail and a reversion in fee ; and the estate tail, though a less estate, shall not merge in the fee a. For estates-tail are pro-

> 3 Lev. 437. z flaw. 418. Cro. Jac. 275. Co. Litt. 338. a 2 Rep. 61. 8 Rep. 74.

4. There is no provision similar to this in the laws of Virginia: but the act of 1786, c. 67, declares, that any person absenting himself beyond sea, or elsewhere, for seven years successively, shall be presumed dead, unless-proof be made that he was alive within that time, fcdi. 1794, c. 26. This act, in some measure, answers the purposes o{ the statute of Anne, which was never in force in Virginia.

tected and preserved from merger by the operation and construction, though not by the express words, of the statute de donis: which operation and construction have probably arisen upon this consideration; that, in the common cases of merger of estates for life or years by uniting with the inheritance, the particular tenant hath the sole interest in them, and hath full power at any time to defeat, destroy, or surrender them to him that hath the reversion ; therefore, when such an estate unites with the reversion in fee, the law considers it in the light of a virtual surrender of the inferior estate b. But, in an estate-tail, the case is otherwise : the tenant for a long time had no power at all over it, so as to bar or to destroy it, and now can only do it by certain special modes, by a fine, a recovery, and the likec: it would therefore have been strangely improvident, to have permitted the tenant in tail, by purchasing the reversion in fee, to merge his particular estate, and defeat the inheritance of his issue: and hence it has become a maxim, that a tenancy in tail which cannot be surrendered, cannot also be merged in the fee.

b Cro. Eliz. 302. c See page 116.

CHAPTER THE TWELFTH.

OF ESTATES IN SEVERALTY, JOINT-TENANCY, COPARCENARY, AND COMMON.

WE come now to treat of estates, with respect to the number and connexions of their owners, the tenants who occupy and hold them. And, considered in this view, estates of any quantity or length of duration, and whether they be in actual possession or expectancy, may be held in four different ways; in severalty, in joint-tenancy, in co-parcenary, and in common.

I. He that holds lands or tenements in severally, or is sole tepant thereof, is he that holds them in his own right only, without any other person being joined or connected with him in point of interest, during his estate therein. This is the most common and usual way of holding an estate ; and therefore we may make the same observations here, that we did upon estates in possession, as contradistinguished from those in expectancy, in the preceding chapter: that there is little or nothing peculiar to be remarked concerning it, since all estates are supposed to be of this sort, unless where they are expressly declared to be otherwise ; and that in laying down general rules and doctrines, we usually apply them to such estates as are held in severally. I shall therefore proceed to consider the other three species of estates, in which there are always a plurality of tenants.

II. An estate in joint-tenancy is where lands or tenements are granted to two or more persons, to hold in fee-simple, fee-tail, for life, for years, or at will. In consequence of such grant*

an estate is called an estate in joint-tenancy*, and sometimes an estate in jointure, which word as well as the other signifies an union or conjunction of interest; though in common speech the term jointure is now usually confined to that joint -estate, which by virtue of the statute 27 Hen. VIII. c. 10, is frequently vested in the husband and wife before marriage, as a full satisfaction and bar of the woman's dower b *.

In unfolding this title, and the two remaining ones in the present chapter, we will first inquire, how these estates may be created; next, their propertied and respective incidents ; and lastly, how they may be severed or destroyed,

1. The creation of an estate in joint-tenancy depends on the wording of the deed or devise, by which the tenants claim title; for this estate can only arise by purchase or grant, that is, by the act of the parties, and never by the mere act of law. Now, if an estate be given to a plurality of persons, without adding any restrictive, exclusive, or explanatory words, as if an estate be granted to A and B and their heirs, this makes them immediately joint-tenants in fee of the lands. For the law interprets the grant so as to make all parts of it take effect, which can only be done by creating an equal estate in them both. As, thierefoie, the grantor has thus united their names, the law gives them a thorough union in all other respects*. For,

2. The properties of a joint estate are derived from it's unity, which is fourfold; the unity of interest, the unity of title, the unity of time, and the unity of possession: or, in other words, joint-tenants have one and the same interest, accruing by one and the same conveyance, commencing at one and the same time, and held by one and the same undivided possession. aLitt.§. 277. b See page 137.

1. See V. L. 1794, c. 94, and page 138, note 28, ante.

2. If A, B, and C, be severally seised of 400 acres of land each, and afterwards procure an inclusive patent, comprehending those three several parcels of lands, and other lands thereto adjoining, they are joint-tenants of the whole lands comprehended within the bounds of such inclusive patent. Jones v. Jones. Call's Reports, 458.

First, they must have one and the same interest. One joint-tenant cannot be entitled to one period of duration or quantity of interest in lands, and the other to a different; one cannot be tenant for life, and the other for years : one cannot be tenant in fee, and the other in tailc. But, if land be limited to A and B for their lives, this makes them joint-tenants of the freehold j if to A and B and their heirs, it makes them joint-tenants of the inheritance d. If land be granted to A and B for their lives, and to the heirs of A j here A and B are joint-tenants of the freehold during their respective lives, and A has the remainder of the fee in severally: or, if land be given to A and B, and the heirs of the body of A; here both have a joint estate for life, and A hath a several remainder in taile. Secondly, joint-tenants must also have an unity of title: their estate must be created by one and the same act, whether legal or illegal; as by one and the same grant, or by one and the same disseisin f. Joint-tenancy cannot arise by descent or act of law 2 ; but-tnerely by purchase, or acquisition by the act of the party: and, unless that act be one and the same, the two tenants would have different titles ; and if they had different titles, one might prove good, and the other bad, which would absolutely destroy the jointure. Thirdly, there must also be an unity of time: their estates must be vested atone and the same period, as well as by one and the same title. As in case of a present estate made to A and B; or a remainder in fee to A and B after a particular estate ; in either case A and B are joint-tenants of this present estate, or this vested remainder. But, if after a lease for life, the remainder be limited to the heirs of A and B; and during the continuance of the particular estate A dies, which vests the remainder of one moiety in his heir ; and then B dies, whereby the other moiety becomes vested in the heir of B: now A's heir and B's heir are not joint-tenants of this remainder, but tenants in common; for one moiety vested at one time, and the other moiety vested at another 8. Yet, where a feoffment was made to the use of a man, and such wife as he

c Co. Litt. 188. e Litt. Sec. 285. g Co. Litt. 188.

d Litt. Sec. 277. f Ibid. Sec. 278.

(2) For where lands descend to several person*, at once, this is •what the law calls an estate in parcenary.

should afterwards marry, for term of their lives, and he afterwards married ; in this case it seems to have been held that the husband and wife had a joint-estate, though vested at different times b : because the use of the wife's estate was in abeyance and dormant till the intermarriage ; and, being then awakened, had relation back, and took effect from the original time of creation. Lastly, in joint-tenancy, there must be an unity of possession. Joint-tenants are said to be seised per myetpcr tout, by the half or moiety, and by all; that is, they each of them have the entire possession, as well of every parcel as of the whole \ They have not, one of, them a seisin of one half or moiety, and the other of the other moiety; neither can one be exclusively seised of one acre, and his companion of another ; but each has an undivided moiety of the whole, and not the whole of an undivided moiety'. And, therefore, if an estate in fee be given to a man and his wife, they are neither properly joint-tenants, nor tenants in common : for husband and wife being considered as one person in law, they cannot take the estate by moieties, but both are seised of the entirety, per tout et nonper my; the consequence of which is, that neither the husband nor the wife can dispose of any part without the assent of the other, but the whole must remain to the survivor k 3.

g Dyer. 340. 1 Kep. 101. h Litt. Sec. 288. 5 Rep. 10.

i §>uilibet totum tenet et nibil tenet t tilicet, totum in communi,' et nibil teparatimfer se. Bract..1.5. tr. S. c. 36.

k Litt. Sec. 665. Co. Litt. 187. Bro. Abr. t. cui in vita. 8. 2 Vern. 120. 2 Lev. 39.

3. Although, as judge Blackstone here observes, this estate is neither properly a joint-tenancy, nor a tenancy in common; and although, according to his doctrine, they cannot take the estate by moieties, but both are said to be seised of the entirety, fier tout, et non fiermy, yet I conceive, that the doctrine of survivorship is completely done away by the act concerning partitions, and joint rights, Edi. IT'94, c. 24, for that act expressly declares, that if partition be not made between joint-tenants, whether they be such as might have been compelled to make partition, or not, or of whatever kind the estate, or thing holden or possessed, be, the parts of those who die first shall not accrue to the survivor, but shall descend or pass by devise, in the same manner as if such joint-tenants had been tenants in common. But, quaere, as to this point: for, by the common law, if a grant is made of a joint-estate to husband and wife, and a third person, the husband and wife

Upon these principles, of a thorough and intimate union of interest and possession, depend many other consequences and incidents to the joint-tenant's estate. If two joint-tenants let a verbal lease of their land, reserving rent to be paid to one of them, it shall enure to both, in respect of the joint reversion'. If their lessee surrenders his lease to one of them, it shall also enure to both, because of the privity, or relation of their estate1". On the same reason, livery of seisin, made to one joint-tenant, shall enure to both of them n: and the entry, or re-entry, of one joint-tenant is as effectual in law as if it were the act of both °. In all actions also relating to their joint estate, one joint-tenant cannot sue or be sued without joining the other v. But if two or more joint-tenants be seised of an advowson, and they present different clerks, the bishop may refuse to admit either; because neither joint-tenant hath a several right of patronage, but each is seised of the whole: and, if they do not both agree within six months, the right of presentation shall lapse. But the ordinary may, if he pleases, admit a clerk presented by either, for the good of the church, that divine service may be regularly performed; which is no more than he otherwise would be entitled to do, in case their disagreement continued, so as to incur a lapse: and, if the clerk of one joint-tenant be so admitted, this shall keep up the title in both of them; in respect of the privity and union of their estate 1 *. Upon the same ground it is held, that one joint-tenant cannot have an action against another for trespass, in respect of his land r ; for each has an equal right to enter on any part of it. But one joint-tenant is not capable by himself to do any act, which may tend to defeat or injure the estate of the other; as to let leases, or to grant copyholds •: and if any waste be done, which tends to the destruction of the iij-

1 Co. Litt. 214. n Ibid. 49. p Ibid. 195. r 3 I.eon. 262.

m Ibid. 192. o Ibid. 319, 364, q Ibid. 185. s 1 Leon. 234.

shall have one moiety, and the third person the other moiety, in the same manner as if it had been granted only to two persons. So, if the grant is to husband and wife, and two others, the husband and wife take one-third in joint-tenancy. Litt. §. 291.

4. It seems scarcely necessary to remark that the law in this case is obsolete in Virginia.

heritance, one joint-tenant may have an action of waste against the other, by construction of the statute Westm. 2, c. 22l *. So too, though at common law no action of account lay for one joint-tenant against another, unless he had constituted him his bailiff or receiver", yet now by the statute 4 Ann. c. 16, joint-tenants may have actions of account against each other, for receiving more than their due share of the profits of the tenements held in joint-tenancy 6.

From the «ame principle, also, arises the remaining grand incident of joint estates: viz. the doctrine of survivorship: by which, when two or more persons are seised of a joint estate, of inheritance, for their own lives, or per outer vie, or are jointly possessed of any chattel interest, the entire tenancy upon the decease of any of them remains to the survivors, and at length, to the last survivor; and he shall be entitled to the whole estate whatever it be, whether an inheritance, or a common freehold, only, or even a less estate w. This is the natural and regular consequence of the union and entirety of their interest. The interest of two joint-tenants is not only equal or similar, but also is one and the same. One has not originally a distinct moie- • ty from the other; but, if by any subsequent act (as by alienation or forfeiture of either)the interest becomes separate and distinct, the joint-tenancy instantly ceases. But, while it continues, each of two joint-tenants has a concurrent interest in the whole; and, therefore, on the death of his companion, the sole interest in the whole remains to the survivor. For the interest, which the survivor originally had, is clearly not devested by the death of his companion; and no other person can now claim to have a

t 2 Inst. 403.

w Lite. Sec. 280, 281.

u Co. Litt. 200.

5. The statute of Westm. 2, gave one tenant in common an action of waste against another. Under the equity of this statute it is held that joint-tenants may likewise have the same action against their companions. The statute of waste, in Virginia agrees with the statute of Westm. 2. See Edi. ir94, c. 139. $. 3.

6. The provisions of this statute, in this respect, were adopted in

Virginia in 1748, c. 3. $. 37. Edi. 1769 .... Edi. 1794, c. 76. $.24, but

• the usual course is to apply to a court of equity to compel an account.

joint estate with him, for no one can now have an interest in the whole, accruing by the same title, and taking effect at the same time with his own: neither can any one claim a separate interest in any part of the tenements; for that would be to deprive the survivor of the right which he has in all, and every part. As, therefore, the survivor's original interest in the whole still remains ; and as no one can now be admitted, either jointly or severally, to any share with him, therein; it follows, that his own interest must now be entire and several, and that he shall, alone, be entitled to the whole estate (whatever it be) that was created by the original grant7.

This right of survivorship is called by our antient authors *, the jus accrescendi, because the right, upon the death of one joint-tenant, accumulates and increases to the survivors; or, as they themselves express it, " pars ilia communis accrescit supurstitibus, df persona inpersonam^usqueadultimam superstitem." And this jus accrescende, ought to be mutual; which, I apprehend to be one reason why neither the king v, nor any corporation1, can be a joint-tenant with a private person. For here is

x Bracton. /. 4, tr. 3, c. 9, Sec. 3, Fleta. I. 3, c. 4. y Qo. Litt. 190, Finch. L. 83, z 2 Lev. 12.

7. The right of survivorship between joint-tenants, as well of personal chattels, as of lands, was abolished in Virginia, by the act of

1786. c. 60. Edi. 1794, c. 24. This important act, took effect July 1,

1787 .... This can only be discovered by recurring to the Sessions Acts

of 1786, c. 115, in which the commencement of the acts of that session of a general nature, is particularly limited.. .... The act declares... ....

That if partition be not made between joint-tenants, whether they be such as might have been compelled to make partition, or not, or of whatever kind the estate or thing holden or possessed be, the parts of those who die first shall not accrue to the survivors, but shall descend, or pass by devise, and shall be subject to debts, charges, curtesy, or dower, or transmissible to executors or administrators, and be considered to every other intent and purpose, in the same manner as if such deceased joint-tenants had been tenants in common." See Edi. 1794, c. 24 .... And where one or more slaves

descend from a person dying intestate, if an equal division cannot be made thereof, in kind, the high court of chancery, or county, or corporation court granting the administration may direct a sale of the slave, or slaves, and a distribution of the money according to the rights of each claimant. V. L. 1790, c. 13, Edi. 1794, c. 103, $. 46.

no mutuality: the private person has not even the remotest chance of being seised of the entirety, by benefit of survivorship, for the king and the corporation can never die *.

3. We are, lastly, to inquire, how an estate in joint-tenancy may be severed and destroyed. And this may be done by destroying any of it's constituent unities. 1. That of time, which respects only the original commencement of ihe joint-estate, can not, indeed, (being now past) be affected by any subsequent transactions. But, 2. The joint-tenants' estate may be destroyed, without any alienation, by merely disuniting their possession. For joint-tenants being seised per my et per tout, every thing that tends to narrow that interest, so that they shall not be seised throughout the whole, and throughout every part, is a severance or destruction of the jointure. And, therefore, if two joint-tenants agree to part their lands, and hold them in severalty, they are no longer joint-tenants; for they have now no joint-interest in the whole, but only a several interest, respectively, in the several parts. And for that reason, also, the right of survivorship is by such separation destroyed a. By common law, all the joint-tenants might agree to make partition of the lands, but one of them could not compel the other so to do b: for, this being an estate originally created by the act and agreement of the parties, the law would not permit any one or more of them to destroy the united possession, without a similar universal consent. But now, by the statutes 31 Hen. VIII, c. 1, and 32 Hen. VIII, c. 32, joint-tenants, either of inheritances or other less estates, are compellable by writ of partition to divide their

a Co. Litt. 188, 193.

b Litt. Sec. 290.

* But lord Coke says expressly, " there may be joint-tenants, though there " be not equal benefit of survivorship; as if a man let lands to A and B during " the life of A ; if B dio, A shall have all by survivorship; but if A die, B " shall have nothing." Co. Litt. 181. The mutuality of survivorship does not therefore appear to be the reason why a corporation cannot be a joint-tenant with a private person; for two corporations cannot be joint-tenants together; but whenever a joint-estate is granted to them, they take as tenants in common. Co. Litt. 190. But there is no survivorship of a capital, or a stock in trade, among merchants and traders j for this would be ruinous to the family of the deceased partner; and it is a legal maxim,_;'iw accrescendi inter mercatores pro tensficio ccnmnercii locum non babet. Co. Litt. 182. See p. 399. fast .... Christian.

lands c. 3. The jointure may be destroyed by destroying the unity of title. As if one joint-tenant alienes and conveys his estate to a third person: here the joint-tenancy is severed, and turned into tenancy in common d; for the grantee and the remaining joint-tenant hold by different titles, (one derived from the original, the other from the subsequent, grantor) though, till partition made, the unity of possession continues. But a devise of one's share by will is no severance of the jointure: for no testament takes effect till after the death of the testator, and by such death the right of the survivor (which accrued at the original creation of the estate, and has, therefore, a priority to the other6) is already vested f 8. 4. It may also be destroyed, by destroyiflg'the unity of interest. And, therefore, if there be two joint-tenants for life, and the inheritance is purchased by or descends upon either, it is a severance of the jointures: though if an estate is originally limited to two for life, and after to the heirs of one of them, the freehold shall remain in jointure, without merging in the inheritance; because, being created by one, and the same conveyance, they are not separate estates, (which is requisite in order to a merger) but branches of one entire estate h. In like manner, if a joint-tenant in fee makes a lease for life of his share, this defeats the jointurel; for it destroys the unity both of title and of interest. And, whenever or by whatever means the jointure ceases or is severed, the right of survivorship or jus accrescendi the same instant ceases with itk. Yet, if one of three joint-tenants alienes his share, the two remaining tenants still hold their parts by joint-tenancy and survivorship •: and, if one of three joint-tenants releases his share to one of his companions, though the joint-tenancy is destroyed with regard to that part, yet the two remaining parts

c Thus, by the civil law, nemo invitus compellitur ad eommunionem. (Ff. 12, 6, 26, Set. 4.J And again; ti non omnes qui i em communem habcnt, xd certiext>is,dimderedesideranti boc judicium inter eos accipi potest. fff.W, 3, B.J d Litt. Sec. 292.

e Jut accrescendi praefertur ultirnae voluntati- Co. Litt. 185.

f Litt. Sec. 287. g Cro. Eliz. 470.

h 2 Rep. 60, Co. Litt. 182. i Litt. Sec. 30J, 303.

k Nibil de re accrescit ei, qui nibil in re ejuando jus accrescrret babet. Co,' Litt. 188. I Litt. Sec. 294.

8. But, herein the law is now altered in Virginia. See note 7, p. 184, and V. L. Edi. 1794, c. 24.

are still held in jointure m ; for they still preserve their original constituent unities. But when, by any act or event, different interests are created in the several parts of the estate, or they are held by different titles, or if merely the possession is separated; so that the tenants have no longer these four indispensible properties, a sameness of interest, and undivided possession, a title vesting at one and the same time, and by one and the same act or grant; the jointure is instantly dissolved.

In general it is advantageous for the joint-tenants to dissolve the jointure j since thereby the right of survivorship is taken away, and each may transmit his own part to his own heirs. Sometimes however it is disadvantageous to dissolve the joint-estate : as if there be joint-tenants for life, and they make partition, this dissolves the jointure; and, though before they each of them had an estate in the whole for their own lives and the life of their companion, now they have an estate in a moiety only for their own lives merely; and, on the death of either, the j reversioner shall enter on his moiety". And therefore, if there be two joint-tenants for life, and one grants away his part for the life of his companion, it is a forfeiture °: for in the first place, by the severance of the jointure he has given himself in his own moiety only an estate for his own life; arid then he grants the same land for the life of another: which grant, by a tenant for his, own life merely, is a forfeiture of his estate p ; for it is creating an estate which may by possibility last longer than that which he is legally entitled to».

III. An estate held in coparcenary is where lands of inheritance descend from the ancestor to two or more persons. It arises either by common law, or particular custom10. By common law: as where a person seised in fee-simple, or in fee-tail dies, and his next heirs are two or more females, his daughters, sisters, m Litt. Sec. 304. n,l Jones. 55. o 4 Leon. 23?. p Co. Litt. 252.

9. Quere, how far the law in this case may be altered in Virginia by the act concerning wrongful alienations. Edi. 1794, c. 13, as also, by the act abolishing the right of survivorship between two or more joint-tenants, ibid. c. 24. See note 2. p. 171, and note 7. p. 184.

10. Parceners are now also by statute. V. L. 1785, c. 60. Edi. 1794, c. 93.

aunts, cousins, or their representatives ; in this case they shall all inherit, as will be more fully shewn, when we treat of descents hereafter: and these co-heirs are then called coparceners; or, for brevity, parceners onlyi. Parceners by particular custom are where lands descend, as in gavelkind, to all the males in equal degree, as sons, brothers, uncles, &fcr '*. And in either of these cases, all the parceners put together make but one heir; and have but one estate among them*.

The properties of parceners are in some respects like those of joint-tenants : they having the same unities of interest, title, and possession. They may sue and be sued jointly for matters relating to their own landsl: and the entry of one of them shall in some cases enure as the entry of them allu. They cannot have an action of trespass against each other: but herein they differ from joint-tenants, that they are also excluded from maintaining an action of waste*; for coparceners could at all times put a stop to any waste by writ of partitionl2, but till the statute of Henry the eighth joint-tenants had no such power. Parceners also differ materially from joint-tenants in four other points: 1. They always claim by descent, whereas joint-tenants always claim by purchase. Therefore if two sisters purchase lands, to ' hold to them and their heirs, they are not parceners, but joint-

q Litt. Sec. 241,2*2. t Co. Litt. 164.

r Ibid. Sec. 265. u Ibid 188,243.

b Co. Litt. 163. w 2-Inst. 403.

11. Parceners by statute are, where all the children or other descendants of a person dying intestate come into partition for his estate; or where his mother, brothers, sisters, or their descendants ; or his grandmother, uncles and aunts, and their descendants ; or any other lineal female ancestor, and collateral kindred ; or collateral kindred, alone, come into the inheritance, together, by virtue of the statutes prescribing the course of descents, above referred to ; in these cases all the parceners in equal degree of consanguinity to the deceased shall come into the partition together, without regard to sex or primogeniture, except where the lands descended from an infant dying without issue, as will be more fully explained hereafter. The lineal male ancestors of the deceased, (except the father, who shall take the whole estate in severally) if there be more than one of thefn living at the time of the intestate's death shall be parceners, one with another. V. L. Edi. 1794, c. 93.

12. The act of 1790, c. 13. Edi. 1794, c. 93. Sec. 21, gives par•eners an action of waste against each other.

tenants": and hence it likewise follows, that no lands can be held in coparcenary, but estates of inheritance, which are of a descendible nature ; whereas not only estates in fee and in tail, but for life or years, may be held in joint-tenancy. 2. There is no unity of time necessary to an estate in coparcenary. For if a man hath two daughters, to whom his estate descends in coparcenary, and one dies before the other ; the surviving daughter and the heir of the other, or, when both are dead, their two heirs are still parceners f ; the estates vesting in each of them at different times, though it be the same quantity of interest, and held by the same title. 3. Parceners, though they have an unity, have not an entirety, of interest. They are properly entitled each to the whole of a distinct moietyz; and of course there is no jus accrescendi, or survivorship between them :' for each part descends severally to their respective heirs, though the unity of possession continues. And as long as the lands continue in a course of descent, and united in possession, so long are the tenants therein, whether male or female, called parceners. But if the possession be once severed by partition, they are no longer parceners, but tenants in severally ; or if one parcener alienes her share, though no partition be made, then are the lands no longer held in coparcenary, but in common *.

Parceners are so called, saith Littleton b, because they may be constrained to make partition. And he mentions many methods of making itc ; four of which are by consent, and one by compulsion. The first is, where they agree to divide the lands into equal parts in severally, and that each shall have such a determinate part. The second is, when they agree to chuse some friend to make partition for them, and then the sisters shall chuse each of them her part according to seniority of age13; or otherwise, as shall be agreed. The privilege of seniority is in this case personal; for if the eldest sister be dead, her issue shall not chuse first, but the next sister. But, if an advowson descend in

x Litt. Sec. 254. y Co. Litt. 164,174. z Hid. 163, 164. a Litt. Sec. 309. b Sec. 241. c Sec. 243 to 264.

13. No parcener shall have or possess any privilege over another in any election, division, or other matter concerning lands descended to them. V. L. 1790, c. 13. Edi. 1794, c. 93. }. 21.

coparcenary, and the sisters cannot agree in the presentation, the eldest and her issue, nay her husband, or her assigns, shall present alone, before the younger d. And the reason given is that the former privilege, of priority in choice upon a division, arises from an act of her own, the agreement to make partition ; and, therefore, is merely personal: the latter, of presenting to the living, arises from the act of the law, and is annexed not only to her person, but to her estate also. A third method of partition is, where the eldest divides, and then she shall chuse last; for the rule of law is, cujus est divisio, alterius est electio. The fourth method is, where the sisters agree to cast lots for their shares. And these are the methods by consent. That by compulsion is, where one or more sue out a writ of partition against the others ; whereupon the sheriff shall go to the lands, and make partition thereof by the verdict of a jury there impanneled, and assign to each of the parceners her part in severally e #. But there are some things which are in their nature impartible. The mansion-house, common of estovers, common of piscary uncertain, or any other common without stint, shall not be divided: but the eldest sister, if she pleases, shall have them, and make the others a reasonable satisfaction in other parts of the inheritance 14 : or, if

d Co. Litt. 166. 3 Rep. 22.

e By statutes 8 and 9 W. III, c. 31, an easier method of carrying on the proceedings on a writ of partition, of lands held either in joint-tenancy, parcenary, or common, than was used at the common law, is chalked out and provided.

* Another, and the most usual mode of compulsion, is by a decree of a court of equity- Seep. 183, n. 2, ante. .... Christian.

14. This, and every other preference, which the common law gave to one parcener over another, is now abolished. V. L. 1790, c. 13. But where lands descend in parcenary, if one of the parceners he an infant, feme covert, nan comfws mentis, or beyond sea, and the dividend of each heir shall not exceed one hundred dollars in value, in the opinion of the high court of chancery, or of the county or corporation court where the lands lie, such court may direct the sale of the lands, and a distribution of the money according to the rights of each claimant : but every heir residing within the commonwealth must be first summoned to shew cause, if he can, against such sale. Edi. 1794, c. 93. The same law, where one or more slaves descend to several persons, andan equal division thereof cannot be made in kind. V. L. 1790, c. 13. Edi. 1794, c. 103.

that cannot be, then they shall have the profits of the thing by turns, in the same manner as they take the advowsen f.

There is yet another consideration attending the estate in coparcenary ; that if one of the daughters has had an estate given \vith her in frankmarriage by her ancestor, (which we may remember was a species of estates-tail, freely given by a relation for advancement of his kinswoman in marriage s) in this case, if lands descend from the same ancestor to her and her sisters in fee-simple,-she or her heirs shall have no share of them, unless they will agree to divide the lands so given in frankmarriage in equal proportion with the rest of the lands descendingh ". This mode of division was known in the law of the Lombards«, which directs the woman so preferred in marriage, and claiming her share of the inheritance, mittere in eonfusumcum sororibus, quantum pater aut frater ei dederit, quando ambulaverit ad marilum. With us it is denominated bringing those lands into hotchpot k: which term I shall explain in the very words of Littleton1: it seemeth that this word, hotchpot, is in English a pudding; for in a pudding is not commonly put one thing alone, but one thing with other things together." By this housewifely metaphor our ancestors meant to inform usm, that the lands, both those given in frankmarriage, and those descending in fee-simple, should be mixed and blended together, and then divided in equal portions am$ng alHhe daughters. But this was left to the choice of the donee in frankmarriage j and if she did not chuse to put her lands into hotchpot, she was presumed to be sufficiently provided for, and the rest of die inheritance was divided among her other sisters. The law of hotchpot took place then only, when the other lands descending from the ancestor were fee-simple ; for if they descended in tail, the donee in frankmarriage was entitled to her share, without bringing her lands so given

f Co. Litt. 164, 165. h Bracton, /. 2. c. 34. i/.2. <.14. c.15. 1 Sec. 207.

g See page 115. Litt. Sec. 26Sto 273.

k Britton, c. 72. m Litt. Sec. 268.

15. It -will be remembered, that every species of estates-tail was abolished in Virginia immediately after the revolution. See note 14, page 119.

into hotchpotn. And the reason is, because lands descending in fee-simple are distributed by the policy of law, for the maintenance of all the daughters; and, if one has a sufficient provision out of the same inheritance, equal to the rest, it is not reasonable that she should have more : but lands, descending in tail, are not distributed by the operation of the law, but by the designation of the giver, performamdoni; it matters not, therefore, how unequal this distribution may be. Also, no lands, but such as are given in frankmarriage, shall be brought into hotchpot; for no others are looked upon in law as given for the advancement of the woman, or by way of marriage-portion °. And, therefore, as gifts in frankmarriage are fallen into disuse, I should hardly have mentioned the law of hotchpot, had not this method of division been revived and copied by the statute for distribution of personal estates, which we shall hereafter consider at large 16.

The estate in coparcenary may be dissolved, either by partitition, which disunites the possession; by alienation of one parcener, which disunites the title, and may disunite the interest; or by the whole at last descending to and vesting in one single person, which brings it to an estate in severally.

I-V, Tenants in common are such as hold by several and distinct titles, but by unity of possession; because none knoweth his own severally, and therefore they all occupy promiscuously'. This tenancy, therefoi e, happens, where there is a unity of possession merely, but perhaps an entire disunion of interest, of title,

n Litt. Sec. 274. o Ibid. 275. p Ibid 292.

16. The law of hotchfiot is expressly adopted in our code. For •where any of the children of a person dying intestate, or their issue, .shall have received from the intestate, in his life-time, any real estate by way of advancement, and shall choose to come into partition with the other parceners, such advancement shall be brought into hotchfiot, with the estate descended. V. L. 1785, c. 60. Edi. 1794, c. 93. The same law, with regard to the distribution of the personal estate, (except in the case of the heir at law) was established in 1705, c. 7. Edi. 1769. And the same law, without any exception, is now also established as tothe personal estate. 1785, c. 61. Edi. 1794, c. 92. }. 27.

and of time. For, if there be two tenants in common of lands, one may hold his part in fee-simple, the other in tail, or for life j so that there is no necessary unity of interest: one may hold by descent, the other by purchase; or the one by purchase from A, the other by purchase from B ; so that there is no unity of title : one's estate may have been vested fifty years, the other's but yesterday ; so there is no unity of time. The only unity there is, is that of possession: and for this Littleton gives the true reason, because no man can certainly tell which part is his own : otherwise even this would be soon destroyed.

Tenancy in common may be created, either by the destruction of the two other estates, in joint-tenancy and coparcenary, or by special limitation in a deed. By the destruction of the two other estates, I mean such destruction as does not sever the unity of possession, but only the unity of title or interest: As, if one of two joint-tenants in fee, aliene,s his estate for the life of the alienee, the alienee, and the other joint-tenant, are tenants in common; for they now have several titles, the other joint-tenant by the original grant, the alienee by the new alienation 1; and they also have several interests, the former joint-tenant in fee-simple, the alienee for his own life only. So, if one joint-tenant gives his part to A in tail, and the other gives his to B in tail, the donees are tenants in common, as holding by different titles and conveyances r. If one of two parceners alienes, the alienee and the remaining parcener are tenants in common • ; because they hold by different titles, the parcener by descent, the alienee by purchase. So likewise, if there be a grant to two men, or two women, and the heirs of their bodies, here the grantees shall be joint-tenants of the life-estate, but they shall have several inheritances ; because they cannot possibly have one heir of their two bodies, as might have been the case had the limitation been to a man and woman, and the heirs of their bodies begotten*: and in this, and the like cases, their issues shall be tenants in common; because they must claim by different titles, one as heir of A, and the other as heir of B ; and those too not titles by purchase, but descent. In short, whenever an estate in joint-tenancy, or co-

Litt. §. 293. s Ibid. 309.

r Ibid. 295. t Ibid. 283:

parcenary is dissolved, so that there be no partition made, but the unity of possession continues, it is turned into a tenancy in common.

A tenancy in common may also be created by express limitation in a deed: but here care must be taken not to insert words which imply a joint estate; and then if lands be given to two or more, and it be not joint-tenancy, it must be a tenancy in common. But'the law is apt in it's constructions to favour joint-tenancy rather than tenancy in common"; because the divisible services issuing from land (as rent, &?c.) are'not divided, nor the entire services (as fealty) multiplied, by joint-tenancy, as they must necessarily be upon a tenancy in common. Land given to two, to be holden the one moiety to one, and the other moiety to the other, is an estate in common*; and, if one grants to another half his land, the grantor and grantee are also tenants in common31: because, as has been before* observed, joint-tenants do not take by distinct halves or moieties; and by such grants the division and severally of the estate is so plainly expressed, that it is impossible they should take a joint interest in the whole of the tenements. But a devise to two persons to hold jointly and severally, is'saidto be a joint-tenancy *; because that is necessarily implied in the word "jointly," the word " se-' verally" perhaps only implying the power of partition: and an estate given to A and B, equally to be divided between them, though in deeds it hath been said to be a joint-tenancy", (for it implies no mor,e than the law has annexed to that estate, viz. divisibility1") yet in wills it is certainly a tenancy in common0; because the devisor may be presumed to have meant what is most beneficial to both the devisees, though his meaning is imperfectly expressed. And this nicety in the wording of grants makes it the most usual as well as the safest way, when a tenancy in common is meant to be created, to add express words of exclusion as well as description, and limit the estate to A and B, to hold as tenants in common, and not as joint-tenants.

u Satk. 392.

jt Litt. Sec. 298.

z Poph. 52

b 1 P. Wms. 17.

w Litt. Sec, 298.

y See p. 182.

a 1 Equ. Cas. Abr. 291.

c 3 Rep. 39. 1 Vemr. 32.

As to the incidents attending a tenancy in common: tenants in common (like joint-tenants) are compellable by the statutes of Henry VIII and William III, before-mentioned11, to make partition of their lands; which they were not at common law17. They properly take by distinct moieties, and have no entirety of interest; and therefore there is no survivorship between tenants in common. Their other incidents are such as merely arise from the unity of possession ; and are therefore the same as appertain to joint-tenants merely upon that account: such as being liable to reciprocal actions of waste18, and of account19, by the statutes of Westm. 2. c. 22, and 4 Ann c. 16. For by the common law no tenant in common was liable to account with his companion for embezzling the profits of the estate5; though, if one actualjy turns 'he other out of possession, an action of ejectment will lie against himf. But, as for other incidents of joint-tenants, which arise from the privity of title, or the union and entirety of interest, (such as joining or being joined inactions^20, unless in the case where some entire or indivisible thing is to be recovered11) these are not applicable to tenants in common, whose interests are distinct, and whose titles are not joint but several21.

dp. 185. and 189. f Co. Litt. 200.

e Co. Litt. 199. g Litt. Sec. 311.

h Co. Litt. 19r.

17. Tenants in common are compellable to make partition of their hinds, by the act of 1786, c. 60. Edi. 1794, c. 24.

18. One tenant in common may have an action of waste against another. V. L. 1794, c. 139.

19. One joint tenant, or tenant in common, his executors or administrators, may have an action of account against another, his executors or administrators, as bailiff, for receiving more than his just share. V. L. 1748, c. 3. Edi. 1794, c. 76. '

20. Tenants in common can not join in a writ of ejectment, for they cannot make a joint demise of their interests, which are several, and distinct, and there is no privity between them. Co. Litt. 200. 2 Wilson, 232. This is an important distinction between tenants in common, and joint-tenants, or parceners. For the two latter may, and regularly ought to join, and be joined, in all actions respecting their joint possession in lands, although tenants in common dan not.

21. In right of land holden byi parceners, joint-tenants, or tenants in common, but one vote shall be given by all the holders capable of voting, unless the quantity of land, in case of partition be sufficient to entitle every holder present to vote separately. V. L. 1785, c. 55. Edi. 1794, c. IT.

Estates in common can only be dissolved two ways: 1. By uniting all the titles and interests in one tenant, by purchase or otherwise22; which brings the whole to one severally : 2. By making partition between the severaj tenants in common, which gives them all respective severalties. For indeed tenancies in common differ in nothing from sole estates, but merely in the blending and unity of possession. And this finishes our inquiries with respect to the nature of estates.

22. Adrerse possession, or the uninterupted receipts of rents and profits, is held to be evidence of an actual ouster, by which among other modes, a tenancy in common, may, in process of time be destroyed. And where one tenant in common has been in undisturbed possession for twenty years, in an ejectment brought against him by the co-tenant, the jury ought to presume an actual ouster, and find a verdict for the defendant. Cowper's Rep. 217. And our law seems to favor this construction, by declaring that possession of part shall not be construed a possession of the whole, where an actual adverse possession can be proved. L. V. Edi. 1794, c. 76. Sec. 28.

If a lessee of two tenants in common pay the whole of the rent to one, after notice from the other to pay them each'a moiety, the tenant in common, who gave such notice, may distrein for his sharef 5 Durn* ford and East. 246,.,.C/irittian.

CHAPTER THE THIRTEENTH.

OF THE TITLE TO THINGS REAL, IN GENERAL.

THE foregoing chapters having been principally employed in defining the nature of things real, in describing the tenures by which they may be holden, and in distinguishing the several kinds of estate or interest that may be had therein; I come now to consider, lastly, the title to things real, with the manner of acquiring and losing it.

A title is thus denned by Sir Edward Coke8, titullus est justa causa possidendi id quod nostrum est; or, it is the means whereby the owner of lands hath the just possession of his property.

There are several stages or degrees requisite to form a complete title to lands and tenements. We will consider them in a progressive order.

I. The lowest and most imperfect degree of title consists in the mere naked possession, or actual occupation of the estate; without any apparent right, or any shadow or pretence of right, to hold and continue such possession. This may happen, when one man invades the possession of another, and by force or surprize turns him out of the occupation of his lands ; which is termed a disseisin, being a deprivation of that actual seisin, or corporal freehold of the lands, which the tenant before enjoyed. Or it may happen, that after the death of the ancestor and before the entry of the heir, or after the death of a particular tenant and before the entry of him in remainder or reversion, a

a 1 Inst. 345.

stranger may contrive, to get possession of the vacant land, and hold out him that had a right to enter. In all which cases, and many, others that might be here suggested, the wrongdoer has only a mere naked possession, which the rightful owner may put an end to, by a variety of legal remedies, as will more fully appear in the third book of these commentaries. But in the mean time, till some act be done by the rightful owner to devest this possession and assert his title, such actual possession is, prima facie, evidence of a legal title in the possessor; and it may, by length of time, and negligence of him who hath the right, by degrees ripen into a perfect and indefeasible title. And, at all events, without such actual possession no title can be completely good.

II. The next step to a good and perfect title is the right of possession, which may reside in one man, while the actual possession is not in himself but in another. For if a man be disseised, or otherwise kept out of possession, by any of the means before-mentioned, though the actual possession be lost, yet he has still remaining in him the right of possession; and may exert it whenever he thinks proper, by entering upon the disseisor, and turning him out of that occupancy which he has so illegally gained. But this right of possession is of two sorts: an apparent right of possession, which may be defeated by proving a better; and an actual right of possession, which will stand the test against all opponents. Thus if the disseisor, or other wrongdoer, dies possessed of the land whereof he so became seised by his own unlawful act, and the same descends to his heir; now by the common law the heir hath obtained an apparent right, though the actual right of possession resides in the person disseised; and it shall not be lawful for the person disseised to devest this apparent right by mere entry or other act of his own, but only by an action at law b: For, until the contrary be proved by legal demonstration, the law will rather presume the right to reside in the heir, whose ancestor died seised, than in one who has no such presumptive evidence to urge in his own behalf. Which doctrine in some measure arose from the principles of the feodal law, which, after feuds became hereditary, much

a 1 Inst. 345.

k Litt. Sec. 38S.

favoured the right of descent; in order that there might be a person always upon the spot to perform the feodal duties and servicesc: and therefore, when a feudatory died in battle, or otherwise, it presumed always that his children were entitled to the feud, till the right was otherwise determined by his fellow-soldiers and fellow-tenants, the peers of the feodal court. But if he, who has the actual right of possession, put in his claim and brings his action within a reasonable time, and can prove by what unlawful means the ancestor became seised, he will then by sentence of law recover that possession, to which he hath such actual right. Yet, if he omits to bring this his possessory action within a competent time, his adversary may imperceptibly gain an actual right of possession, in consequence of the other's negligence. And by this, and certain other means, the party kept out of possession may have nothing left in him, but what we are next to speak of; viz.

III. The mere right of property, the jus proprietatis, without either possession or even the right of possession. This is frequently spoken of in our books under the name of the mere right, jus merum; and the estate of the owner is in such cases said to be totally devested, and put to a rightd. A person in this situation may have the true ultimate property of the lands in himself: but by the intervention of certain circumstances, either by his own negligence, the solemn act of his ancestor, or the determination of a court of justice, the presumptive evidence of that right is strongly in favour of his antagonist: who has thereby obtained the absolute right of possession. As, in the first place, if a person disseised, or turned out of possession of his estate, neglects to pursue his remedy within the time limited by law : by this means the disseisor or his heirs gain the actual right of possession : for the law presumes that either he had a good right originally, in virtue of which he entered on the lands in question, or that since such his entry he has procured a sufficient title ; and, therefore, after so long an acquiescence, the law will not suffer his possession to be disturbed without inquiring into the absolute right of property. Yet, still, if the person disseised or his heir hath the true right

c Gilb. Ten. 18.

<J Co. Litt. 345.

of property remaining in himself, his estate is indeed said to be turned into a mere right; but, by proving such his better right he may at length recover the lands. Again, if a tenant in tail discontinues his estate-tail, by alienating the lands to a stranger in fee, and dies ; here the issue in tail hath no right of possession, independent of the right of property: for the law presumes prima facie that the ancestor would not disinherit, or attempt to disinherit, his heir, unless he had power so to do,; and therefore, as the ancestor had in himself the right of possession, and has transferred the same to a stranger, the law will not permit that possession now to be disturbed, unless by shewing the absolute right of property to reside in another person. The heir therefore in this case has only a mere right, and must • be strictly held to the proof of it, in order to recover the lands. Lastly, if by accident, neglect, or otherwise, judgment is given for either party in any possessory action, (that is, such wherein the right of possession only, and not that of property is contested) and the other party hath indeed in himself the right of property, this is now turned to a mere right; and upon proof thereof in a subsequent action, denominated a writ of right, he shall recover his seisin of the lands.

Thus, if a disseisor turns me out of possession of my lands, he thereby gains a mere naked possession, and I still retain the right ofpossession,andright of properly.- If the disseisordies,and the lands descend to his son, the son gains an apparent right of possession; but I still retain the actual right both of possession and property. If I acquiesce for thirty years, without bringing any action to recover possession of the lands, the son gains the actual right of possession, and I retain nothing but the mere right of property. And even this right of property will fail, or at 'least it will be without a remedy, unless I pursue it within the space of sixty years '.. So also if the father be tenant in tail,

1. By the act of 1710, c. 13. Edi. 1733, all writs of right were limited to be prosecuted upon the seisin of the demandant, or his ancestors within thirty years next before the test of the writ. But the act 1734, c, 6, extended the period to fifty years, which remains unaltered. Nor is there any saving in this case, in favour of infants, femes-covert, &c. A writ offormedon, must be brought within twenty years,

and alienes the estate-tail to a stranger in fee, the alienee thereby gains the right of possession, and the son hath only the mere right or right of property. And hence it will follow, that one man may have dispossession, another the right of possession, and a third the right of property. For if tenant in tail infeoffs A in fee-simple, and dies, and B disseises A ; now B will have the possession, A the right of possession, and the issue in tail the right of property: A. may recover the possession against B; and afterwards the issue in tail may evict A, and unite in him* self the possession, the right of possession, and also the right of property. In which union consists,

IV. A complete title to lands, tenements, and hereditaments. For it is an antient maxim of the lawe, that no title is completely good, unless the right of possession be joined with the right of property; wljich right is then denominated a double right, yuo Juplieatum, or droit droitf. And when to this double right, the actual possession is also united, when there is, according to the expression of Fleta f, juris etseisinae conjunctio, then, and then only, is tb<; tide completely legal2.

e Mirr. /. 2. s. 27.

f Co. Litt. 266. Bract. /. 5. tr. 3. c. 5.

g /. 3. c. 15. Sec. 5.

and no^ntry into lands shall be made but within that period after the right or title shall accrue. Any action possessory, other than a writ of right, may be brought upon the seisin or possession of the demandants ancestor or predecessor within forty years; but no person can maintain any real action upon his own possession, or seisin of lands in Virginia, but within thirty years, next before the test of the writ, 1748, c. 1. Edi. 1769, Edi. 1794, c. 76. .... By the-last mentioned act it is declared, that actual possession need not be proved to maintain a writ of right. Sec. 29. This perhaps may operate to repeal the clause of limitation, since it seems difficult to reconcile the two clauses together.

2. Since actual possession need not be proved to maintain a writ of right, which is the highest real action that can be brought for the recovery of lands, it seems questionable whether the legislature have not altered this rule of the common law. Seisina facit stifiitem, is another correlative rule of the common law... A. obtains a patent for lands, and dies, and by his will devises them to B, having in his lifetime saved them from forfeiture by cultivating them agreeably to the terms of his

patent, and afterwards left them uncultivated .... B survives A thirty years, and dies; C, his eldest son never enters or is possessed of the lands, and fifteen years after the death of his father B, he brings a writ of right. Will the seisin of A, who was no ancestor of C. entitle C. to recover these lands, although the tenant should prove a possession in himself, or those under whom he claims as far back as the life of A; though not so far back as fifty years, or the date of A's patent ? perhaps it may be answered, that A was the predecessor * of C as to the title to the lands though not his ancestor. Suppose then that A hath been dead above fifty years: that no evidence of a possession in B can be proved ; and that the tenant pro\ e a possession in himself and those under whom he claims for more than forty years next before the writ purchased, but not as far back as fifty years, can C recover upon this evidence ? If he can the clause of limitation seems to be altogether a nullity.

* Note, this mm predecessor seems rather to apply to corporation, than to natural persons, and probably ought to be so construed.

CHAPTER THE FOURTEENTH.

OF TITLE BY DESCENT.

THE several gradations and stages, requisite to form a complete title to lands, tenements, and hereditaments, having been briefly stated in the preceding chapter, we are next to consider the several manners, in which this complete title (and therein principally the right of propriety) may be reciprocally lost and acquired : whereby the dominion of things real is either continued, or transferred from one man to another. And here we must first of all observe, that (as gain and loss are terms of relation, and of a reciprocal nature) by whatever method one man gains an .estate, by that same method, or it's correlative, some other man has lost it. As where the heir acquires by descent, the ancestor has first lost or abandoned his estate by his death : where the lord gains land by escheat, the estate of the tenant is first of all lost by the natural or legal extinction of all his hereditary blood: where a man gains an interest by occupancy, the former owner has previously relinquished his right of possession: where one man claims by prescription or immemorial usage, another man has either parted with his right by an antient and now forgotten grant, or has forfeited it by the supine-, ness or neglect of himself and his ancestors for ages: and so, in case of forfeiture, the tenant, by his own misbehaviour or neglect, has renounced his interest in the estate; whereupon it devolves to that person who by law may take advantage of such default : and, in alienation by common assurances, the two considerations of loss and acquisition are so intenvoven, and so constantly contemplated together, that we never hear of a conveyance, without at once receiving the ideas as well of t the grantor as the grantee.

The methods therefore, of acquiring, on the one hand, and of losing on the other, a title to estates in things real, are reduced

by our law to two: descent, where the title is vested in a man by the single operation of law; and purchase, where the title is vested in him by his own act or agreement*.

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. An heir, therefore, is he upon whom the law casts the estate immediately on the death of the ancestor: and an estate, so descending to the heir, is in law called the inheritance.

The doctrine of descents, or law of inheritances in fee-simple, is a point of the highest importance ; and is indeed the principal object of the laws of real property in England. AH the rules relating to purchases, whereby the legal course of dements is broken and altered, perpetually refer to this settled law of" inheritance, as a datum or first principle universally known, and upon which their subsequent limitations are to work. Tims a gift in tail, or to a man and the heirs of his body, is a limitation that cannot be perfectly understood without a previous knowledge of the law of descents in fee-simple. One may well perceive that this is an estate confined in it's descent to such heirs alone of the donee, as have sprung or shall spring from his body; but who those heirs are, whether all his children, both male and female, or the male only, and (among the males) whether the eldest, youngest, or other son alone, or all the sons together, shall be his heir; this is a point, that we must result back to the standing law of descents in fee-simple to be informed of.

In order, therefore, to treat a matter of this universal consequence, the more clearly, I shall endeavour to lay aside such matters as will only tend to breed embarrassment and confusion in our inquiries, and shall confine myself entirely to this one object. I shall, therefore, decline considering at present who are, and who are not, capable of being heirs ; reserving that lor the chapter of escheats. I shall also pass over the frequent division of descents, in those by custom, statute, and common law: for descents by particular custom, as to all the sons in gavelkind, and to a Co. Litt. 18.

th* youngest in borough-english, have already been oftenb hinted at, and may also be incidentally touched upon again; but will not make a separate consideration by themselves, in a system so general as the present: and descents by statute, or fees-tail per formam doni, in pursuance of the statute of Westminster the second, have also been already0 copiously handled; and it has been seen that the descent in tail is restrained and regulated according to the words of the original donation, and does not entirely pursue the common law doctrine of inheritance; which, and which only, it will now be our business to explain.

And, as this depends not a little on the nature of kindred, and the several degrees of consanguinity, it will be previously necessary to state, as briefly as possible, the true notion of this kindred or alliance in bloodd.

Consanguinity, or kindred, is defined by the writers on these subjects to bu " vinculum personarum ab eodem stifite descendentium;" the connexion or relation of persons descended from the same stock or common ancestor. This consanguinity is either lineal, or collateral.

Lineal consanguinity is that which subsists between persons, of whom one is descended in a direct line from the other, as between John Stiles (\\tepropositus in the table of consanguinity) and his father, grandfather, great-grandfather, and so upwards, in the direct ascending line ; or between John Stiles and his son, grandson, great-grandson, and so downwards in the direct descending line. Every generation, in this lineal direct consanguinity, constitutes a different degree, reckoning either upwards or downwards: the father of John Stiles is related to him in the first degree, and so likewise is his son; his grandsire and grandson in the second j his great-grandsire and great-grandson in the third. This is the only natural way of reckoning the degrees in the direct line, and, therefore, universally obtains, as well in the civile, and canonf, as in the common lawe.

b See Vol. I. p. 74,75. Vol. 11. p. 83, 85. c See p. 112.

d Fora fuller explanation of the doctrine of consanguinity, and the conseque nccs resulting from a right apprehension of it's nature, see An Essay on Collateral Consanguinity. (Law Tracts, Oxon. 1762. 8vo. or 1771, 4to.

e Ff. 38. 10.10. f Decretal. 1.4. tit. 14. g Co. Lite. 23.

The doctrine of lineal consanguinity is sufficiently plain and obvious; but it is at the first view astonishing to consider the number of lineal ancestors which every man has, within no very great number of degrees: and so many different bloods'1 is a man said to contain in his veins, as he hath lineal ancestors. Of these he hath two in the first ascending degree, his own parents ; he hath four in the second, the parents of his father and the parents of his mother; he hath eight in the third, the parents of his two grandfathers and two grandmothers ; and by the same rule of progression, he hath an hundred and twenty-eight in the seventh ; a thousand and twenty-four in the tenth ; and at the twentieth degree, or the distance of twenty generations, every man hath above a: million of ancestors, as common arithmetic will demonstrate'. This lineal consanguinity, we may observe, falls

h Ibid. 12.

i This will seem surprising to those who are unacquainted with the encreasing power of progressive numbers: but is palpably evident from the following table of a geometrical progression, in which the first term is 2, and the denominator also 2: or, to speak more intelligibly, it is evident, for that each of us has two ancestors in the first degree ; the number of whom is doubled at every remove because each of our ancestors has also two immediate ancestors of his own.

Lineal Di •greet. Number of Ancestors.
1 ... .... .... .... .... 2
2 . .... .... .... .... .... 4
3 .... .... .... .... .... 8
4 ... .... .... .... .... 16
5 ... .... .... .... .... 33
6 ... .... .... .... .... 64
7 .. .... .... .... .... 128
8 ... .... .... .... .... 256
9 ... .... .... .... .... 512
10 .. .... .... .... .... 1024
11 .. .... .... .... .... 2CM8
12 .. .... .... .... . .... 4096
13 .. .... .... .... .... 8322
14 . .... .... .... .... 16384
15 ... .... .... .... .. 3C~68
16 .. .. .... .... .... .. 65536
17 .... .... .... .... 131072
18 .... .... .... .... 26^144
19 .... .... .... .... 524288
20 ... .... .... .... 1048576

A shorter method of finding the number of ancestors at any even degree, is by squaring the number of ancestors at half that number of degrees,. Thus 16 (the

strictly within the definition of vinculum persdnarutn ab eodem stipite descendentium; since lineal relations are such as descend one from the other, and both of course from the same common ancestor.

Collateral kindred answers to the same description: collateral relations agreeing with the lineal in this, that they descend from the same stock or ancestor; hut differing in this, that they do not descend one from the other. Collateral kinsmen are such then as lineally spring from one and the same ancestor, who is the stiffs, or root, the stipes, trunk, or common stock, from whence these relations are branched out. As if John Stiles hath two sons, who have each a numerous issue; both these issues are lineally descended from John Stiles as their common ancestor; and they are collateral kinsmen to each other, because they are all descended from this common ancestor, and all have a portion of his blood in their veins, which denominates them consanguineos.

We must be careful to remember, that the very being of collateral consanguinity consists in this descent from one and the same common ancestor. Thus Titius and his brother are related ; why ? because both are derived from one father: Titius and his first cousin are related; why ? because both descend from the same grandfather ; and his second cousin's claim to consanguinity is this, that they both are derived from one and the same great-grandfather. In short, as many ancestors as a man has, so many common stocks he has, from which collateral kinsmen may be derived. And as we are taught by holy writ, that there is one couple of ancestors belonging to us all, from whom the whole race of mankind is descended, the obvious and undeniable consequence is, that all men are in some degree related to each other. For indeed, if we only suppose each couple of our ancestors to have left, one with another, two children; and each of those children on an average to have left two more : (and, without such a supposition, the human species must be daily di-

numberof ancestors at four degrees) is the square of 4, the number of ancestors at two; 256 is the square of 16; 65536 of 2j6; and the number of ancestors at 40 degrees would be the square of 1048576, or upwards of a million millions.

mini' • ig) we shall find that all of us have now subsisting near two h .dred and .seventy millions of kindred in the fifteenth degree, at the same distance from the several common ancestors as ourselves are , besides those that are one or two descents nearer to or farther from the common stock, who may amount to as many more k. And if this calculation should appear in-

k This will swell more considerably than the former calculation j for here though the first term is but 1, the denominator is4; that is, there is one kinsman (a brother) in the first degree, who makes, together with theprojiositus, the two descendants from the first couple of ancestois; and in every other degree the number of kindred must be the quadruple of those in the degree which immediately precedes it. For, since each couple of ancestors has two descendants, who encrease in a duplicate ratio, it will follow that the ratio, in which all the descendants encrease downwards, must be double to that in which the ancestors encrease upxvards: but we have seen that the ancestors encrease uj>wards in a duplicate ratio: therefore the descendants must encrease downwards in a double duplicate, that is, in a quadruple ratio.

Collateral Degiees, Number of Kindred.
1 .. .... .... .... .... .... 1
2 ... ... .... .... .... .... 4
3 .. .... .... .... .... .... 16
4 .. .... .... .... .... .... 64
5 . .... .... .... .... .... 256
6 .... .... .... .... .... 1024
7 .... .... .... .... .... 4096
8 ... .... .... .... .... 16384
9 ... .... .... .... .... 65536
10 .. .... .... . .... .... 262144
11 - -- .. .... -- .. .... 1043576
12 . . .... - -- . .... .... .4194304
13 . .... .... .... .... 16777216
14 .. .... .... .... .... 67108864
15 .. .... .... .... .... 268435456
16 • .!----._ -- -...-...1073741824
17 • .. -- ... .... .... -42349672J6
18. .. .... .... .... -17179869184
19 • .... .... .. .... 68719476736
20 • .. .... .... .... 274877906944

This calculation may also be formed by a more compendious process, viz. br squaring the couples, or half the number, of ancestors at any given degree ; which will furnish us with the number of kindred we have in the same degree, at equal distance with ourselves from the common stock, besides those at unequal distances. Thus, in the tenth lineal degree, the number of ancestors is 1024; it's half, or the couples, amount to 512, the number of kindred in the tenth collateral degree amounts therefore to 2(52144, or the square of 512. And if we will be at the trouble to recollect the state of the seveial families within

compatible with the number of inhabitants on the earth, it is because, by intermarriages among the several descendants from the same ancestor, a hundred or a thousand modes of consanguinity may be consolidated in one person, or he may be related to us a hundred or a thousand different ways.

The method of computing these degrees in the canon law ', which our lav/ has adopted m, is as follows. We begin at the common ancestor, and reckon downwards ; and in whatsoever degree the two persons, or the most remote of them, is distant from the common ancestor, that is the degree in which they are related to each other. Thus Titius and his brother are related in the first degree ; for from the father to each of them is counted only one ; Titius and his nephew are related in the second degree ; for the nephew is two degrees removed from the common ancestor ; viz. his own grandfather, the father of Titius. Or, (to give a more illustrious instance from our English annals) King Henry the seventh, who slew Richard the third in the battle of Bosworth, was related to that prince in the fifth degree. Let the propositus therefore in the table of consanguinity represent king Richard the third, and the class marked (t) king Henry the seventh. Now their common stock or ancestor was king Edward the third, the abavus in the same table: from him to Edmond duke of York, theproavus, is one degree; to Richard earl of Cambridge, the auw.«,two; to Richard duke of York, the pater, three ; to king Richard the third, the propositus, four: and from king Edward the third to John of Gant (a) is one degree; to John earl of Somerset (Ji) two; to John duke of Somerset (C) three ; to Margaret countess of Richmond (n) four ; to king Henry the seventh (e) five. Which last mentioned prince, being the farthest removed from the common stock, gives the denomination to the degree of kindred in the canon and municipal law. Though according to the computation of the civilians, (who count upwards, from either of the persons related, to the

our own knowledge, and observe how far they agree with this account; that is, whether, on an average, every man has not one brother or sister, four first cousins, sixteen second'cousins, and so on; we shall find that the present calculation is very far from being overcharged.

\Decretal. 4. 14. 3^9.

m Co, Litt. 23.

common stock, and then downwards again to the other; reckoning a degree for each person both ascending and descending) these two princes were related in the ninth degree: for from king Richard the third to Richard duke of York is one degree ; to Richard earl of Cambridge, two; to Edmond duke of York, three; to king Edward the third, the common ancestor, four; to John of Gant, five ; to John eaH of Somerset, six ; to John duke of Somerset, seven j to Margaret countess of Richmond, eight; to king Henry the seventh, nine".

The nature and degrees of kindred being thus in some measure explained, I shall next proceed to lay down a series of rules, or canons of inheritance, according to which estates are transmitted from the ancestor to the heir > together with an explanatory comment, remarkingtheir original and progress, the reasons upon which they are founded, and in some cases their agreement with the laws of other nations.

I. The first rule is, that inheritances shall lineally descend to the issue of the person who last died actually seised, in injtnitum ; but shall never lineally ascend1.

To explain the more clearly both this and the subsequent rules, it must first be observed, that by law no inheritance can vest, nor can any person be the actual complete heir of another, till the ancestor is previously dead.. Nemo eat haeres viventis. Before that time, the person who is next in the line of 'succes-

n See the table of consanguinity annexed j wherein all the degrees of collateral kindred to the propositut are computed, so far as the tenth of the civilians and the seventh of the canonists inclusive; the former being distinguished by the numeral letters, the latter by the common cyphers.

1. The latter part of this rule, viz. that inheritances shall never lineally ascend, was altered by theact of 1785, c. 60. Since, in default of lineal descendants, the inheritance is directed to go to the father, or other lineal male ancestor, in preference to the collateral relations in the same degree of consanguinity to the intestate. And where the intestate is not an Infant, it seems presumable chat the law still remains the same, notwithstanding the words introduced into the seventh section. See appendix, note B. Sec, also, Edi. 1794, c. 93. Also^S Call's Rep. 390.

sion, is called an heir apparent, or heir presumptive. Heirs apparent are such, whose right of inheritance is indefeasible, provided they outlive the ancestor ; as the eldest son or his issue, who must by the course of the common law be heir to the father whenever he happens to die. Heirs presumptive are such who, if the ancestor should die immediately, would, in the present circumstances of things, be his heirs ; but whose right of inheritance may be defeated by the contingency of some nearer heir being born: as a brother, or nephew, whose presumptive succession may be destroyed by the birth of a child ; or a daughter, whose present hopes may be hereafter cut off by the birth of a son. Nay, even if the estate hath descended, by the death of the owner, to such brother, or nephew, or daughter; in the former cases, the estate shall be devested and taken away by the birth of a posthumous child ; and, in the latter, it shall also be totally devested by the birth of a posthumous son °.

We must also remember, that no person can be properly such an ancestor, as that an inheritance of'lands or tenements can be derived from him, unless he hath had actual seisin of such lands, either by his own entry, or by the possession of his own or his ancestor's lessee for years, or by receiving rent from a lessee of the freehold f 2 : or unless he hath had what is equivalent to corporal seisin in hereditaments that are incorporeal; such as the receipt of rent, a presentation to the church in case of an advowson 1, and the like. But he shall not be accounted an ancestor, who hath had only a bare right or title to enter, or be otherwise seised (2). And, therefore, all the cases which will

o Bro. til. descent, SB.

p Co. Litt. IS.

q Ibid. 11.

2. But see Havg. Co. Litt. 14. a. n. 6.

(2.) Here it will be proper to call the attention of the student to the first clause of our law of descents, the words of which are," that henceforth, when any person having title to any real estate of inheritance, shall die intestate, &c." Whether, by this word title is meant a complete title, only, juris et seisinae conjunctio; or such a title as required only an actual entry, or some other act which the law deems equivalent thereto, to render it a complete title, seems well worthy of consideration. " victual possession need not be proved to maintain a writ of right." Edi. 1794, c. 74. $. 29. Perhaps it was intended by

be mentioned in the present chapter, are upon the supposition that the deceased (-whose inheritance is now claimed) was the last person actually seised thereof. For the law requires this notoriety of possession, as evidence that the ancestor had that property in himself, which is now to be transmitted to his heir. Which notoriety had succeeded in the place of the antient feodal investiture, whereby, while feuds were precarioijs, the vasal on the descent of lands was formerly admitted in the lord's court (as is still the practice in Scotland) and there received his seisin, in the nature of a renewal of his ancestor's grant, in the presence of the feodal peers: till at length, when the right of succession became indefeasible, an entry on any part of the lands within the county (which, if disputed, was afterwards to be tried by those peers) or other notorious possession, was admitted as equivalent to the formal grant of seisin, and made the tenant capable of transmitting his estate by descent. The seisitl, therefore, of any person,thus understood, makes him the root or stock, from which all future inheritance by right of blood must be derived : which is very briefly expressed in this maxim, seisina facit stipitem T.

Flet. /. 6. c. 2. §. 2.

the legislature, that actual possession should not thereafter be necessary to transmit an inheritance. If there be a father and son, and the father die, leaving lands which ought to descend to his son, and before entry the son die, leaving his wife ensient of child ; this child, when born, shall not succeed to the land as heir to the son, by the common law, for he must claim as heir to the person last actually seised, and the son was never seised ; therefore,his posthumous child cannot have the land as his heir ; but he shall have it as heir to the father, (that is, as heir to his own grandfather) who was last actually seised. But now, in this case, the posthumous cfiild of the son can never inherit the lands of his grandfather, as heir to his grandfather, under the act of 1785, c. 60. J. 11, because he was not in being, and capable in law to take as heir, at the time of his grandfather's death ; nor can he succeed thereto, according to the rules of the common law, as heir to his father," because the father was never actually seised thereof, but had only a bare title to enter. But if it be supposed to be the intent of the law to transmit a title, though not completed by actual, seisin, then he may inherit the land as heir to his father. See Edi. 1794, c. 93. $. 13. See, also, p. 312, post, and appendix, note (B).

When, therefore, a person dies so seised, the inheritance first goes to his issue: as if there be Geoffrey, John, and Matthew, grandfather, father, and son ; and John purchases lands, and dies; his son Matthew shall succeed him as heir, and not the grandfather Geoffrey j to whom the land shall never ascend, but shall rather escheat to the lord'3.

This rule, so far as it is affirmative, and relates to lineal descents, is almost universally adopted by all nations; and it seems founded on a principle of natural reason, that (whenever a right of property transmissible to representatives is admitted) the possessions of the parents should go, upon their decease, in the first place to their children, as those to whom they have given being, and for whom they are therefore bound to provide. But the negative branch, or total exclusion of parents and all lineal ancestors, from succeeding to the inheritance of their offspring, is peculiar to our own laws, and such as have been deduced from the same original. For, by the Jewish law, on failure of issue, the father succeeded to the son, in exclusion of brethren, unless one of them married the widow, and raised up seed to his brother '. And, by the laws of Rome, in the first place, the children or lineal descendants were preferred; and, on failure of these, the father and mother, or lineal ascendants, succeeded together with the brethren and sisters v j though, by the law of the twelve tables, the mother was originally, on account of her sex, excluded u. Hence this rule of our laws has been censured and declaimed against, as absurd and derogating from the maxims of equity and natural justice w. Yet, that there is nothing unjust or absurd in it, but that on the contrary it is founded upon very good legal reason, may appear from considering as well the nature of the rule itself, as the occasion of introducing it into our laws.

We are to reflect, in the first place, that all rules of succession to estates are creatures of the civil polity, and juris positivi merely. The right of property, which is gained by occupancy,

s Litt §. 3. t Selden. detuccest. Ebraeor. c. 12. u Inst. 3, 3, 1. v Ff. 38,15. 1 Nov. 118, 127. •vrCra.ig.dejur.feu(I.t. 2 t. 13. Sec. 15. Locke on Gov. part 1. Sec. 90:

3. See note 1, page 208.

extends naturally no farther than the life of the present possessor: after which, the land, by the law of nature, would again become common, and liable to be seised by the next occupant: but society, to prevent the mischiefs that might ensue from a doctrine so productive of contention, has established conveyances, wills, and successions ; whereby the property originally gained by possession is continued and transmitted from one man to another, according to the rules, which each state has, respectively, thought proper to prescribe. There is, certainly, therefore, no injustice done to individuals, whatever be die path of descent marked out by the municipal law.

If we next consider the time and occasion of introducing , this rule into our law, we shall find it to have been grounded upon very substantial reasons. I think there is no doubt to be made, but that it was introduced at the same time with, and in consequence o£, the feodal tenures. For it was an express rule of the feodal law x, that successionii feudi tails est natura, quod asccndente.v non succedunt; and, therefore, the same maxim obtains also in the French law, to this day ?. Our Henry the first, indeed, among other restorations of the old Saxon laws, restored the right of succession, in the ascending linez: but this soon fell again into disuse ; for so early as Glanvil's time, who wrote under Henn the second, we find it laid down as established law3, that haereditas nunquam ascendit; which has remained an invariable maxim ever since. These circumstances evidently shew this rule to be of feodal original; and, taken in that light, there are some arguments in it's favour, besides those, which are drawn merely from the reason of the thing. For, if the feud of which the son died seised, was really feudum antiquum, or one descended to him from his ancestors, the father could not possibly succeed to it, because it must have passed him in the course of descent, before it could come to the son; unless it were fendum maternum, or one descended from his mother, and then for other reasons (which will appear hereafter) the father could, in no wise inherit it. And if it were fendum no'Jitw,

x 2 Feud. SO.

y Domat. p. 2, /. 2, t. 2, Moutesq. £sj>. L. I. 31, c. 33

z LL. Hen. I, c. 70. a /. 7, c. 1.

or one newly acquired by the son, then only the descendants from the body of the feudatory, himself, could succeed, by the known maxim of the early feodal constitutionsb; which was founded as well upon the personal merit of the vasal, which might be transmitted to his children, but could not ascend to his progenitures, as also upon this consideration of military policy, that the decrepit grandsire of a vigorous vasal would be but indifferently qualified to succeed him in his feodal services. Nay, even \ft\\\sfeudum novum were held by the son ut feudum aritiquum, or with all the qualities annexed of a feud descended from his ancestors, such feud must, in all respects, have descended as if it had been really an antient feud; and, therefore, could not go to the father, because, if it had been an antient feud, the father must have been dead before it could have come to the son. Thus, whether the feud was strictly novum, or strictly antiquum, or whether it was novum held ut antiquum, in none of these cases the father could possibly succeed. These reasons, drawn from the history of the rule, itself, seem to be 'more satisfactory than that quaint one of Bracton0, adopted by Sir Edward Coke d, which regulates the descent of lands according to the laws of gravitation.

II. A second general rule or canon is, that the male issue shall be admitted before the female 4.

Thus sons shall be admitted before daughters; or, as our male lawgivers have somewhat uncomplaisantly expressed it, the worthiest of blood shall be preferrede. As if John Stiles hath two sons, Matthew and Gilbert, and two daughters, Margaret

b 1 Feud. 20.

c Oescendit itaqne jus, quasi pondenaum quid cavgns deorsum recta linea, et nuiKfitam reasccndit. I. 2, c. 29.

d 1 Inst. 11. e Hal. H. C. L. 2.15.

4. No preference whatsoever, is now given to males, among the lineal descendants, or collateral heirs of the intestate, over the females. They come into the inheritance at the same time, and take equal portions. But where, for want of issue, the inheritance is directed to ascend, the nearest lineal male ancestor, shall be preferred to the female ancestors, and collateral relations in the same degree. Edi. 1794, c. 93.

and Charlotte, and dies; first Matthew, and (in case of his death without issue) then Gilbert, shall be admitted to the succession in preference to both the daughters.

This preference of males to females is entirely agreeable to the law of succession among the Jewsf, and also among the states of Greece, or at least among the Athenians « ; but was totally unknown to the laws of Rome h, (such of them, I mean, as are at present extant) wherein brethren and sisters were allowed to succeed to equal portions of the inheritance. I shall not here enter into the comparative merit of the Roman and the other constitutions in this particular, nor examine into the greater dignity of blood in the male or female sex: but shall only observe, that our present preference of males to females seems to have arisen entirely from the feodal law. For though our British ancestors, the Welsh, appear to have given a preference to males1, yet our Danish predecessors (who succeeded them) seem to have made no distinction of sexes, but to have admittted all the children at once to the inheritance15. But the feodal law of the Saxons on the continent (which was probably brought over hither, and first altered by the law of king Canute) gives an evident preference of the male to the female sex. " Pater aut mater,defuncti,Jilio non filiae haereditatem relinquent. .... .... ....

S^tii defunctus non filios sed filias reliquerit, ad eas omnis haereditas pertineat'." It is possible, therefore, that this preference might be a branch of that imperfect system of feuds, which obtained here before the conquest; especially as it subsists among the customs of gavelkind, and as, in the charter or laws of king Henry the first, it is not (like many Norman innovations) given up, but rather unforced1". The true reason of preferring the males must be deduced from feodal principles : for, by the genuine and original policy of that constitution, no female could ever succeed to a proper feud ", inasmuch as they were incnpr.ble of performing those military services, for the suke of >vhichthat system was established. But our law does not extend to a total

f Numb. c. 2r. h Inst. 5, 1, 6. k LL. Camit. r. 68. m c. TO.

g Pitit. LL. Attic, t. fi, (. 6. i Stat.l\rall.l21LAv.:l. 1 lit. 7, Sec. 1 & 4. n 1 ttid. 8.

exclusion of females, as the Salic law, and others, where feuds were most strictly retained : it only postpones them to males ; for, though daughters are excluded by sons, yet they succeed before any collateral relations: our law, like that of the Saxon feudists before-mentioned, thus steering a middle course,'between the absolute rejection of females, and the putting them on a footing with males.

III. A third rule, or canon of descent, is this j that where there are two or more males in equal degree, the eldest only shall inherit; but the females all together5.

As if a man hath two sons, Matthew and Gilbert, and two daughters, Margaret and Charlotte, and dies; Matthew his eld. est son shall alone succeed to his estate, in exclusion of Gilbert the second son and both the daughters; but, if both the sons die without issue before the lather, the daughters Margaret and Charlotte shall both inherit the estate as coparceners °.

This right of primogeniture in males seems antiently to have only obtained among the Jews, in whose constitution the eldest son had a double portion of the inheritance p ; in the same manner as with us, by the laws of king Henry the first«, the eldest son had the capital fee or principal feud of hisfather's posessions, and no other pre-eminence ; and as the eldest daughter had afterwards the principal mansion, when the estate descended in coparcenaryr (5)- The Greeks, the Romans, the Britons, the Saxons, and even originally the feudists, divided the lands equally; some among all the children at large, some among

o Litt. Sec. 5, Hale. H. C. L. 233. p Selden. dc succ. Ebr. c. 5. 1 c. 70. r Glanvil. /. 7, c. 3.

5. This rule, also, was changed by the act of 1785, c. CO. The right of primogeniture, was abolished, together with the preference to the male stocks. All the sons and daughters, brothers and sisters, and other collateral kindred in the same degree, now come into the partition together, and inherit equal portions. Edi. 1794, c. 93.

(5). We must remember that this rule is abolished in Virginia, br the act of 1790, c. 13. Edi. 1794, c. 93. See note p. 190.

the males only.. .This is certainly the most obvious and natural way j and has theappearance, at least in the opinion of younger brothers, of the greatest impartiality and justice. But when the emperors began to create honorary feuds, or titles of nobility, it was found necessary (in order to preserve their dignity) tp make them impartible', or, (as they stiled them) feuda individua, and in consequence descendible to the eldest son alone. This example was farther enforced by the inconveniencies that attended the splitting of estates ; namely, the division of the military services, the multitude of infant tenants incapable of performing any duty, the consequential weakening of the strength of the kingdom, and the inducing younger sons to take up with the business and idleness of a country life, instead of being serviceable to themselves and the public, by engaging in mercantile, in military, in civil, or in ecclesiastical employments1, These reasons occasioned an almost total change in the method of feodal inheritances abroad ; so that the eldest male began universally to succeed to th$ whole of the lands in all military tenures: and in this condition the feodal constitution was established in England by William the conqueror.

I

Yet we find, that socage estates frequently descended to all the sons equally, so lately as when Glanvilu wrote, in the reign of Henry the second: and it is mentioned in the mirror w as a part of our antient constitution, that knights' fees should descend to the eldest son, and socage fees should be partible among the male children. However, in Henry the third's time we find by Bracton" that socage lands, in imitation of lands in chivalry, had almost entirely fallen into the right of succession by primogeniture, as the law now stands : except in Kent, where they gloried in .the preservation of their antient gavelkind tenure, of which a principal branch was the joint inheritance of all the sons v ; and except in some particular manors and townships, where their local custonis continued the descent, sometimes to all, sometimes to the youngest son only, or in other more singular methods of succession.

s 2 Feud. 55. t Hale. H. C. L. 221.

u /. 7. c. 3. . w c. 1. Sec. 3.

x 1. 2. c. 30, 31. y Somner. Gavclk. 7.

As to the females, they are still left as they were by the antient law : for they were all equally incapable of performing any personal service ; and therefore one main reason of preferring the eldest ceasing, such preference would have been injurious to the rest; and the other principal purpose, the prevention of the too minute subdivision of estates, was left to be considered and provided for by the lords, who had the disposal of these female heiresses in marriage. However, the succession by primogeniture, even among females, took place as to the inheritance of the crownz ; wherein the necessity of a sole and determinate succession is as great in the one sex as the other. And the right of sole succession, though not of primogeniture, was also established with respect to female dignities and titles of honour. For if a man holds an earldom to him and the heirs of his body, and dies, leaving only daughters ; the eldest shall not of course be countess, but the dignity is in suspence or abeyance till the king shall declare his pleasure ; for he, being the fountain of honour, may confer it on which of them he pleases a. In which disposition is preserved a strong trace of the antient law of feuds, before their descent by primogeniture even among the males was established; namely, that the lord might bestow them on which of the sons he thought proper..,.uprogressum est, ut adflios deveniret, in quern scilicet dominus hoc vellet beneficlum coiifirmarew'''.

IV. A fourth rule, or canon of descents, is this; that the lineal descendants, in hifinitum, 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 6.

x Co Litt. 165.

a Ibid.

b 1 Feud. 1.

6. This rule also, hath been altered, in some measure, by the act of 1785, c. 60. For, only the issue of a lineal descendant, or collateral kinsman of the intestate, who are in being at the time of the intestates death, shall represent their deceased ancestor: but the issue of such lineal descendant or collateral kinsman, as are unborn at the time of the intestate's death can in no case succeed to the inheritance. Thus if J. S. die, leaving two daughters, and his wife ensient of a son, and then the father or other kinsman of J. S. die, leaving an inheritance which would have descended to him, if living; and after-

Thus the child, grandchild, or great grandchild (either male or female) of the eldest son succeeds before the younger son, and so in infmitum c. And these representatives shall take neither more nor less, but just so much as their principles would have done. As if there be two sisters, Margaret and Charlotte; and Margaret dies, leaving six daughters ; and then John Stiles the father of the two sisters dies, without other issue: these six daughters shall take among them exactly the same as their mother Margaret would have done, had she been living; that is, a moiety of the lands of John Stiles in coparcenary -. so that, upon partition made, if the land be divided into twelve parts, thereof Charlotte the surviving sister shall have six, and her six nieces, the daughters of Margaret, one apiece.

This taking by representation is called succession in stirpes according to the roots ; since all the branches inherit the same share that their root, whom they represent, would have done,

c Hale. H. C. L. 236, 237. •

wards the son of J. S. is born; this posthumous son shall not have any portion of the inheritance, because he was not in being at the time of the death of the-person from whom such inheritance descended ; but his sisters shall have the whole. But, by the common law, this posthumous son of J. S. should have had the whole inheritance as representing his father. .... Yet, by our law this posthumous son shall inhe • rit an equal portion of the whole estate which descended from his father, at his death. Edi. 1794, c. 93. $. 13,16.

Secondly; the collateral kinsman of the intestate, who are descended from the same common ancestor with the intestate, do not represent such common ancestor. Thus the brothers and sisters of J. S. do not represent their deceased father, because his mother, if living, comes into the inheritance with them. Nor do the uncles and aunts of J. S. represent the grandfather, deceased, because the grandmother, if living, comes into the inheritance with them. Whereas ,if they had respectively represented the father and grandfather, they would in the former case have taken the whole inheritance, and in the latter the entire moiety, would have deseeded to the grandfather, if living, in exclusion of the mother, and grandmother, respectively. These collateral relations, therefore do not represent their immediate ancestor, but come into the inheritance.//*)'*? ftrofiinyuitatis^ or, by proximity of blood to the intestate himself. Ibid. §. 4, and 9. See, also Appendix note ft.

And in this manner also was the Jewish succession directed d: but the Roman somewhat differed from it. In the descending line the right of representation continued in infinititm, and the inheritance still descended in stirpes : as if one of three daughters died, leaving ten children, and then the father died: the two surviving daughters had each one third of his effects, and the ten grandchildren had the remaining third divided between them. And so among collaterals, if any person of equal degree with the persons represented were still subsisting, (as if the deceased left one brother, and two nephews the sons of another brother) the succession was still guided by the roots : but, if both the brethren were dead leaving issue, then (I apprehend) their representatives in equal degree became themselves principals, and shared the inheritance per capita, that is, share and share alike ; they being themselves now the next in degree to the ancestor, in their own right, and not by right of representation e. So if the next heir of Titius be six nieces, three by one sister, two by another, and one by a third ; his inheritance by the Roman law was divided into six parts, and one given to each of the nieces: whereas the law of England in this case would still divide it only into three parts, and distribute it per stirpes, thus; one third to the three children who represent one sister, another third to the two who represent the second, and the remaining third to the one child who is the sole representative of her motherr.

This mode of representation is a necessary consequence of the double preference given by our law, first to the male issue, d Sclclcn. He succ. Ebr. c. 1. e Nov 110. c. 3. Intt. 3.1. 6.

7. The rule of partition established by our law is exactly conformable to the rule,of the Roman law, as here illustrated: for, where the children of the intestate, or his mother, brothers, and sisters, or his grandmother, uncles and aunts, or any of his female lineal ancestors living, with the children of his deceased lineal ancestors, male and female, in the same degree come into the partition, they shall take jicr cajiita, that is to say by persons ; and where a part of them being dead, and a part living, the issue of those dead have right to partition, such issue shall take Jier stirfes, or by stocks ; that is to say the share of their deceased parent." L. V. ir85, c. 60. Edi. 1794J c. 93. §. 16.

and next to the firstborn among the males, to both which the Koman law is a stranger. For if all the children of three sisters were in England to claim per capita, in their own right as next of kin to the ancestor, without any respect to the stocks from whence they sprung, and those children were partly male and partly female ; then the eldest male among them would exclude not only his own brethren and sisters, but all the issue of the other two daughters ; or else the law in this instance must be inconsistent with itself, and depart from the preference which it constantly gives to the males, and the firstborn, among persons in equal degree. Whereas, by dividing the inheritance according to the roots, or stirpes, the rule of descent is kept uniform and steady: the issue of the eldest son excludes all other pretenders, as the son himself (if living) would have done ; but the issue of two daughters divide the inheritance between them, provided their mothers (if living) would have done the same : nnd among these several issues, or representatives of the respective roots, the same preference to males and the same right of primogeniture obtain, as would have obtained at the first among the roots themselves, the sons or daughters of the deceased. As if a man hath two sons, A and B, and A dies leaving two sons, and then the grandfather dies ; now the eldest son of A shall succeed to the whole of his grandfather's estate: and if A had left only two daughters, they should have succeeded also to equal moities of the whole, in exclusion of B and his issue. But if a man hath only three daughters, C, D, and E ; and C dies leaving two sons, D leaving two'daughters, and E leaving a daughter and a son who is younger than his sister : here when the grandfather dies, the eldest son of C shall succeed to one third, in exclusion of the younger; the two daughters of D to another third in partnership; and the son of E to the remaining third, in exclusion of his elder sister. And the same right of representation, guided and restrained by the same rules of descent, prevails downwards in injinitwn.

Yet this right does not appear to have been thoroughly established in the time of Henry the second, when Glanvil wrote : and, therefore, in the title to the crown especially, we find frequent contests between the younger (but surviving) brother and

his nephew (being the son and representative of the elder deceased) in regard to the inheritance of their common ancestor: for the uncle is certainly nearer of kin to the common stock, by one degree, than the nephew : though the nephew, by representing his father, has in him the right of primogeniture. The uncle also was usually better able to perform the services of the fief: and besides had frequently superior interest and strength, to back his pretensions and crush the right of his nephew. And even to this day, in the lower Saxony, proximity of blood takes place of representative primogeniture ; that is, the younger surviving brother is admitted to the inheritance before the son of an elder deceased: which occasioned the disputes between the two houses of Mecklenburg, Schwerin and Strelitz, in I682f. Yet Glanvil, with us, even in the twelfth century, seems * to declare for the right of the nephew by representation ; provided the eldest son had not received a provision in lands from his fadier, (or as the civil law would call it) had not been foris-familiated, in his lifetime. King John, however, who kept his nephew Arthur from the throne, by disputing this right of representation, did all in his power to abolish it throughout the realm h: hut in the time of his son, king He.nry the third, we find the rule indisputably settled in the manner we have here laid it down *, and so it has continued ever since. And thus much for lineal descents.

V. A fifth rule is, that on failure of lineal descendants, or issue, of the person last seised, the inheritance shall descend to his collateral relations, being of the blood of the first purchaser8 ; subject to the three preceding rules.

f Mod. Un. Hist. xlii. 334. h Hale. H.C.L. 217,223.

g /. 7. c. 3.

i Bracton. 1.'2. c. 30, See. 2.

8. This regard to the blood of the first purchaser, that is to say, the person from whom the land originally descended, was intended to have been wholly abolished by the act of 1785, c. 60. For, according to that act, it was of no importance from whom a person dying intestate acquired his lands, whether from his father, or his mother, or a remote ancestor, or collateral kinsman of either, or by his own act as a purchaser, since by whatever mode it was acquired, it was now absolutely and indefeasibly his, and he might dispose of it as he thought

Thus if Geoffrey Stiles purchases lands, and it descends to John Stiles his son, and John dies seised thereof without issue ; whoever succeeds, to this inheritance must be of the blood of Geoffrey the first purchaser of this family k. The first purchaser perqiiisitor, is he who first acquired the estate to his family, whether the same was transferred to him by sale or by gift, or by any. other method, except only that of descent.

This is a rule almost peculiar to our own laws, and those of a similar original. For it was entirely unknown among the Jews, Greeks, and Romans ; none of whose laws looked any farther than the person himself who died seised of the estate : but assigned him an'heir, without considering by what title he gained it, or from what ancestor he derived it. But the law of Normandy1 agrees with our law in this respect: nor indeed is that agreement to be wondered at, since the law of descents in both is of feodal original; and this rule or canon cannot otherwise be accounted for than by recurring to feodal principles.

When feuds first began to be hereditary, it was made a necessary qualification of the heir, who would succeed to a feud, that he should be of the blood of, that is lineally descended from, the feudatory or purchaser. In consequence whereof, if a vassal died seised of a feud of his own acquiring, orfeudum novum, it could not descend to any but his own offspring; no, not even to k Co. Litt. 12. . 1 Gr. Constant, c. 25.

proper, and to whom he thought proper. And it seems to have been the opinion of the framers of that act, that if he neglected to make any disposition thereof, in his lifetime, the law ought to give it- to those persons whom he would most naturally have preferred if he had made such a disposition. But subsequent legislatures have seen this matter in a different light, at least so far as relates to the lands of infants dying without issue, which it appears to have been the policy of the legislature to retain in the blood of that parent from whom the land was derived, at least for one generation, ascending and descending, as will be more fully noticed hereafter.

But in the case of all others except infants, it is now settled that no regard ought to be had from whom the lands of a person dying intestate are derived, or how acquired by him ; but that all his lands howsoever acquired, shall descend in the course prescribed by the act of 1785, c. 60. See Edi. IT'94, c. 9, 3. See 2 Call's Rep. 390..

221

THE RIGHTS

BOOK II.

his brother, because he was not descended, nor derived his blood, from the first acquirer. But if it was feudum antiquum, that is, one descended to the vassal from his ancestors, then his" brother, or such other collateral relation as was descended and derived his blood from the first feudatory, might succeed to such inheritance. To this purpose speaks the following rule: frater fratri, sine ligitimo haerede defuncto, in benejicio quod eorilm patris fuit succedat: sin autem unus efratribus a domini feudum acceferit, eo defuncto sine legitimo haerede, frater ejus infeudumnonsucceditm." The true feodal reason for which rule was this ; that what was given to a man, for his personal service and personal merit, ought not to descend to any but the heirs of his person. And, therefore, as in estates-tail, (which a proper feud very much resembled) so in the feodal donation, nomen haeredis, in prima investitura expressum, tantum ad descendentes ex corf ore primi vasalli extenditur; et non ad collaterales, nisi, ex corf ore primi vas&alli sive stifitis descendant" :" the will of the donor, or original lord, (when feuds were turned from life estates into inheritances) not being to make them absolutely hereditary, like the Roman allodium, but hereditary only sub modo ; not hereditary to the collateral relations, or lineal ancestors, or husband, or wife of the feudatory, but to the issue descended from his body only.

However, in process of time, when the feodal rigour was in part abated, a method was invented to let in the collateral relations of the grantee to the inheritance, by granting him a feudum novum to hold ut feudum antiquum; that is, with all the qualities annexed of a feud derived from his ancestors : and then the collateral relations were admitted to succeed even in infnitumt because they might have been of tne blood of, that is, descended from, the first imaginary purchaser. For since it is not ascertained in such general grants, whether this feud shall be held ut feudum faternum or feudum avitum, but ut feudum antiquum merely ; as a feud of indefinite antiquity ; that is, since it is not ascertained from which of the ancestors of the grantee this feud shall be supposed to have descended; the law will not ascertain it, but will suppose any of his ancestors, fro re nata, to have been the first purchaser: and, therefore,

~ m IFeud. 1. Sec. 2- n Crag. /. 1.1. 9- Sec. 36.

CHAP. XIV.

OF THINGS.

222

it admits any of his collateral kindred (who have the other necessary requisites) to the inheritance, because every collateral kinsman must be descended from some one of his lineal ancestors.

Of this nature are all the grants of fee-simple estates of this kingdom; for there is now in the law of England no such thing as a grant of a feudum novum, to be held ut uovum; unless in the case of a fee-tail, and there we see that this rule is strictly observed, and none but the lineal descendants of the first donee (or.purchasor) are admitted; but every grant of lands in fee-simple is with us a feudum novum to be held ut antiquum, as a feud whose antiquity is indefinite: and, therefore, the collateral kindred of the grantee, or descendants from any of his lineal ancestors, by whom the lands might have possibly been purchased, are capable of being called to the inheritance.

Yet, when an estate hath really descended in a course of inheritance to the person last seised, the strict rule of the feodal law is still observed; and none are admitted, but the heirs of those through whom the inheritance hath passed : for all others have demonstrably none of the blood of the first purchaser in them, and therefore shall never succeed. As, if lands come to John Stiles by descent from his mother, Lucy Baker, no relation of his father (as such) shall ever be his heir of these lands ; and vice-versa, if they descended from his father Geoffrey Stiles, no relation of his mother (as such) shall ever be admitted thereto; for his father's kindred have none of his mother's blood, nor have his mother's relations any share of his father's blood. And so, if the estate descended from his father's father, George Stiles; the relations of his father's mother, Cecilia Kempe, shall for the same reason never be admitted, but only those of his father's father. This is also the rule of the French law0, which is derived from the same feodal fountain.

Here we may observe, that so far as the feud is really antiquum, the law traces it back, and will not suffer any to inherit but the blood of those ancestors, from whom the feud was conveyed

o Domat. fa>! 2 pr.

to the late proprietor. But when, thrtmgh length of time, it can trace it no farther ; as if it be not known whether his grandfather, George Stiles, inherited it from his father Walter Stiles, or his mother Christian Smith, or if it appear that his grandfather was the first grantee, and so took it (by the general law) as a feud of indefinite antiquity j in either of these cases the law admits the descendants of any ancestor of George Stiles, either paternal or maternal, to be in their due order the heirs to John Stiles of this estate : because in the first case it is really uncertain, and in the second case it is supposed to be uncertain, whether the grandfather derived his title from the part of his father orthis mother.

This then is the great and general principle, upon which the law of collateral inheritances depends ; that, upon failure of issue in the last proprietor, the estate shall descend to the blood of the first purchaser; or, that it shall result back to the heirs of the body of that ancestor, from whom it either really has, or is supposed by fiction of law to have originally descended : according to the rule laid down in the year books?, Fitzherberti, Brookr, and Hale'," that he who would have been heir to the father of " the deceased" (and, of course, to the mother, or any other real or supposed purchasing ancestor) " shall also be heir to the " son ;" a maxim, that will hold universally, except in the case of a brother or sister of the half blood, which exception (as we shall see hereafter) depends upon very special grounds.

The rules of inheritance that remain are only rules of evidence, calculated to investigate who the purchasing ancestor was ; which infeudls vere antiquis has in process of time been forgotten, and is supposed so to be in feuds that are held nt an' tiquis.

VI. A sixth rule or canon therefore is, that the collateral heir of the person last seised must be his next collateral kinsman, of the whole blood9.

p M. 12 Edw. IV. 14. r Abr. t. disccnt. 2.

q Abr. t. ditcent, 2. s H. C. L. 243.

9. By the act of 1785, c. 60, the half blood, had the same capacity to inherit to each other, as the whole blood, the law declaring, " that " where the inheritance is directed to pass to the ascending and colla-

First, he must be his next collateral kinsman, either personally or jure representations ,• which proximity is reckoned according to the canonical degrees of consanguinity before-mentioned. Therefore, the brother being in the first degree, he and his descendants shall exclude the uncle and his issue, \v ho is only in the second. And herein consists the true reason of the different methods of computing the degrees of consanguinity, in the civil law on the one hand, and in the canon and common laws en the other. The civil law regards consanguinity principally with respect to successions, and therein very naturally considers only the person deceased, to whom the relation is claimed :, it therefore counts the degrees of kindred according to the number of persons through whom the claim must be derived from him ; and makes not only his great nephew but also his first cousin to be both related to him in the fourth degree ; because there are three persons between him and each of them. The canon law regards consanguinity principally wi h a view to prevent incestuous marriages, between those who have a large portion of the same blood running in their respective veins; and, therefore, looks up to the author of that blood, or the common ancestor, reckoning the degrees from him: so that the great nephew is related in the third canonical degree to the person proposed, and (he first-cousin in the second; the former being distant three

teral kindred of the intestate, if part of such collaterals be of the whole blood to the intestate, and the other part of the half blood only, those of the half blood shall inherit only half so much as those of the whole blood : but if all be of the half blood, they shall have whole portions, only giving to the ascendants, if any there be, double portions."

But now', " where an infant shall die without issue having title to any real estate of inheritance derived by purchase or descent from the mother [or father] neither the father [or, in the other case the mother] nor any issue which he [or she] may have by any person other than the mother [or father] of such infant, shall succeed to, or enjoy the same or any part thereof, if there be living any brother or sister of such infant on the part of the mother, [or father,] or any brother or sister of the mother [or father], or any lineal descendant of cither of them." Edi. 1794, c. 93. $. 5 and 6. In all other

cases,, it seems to be now settled that the half blood may still inherit as

under the act of 17S5. See 2 Call's Rep. 390.

degrees from the common ancestor, (the father of fa propositus) and therefore deriving only one fourth of his blood from the same fountain ; the latter, and also the propositus himself, being each of them distant only two degrees from the common ancestor, (the grandfather of each) and therefore having one half of each of their bloods the same. The common law regards consanguinity principally with respect to descents; and, having therein the same object in view as the civil, it may seem as if it ought to proceed according to the civil computation. But as it also respects the purchasing ancestor, from whom the estate was derived, it therein resembles the canon law, and therefore counts it's degrees in the same manner. Indeed the designation of person, in seeking for the next of kin, will come to exactly the same end (though the degrees will be differently numbered) whichever method of computation we suppose the law of England to use ; since the right of representation, of the parent by the issue, is allowed to prevail in infinitum. This allowance was absolutely necessary, else there would have frequently been many claimants in exactly the same degree of kindred, as (for instance) uncles and nephews of the deceased; which multiplicity, though no material inconvenience in the Roman law of partible inheritances, yet would have been productive of endless confusion where the right of sole succession, as with us, is established. The issue of descendants therefore of John Stiles's brother are all of them in the first degree of kindred with respect to inheritances, those of his uncle in the second, and those of his great uncle in the third ; as their respective ancestors, if living, would have been ; and are severally called to the succession in right of such their representative proximity10.

The right of representation being thus established, the former part of the present rule amounts to this ; that, on failure of issue of the person last seised, the inheritance shall descend to the other subsisting issue of his next immediate ancestor. Thus, if John Stiles dies without issue, his estate shall descend to Francis his brother, or his representatives; he being lineally descended from Geoffrey Stiles, John's next immediate ancestor, or father. On failure of brethren, or sisters, and their issue, it

10. See note 6. p. 217.

shall descend to the uncle of John Stiles, the lineal descendant of his grandfather George, and so on in infinitum. Very similar to which was the law of inheritance among the antient Germans, our progenitors: " haeredes successoresque, sui cuique liberi, et

ntillum testamentum: si liberi non sunt, proximus gradus in/ios-

sessioneifratres, patrui, avunculi1"

Now here it must be observed, that the lineal ancestors, though (according to the first rule) incapable themselves of succeeding to the estate, because it is supposed to have already passed them, are yet the common stocks from which the next successor must spring. And therefore in the Jewish law, which in this respect entirely corresponds with ours", the father or other lineal ancestor is himself said to he the heir, though long since dead, as being represented by the persons of his issue; who are held to succeed not in their own rights, as brethren, uncles, fc?c. butin right of representation^ the offspring of the father, grandfather, &?c. of the deceased". But, though the common ancestor be thus the root of the inheritance, yet with us it is not necessary to name him in making out the pedigree or descent. For the descent between two brothers is held to be an immediate descent; and therefore title may be made by one brother or his representatives to or through another, without mentioning their common father*. If Geoffrey Stiles hath two sons, John and Francis, Francis may claim as heir to John, without naming their father Geoffrey; 'and so the son of Francis may claim as cousin and heir to Matthew the son of John, without naming the grandfather ; viz. as son of Francis, who was the brother of J ohn, who was the father of Matthew. But though the common ancestors are not named in deducing the pedigree, yet the law still respects them as the fountains of inheritable blood: and therefore, in order to ascertain the collateral heir of John Stiles, it is first necessary to recur to his ancestors in the first degree ; and if they have left any other issue besides John, that issue will be his heir. On default of such, we must ascend one step higher, to the ancestors in the second degree, and then to those in the third, and

t Tacitus demor. Germ, 21. u Numb. c. 27.

w Selclen. ilemcc. El».c. 12.

x 1 Sid. 196. IVemr. 423. 1 Lev. 60. 12 Mod. 619.

fourth, and so upwards in infnitum; till some couple of ancestors be found, who have other issue descending from them besides the deceased, in a parallel or collateral line. From these ancestors the heir of John Stiles must derive his descent; and in such derivation the same rules must be observed, with regard to sex, primogeniture, and representation, that have before been laid down wfth regard to lineal descents from the person of the last proprietor.

But, secondly, the heir need not be the nearest kinsman absolutely, but only sub modo; that is, he must be the nearest kinsman of the -whole blood; for, if there be a much nearer kinsman of the Aa^blood, a distant kinsman of the whole blood shall be admitted, and the other entirely excluded: nay, the estate shall escheat to the lord, sooner than the half blood shall inherit.

A kinsman of the whole blood is he that is derived, not only from the same ancestor, but from the same couple of ancestors. For, as every man's own blood is compounded of the bloods of his respective ancestors, he only is properly of the whole or entire blood with another, who hath (so far as the distance of degrees will permit) all the same ingredients in the composition of his blood that the other hath. Thus, the blood of John Stiles being composed of those of Geoffrey Stiles his father and Lucy Baker his mother, therefore his brother Francis, being descended from both the same parents, hath entirely the same blood with John Stiles; or he is his brother of the whole blood. But if, after the death of Geoffrey, Lucy Baker the mother marries a second husband, Lewis Gay, and hath issue by him; the blood of this issue, being compounded of the blood of Lucy Baker (it is true) on the one part, but that of Lewis Gay (instead of Geoffrey Stiles) on the other part, it hath therefore only half the same ingredients with that of John Stiles; so that he is only his brother of the half blood, and for that reason they shall never inherit to each other. So also, if the father has two sons, A and B, by different venters or wives j now these two brethren are not brethren of the whole blood, and therefore shall never inherit to each other, but the estate shall rather escheat to the lord. Nay, even if the father dies, and his lands descend to his eldest son A,

who enters thereon, and dies seised without issue; still B shall not be heir to this estate,,because he is only of the half blood to A, the person last seised: but it shall descend to a sister (if any) of the whole blood to A : for in such cases the maxim is, that the seisin or possesaio fratris facit sororem esse haeredem. Yet, had A died without entry, then B might have inherited ; not as heir to A his half brother, but as heir to their common father, who was the person last actually seised * *.

This total exclusion of the half blood from the inheritance, being almost peculiar to our own law, is looked upon as a strange hardship by such as are unacquainted with the reasons on which it is grounded. But these censures arise from a misapprehension of the rule, which is not so much to be considered in the light of a rule of descent, as of a rule of evidence; an auxiliary rule, to carry a former into execution. And here we must again remember, that the great and most universal principle of collateral inheritances being this, that the heir to afeudum antiquum must be of the blood of the first feudatory or purchaser, that is, derived in a lineal descent from him; it was originally requisite, as upon gifts in tail it still is, to make out the pedigree of the heir from the first donee or purchaser, and to shew that such heir was his lineal representative. But when, by length of time and a long course of descents, it came (in those rude and unlettered ages)to be forgotten who was really the first feudatory or purchaser, and thereby the proof of an actual descent from him became impossible; then thelawsubstitutedwhatsirMartinWright* calls a reasona ble, instead of an impossible, proof: for it remits the proof of an actual descent from the first purchaser; and only requires in lieu of it, that the claimant be next of the whole blood to

y Hale. H.-C. L. 238.

z Tenures 186.

* Of some inheritances there cannot be a seisin, or a potsetsio fratrit; as if the eldest brother dies before a presentation to an advowson, it will descend to the half-brother as heir to the person last seised, and not to the. sister of the whole blood. 1. Burn. ec. 11. So of reversions, remainders, and executory deviies, there can be no seisin or posteaiofratrit; and if they are reserved or granted to A and his heirs, he who is heir to A when they come into possession, is entitled to them by. descent; that is, that person who would have been heir to A, if A had lived so long, and had then died actually seised. 2 Wnadd. 255. Fearne, 448. 2 Wils. 29. .... Christian.

the person last in possession, (or derived from the same couple of ancestors) which will probably answer the same end as if he could trace his pedigree in a direct line from the first purchaser.

For he who is my kinsman of the whole blood can have no ancestors beyond or higher than the common stock, but what are equally my ancestors also; and mine are vice versa his: he therefore is very likely to be derived from that unknown ancestor of mine, from whom the inheritance descended. But a kinsman of the half blood has but one half of his ancestors above the common stock the same as mine ; and therefore there is not the same probability of that standing requisite in the law, that he be derived from the blood of the first purchaser.

To illustrate this by example. Let there be John Stiles, and Francis, brothers, by the same father and mother, and another son of the same mother by Lewis Gay a second husband. Now, if John dies seised of lands, but it is uncertain whether they descended to him from his father or mother; in this case his brother Francis, of the whole blood, is qualified to be his heir; for he is sure to tie in the line of descent from the first purchaser, whether it were the line of the father or the mother. But if Francis should die before John, without issue, the mother's son by Lewis Gay (or brother of the half blood) is utterly incapable of being heir; for he cannot prove his descent from the first purchaser, who is unknown, nor has he that fair probability which the law admits as presumptive evidence, since he is to the full as likely not to be descended from the line of the first purchaser, as to be descended : and therefore the inheritance shall go to the nearest relation possesed of this presumptive proof, the whole blood.

And, as this is the case infeudls anliquis, where there really did once exist a purchasing ancestor, who is forgotten; it is also the case infeudls novis held ut antiquis, where the purchasing ancestor is merely ideal, and never existed but only in fiction of law. Of this natui e are all grants of lands in fee-simple at this day, which are inheritable as if they descended from some uncertain indefinite ancestor, and therefore any of the collateral

kindred of the real modern purchaser (and not his own offspring only) may inherit them, provided they be of the whole blood; for all such are, in judgment of law, likely enough to be derived from this indefinite ancestor: but those of the half blood are excluded, for want of the same probability. Nor should this be thought hard, that a brother of the purchaser, though only of the half blood, must thus be disinherited, and a more remote relation of the whole blood admitted, merely upon a supposition and fiction of law: since it is only upon a like supposition and fiction, that brethren of purchasers (whether of the whole or half blood) are entitled to inherit at all: for we have seen that in feudis stricte novis neither brethren nor any other collaterals were admitted. As therefore in feudis antiquis we have seen the reasonableness of excluding the half blood, if by a fiction of law zfeudum novum be made descendible to collaterals as if it was feudum antiquum, it is just and equitable that it should be subject to the same restrictions as well as the same latitude of descent.

Perhaps, by this time, the exclusion of the half blood does not appear altogether so unreasonable, as at first sight it is apt to do. It is certainly a very fine-spun and subtle nicety: but, consider, ing the principles upon which our law is founded, it is not an injustice, nor always a hardship; since even the succession of the whole blood was originally a beneficial indulgence, rather than the strict right of collaterals: and, though that indulgence is not extended to the demi-kindred, yet they are rarely abridged of any right which they could possibly have enjoyed before, i The doctrine of the whole blood was calculated to supply the frequent impossibility of proving a descent from the first purchaser, without some proof of which (according to our fundamental maxim) there can be no inheritance allowed of. And this purpose, it answers, for the most part, effectually enough. I speak with these restrictions, because it does not, neither can any other method, answer this purpose entirely. For though all the ancestofs of John Stiles, above the common stock, are also the ancestors of his collateral kinsman of the whole blood; yet, unless that common stock be in the first degree, (that is, unless they have the bame father and mother) there will be intermediate ancestors below the common stock, that belong to either of them

respectively, from which the other is not descended, and therefore can have none of their blood. Thus, though John Stiles and his brother of the whole blood can each have no other ancestors, than what are in common to them both; yet with regard to his uncle, where the common stock is removed one degree higher, (that is, the grandfather and grandmother) one half of John's ancestors will not be the ancestors of his uncle: his patruus, or father's brother, derives not his descent from John's maternal ancestors; nor his avunculus, or mother's brother, from those in the paternallihe. Here then the supply of proof is deficient, and by no means amounts to a certainty: and the higher the common stock is removed, the more will even the probability decrease. But it must be observed, that (upon the same principles of calculation) the half blood have always a much less chance to be descended from an unknown indefinite ancestor of the deceased, than the whole blood in the same degree. As, in the first degree, the whole brother of John Stiles is sure to be descended from that unknown ancestor; his half brother has only an even chance, for half John's ancestors are not his. So, in the second degree, John's uncle of the whole blood has an even chance; but the chances are three to one against his uncle of the half blood, for three-fourths of John's ancestors are not his. In like manner, in.the third degree, the chances are only three to one against John's great uncle of the whole blood, but they are seven to one against his great uncle of the half blood, for seven-eighths of John's ancestors have no connexion in blood with him. Therefore the much less probability of the half blood's descent from the first purchaser, compared with that of the whole blood, in the several degrees, has occasioned a general exclusion of the half blood in all.

But) while I thus illustrate the reason of excluding the half blood in general, I must be impartial enough to own, that in some'instances, the practice is carried farther than the principle upon which it goes will warrant. Particularly, when the kinsman of the whole blood in a remoter degree, as the uncle or great uncle, is preferred to one of the half blood in a nearer degree, as the brother: for the half brother hath the same chance of being descended from the purchasing ancestor as the uncle ;

and a thrice better chance than the great uncle, or kinsman in the third degree. It is also more especially overstrained, when a man has two sons by different venters, and the estate on his death descends from him to the eldest, who enters and dies without issue: in which case the younger son cannot inherit this estate, because he is not of the whole blood to the last proprietor1. This, it must be owned, carries a hardship with it, even upon feodal principles: for the rule was introduced only to supply the proof of a descent from the first purchaser; but here, as this estate notoriously descended from the father, and as both the brothers confessedly sprung from him, it is demonstrable that the half brother must be of the blood of the first purchaser, who was either the father or some of the father's ancestors.,.. When, therefore, there is actual demonstration of the thing to be proved, it is hard to exclude a man by a rule substituted to supply that proof when deficient. So far as the inheritance can be evidently traced back, there seems no need of calling in this presumptive proof, this rule of probability, to investigate what is already certain. Had the elder brother indeed been a purchaser, there would have been no hardship at all, for the reasons already given : or had thefrater uterinus only, or brother 'by the mother's side, been excluded from an inheritance which descended from the father, it had been highly reasonable.

Indeed, it is this very instance, of excluding &frater consanguineus, or brother by the father's side, from an inheritance which descended from apatre, that Craigb had singled out, on which to ground his strictures on the English law of half blood. And, really, it should seem as if originally the custom of excluding the half blood in Normandy* extended only to exclude a

z A^till harder case than this happened M. 10 Eisd. III. On the death of a man, who had three daughters by a first wife, and a fourth by another, his lands descended equally to all four as coparceners. Afterwards the two eldest died without issue; and it was held, that the third daughter alone should inherit their shares,'as being their heir of- the whole blood; and that the youngest daughter should retain only her original fourth part of their common father's lands. (10 Ass. 27.) And yet it was clear la a- in M 19 Eiad. II, that wher* lands had descended to two sistars of half blood, as coparceners, each might b« heir of those lands to the other. (Mayn. Edw. II. 628. Fitzh. abr. tit. quart impedit. 177.)

b /. 2. t. 10. Sec. 14. £ Gr. Cmstum. c. 25.

frater (uterinus, when the inheritance descended a patre, and vice versa: and possibly in England also; as even with us it remained a doubt, in the time of Bracton*1, and of Fleta", whether the half blood on the father's side was excluded from the inheritance which originally descended from the common father, or only from such as descended from the respective mothers, and from newly purchased lands. So also the rule of law, as laid down by our Fortescue1, extends no farther than this; frater fratri uterino non suecedet in haereditate paterna. It is moreover worthy of observation, that by our law, as it now stands, the crown ( which is the highest inheritance in the nation) may descend to the half blood of the preceding sovereigns, so that it be the blood of the first monarch, purchaser, (or in the feodal language) conqueror of the reigning family. Thus it actually did descend from king Edward the sixth, to queen Mary, and from her to queen Elizabeth, who were respectively of the half blood to each other. For, the royal pedigree being always a matter of sufficient notoriety, there is no occasion to call in the aid of this presumptive rule of evidence, to render probable the descent from the royal stock, which was formerly king William the Norman, and is now (by act of parliament11) the princess Sophia of Hanover. Hence also it is, that in estates-tail, where the pedigree from the first donee must be strictly proved, half blood is no impediment to the descent1: because, when the lineage is clearly made out, there is no need of this auxiliary proof. How far it might be desirable for the legislature to give relief, by amending the law of descents in one or two instances, and ordaining that the half blood might always inherit, where the estate notoriously descended from it's own proper ancestor, and, incases of new purchased lands or uncertain descents, should never be excluded by the whole blood in a remoter degree; or how far a private inconvenience should be still submitted to, rather than a long established rule should be shaken, it is not for me to determine.

The rule, then, together with it's illustration, amounts to this: that in orJer to keep the estate of John Stiles as nearly as

cl /. 2 r. 30. Sec 3- e /. 6. c. 1. Sec. 14.

F dc hind. LL. Aigl. 5. g Plowd. 245. Co Litt. 15.

h 12 Will. III. c. J. i Lit;. Sec. 14,15.

possible in the line of, his purchasing ancestor, it must descend to the issue of the nearest couple of ancestors that have left descendants behind them; because the descendants of one ancestor only, are not so likely to be in the line of that purchasing ancestor, as those who are descended from both.

But here another difficulty arises. In the second, third, fourth, and every superior degree, every man has many couples of ancestors, increasing according to the distances in a geometrical progression upwardsk, the descendants of all which respective couples are (representatively) related to him in the same degree. Thus, in the second degree, the issue of George and Cecilia Stiles, and of Andrew and Esther Baker, the two grandsires and grandmother of John Stiles, are each in the same degree of propinquity; in the third degree, the respective issues of Walter and Christian Stiles, of Luke and Frances Kempe, of Herbert and Hannah Baker, and of James and Emma Thorpe, are (upon the extinction of the two inferior degrees) all equally entitled to call themselves the next kindred of the whole blood to John Stiles. To which, therefore, of these ancestors must we first resort, in order to find out descendants to be preferably called to the inheritance ? In answer t<*this, and likewise to avoid all other confusion and uncertainty that might arise between the several stocks wherein the purchasing ancestor may be sought for, another qualification is requisite, besides the proximity and entirety, which is that of dignity or worthiness, of blood. For,

VII. The seventh and last rule of canon is, that in collateral inheritances the male stocks shall be preferred to the female; (that is, kindred derived from the blood of the male ancestors, however remote, shall be admitted before those from the blood of the female, however near) unless where the lands have, in fact, descended from a female11.

k See p. 204.

11. In every case of descents to collateral relations (except in'the case of infant's lands, before noticed) no preference is given to the collaterals in the same degree, over others in the like degree, nor is any regard to be paid to the person from whom the lands descended, whether male or female. See note 8. p. 220. note 9. p. 224,

Thus the relations on the father's side are admitted in infinitum, before those on the mother's side are admitted at all15 and the relations of the father's father, before those of the father's mother; and so on. And in this the English law is not singular, but warranted by the examples of the Hebrew and Athenian laws, as stated by Selden1", and Petit" ; though among the Greeks in the time of Hesiod0, when a man died without wife or children, all his kindred (without any distinction) divided his estate among them. It is likewise warranted by the example of the Roman laws; wherein the agnati, or relations by the father were preferred to the cognati, or relations by the mother, till the edict of the emperor Justinian^ abolished all distinction between them. It is also conformable to the customary laws of Normandy i, which, indeed, in most respects agrees with our English law of inheritance.

However, I am inclined to think, that this rule of our laws does not owe it's immediate original to any view of conformity to those which I have just now mentioned; but was established in order to effectuate and carry into execution the fifth rule, or principal canon of collateral inheritance, before laid down; that every heir must be of the blobd of the first purchasor. For, when such first purchasor was not easily to be discovered-after a long course of descents, the lawyers not only endeavoured to investigate him by taking the next relation of the whole blood to the person lasfin possession, but also, considering that a preference had been given to males (by virtue of the second canon) through the whole course of lineal descent from the first purchasor to the present time, they judged it moi-e likely that the lands should have descended to the last tenant from his male than from his female ancestors; from the father (for instance) rather than from the mother; from the father's father, rather than from the father's mother: and therefore they hunted back the inheritance (if I maybe allowed the expression) through the male line ; and gave it to the next relations on the side of the father, the father's father, and so upwards; imagining, with

1 Litt. Sec. 4.

n LL. Attic. I. 1. t. 6.

p J/OT.J.18,

m de siicc. Ebracor. c. 12.

o tpioytm 606.

q Gi. Coustum. c. 2i.

reason, that this was the most probable way of continuing it in the line of the first purchasor. A conduct much more rational than the preference of the agnati^ by the Roman laws; which, as they gave no advantage to the males in the first instance, or direct lineal succession, had no reason for preferring them in the transverse collateral one: upon which account this preference was very wisely abolished by Justinian.

That this was the true foundation of the preference of the agnati or male stocks, in our law, will farther appear, if we consider, that, whenever the lands have notoriously descended to a man from his mother's side, this rule is totally reversed; and no relation of his by the father's side, as such, can ever be admitted to them: because he cannot possibly be of the blood of the first purchasor. And so, f converse, if the lands descended from the father's side, no relation of the mother, as such shall ever inherit. So also, if they in fact descended to John Stiles, from his father's mother Cecilia Kempe ; here not only the blood of Lucy Baker, his mother, but also of George Stiles, his father's father, is perpetually excluded. And, in like manner, if they be known to have descended from Frances Holland, the mother of Cecilia Kempe, the line not only of Lucy Baker, and of George Stiles, but also of Luke Kempe, the father of Cecilia, is excluded. Whereas, when the side from which they descended is forgotten, or never known, (as in the case of an estate newly purchased to be holden utfeudum antiquttm) here the right of inheritance first runs up all the father's side, with a preference to the male stocks in every instance ; and, if it finds no heirs there, it then, and then only, resorts to the mother's side; leaving no place untried, in order to find heirs that may, by possibility, be derived from the original purchasor. The greatest probability of finding such was among those descended from the male ancestors; but, upon failure of issue there, they may possibly be found among those derived from the females.

This I take to be the true reason of the constant preference of the agnatic succession, or issue derived from the male ancestors, through all the stages of collateral inheritance j as the ability for personal service was the reason for preferring the males

at first in the direct lineal succession. We see clearly, that, Jf males had been perpetually admitted, in utter exclusion of females, the tracing the inheritance back through the male line of ancestors, must at last have inevitably brought us up to the first purchaser: but, as males have not been perpetually admitted, but only generally preferred; as females have not been utterly excluded, but only generally pestponed to males; the tracing the inheritance up through the male stocks will not give us absolute demonstration, but only a strong probability of arriving at the first purchaser ; which, joined with the other probability, of the wholeness or entirety of blood, will fall little short of a certainty.

Before we conclude this branch of our inquiries, it may not be amiss to exemplify these rules by a short sketch of the manner in which we must search for the heir of a person, as John Stiles, who dies seised of land which he acquired, and which, therefore, held as a feud of indefinite antiquity r.

In the first place, succeeds the eldest son, Matthew Stiles, or his issue: (n°. l.) .... if his line be extinct, then Gilbert Stiles and the other sons, respectively, in order of birth, or their issue; (n°. 2.) .... in default of these, all the daughters together, Margaret and Charlotte Stiles, or their issue. (n°. 3.) .... On failure of the descendants of 'John Stiles, himself, the issue of Geoffrey and Lucy Stiles, his parents, is called in: viz. first, Francis Stiles, the eldest brother of the whole blood, or his issue : (n°. 4.). .... then Oliver Stiles, lind the other whole brothers, respectively, in order of birth, or their issue; (n°. 5.) .... then the sisters of the whole blood all together, Bridget and Alice Stiles, or their issue. (n°. 6.) .... In defect of these, the issue of George and Cecilia Stiles, his father's parents; respect being still had to their age and sex: (n°. 7.) .... then the issue of Walter and Christian Stiles, the parents of his paternal grandfather: (n°. 8.) -- -then the issue of Richard and Anne Stiles, the parents of his paternal grandfather's father: (n°. 9.) .... and so on in the paternal grandfather's paternal line, or blood of Walter Stiles, in infnitum. In defect of these, the issue of William and Jane Smith, the parents of

r See the Table of Descents annexed.

his paternal grandfather's mother12: (n°. 10.) .... and so on in the paternal grandfather's maternal line, or blood of Christian Smith, in infmitum; till both the immediate bloods of George Stiles, the paternal grandfather, are spent .... Then we must resort to the issue of Luke and Frances Kempe, the parents of John Stiles's paternal grandmother: (n°. 11.) .... then to the issue of Thomas and Sarah Kempe, the parents of his paternal grandmother's father: (n°. 12.) .... and so on in the paternal grandmother's paternal line, or blood of Luke Kempe, in injinitum.,.. In default of which, we must call in the issue of Charles and Mary Holland, the parents of his paternal grandmother's mother: (n°. 13.) .... and so on in the paternal grandmother's maternal line, or blood of Frances Holland, in infnitum ; till both the immediate bloods of CeciliaKempe,the paternal grandmother, are also spent .... Whereby, the paternal blood of John Stiles entirely failing, recourse must then, and not before, be had to his maternal relations ; or the blood of the Bakers, (n°. 14, 15, 16.) Willis's, (n°. 17.) Thorpes, (n°. 18, 19.) and Whites; (n°. 20.) in the same regular successive order, as in the paternal line.

The student should, however, be informed, that the class n°. 1O, would be postponed to n°. 11, in consequence of the doctrine laid down, arguendo, by justice Manwoode, in the case of Clere and Brooke", from whence it is adopted, by lord Bacon', and Sir Matthew Hale u : because, it is said, that all the female ancestors on the part of the father are equally worthy of blood ; and, in that case, proximity shall prevail. And yet, notwithstand-

s Plowd. 450.

t Elem. c. 1.

u H. C. L. 240, 244.

12. But here we must remember, that, in defect of the blood of the Stiles's, the next immediate heir is to be sought for in the blood of Ann Godfrey, the paternal grandfather's paternal grandmother, before we resort to the issue of William and Jane Smith, upon the same principlesthat the blood of the Smiths is preferred to the blood of the Kemps; upon the same principle, the blood of the Kings, also, must be preferred to the blood of the Kemps; as also, that of the Browns to the Hollands; and that of the Wilsons to the Bakers. So, also, in the maternal line, the Bates's must succeed to the inheritance before the Willis's; the Carters before the Thorpes ; and the Bishops before the Whites.

ing these respectable authorities, the compiler of this table hath ventured (in point of theory, for the case never yet occurred in practice) to give the preference to n°. 10, before n°. 11; for the following reasons: 1. Because this point was not the principal question in the case of Clere and Brooke : but the law concerning it is delivered obiter, only, and in the course of argument, by justice Manwoode; though afterwards said to be confirmed by the three diher justices in separate, extrajudicial, conferences with the reporter. 2. Because the chief-justice, Sir James Dyer, in reporting the resolution of the court in what seems to be the same ca'sew, takes no notice of this doctrine. 3. Because it appears from Plowden's report, that very many gentlemen of the law were dissatisfied with this disposition of justice Manwoode ; since the blood of n°. 10, was derived to the purchaser through a greater number of males than the blood of n°. 11, and was, therefore, in their opinion, the more worthy of the two. 4. Because the position itself destroys the otherwise entire and regular symmetry of our legal course of descents, as is manifest by inspecting the table ; wherein n°. 16, which is analagous in the maternal line to n°. 1O in the paternal, is preferred to n°. 18, which is analagous to n°. 11, upon the authority of the eighth rule laid down by Hale himself: and it destroys also that constant preference of the male stocks in the law of inheritance, for which an additional reason is before * given, besides the mere dignity of blood. 5. Because it introduces, all that uncertainty and contradiction, which is pointed out by an ingenious author*; and establishes a collateral doctrine, (viz. the preference of n°. 11 to n°. 10,) seemingly, though perhaps not strictly, incompatible with the principal point resolved in the case of Clere and Brooke, viz. the preference of n°. 11 to n°. 14. And, though that learned writer proposes to rescind the principal point then resolved, in order to clear this difficulty; it is apprehended, that the difficulty may be better cleared, by rejecting the collateral doctrine, which was never yet resolved at all. 6. Because the reason that is given for this doctrine, by lord Bacon, (viz. that in any degree, paramount the first, the law respecteth proximity, and not dignity of blood) is directly contrary to many in-

w Dyer. 314. x. Page 235, 6,7.

y Law of Inheritances, second edition, page 30. 38, 61, 62, 66.

stanses g'ven by Plowden and Hale, and every other writer on the law of descents. 7. Because this position seems to contradict the allowed doctrine of Sir Edward Coke z ; who lays it down (under different names) that the blood of the Kempes (alias Sandies) shall not inherit till the blood of the Stiles's (alias Fairfields) fail. Now the blood of the Stiles's does certainly not fail, till both n°. 9 and n°. 10 are extinct. Wherefore, n°. 11 (being the blood of the Kempes) ought not to inherit till then. 8. Because in the case, Mich. 12 Edw. IV. 14a. (much relied on in that of Clere and Brooke) it is laid down as a rule, that " cestuy, que doit inheriter al pere, doit inheritsr al Jit,->b." And so sir Mathew Hale c says, " that though the lav/ excludes " the father from inheriting, yet it substitutes and directs the " descent, as it should have been, had the father inherited." Now it is settled, by the resolution in Clere and Brooke, that n°. 1O should be inherited before n°. 11 to Geoffry Stiles, the father, had he been the person last seised j and, therefore, n°. 1O ought also to be preferred in inheriting to John Stiles, the son.

In case John Stiles was not himself the purchaser, but the estate in fact came to him by descent from his father, mother, or any higher ancestor, there is this difference: that the blood of that line of ancestors, from which it did not descend, can never inherit: as was formerly fully explainedd. And the like rule, as is there exemplified, will hold upon descents from any other ancestors.

The student should also bear in mind, that, during this whole process, John Stiles is the person supposed to have been last actually seised of -the estate. For if ever it comes to vest in any other person, as heir to John Stiles, a new order of succession must be observed upon the death of such heir ; since he, by his own seisin, now becomes himself an ancestor or stipes, and must be put in the place of John Stiles. The figures there-

7. Co. Lite. 12. Hawk. abr. in toe. a Fitzh. Abr. tit. disser.t. 2. Bro. Abr, t. discent. 3. b See page 223. c Hist.C. L. 243. d Sec page 2J6.

fore denote the order, in which the several classes would succeed to John Stiles, and not to each other: and before we search for an heir in any of the higher figures (n°. 8)as we must be first assured that all the lower classes (from n°. 1 to n°. 7.) were extinct, at John Stiles's decease l3.

13. Here it will be proper to take a view of the several acts establishing the course of descents in Virginia; see Appendix, Note B.

CHAPTER THE FIFTEENTH.

OF TITLE BY PURCHASE, AND FIRST BY ESCHEAT.

PURCHASE, perqulsitio^ taken in it's largest and most extensive sense, is thus denned by Littleton a ; the possession of lands and tenements, which a man hath by his own actor agreement, and not by descent from any of his ancestors or kindred. In this sense, it is contradistinguished from acquisition by right of blood, and includes every other method of coming to an estate, but merely that by inheritance: wherein the title is vested in a person, not by his own act or agreement, but by the single operation of law b.

Purchase, indeed, in it's vulgar and confined acceptation, is applied only to such acquisitions of land, as are obtained by way of bargain and sale, for money, or some other valuable consideration. But this falls far short of the legal idea of purchase: for, if I give land freely to another, he is, in the eye of the law, a purchaser c j and falls withinLittleton's definition, for he comes to the estate by his own agreement, that is, he consents to the gift. A man, who has his father's estate settled upon him in tail, before he was born, is also a purchaser ; for he takes quite another estate than the law of descents would have given him. Nay, even if the ancestor devises his estate to his heir at law by will, with other limitations, or in any other shape than the course of descents would direct, such heir shall take l>y purchase*11.

a Sec. 12. b Co. Litt. 18. c Co. Litt. 18.' d Lord ka>m. 728.

1. Therefore it would seem, that if a man at this day should devise all his lands to one or more of his children, in exclusion of the rest; or devise several parcels to his several children ; or devise the whole to them in unequal portions; or by metes and bounds; though the por-

But, if a man seised in fee, devises his whole estate to his heir at law, so that the heir takes neither a greater nor a less estate by the devise than he would have done without it, he shall be adjudged to take by descente, even though it be charged with incumbrances f ; this being for the benefit of creditors, and others, who have demands on the estate of the ancestor. If a remainder be limited to the heirs of Sempronius, here Sempronius himself takes nothing ; but, if he dies during the continuance of the particular estate, his heirs shall take as purchasers s. But, if an estate be made to A for life, remainder to his right heirs in fee, his heirs shall take by descent: for it is an antient rule of law, that wherever the ancestor takes an estate for life, the heir cannot, by the same conveyance, take an estate in fee by purchase, but only by descent11. And, if A dies before entry, still his heir shall take by descent, and not by purchase ; for, where the heir takes any thing that might have vested in the ancestor, he takes by way of descent'. The ancestor, during his life, beareth in himself all his heirs k ; and, therefore, when once he is, or might have been seised of the lands, the inheritance so limited to his heirs, vests in the ancestor himself: and the word "heirs" in this case, is not esteemed a word of purchase,b\it a word of limitation, enuring so as to increase the estate of the ancestor from a tenancy for life to a fee-simple. And, had it been otherwise, had the heir (who is uncertain till the death of the ancestor) been allowed to take as a purchaser originally nominated in the deed, as must have been the case if the remainder had been expressly limited to Matthew or Thomas by name ; then, in the times of strict feodal tenure, the lord would have been defrauded by such

e 1 Roll. Abr.'626. g 1 HoU. Abr. 627. i 1 Rep. 98.

f Salk. 241. Lord Raym. 728. h 1 Rep. 104. 2 Lev. 60. Raym. 334. k Co. Litt. 22.

tions thus devised should be equal, they should take by purchase, and not by descent; for in neither of these cases could they be parceners, and consequently not heirs. But it would seem, that if he devise the whole of his estate, to be equally divided among them, though this would formerly have made them tenants in common, yet they shall now be considered as heirs in parcenary, taking by descent, and not by purchase.

a limitation of the fruits of his signiory, arising from a descent to the heir.

What we call purchase, perquisitio, the feudists called conguest, conquaestus, or conqitisitiol: both denoting any means of acquiring an estate out of the common course of inheritance. And this is still the proper phrase in the law of Scotland m : as it was among the Norman jurists, who stiled the first purchaser (that is he who brought the estate into the family which at present owns it) the conqueror or conquereiir". Which seems to be all that was meant by the appellation which was given to William the Norman, when his manner of ascending the throne of England was, in his own and his successor's charters, and by the historians of the times, entitled conquaestus, and himself conquaestur or conquisitor ° ; signifying, that he was the first of his family who acquired the crown of England, and from whom, therefore, all future claims by descent must be derived : though now, from our disuse of the feodal sense of the word, together with the reflexion on his forcible method of acquisition', we are apt to annex the idea of victory to this name of conquest or conquisition : a title which, however just with regard to the crown, the conqueror never pretended with regard to the realm of England; nor, in fact, ever had f,

The difference, in effect, between the acquisition of an estate "by descent and by purchase, consists principally in these two points : 1. That by purchase, the estate acquires a new inheritable quality, and is descendible to the owner's blood in general, and not the blood only of some particular ancestor. For, when a man takes an estate by purchase, he takes it not utfeudumpaternum or maternumt which would descend only to the heirs by the father's or the mother's side: but he takes it utfeudum aniiquum, as a feud of indefinite antiquity ; whereby it becomes inheritable to his heirs general, first of the paternal, and then of the maternal line». 2. An estate taken by purchase will not

I Crag. J. 1. t. 10. Sec. 18. m Dalrymple of Feuds, 210.

n Gr. Coustum. Gloti. c. 25.page40. o Spelm.-Gicas. 145.

p See book I. ch. 3.

2. This distinction was abolished by the act of 1785, c. 60, but seems to have been since revived in the case of lands descending from

make the heir answerable for the acts of the ancestor, as an estate by descent will. For, if the ancestor by any deed, obligation, covenant, or the like, bincleth himself and his heirs, and dieth; this deed, obligation, or covenant, shall be binding upon the heir, so far forth only as he (or any other in trust for him«) had any estate of inheritance vested in him by descent from (or any estate pur outer vie coming to him by special occupancy, as heir tor) that ancestor, sufficient to answer the charge •; whether he remains in possession, or hath aliened it before action brought1; which sufficient estate is in the law called assets, from the. French word assess, enough u. Therefore, if a man covenants, for himself and his heirs, to keep my house in repair, I can then (and then only) compel his heir to perform this covenant, when he has an estate sufficient for this purpose, or assets, by descent from the covenantor : for though the covenant descends to the heir, whether he inherits any estate or no, it lies dormant, and is not compulsory, until he has assets by descentv 3

q Stat. 29 Car. II. c. 3. Sec. 10. s 1 P. Wms. 777. u Finch. Laws, 119.

r Ibid. Sec. 12.

t Stat. 3 and 4 W. and M. c. 14.

v Finch. Rep 86.

infants dying without issue, as was before observed, ante page1 224. And the late acts carry the feudal principle of adhering to the blood of the first purchaser, in that case, even further than the common law ;ior it matters not whether the estate came to the infant by descent or fiurc/iase, for it shall continue in the blood of the grantor, equally as if it had descended from him. V. L. 1790, c. 13. Edi. 1794, c. 93. $. 5 and 6.

3. By the act of 1789, c. 39, any creditor, by bond or other specialty, may have an action of debt upon their bonds and specialties against the heir, and heirs at law of the obligor, and also against any devisee or devisees, to whom any such obligor shall have devised any lands, whereof he was seised in fee-simple, in possession, reversion, or remainder, or have power to dispose of by his last will and testament, jointly, by virtue of that act: and such devisees shall be liable and chargeable for any false plea, in the same manner as the heir would have been. Edi. 1794, c. 51. The statute of William and Mary for the relief of creditors against fraudulent devises, from which ours i» borrowed, was declared in force in Virginia, by the act of 1726, c. 3. Edi. 1733, and again, by the act of 1748, c. 8. Edi. 1769.

This is the legal signification of the word perquisitio, or purchase ; and in this sense it includes the five following methods of acquiring a tide to estates: 1. Escheat. 2. Occupancy. 3. Prescription. 4. Forfeiture. 5. Alienation. Of all these in their order.

I. Escheat, we may remember*, was one of the fruits and consequences of feodal tenure. The word itself is originally French or Norman", in which language it signifies chance or accident ; and with us it denotes an obstruction of the course of descent, and a consequent determination of the tenure, by some unforeseen contingency: in which case the land naturally results back, by a kind of reversion, to the original grantor or lord of the fee r *.

•w See page 72.

x Escbet or ecbet, formed from the verb eteboir or echoir, to happen.

y 1 Feud. 86. Co. Litt. 13-

4. All escheats, penalties, and forfeitures, heretofore going to the king, shall go to the commonwealth, save only such as the legislature may abolish, .or otherwise provide for. C. V. Art. 20. Escheats, have not been abolished.

. If lands be granted by a private person to another, in fee simple, upon condition that the grantee, his heirs and assigns, shall pay to the grantor, his heirs and assigns, a perpetual ground rent, annually, it seems that, upon failure of heirs, of the grantee or his assigns, the lands would be subject to escheat to the grantor, his heirs, or assigns. The grants from the late lord Fairfax, and his ancestors, were of this nature. Such also, I presume, are the grants of town lots, where the proprietor reserves to himself, and his heirs, an annual ground rent. In these cases, there seems no reason to doubt, that upon a general failure of heirs of the grantees, or their assigns, the lands would escheat to the grantor or his heirs. But such a contingency is rendered so remote by our laws, that it is scarcely probable, that a case of the kind will happen twice in a century : for, by the act of 1785, c. 60, not only the heirs of a man's body, but his ancestors, and collateral relations, however remote, shall succeed to his estate, withput regard to sex, primogeniture, stock, or whole, or half blood ; and if there be no relation, in any degree, on the part of either parent, the wife or husband shall be heir ; and if the wife or husband be dead, the relations of such wife or husband shall succeed to the inheritance, however remote they may be. Thus it is scarcely .possible that any person, ex-

Escheat, therefore, being a title frequently vested in the lord by inheritance, as being the fruit of a signiory to which he was, entitled by descent, (for which reason the lands escheating shall attend the signiory, and be inheritable by such only of his heitai as are incapable of inheriting the other x) it may sefero, in such, cases, to fall more properly under the former general head of acquiring title to estates, viz, by descent, (being vested in him by act of law, and not by his own act or agreement) than under the .present, by purchase. But it must be remembered that, in. order to complete this title by escheat, it is necessary that the lord perform an act of his own, by entering on the lands and tenements so escheated, or suing out a writ of escheata: on failure of which, or by doing any act that amounts to an implied waiver

z Co. Litt. lj

a Bro. Air. tit. escheat.'.

cept a naturalized alien, who has never married, should die without heirs in this country. Edi. 1794, c. 93. $. 14.

Escheats to the commonwealth, notwiths^nding the allodial character which the tenure of lands in Virginia hath assumed, are still considered by our law as liable to happen. And it seems that the doctvine of escheats, in such cases, is founded upon this principle, that all the property in the commonwealth forms a common stock, to which the whole of the community is entitled, if there be not some one member thereof who has acquired an exclusive right thereto: and whenever there ceases to be some one member of the community possessing auch an exclusive right, the property then reverts to the common stock ; and may either be retained by the community, or granted to some other member of it. This differs from the idea of feudal supeviprity which formerly prevailed ; the commonwealth is not the superior, lord of the soil, but is regarded, strictly, as ultimus haeres, only. V. L. Edi. 1785. May 1779, c. 13. And this is, unquestionably, the only light in which escheats can, at this day, be regarded in Virginia. For, as no forfeiture, nor any corruption of blood, is wrought by the cofiviction or attainder of a person for any felony, or treason, escheats firoflter delictum lenentis are entirely abolished. They can therefore neyer happen, but where there is a real, and not an artificial failure of heirs, and those in so remote a degree as, in all probability, will bring the whole doctrine of escheats into absolute disuse. The case of an alien, (not privileged by special circumstanocs, as particular treaties with foi'eign nations) purchasing lands is an exception to this general observation, of which more particular notice will be taken in a. subsequent note. .

•of his 'right, as by accepting homage or rent of a stranger who usurps the possession, ims thle by escheat is barredb. It is therefore, in some respect, a title acquired by his own act, as Veil as by act of law. Indeed this may also be said of descents themselves, in which an entry or other seisin is required, in order to Make a complete title; and, therefore, this distribution of titles by our legal writers, into those <by descent and by purchase, seems, in this Wspect, rather inaccurate, and not marked with sufficient precision: for, as escheats must follow the nature of the signiory to which they belong, they may vest by either purchase or descent, according as the signiory is vested. And, though sir Edward Coke considers the lord by escheat as in some respects the assignee of the last tenantc, and therefore taking by purchase; yet, on the other hand, the lord is more frequently considered as being ultimus haeres, and therefore taking by descent in a kind of caducary succession.

The law of escheats is founded upon this single principle, that the blood of the person last seised in fee-simple, is by some means or other, utterly extinct and gone; and since none can inherit his estate but such as are of his blood and consanguinity, it follows as a regular consequence, that when such blood is extinct-*, the inheritance itself must fail; the land must become what the feodal writers denominateyhw^m afertum; and must result back again to the lord of the fee, by whom, or by those whose estate he hath, it was given.

Escheats are frequently divided into those propter defectum sanguinis and those propter delictum tenentis: the one sort if the tenant dies without heirs; the other, if his blood be attaintedd. But both these species may well be comprehended under the first denomination only; for he that is attainted suffers an extinction of his blood, as well as he that dies without rela-

b Bro. Abr. tit. acceptance. 25. Co. Litt. 268.

c 1 Inst. 215. d Co. Lttt. 13. 92.

5. See the preceding note. .... And here it will be proper to notice the act of 1797, c. 13, which authorises the creditors of persons •deceased leaving lands which escheat to the commonwealth, to recover their debts out of the proceeds thereof, in case of a deficfency of personal assets.

tions9. The inheritable quality is expunged in one instance, and expires in the other; or, as the doctrine of escheats is very fully expressed in Fleta', " dominus capitalis feodi loco haeredis " habetur, quoties per defectum vel delictum extinguitur sanguis tenentis."

Escheats therefore arising merely upon the deficiency of the blood, whereby the descent is impeded, their doctrine will be better illustrated by considering the several cases wherein hereditary blood may be deficient, than by any other method whatsoever.

1, 2, 3. The first three cases, wherein inheritable blood is wanting, may be collected from the rules' of descent laid down and explained in the preceding chapter, and therefore will need very little illustration or comment. First, when the tenant dies without any relations on the part of any of his ancestors ; secondly, when he dies without any relations on the part of those ancestors from whom his estate descended: thirdly, when he dies without any relations of the whole blood 7. In two of these cases the blood of the first purchaser is certainly, in the other it is probably, at an end; and therefore in all of them the law directs, that the land shall escheat to the lord of the fee: for the lord would be manifestly prejudiced, if, contrary to the inherent condition tacitly annexed to all feuds, any person should be suffered to succeed to the lands, who is not of the blood of the first feudatory, to whom for his personal merit the estate is supposed to have been granted *. ' ••

e /. 6. c. I.

* In the great case of Burgess v. Wheate, lord chancellor Northington determined contrary to the learned opinion! of lord Mansfield and of Sir Thomas Clarke master of the rolls, whose assistance he had requestd, that where a cestuy ijue trust dies without heirs, the trust does not escheat to the crown, so that the lands may be recovered in a court of equity by the king, but that the trustee shall hold them for his own benefit. 1 Bl. Sep. 123...Christian.

6. No corruption of blood shall ensue from any attainder of treason, or felony. C. U. S. Art. 3. L. U. S. 1 Cong. 2 Sess. c. 9. L. V. V 1789, c. 30. Edi. 1794, c. 74.

7. In neither of these cases can an escheat happen in Virginia, if there be any husband, or wife of the person dying, or any relation, however remote, of such husuand, or wife, if dead. V. L. 1785, c. 60. Edi. 1794, c. 93. J. 14.

4. A monster, which hath not the shape of mankind, but in any part evidently bears the resemblance of the brute creation, hath no inheritable blood, and cannot be heir to any land, albeit it be brought forth in marriage : but, although it hath deformity in any part of it's body, yet if it hath human shape, it may be heirf. This is a very antient rule in the law of England *; and it's reason is two obvious, and too shocking, to bear a minute discussion. The Roman law agrees with our own in excluding such births from successions h: yet accounts them, however, children in some respects, where the parents, or at least the father, could reap any advantage thereby'; (as the jus trium Kberorum, and the like) esteeming them the misfortune, rather than .the fault, of that parent. But our law will not admit a birth of this kind to be such an issue, as shall entitle the husband to be tenant by the curtesy k; because it is not capable of inheriting. And therefore, if there appears no other heir than such a prodigious birth, the land shall escheat to the lord.

5. Bastards are incapable of being heirs. Bastards, by our law, are such children as are not born, either in lawful wedlock, or within a competent time after it's determination'. Such are held to be nullius filii, the sons of nobody; for the maxim of law is, qui ex damnato coitu nascuntur, inter Kberos non computantur™. , Being thus the sons of nobody, they have no blood in them, at least no inheritable blood ; consequently, none of the blood of the first purchaser: and therefore, Jf there be no other claimant than'such illegitimate children, the land shall escheat to the lord". The civil law differs from oursin this point, and allows a bastard to succeed to an inheritance, if after it's birth the mother was married to the father ° : and also, if the father had

f Co. Litt. 7. 8.

g §>ui contraformam bumani generis converso more procreantur. vt ti mulier monstrosum vel prodigiosum emixa tit, inter Hbrosnon comptitentur. Portia tamen, cui nature! aliquanttilum addidtrit vel iliminuerit, vt si sex vet trmttimquatuor digitoi bakuerit, tene debet inter liberos connumernri et, si membra tint imiillia out torttiosa, nan tamen estpartus monstrosus. Bract. / 1. c. 6. t3" /. 5. tr, 5. c. 30. h Ff. 1. 5. 14. «

i Ff. SO. 16. 135. Paul 4. seat. 9. Sec. 63.

k Co. Litt. 29. 1 See book 1. ch. 16

m Co. Litt. 8. n.Finch. law. 117.

o Nov. 89. c. 8.

no lawful wife -or child, then, even if the concubine was never married to the father, yet she and herbastard son were admitted each to otic twelfth of the inheritance p : and a bastard was likewise capable of succeeding to the whole of his mother's estate, although she was never married; the mother being sufficiently Certain, though the father is not^. But our law, in favour of marriage, is much less indulgent to bastards *.

There is indeed one instance, in which our law has shewn them some little regard; and thai is usually termed the case of bastard tigne and mulier puisne. This happens when a man has a bastard son, and afterwards marries the mother, and toy her has a legitimate son, who in the language o'f the law fs called a mulier, or, as<51anvilr expresses it1 in his Latin, fKus mulieratus; the Woman before marriage being -concubina, and afterwards mulier. Now here the eldest son is bastard, or bastard eigne: and the younger son is legitimate, or mulier puisne. If then the father dies, and the bastard eigne enters upon his land, and enjoys it to his death, and dies seised thereof, whereby the inheritance descends to his issue; in this case the mulier puisne, and all other'heirs, (though minors? feme coverts,' or Under any incapacity whatsoever) are totally barred o'f their i"igh't'. And this, 1. As a punishment oh the mulier for his negligence, in not entering during the bastard's life, and eVicting him. fe. BeWtose the law will not suffer & Man to be baStardized after his death, who entered as heir and died seised, and so passed for legitimate in his lifetime. 3. Because the canon law (following the civil) did allow iuch bastard eigne to be legititnate, on the subsequent marriage of his mother i arid therefore the laws of England (though they would hot admit either the civil or canon law to rule the inheritance of this king-

J> Ibid. c. 1-2. r I. 7. c. 1.

q Cod. 6. 57. 5.

s Litt. Sec. 399. Co. Litt. 244

8. Bastards may inherit, or transmit an inheritance on the part of their mother, as if they had been lawfully begotten of such mother, and if the fa'ther of a bastard marries his mother, if he be recognized by his father, he shall thereby be legitimated. The issue of marriages deemed null in law, are not bastards, but legitimate, V. L. 1785. c 60. Edi. 1794, c. 93.104.

donx, yet) paid such a regard to a person thus peculiarly circumstanced, that, after the land had descended to his issue, they WQuld not unravel the matter again, and suffer his estate to be shaken. But this indulgence was shewn to no other kind of, bastard; for, if the mother was never married to the father, guch bastard could have no colourable title at all l.

As bastards cannot be heirs themselves, so neither can they have any heirs but those, of their own bodies. For, as all collateral kindred consists in being derived from the same common ancestor, and as a bastard has no legal ancestors, he can have no collateral kindred: and, consequently, can have no legal heirs, but such as claim by a lineal descent from himself. .... And therefore if a bastard purchases land and dies seised thereof without issue, and intestate, the land shall escheat to the lord of the fee" ».

6. Aliensv also are incapable of taking by descent, or inheriting'" : for they are not allowed to have any inheritable blood in them; rather indeed upon a principle of national or civil policy, than upon reasons strictly feodal. Though, if lands had been suffered to fall into their hands who owe no allegiance to the crown of England, the design of introducing our feuds, the defence of the kingdom, would have been defeated. Wherefore if a man leaves no other relations but aliens, his lands shall escheat to the lord.

As aliens cannot inherit, so far they are on a leval with bastards ; but as they are also disabled to hold by purchase*, they are under still greater disabilities*0. And, as they can neither

t Litt. Sec. 400. v See Book I. c. 10. •x. Co. Litt. 2.

u Bract. /. 2. c. 7. Co. Litt. 244. w Co; Litt. 8

9. Herein the law is altered. Edi. 1794, o. 93. See the last note.

10. By the act of May 1779, c. 13, it is declared, that all persons, as well foreigners, as others, shall have a right to assign or transfer warrants, or certificates of survey for lands ; and any foreigner purchasing warrants for lands may locate and have the same surveyed, and after returning a certificate of survey to the land office, shall be

hold by purchase, nor by inheritance, it is almost superfluous to say that they can have no heirs, since they can have nothing for an heir to inherit; but so it is expressly holden?, because they have not in them any inheritable blood.

And farther, if an alien be made a denizen by the king's letters patent, and then purchases lands11, (which the law allows such a one to do) his son, born before his denization, shall not (by the common law) inherit those lands ; but a son born afterwards may, even though his elder brother be living; for the father before denization, had no inheritable blood to communicate to his eldest son; but by denization it acquires an hereditary quality, which will be transmitted to his subsequent posterity Yet, if he had been naturalized by act of parliament, such eldest son might then have inherited ; for that cancels all defects, and is allowed to have a retrospective energy, which simple denization has not1.

Sir Edward Cokea also holds, that if an alien cometh into England, and there hath issue two sons, who are thereby natural-born subjects; and one of them purchases land, and dies ; yet neither of these brethren can.be heir to the other. For the commune vincu/um, or common stock of their consanguinity, is the father; and as he had no inheritable blood in him, he could communicate none to his sons; and, when the sons can by no possibility he heirs to the father, the one of them shall not be heir to the other. And this opinion of his seems founded upon solid principles of the antient law; not only from the rule before

y Co Litt. 1. Lev. 33.

zCo. Litt. 1-29,

a rinst. 8.

allowed the term of two years, either to become a citizen, or to transfer his right in such certificate of survey to some citizen of this, or any other of the United States of America. Edi. 1794, c. 86,

As to, -who shall be deemed aliens in Virginia, I must refer the student to Vol. I. part 2. Appendix note L. and appendix to this Vol. note C. '

11. The children of persons naturalized, dwelling in the United States, and being under the age of twenty-one yearsat the time of their father's being naturalized, are also naturalized. L. U. S. 1 Cong. 2 Sess. c. 3. 3 Cong. c. 85. r Cong. 1 Sess c. 28. Sec. 4.

citedb, that cestuy, que doit inheriter alpere, doit inheriter alfts ; but also because we have seen that the only feodal foundation, upon which newly purchased land can possibly descend to a brother, is the supposition and fiction of law, that it descended from some one of his ancestors: but in this case as the immediate ancestor was an alien, from whom it could by no possibility descend, this should destroy the supposition, and impede the descent, and the land should be inherited ut feuditm stricte novum ; that is, by none but the lineal descendants of the purchasing brother ; and on failure of them, should escheat to the lord of the fee. But this opinion hath been since overruled0: and it is now held for law, that the sons of an alien born here, may inherit to each other; the descent from one brother to another being an immediate descent"1. And reasonably enough upon the whole ; for, as (in common putchases) the whole of the supposed descent from indefinite ancestors is but fictitious, the law may as well suppose the requisite ancestor as suppose the requisite descent.

It is also enacted, by the statute 11 & 12 W. III. c. 6, that all persons, being natural-born subjects of the king, may inherit and make their titles by descent from any of their ancestors lineal or collateral; although their father or mother, or other ancestor, by, from, through, or under whom they derive their pedigrees, were born out of the king's allegiance12. But inconveniences were afterwards apprehended, in case persons should thereby gain a future capacity to inherit, who did not exist at the death of the person last seised. As, if Francis the elder brother of John Stiles be an alien, and Oliver the younger be a naturalborn subject, upon John's death without issue his lands will descend to Oliver the younger brother: now, if afterwards Francis has a child born in England, it was feared that, under the statute of king William, this new-born child might defeat the estate of his uncle Oliver. Wherefore it is provided, by the statute 25 Geo. II. c. 39, that no right of inheritance shall accrue by virtue of the former statute to any persons whatsoever, unless

b See p. 223 and 239. c 1 Ventr. 413. 1 Lev. 59. 1 Sid. 193.

d See p. 226.

12. V. L. 1705, c. 12. 1785, c. 60. Edi. 1794, c. 93, Accordant.

they are in being and capable to take as heirs at the death of the person last seised13: with an exception however to the case, where lands shall descend to the daughter of an alien; which descent shall be divested in favour of an after-born brother, or the inheritance shall be divided with an after-born sister or sisters, according to the usual rule d of descents by the common law(").

7. By attainder also, for treason or other felony, the blood of the person attainted is so corrupted, as to be rendered no longer inheritable".

Great care must be taken to distinguish between forfeiture of lands to the king, and this species of escheat to the lord ; which, by reason of their similitude in some circumstances, and because the crown is very frequently the immediate lord of the fee and therefore entitled to both, have been often confounded together. Forfeiture of lands, and of whatever else the offender possessed, was the doctrine of the old Saxon law', as a part of punishment for the offence; and does not at all relate to the feodal system, nor is the consequence of any signiory or lordship paramountf: but, being a prerogative vested in the crown, was neither superceded nor diminished by the introduction of the Norman tenures ; a fruit and consequence of which, escheat must undoubtedly be reckoned. Escheat therefore, operates in subordination to this more antient and superior law of forfeiture.

The doctrine'of escheat upon attainder, taken singly, is this: that the blood of the tenant, by the commission of any felony,

d See page 208 and 214. f 2 Inst. 64. Salk. 85.

e LL. Aelfred. c. 4. LL. Canut. c. 54.

13. V. L. 1785, c. 60. Edi. 1794, c. 93. Sec. 13, contains a similar provision, in all cases, except the after born children of the intestate.

(13.) See Appendix, Note C.

14. As no attainder of treason, or felony works any corruption of blood in Virginia, it seems probable that the doctrine concerning this branch of escheats will soon become obsolete here. See C. U. S. art. 3. L. U. S. 1. Con6. 2. Sess. c. 9. V. L. 1776, c. 3. Edi. 1785, 1789, c. 30. Edi. 1794, c. 74.

(under which denomination all treasons were formerly comprizeds) is corrupted and stained, and the original donation of the feud is thereby determined, it being always granted to the vasal on the implied condition of ditm bene se gesserit. Upon the thorough demonstration of which guilt, by legal attainder, the feodal covenant and mutual bond of fealty are held to be broken, the estate instantly falls back from the offender to the lord of the fee, and the inheritable quality of his blood is extinguished and blotted out for ever. In this situation the law of feodal escheat was brought into England at the conquest; and in general superadded to the antient law of forfeiture. In consequence of which corruption and extinction of hereditary blood, the land of all felons would immediately revest in the lord, but that the superior law of forfeiture intervenes, and intercepts it in it's passage: in case of treason, for ever; in case of other felony, for only a year and a day ; after which time it goes to the lord in a regular course of escheat11, as it would have done to the heir of the felon •in case the feodal tenures had never been introduced. And that this is the true operation and genuine history of escheats will most evidently appear from this incident to gavelkind lands, (which seems to be the old Saxon tenure) that they are in no case subject to escheat for felony, though they are liable to forfeiture for treason'.

As a consequence of this doctrine of escheat, all lands of inheritance immediately revesting in the lord, the wife of the felon was liable to lose her dower, till the statute 1 Edw. VI. c. 12, enacted, that albeit any person be attainted of misprision of treason, murder, or felony, yet his wife shall enjoy her dower. But she has not this indulgence where the antient law of forfeiture operates, for it is expressly provided by the statute S and 6 Edw. VI. c. 11, that the wife of one attaint of high treason shall not be endowed at all.

Hitherto we have only spoken of estates vested in the offender, at the time of his offence or attainder. And here the law of forfeiture stops; but the law of escheat pursues the matter

g 3 Inst. 15. Stat. 25 Edw. III. c. 2. Sec 12.

h 2 Inst. 36. i Somner. 53. Wright. Jen. 118.

still farther. For, the blood of the tenant being utterly corrupted and extinguished, it follows, not only that all that he now has shall escheat from him, but also that he shall be incapable of inheriting any thing for the future. This may farther illustrate the distinction between forfeiture and escheat. If therefore a father be seised in fee, and the son commits treason and is attainted, and then the father dies: here the land shall escheat to the lord; because the son, by the corruption of his blood, is incapable to be heir, and there can be no other.heir during his life: but nothing shall be forfeited to the king, for the son never had any interest in the lands to forfeitk. In this case the escheat operates, and not the forfeiture ; but in the following instance the forfeiture works, and not the escheat. As where a new felon)' is created by act of parliament, and it is provided (as .is frequently the case) that it shall not extend to corruption of blood: here the felon shall not escheat to the lord, but yet the profits of them shall be forfeited to the king for a year and a day, and so long after as the offender lives'.

There is yet a farther consequence of the corruption and extinction of hereditary blood, which is this: that the person attainted shall not only be incapable himself of inheriting, or transmitting his own property by heirship, but shall also obstruct the descent of lands or tenements to his posterity, in all cages where they are obliged to derive their title through him from any remoter ancestor. The channel, which conveyed the hereditary blood from his ancestors to him, is not only exhausted for the present, but totally dammed up and rendered impervious for the future. This is a refinement upon the antient law of feuds, which allowed that the grand-son might be heir to his grandfather, though the son in the intermediate generation was guilty of felony01. But, by the law of England, a man's blood is so universally corrupted by attainder, that his sons can neither inherit to him nor to any other ancestor n, at least on the part of their ' attainted father.

This corruption of blood cannot be absolutely removed but by authority of parliament. The king may excuse the public k Co. Litt. 13. . 13 Inst. 47. m Van Lecuwen in 2 Feud. 31. n Co. Litt. 391.

punishment of an offender; but cannot abolish the private right, which has accrued or.may accrue to individuals as a consequence of the criminal's attainder. He may remit a forfeiture, in which the interest of the crown is alone concerned: but he cannot wipe away the corruption of blood; for therein a third person hath an interest, the lord who claims by escheat15. If therefore a man hath a son, and is attainted, and afterwards pardoned by the king; this son can never inherit to his father, or father's ancestors ; because his paternal blood, being once thoroughly corrupted by his father's attainder, must continue so: but if the son had been born after the pardon, he might inherit; because by the

15. By the act of 1789, c. 30, Edi. 1794, c. 74, $. 31, it is enacted, that, whensoever any person shall happen tobe attainted, convicted, or outlawed of any treason, misprision of treason, murder,-or felony,whatsoever, there shall in no case be ^forfeiture to the commonwealth, of dower, or of lands, slaves, or personalestate,but the same shall descend and pass, in like manner as is by law directed in cases of persons dying intestate; nor shall any attainder work corruption of blood." Here we may ask, whether the lands shall descend and pass immediately upon the attainder, or not till the death of the person attainted ? By the common law, the felon is incapable of holding lands not only from the time of his attainder, but from the time of the offence committed, and the forfeiture to the crown is absolute from the time of the attainder. If this principle be still retained, is it not worthy of inquiry whether the felon's lands do not immediately pass to his heirs, upon the attainder ? For it may be argued, that it was not the intention of the law to favour the felon, but his innocent heirs ; that although the commonwealth hath in their favour, appropriated to their use by a general law, what would otherwise have vested in the public, yet the law, as it relates to the felon himself, still supposes a forfeiture to have been incurred by the attainder, the benefit of which the commonwealth hath justly assigned to those to whom the felons lands would have descended, had he died intestate, according to the course of nature. If then, it should be thought the land passes to the heirs, upon the attainder, can a pardon divest their interest, after it has once vested in them by the attainder ? These doubts were suggested, by what is here said by the commentator, as also, by what follows in the next page, and afterwards in page 290. But perhaps there is no room for any doubt upon the subject, for it seems to have been agreed, that, by the common law, after an attainder for high treason, and until office found, the freehold shall continue in the person attainted, as long as he lives. See Plowden 4S6 .... 5 Co. 52. b.

pardon the father is made a new man, and may convey new inheritable blood to his after-born children °.

Herein, there is, however, a difference between aliens and persons attainted. Of aliens, who could never by any possiblity be heirs, the law takes no notice : and, therefore, we have seen, that an alien elder brother shall not impede the descent to a natural-born younger brother. But in attainders it is otherwise : for if a man hath issue a son, and is attainted, and afterwards pardoned, and then hath issue a second son, and dies ; here the corruption of blood is not removed from the eldest, and therefore he cannot be heir: neither can the youngest be heir, for he hath an elder brother living, of whom the law takes notice, as he once had a possibility of being heir: and, therefore, the younger brother shall not inherit, but the land shall escheat to the lord : though had the elder died without issue in the life of the father, the younger son born after the pardon might well have inherited, for he hath no corruption of blood p. So if a man hath issue two sons, and the elder in the lifetime of the father hath issue, and then is attainted and executed, and afterwards the father dies, the lands of the father shall not descend to the younger son: for the issue of the elder, which had once a possibility to inherit, shall impede the descent to the younger, and the land shall escheat to the lord 1. Sir Edward Coke in this case allows r, that if the ancestor be attainted, his sons bom before the attainder may be heirs to each other; and distinguishes it from the case of an alien, because in this case the blood was inheritable when imparted to them from the father: but he makes a doubt (upon the principles before-mentioned, which are now overruled8) whether sons, born after the attainder, can inherit to each other, for they never had any inheritable blood in them.

Upon the whole, it appears, that a person attainted is neither allowed to retain his former estate (15), nor to inherit any

o Co Litt. 392. p Ibid. 8. q Dyer. 48. r Co. Litt. 8. s 1 Hal. P. C. 357.

(15), It seems to have b.een agreed, in Plowden 486, that by the common law after an attainder for high treason, and until office found, the freehold shall continue in the person attainted as long as he lives. See the last note.

future one, nor to transmit any inheritance to his issue, either immediately from himself, or mediately through himself from any remoter ancestor; for his inheritable blood, which is necessary either to hold, to take, or to transmit any feodal property, is blotted out, corrupted, and extinguished for ever: the consequence of which is, that estates thus impeded in their descent, result back and escheat to the lord.

This corruption of blood, thus arising from feodal principles, but, perhaps, extended farther than even those principles will warrant, has been long looked upon as a peculiar hardship: because the oppressive parts of the feodal tenures being now, in general, abolished, it seems unreasonable to reserve one of their most inequitable consequences; namely, that the children should not only be reduced to present poverty, (which, however severe, is sufficiently justified, upon reasons of public policy) but also be laid under future difficulties of inheritance, on account of the guilt of their ancestors. And, therefore, in most (if not all) of the new felonies created by parliament since the reign of Henry the eighth, it is declared, that they shall not extend to any corruption of blood: and by the statute 7 Ann. c. 21, (the operation of which, is postponed by the statute 17 Geo. II, c. 39), it is enacted, that, after the death of the late pretender, and his sons, no attainder for treason, shall extend to the disinheriting any heir, nor the prejudice of any person, other than the offender, himself: which provisions have, indeed, carried the remedy farther, than was required by the hardship above complained of, which is only the future obstruction of descents, where the pedigree happens to be deduced through the blood of an attainted ancestor.

Before I conclude this head, of escheat, I must mention one singular instance, in which lands held in fee-simple are not liable to escheat to the lord, even when their owner is no more, and hath left no heirs to inherit them. And this is the case of a corporation; for if that comes by any accident to be dissolved, the donor or his heirs shall have the land again in reversion18,

16. It may be worthy of inquiry how far the law, in this instance, is applicable to the case of the donative glebes and churches in Virginia, since the establishment of the commonwealth.

and not the lord by escheat j which is, perhaps, the only instance where a reversion can be expectant on a grant in fee-simple absolute. But the law we are told', doth tacitly annex a condition to every such gift or grant, that if the corporation be dissolved, the donor or grantor shall re-enter; for the cause of the gift or grant faileth. This is, indeed, founded upon the self-same principle as the law of escheat: the heirs of the donor being only substituted instead of the chief lord of the fee: .which was formerly very frequently the case in subinfeudations, or alienations of lands by a vasal to be holden as of himself: till that practice was restrained by the statute of quia emptores, 18 Edw. I, st. 1, to which this very singular instance still in some degree remains an exception.

There is one more incapacity of taking by descent, which not being productive of any escheat, is not strictly reducible to this head, and yet must not be passed over in silence. It is enacted by the statute 11 and 12 Will. III. c. 4, that every papist who shall not abjure the errors of his religion by taking the oaths to the government, and making the declaration against transubstantiation, within six months after he has attained the age of eighteen years, shall be incapable of inheriting, or taking, by descent, as well as purchase, any real estates whatsoever; and his next of kin being a protestant, shall hold them to his own use till such time as he complies with the terms imposed by the act17. This incapacity is merely personal; it affects himself only, and does not destroy the inheritable quality of his blood, so as to impede the descent to others of his kindred. In like manner as, even in the times of popery, one who entered into religion and became a monk professed was incapable of inheriting lands, both in our own" and the feodal law; eo quod desiit esse miles se-

t Co. Litt. 13.

u Ibid-132.

17. Here it is to be observed that the framers of this statute found it necessary to declare, who should have the lands, during the incapacity of the person, to whom they would have descended, according to the ordinary course of law. But our legislators seem to have paid no regard to this precedent, in framing the additional sections to the law of descents. Edi. 1794, c. 93. §• 5. 6. 7.

cull qui factus est miles Christi; nee beneficium pertinet ad eum qui non debet.gerere officium™. But yet he was accounted only civiliter mortuus ; he did not impede the descent to others, but the next heir was entided to his or his ancestor's estate.

These are the several deficiencies of hereditary blood, recognized by the law of England ; which, so often as they happen, occasion lands to escheat to the original proprietary or lord.

w 2 Feud 12.

CHAPTER THE SIXTEENTH,

OF TITLE BY OCCUPANCY.

OCCUPANCY is the taking possession of those things, which before belonged to nobody. This, as we have seen*, is the true ground and foundation of all property, or of holding those things in severally, ,whkh, by the law of nature, unqualified by that of society, were common to all mankind. But when once it was agreed that every thing capable of ownership should have an owner, natural reason suggested, that he who could first declare his intention of appropriating any thing to his own use, and, in consequence of such intention, actually took it into possession, should thereby gain the absolute property of it; according to that rule of the law of nations, recognized by the laws of Romeb, quod nullius est, id rations naturali occuj,anti conceditur.

This right of occupancy, so far as it concerns real property, (for of personal chattels I am not in this place to sp^ak) hath been confined by the laws of England within a very narrow compass ; and was extended only to a single instance: namely, where a man was tenant pur outer vie, or had an estate granted to himself .only (without mentioning his heirs) for the life of another man, and died during the life ofcestuy que vie, or him by whose life it was holden: in this case, he that could first enter on the land, might lawfully retain the possession so long as cestuij qui vie lived, by right of occupanc) c.

This seems to have been recurring to first principles, and calling in the law of nature to ascertain the property of the land, when left without a legal owner. For it did not revert to the

a See p. 3, and 8.

b ff. 41. 1. 3.

c Co. Lite. 41.

grantor, though it formerlyd was supposed so to do; fir he had parted with all his interest, so long as cestuy que vie lived: it did not escheat to the lord of the fee ; for all escheats must be of the absolute entire fee, and not of any particular estate carved out of it; much less of so minute a remnant as this: it did not belong to the grantee ; for he was dead : it did not descend to his' heirs; for there were no words of inheritance in the grant: nor could it vest in his executors; for no executors could succeed to a freehold. Belonging therefore to nobody, like the haereditas jacens of the Romans, the law left it open to be seised and appropriated by the first person that could enter upon it during the life of cestuy que vie, under the name of an occupant >. But there was no right of occupancy allowed, where the king had the reversion of the lands ; for the reversioner hath an equal right with any other man to enter upon the vacant possession, and where the king's title and a subject's concur, the king's shall be always preferred : against the king therefore 'there could be no prior occupant, because nnllum tempm occurrit regiM. And, even in the case of a subject, had the estate fur outer vie been granted to a man and his heirs during the life of cestuy que vie, there the heir might, and still may, enter and hold possession, and is called in law a special occupant ; as having a special exclusive right, by the terms of the original grant, to enter upon and occupy this haereditas jacens, during the residue of the estate granted: though some have thought him so called with no very great propriety e; and that such estate is rather a descendible freehold. But the title of common occupancy is now reduced almost to nothing by two statutes: the one, 29 Car. II, c. 3, which enacts (according to the antient rule of law f) that where there is no special occupant, in whom the estate may vest, the tenant pur aufer vie may devise it by will, or it shall go to the executors or administra-

d Bract. /. 2. c. 9. /. 4. tr. 3. c. 9. §. 4. Flet. /. 3. c 12. §. 6. /. 5 c. 5. §. 1 j. ddCo. Litt.41. eVaugh, 201. f Bract, ihiif. Flet. luid.

1. It may become a question, whether the omission of the legislature, in declaring to whom the lands of an infant dying without issue, shall in certain cases descend, may not lay the foundation for the right of common occupancy in such cases, where any person whatsoever can obtain the possession .... Sep Appendix nole B.

tors and be assets in their hands for payment of debts: the other that of 14 Geo. II, c. 20, which enacts, that the surplus of such estate pur outer vie^ after payment of debts, shall go in a course of distribution like a chattel interest2.

2. The act of 1785, c. 61. Edi. 1794, c. 92. J. 54, agrees with these statutes. A question has lately occurred whether an estate fiur outer vie were devisable in Virginia before the revolution j the decision of which will probably put an end to the general question, how far acts of the parliament of Great Britain, posterior to the fourth year of James the first, extended to the Colonies, although they were not named therein. This subject was shortly touched upon in the last part of note F. Appendix to Vol. L It may not be improper in this place, to say some thing more on the subject.

The general assembly of Virginia, was constituted by letters patent, of March 9, 1607, with the power of establishing laws, and forms of government and magistracy, obligatory, not only within the colony, but also on the seas, in going to and from it*. We have formerly shewn (Appendix to Vol. I. Note E.) that our forefathers migrating to this new country, brought with them all the laws of the parent state which were applicable to their new condition and circumstances :.'tha grant of a legislature, with powers as extensive as those abovementioned, necessarily gave to the colonists a right of judging for themselves, exclusively, as to all laws which might be in future proposed for their own internal convenience ; for, although it should be conceded that they could not make laws contrary to the laws and statutes of England, at the lime of their migration hither ; it does not seem to follow, that when those laws were changed in England, they must also be supposed to have undergone the same change in the colonies; or, that when any new law was made in England, the same law should instantly acquire obligation in the colonies, who then had legislatures of their own. The assembly of Virginia, indeed, in the year 1661, declared, " that they, had endeavoured, in all things, as near as the capacity and constitution of this country would admit, to adhere to those excellent and often refined laws of England, to which they professed and acknowledged all reverence and obedience; and that the laws made by them, were intended by them, but as brief memorials of that which live capacity of the colonial courts was utterly unable to collect out of it's vast volumes, though sometimes perhaps from the difference of condition varying in small things, but far from the presumption of contradicting any thing therein contained." Edi. 1769, p. 1; but still this recognition, it would seem, can only be construed as referring to antecedent laws, and not to such as might thereafter be made. This construction seems to be favoured by the prac-* Jefferson's Notes, Paris Edi. p. 197,240.

By these two statutes the title of common occupancy is utterly extinct and abolished: though that of special occupancy, by the heir at law, continues to this day; such heir being held to succeed to the ancestor's estate, not by descent, for then he must

tice which from time to time prevailed in the legislature, of passing acts upon the same subject as later statutes, either in perfect conformity thereto, or with some variation. The act for distribution of intestates estates, passed in 1705, c. 7, is, in part, a transcript from the statutes of 22 and 23. Car. 2. c. 10, and 1 Ja. 2. c. 17, but with one or more material variations, vi. fiost p. 515, 516, notes 46, and 47. The statute passed in the reign of William and Mary, for relief of creditors against fraudulent devises, was, by an act of assembly, which recites the title only, declared to be in force in Virginia, in the year 1726*. The acts of 1705, c. 8, and of 1748, c. 1, and c. 5, for limitation of actions, Etc. are, in many respects a transcript, with here and there a variation, from the statutes of 21 Jas. 1. c. 16. .... 22 and 23 Car. 2. c .... and 8, and 9 of W. 3. c. 10, and 11. and statute 4 Ann. c. 16. The act of 1748, c. 2, concerning orphans, is nearly a transcript from the stat. 12. Car. 2. c. 24. The act of the same session, c. 3, concerning wills, differs in nothing from the stat. 29. Car. 2. c. 3. $. 5. &c. except that it requires fewer witnesses to a will of lands in Virginia, than the English statute requires : now the words of that statute positively require three witnesses to a will of lands, declaring all wills of lands which shall not be so attested null and void. The act of the Virginia legislature, on the contrary, is satisfied by two witnesses only. Here, then, the statute, and act of assembly, are in direct opposition. If the statute of the British parliament was in force here, it would seem, that it required an act of equal authority to repeal it. Could the colonial legislature be deemed to possess that authority, whilst the parliament of Britain also possessed it ? If the legislature of Virginia did not possess the exclusive power of making laws for the colony, conformably to the authority given by their charter, all the laws made here, which were contradictory to the general principles of an English statute, though posterior to the establishment of the colonial legislature, may be considered as null and void. What then must be the situation of estates of lands in this country, all of which were probably passed by

* The following remarkable clause occurs in the act for establishing the general court, 1705, c. 19. Edi. 1733. " Provided always .that the people commonly called Quakers shall have the same liberty of giving their evidence by way of solemn ailirniatiou, as is prescribed In one act of parliament, septiinoet octavo Guiielmi tertiiregis, entitled an act, " that the solemn affirmation and declaration of the people called Quakers shall be accepted in the usual form ;" which said act of parliamentyjrso much thereof as relates to such affirmation, and for the time of it's continuance in force, anil not cltcraiiie, SH ail be to all iiitents and purposes, mf.illforce in this dominion."

take an estate of inheritance, but as an occupant specially marked out and appointed by the original grant. But, as before the statutes there could no common occupancy be had of incorporeal hereditaments, as of rents, tithes, advowsons, commons, or the like &, (because, with respect to them, there could be no actual entry made, or corporal seisin had; and therefore by the death of the grantee pur outer vie a grant of such hereditaments was entirely determined) so now, I apprehend, notwithstanding these statutes, such grant would be determined likewise ; and the hereditaments would not be deviseable, nor vest in the executors, nor go in a course of distribution #. For these statutes g Co. Litt 41. Vaugh. 201.

* But, by the lord keeper Harcourt, in the case of Rawlin»on v. the dutches of Montague and others, (3 P. Will. 264. in the notes) as to rents, We. granted /wr outer vie, the statute of frauds and perjuries has made an alteration ; for, by that statute, any estate fmrauter vie is made deviseable ; and if not devised away, shall be assets in the hands of the heir, if limited to the heir ; if not limited to the heir, it shall go to the executors or administrators of the grantees, and be .assets in their hands. So that, if since that statute a rent be granted to A for the life of B, and A die living B, A's executors or administrators shall have it during the life of B; for the statute is not only made to prevent the inconvenience of scrambling for estates, and getting the first possession after the death of the grantee, but likewise for preserving and continuing the estate during the life of the centuy aue vie ; and it is reasonable, since the grantee might by deed have disposed of the rent during the life of the cesiuy que vie, that, though by his dying without having made any such disposition, in nicety of law this estate would have determined, yet, by the statute, that interest which passed from the grantor ought to be preserved, and shall go to the executors or administrators of the grantee, during the life of the cestuy guc vie. And the statute, in this case, does not inlargc, but only preserve the estate of the grantee. The law of Virginia p785, c. 61. Edi. IT'94, c. 92. Sec, 54.J agrees '.oitli this statute. The law took effect, January \, 1787.

devise since the commencement of the act of 1748, concerning wills ? On the other hand it is contended, that all the general laws of the British parliament made in aid of the common law, were, until the revolution, regarded as in force here, except where a positive local law,

must not be construed so as to create any new estate, or keep that alive which by the common law was determined, and thereby to defer the grantor's reversion ; but merely to dispose of an interest in bting, to which by law there was no owner, and which therefore was left open to the first occupant. When there is a residue.left, the statutes give it to the executors and administrators, instead of the first occupant; but they will not create a residue, on purpose to give it to eitherh. They only meant to provide an appointed instead of a casual, a certain instead of an uncertain, owner of lands which before were nobody's; and thereby to supply this casus omissus, and render the disposition of law in all respects entirely uniform: this being the only instance wherein a title to a real estate could ever be acquired by occupancy.

This, I say, was the only instance : for I think there can be no other case devised, wherein there is not some owner of the land appointed by the law. In the case of a sole corporation, as a parson of a church, when he dies or resigns, though there is no

h But see now the statute 5 Geo. III, c. 17, which makes leases for one, two or three lives by ecclesiastical persons or any eMinosynarj corporation of tithes or other incorporeal hereditaments, as good and effectual to alliiiteiits and purposes as leases of corporeal possessions.

to which the royal assent was given, was, upon local considerations, admitted to have altered the statute.

In opposition to this latter opinion we are told that the rule in our courts of judicature, was, that the common law of England, and the general statutes/frnwioas to the 4th of James were in force here; but th.it no sub sequent statutes were, unless we were named in them .... Jefferson's Notes, 240. The convention which established the constitution of Virginia, in 1776, declared that the common law of England, and all statute^ or acts of parliament, made in aid of the common law, prior to the fourth year of the reign of James the first, which are of a general nature,not local to that kiugdom,sofar as-tlie same may consist with the laws of the colony, shall be considered as in full force, until altered l>y the legislature. No notice is taken of acts of parliament subsequent to the peri.;d aboveinentior.ed, which seems to imply that they were not then deemed to be in force here. Upon these grounds I have invariably, in the course of these notes, supposed il right to mark all statutes subsequent to the fourth of James, as not in force in Virginia, unless express.!/ adopted by a lebislative act of the colonial assembly.

actual owner of the land till a successor be appointed, yet there is a legal, potential ownership, subsisting in contemplation of law; and when the successor is appointed, his appointment shall have a retrospect and relation backwards, so as to entitle him to all the profits from the instant that the vacancy commenced. And, in all other instances, when the tenant dies intestate, and no other owner of the lands is to be found in the common course of descents, there the law vests an ownership in the king, or in the subordinate lord of the fee, by escheat.

So also in some cases, where the laws of other nations give a right by occupancy, as in lands newly created, by the rising of an island in the sea or in a river, or by the alluvion or derelic? tion of the waters ; in these instances the law of England assigns them an immediate owner. For Bracton tells us *, that if an island arise in the middle of a river, it belongs in common to those who have lands on each side thereof; but if it be nearer to one bank than the other, it belongs only to him who is proprietor of the nearest shore: which is agreeable to, and probably copied from, the civil law k. Yet this seems only to be reasonable, where the soil of the river is equally divided between the owners of the opposite shores: for if the whole soil is the freehold of any one man, as it usually is whenever a several fishery is claimed ', there it seems just (and so is the constant practice) that the eyotts or little islands, arising in any part of the river, shall be the property of him who owneth the piscary and the soil. However, in case a new island rise in the sea, though the civil law gives it to the first occupantm, yet ours gives it to the king". And as to lands gained from the sea, either by alluvion, by the washing up of sand and earth, so as in time to make terra jirma; or by dereliction, as when the sea shrinks back below the usual watermark; in these cases the law is held to be, that if this gain be by little and little, by small and imperceptible degrees, it shall go to the owner of the land adjoining °. For de ninimis non curat lex : and, besides these owners, being often losers by the breaking in of the sea, or at charges to keep it out,

i /. 2. c. 2. . k Inst. 2, 1, 22. 1 Sulk. 637. See page 39. m last. 2,1,18. n Bract. 1.2. c. 2. Callis of sewers, 22. » 2 Roll. Abr. 170. Dyer, 326.

this possible gain is therefore a reciprocal consideration for such possible charge or loss. But, if the alluvion or dereliction be sudden and considerable, in this case it belongs to'the king; for, as the king is lord of the sea, and so owner of the soil while it is covered with water, it is' but reasonable he should have the soil, when the water has left it dry?. So that the quantity of ground gained, and the time during which it is gaining, are what make it either the king's, or the subject's property. In the same manner, if a 'river, running between two lordships, by degrees gains upon the one, and thereby leaves the other dry ; the owner, who loses his ground thus imperceptibly, has no remedy: but if the course of the river be changed by a sudden and violent flood, or other hasty means, and thereby a man loses his ground, it is said that he shall have what the river has left in any other place, as a recompense for this sudden loss 1. And this law of alluvions and derelictions, with regard to rivers, is nearly the same in the imperial law r ; from whence indeed those our determinations seem to have been drawn and adopted: but we ourselves, as islanders, have applied them to marine increases ; and have given our sovereign the prerogative he enjoys, as well upon the , particular reasons before-mentioned, as upon this other general ground of prerogative, which was formerly remarked', that whatever hath no other owner is vested by law in the king.

p Callis. 24, 28.

r/mr. 2,1,20,21,22,23,24.

q Rid. 28.

s See Vol. I. p. 298.

CHAPTER THE SEVENTEENTH.

OF TITLE BY PRESCRIPTION.

A THIRD method of acquiring real property by purchase is that by prescription; as when a man can shew no other title to what he claims, than that he, and those under whom he claims, have immemorially used to enjoy it. Concerning customs, or immemorial usages, in general, with the several requisites and rules to be observed, in order to prove their existence and validity, we inquired at large in the preceding part of these commentaries". At present therefore I shall only, first, distinguish between custom, strictly taken, and prescription; and then shew, what sort of things may be prescribed for.

And, first, the distinction between custom and prescription is this; that custom is properly a local usage, and not annexed to any person ; such as a custom in the manor of Dale that lands shall descend to the youngest son: prescription is merely & personal usage ; as, that Sempronius, and his ancestors, or those* whose estate he hath, have used time out of mind to have such an advantage or privilege11. As for example: if there be a usage in the parish of Dale, that all the inhabitants of that parish may dance on a certain close, at all times, for their recreation; (which is held* to be a lawful usage) this is strictly a custom, for it is applied to the place in general, and not to any particular persons: but if the tenant, who is seised of the manor of Dale in fee, alleges that he and his ancestors, or all those whose estate he hath in the said manor, have used time out of mind to have common of pasture in such a close, this is properly called a prescription;

a See Vol. I. page 75, life. * 1 Lev. 176,

b Co. Litt. 113.

for this is a usage annexed to the person of fhe owner of this estate. All prescription must be either in a man and his ancestors, or in a man and those whose estate he hath d: which last is called prescribing in a que estate. And formerly a man might, by the common law, have prescribed for a right which had been enjoyed by his ancestors or predecessors at any distance of time, though his or their enjoyment of it had been suspended' for an indefinite series of years. But by the statute of limitations, 32 Hen. VIII. c. 2, it is enacted, that no person shall make any prescription by the seisin or possession of his ancestor or predecessor, unless such seisin or possession hath been within three score years next before such prescription madef.

Secondly, as to the several species of things which may, or may not, be prescribed for: we may, in the first place, observe, that nothing but incorporeal hereditaments can be claimed by prescription; as a right of way, a common, fcfc. but that no prescription can'give a title to lands, and other corporeal substances, of which more certain evidence may be had*. For a man shall not be said to prescribe, that he and his ancestors have immemorially used to hold the castle of Arundel: for this is clearly another sort of title ; a title by corporeal seisin and inheritance, which is more permanent, and therefore more capable of proof, than that of prescription. But, as to a right of way, a common, or the like, a man may be allowed to prescribe; for of these there is no corporal seisin, the enjoyment will be frequently by intervals, and therefore the right to enjoy them can depend on nothing else but immemorial usage. 2. A prescription must always be laid in him that is tenant of the fee. A tenent for life, for years, at will, or a copyholder, cannot prescribe, by reason of the imbecility of their estates'1. For, as prescription is usage beyond time of memory, it is absurd that they should pretend to prescribe for any thing, whose estates commenced within the remembrance of man. And therefore the copyholder must prescribe under cover of his lord's estate, and the tenant for life

d 4 Rep. 32. ' e Co. Litt. 113.

f This title, of prescription, was well known in the Roman law by the name of itsucafio i (Ff. 41. 3. 3 ) so called because a man, that gains'a title by prescription, may be said usu rem capeie.

5 Dr.and St. dial. 1. c. 8. Finch. 132. h 4 Rep. 31,32.

under cover of th^tenant in fee-simple. As, if tenant for life of a manor would prescribe for a right of common as appurtenant to the same, he must prescribe under cover of the tenant in fee-simple ; and must plead that John Stiles and his ancestors had immemorially used to have this right of common, appurtenant to the said manor, and that John Stiles demised the said manor, with it's appurtenances, to him the said tenant for life. 3. A prescription cannot be for a thing which cannot be raised by grant. For the law allows prescription only in supply of the loss of a grant, and therefore every prescription presupposes a grant to have existed. Thus the lord of a manor cannot prescribe to raise a tax or toll upon strangers ; for as such claim could never have been good by any grant, it shall not be good by prescription1. 4. A fourth'rule is, that what is to arise by matter of record cannot be prescribed for, but must be claimed by grant, entered on record; such as, for instance, the royal franchises of deodands, felons1 goods, and the like. These, not being forfeited till the matter on which they arise is found by the inquisition of a jury, and so made a matter of record, the forfeiture itself cannot be claimed by any inferior title. But the franchises of treasure-trove, waifs, estrays,and the like, may be claimed by prescription; for they arise from private contingencies, and not from any matter of recordk. 5. Among things incorporeal, which may be claimed by prescription, a distinction must be made with regard to the manner of prescribing; that is, whether a man shall prescribe in a que estate, or in himself and his ancestors. For, if a man prescribes in a que estate, (that is, in himself and those whose estate he holds) nothing is claimable by this prescription, but such things as are incident, appendant, or appurtenant to lands; for it would be absurd to claim any thing as the consequence, or appendix, of an estate, with which the thing claimed has no connexion : but, if he prescribes in himself and his ancestors, he may prescribe for any thing whatsoever that lies in grant; not only things that arc appurtenant, but also such as may be in gross1. Therefore a man may prescribe, that he and and those whose estate he hath in the manor of Dale, have used to hold the advowson of Dale, as appendant to that manor : but, if the advowson be a distinct inheritance, and not appendant,

il Ventr. 38f.

k Co. Litt. 114.

1 Litt. §. 183. Fincli. L. 104.

then he can only prescribe in his ancestors. So also a man may prescribe in a que estate for a common appurtenant to a manor ; but, if he would prescribe for a common in gross, he must prescribe in himself and his ancestors. 6. Lastly, we may observe, that estates gained by prescription are not, of course, descendible1 to the heirs general, like other purchased estates, but are an exception to the rule. For, properly speaking, the prescription is rather to be considered as an evidence of a former acquisition, than as an acquisition de novo: and therefore if a man prescribes for a right of way in himself and his ancestors, it will descend only to the blood of that line of ancestors in whom he so prescribes ; the prescription in this case being indeed a species of descent. But, if he prescribes for it in a que estate, it will follow the nature of that estate in which the prescription is laid, and be inheritable in the same manner, whether that were acquired by descent or purchase: for every accessory followeth the nature 'of it's principal1.

1. The student will recollect, that we have more than once had occasion to' remark that there can be no prescription, at present, in Virginia, for reasons mentioned in note 7. p. 31.

CHAPTER THE EIGHTEENTH.

OF TITLE BY FORFEITURE.

FORFEITURE is a punishment annexed bylaw to some illegal act or negligence, in die owner of lands, tenements, or hereditaments : whereby he loses all his interest therein, and they go to the party injured, as a recompence for the wrong which either he alone, or the public together with himself hath sustained.

Lands, tenements, and hereditaments, may be forfeited in variousdegrees and by various means: l.By crimes and misdemesnors. 2. By alienation contrary to law. 3. By non-presentation to a benefice, when the forfeiture is denominated a lapse. 4. By simony. 5. By non performance of conditions. 6. By waste. 7. By breach of copyhold customs. 8. By bankruptcy.

I. The foundation and justice of forfeitures for crimes and misdemesnors, and the several degrees of those forfeitures, proportioned to the several offences, have been hinted at in the preceding volume3; but will be more properly considered, and more at large in the fourth book of these commentaries. At present I shall only observe in general, that the offences which induce a forfeiture of lands and tenements to the>crown are principally the following six: 1. Treason. 2. Felony. 3 Misprision of treason. 4. Praemunire. 5. Drawing a weapon on a judge, or striking any one in the presence of the king's principal courts of justice. 6. Popish recusancy, or non-observance of certain laws enacted in restraint of papists. But at what time they severally commence, how far they extend, and how long they endure,

aVol'l page 299.

will with greater propriety be reserved as the object of our future inquiries'.

II. Lands and tenements may be forfeited by alienation, or conveying them t<? another, contrary to law. This is either alienation in mortmain, alienation to an alien t or alienation by particular tenants; in the two former of which cases the forfeiture arises from the incapacity of the alienee to take, in the latter from the incapacity of the alienor to grant.

1. Alienation In mortmain, in mortua manu, is an alienation of lands or tenements to any corporation, sole or aggregate, ecclesiastical or temporal. But these purchases having been chiefly made by religious houses, in consequence whereof, the lands became perpetually inherent in one dead hand, this hath occasioned the general appellation of mortmain to be applied to such alienationsb, and the religious houses themselves to he principally considered in forming the statutes of mortmain; in deducing the history of which statutes, it will be matter of curiosity to observe the great .address and subtle contrivance of the b See Vol. I. p. 479.

1. By the act of October 1776, c. 3, any person convicted of treason should forfeit his lands, and chattels to the commonwealth, saving to the -widows of the offenders their dower in the lands .... But the act of. 1789, c. 30, declares that there shall in no case be a forfeiture to the commonwealth of dower, or of lands, slaves or personal estate upon, conviction or attainder, of any treason, misprision of treason, murder or felony whatsoever, but the same shall descend and pass in like" manner as is by law directed in cases of persons dying intestate. V. L. Edi. 1794, c. 74. Sec. 31. See note IS p. 254.

No attainder of treason against the United States, shalKwork corruption of blood, or forfeiture, except during the life of the person attainted. C. U. 8. art. 3. But whei»(congress undertook to declare the punishment of treason, and to pass an act for the punishment of. crimes against the United States, in which act treason, murder, manslaughter, piracy, larceny, and some other crimes, when committed within the jurisdiction of the United States, were comprehended, they subjoined a clause to the act, declaring, that no conviction, or judgment for any of the offences therein mentioned, shall work corruption of blood, or any forfeiture of estate. L. U. S. 1. Cong. 2. Scss. c. 9. Sec. 24.

ecclesiastics in eluding from time to time the laws in being, and the zeal with which successive parliaments have pursued them through all their finesses: how new remedies were still the parents of new evasions; till the legislature at last, though with difficulty, hath obtained a decisive victory.

By the common law any man might dispose of his lands to any other private man at his own discretion, especially when the feodal restraints of alienation were worn away. Yet, in consequence of these it was always, and is still, necessaryc, for corporations to have a licence in mortmain from the crown, to enable them to purchase lands: for as the king is the ultimate lord of every fee, he ought not, unless by his own consent, to lose his privilege of escheats and other feodal profits, by the vesting of lands, in tenants that can never be attainted or die. And such licences, of mortmain seem to have been necessary among the $axons, above sixty years before the Norman conquestd. But, besides this general licence from the king, as lord paramount of the kingdom, it was also requisite, whenever there was a mesne or intermediate lord between the king and the alienor, to obtain his licence also, (upon the same feodal principles) for the alienation of the specific land. And if no such licence was obtained, the king or other lord might respectively enter on the lands so aliened in mortmain, as a forfeiture. The necessity of this licence from the crown was acknowledged by the constitutions of Clarendonc, in respect of advowsons, which the monks always greatly coveted, as being the groundwork of subsequent appropriations ''. Yet such were the influence and ingenuity of the clergy, that (notwithstanding this fundamental principle) we find that the largest and most considerable dotations of religious houses happened within less than two centuries after the conquest. And (when a licence could not be obtained) their contrivance seems to have been this: that, as the forfeiture for such alienations accrued in the first place to the immediate lord of the fee, the tenant who meant to alienate first conveyed his lands

c F. N. B. 121. d Selden. Jan. Angl. 1. 2. Sec. 45. . e Ecclesiac dejeuiodoniini regit nonpossttnt in pcrpctuum dari, aityttc atsensh ct conseniione If sins, c. 2. A. DllJOI. f See Vol. I, p. 346.

to the religious house, and instantly took them back again, to hold as tenant to the monastery ; which kind of instantaneous seisin was probably held not to occasion any forfeiture: and then by pretext of some other forfeiture, surrender, or escheat, the society entered into those lands in right of such their newly acquired signiory, as immediate lords of the fee. But, when these dotations began to grow numerous, it was observed that the feodal services, ordained for the defence of the kingdom, were every day visibly withdrawn ; that the circulation of landed property from man to man began to stagnate ; and that the lords were curtailed of the fruits of their signiories, their escheats, wardships, reliefs, and the like: and therefore, in order to prevent this, it was ordered by the second of king Henry III's great charters s, and afterwards by that printed in our common statute-book, that all such attempts should be void, and the land forfeited to the lord of the fee h.

But, as this prohibition extended only to religious houses, bishops and other sole corporations were not included therein; and the aggregate ecclesiastical bodies (who, sir Edward Coke observes', in this were to be commended, that they ever had of their counsel the best learned men that they could get) found many means to creep out of this statute, by buying in lands that were bonajide holden of themselves as lords of the fee, and thereby evading the forfeiture; or by taking long leases for. years, which first introduced those extensive terms, for a thousand or more years, which are now so frequent in conveyances. This produced the statute de religiosis, 7 Edw. I; which provided, that no person, religious or other whatsoever, should buy, or sell, or receive, under pretence of a gift, or term of years, or any other title whatsoever, nor should by any art or ingenuity appro-

g A. D. 1217. cap. 43. edit. Oxoii.

h jfonlicet alicuide caeterodaretenamsuamaUcuidomuireligioiae,itaquod ilium resumat tentndam de eadem darmo ; nee liceat aticuidomui rtligtosaeterrain alicujui sic accipere, quod tradat ilium ei a quo ipsain recipit tenendam: si quis autem tic cactero terram warn domtti religiosae sic deilei it, ut super toe cotmincatur, donum suun: penitus cassetur, ut terra ilia domino tuo illitis feodi incurratur. Mag. Cart. 9. Sea. III. c. 36.

i 2 Inst. 75.

priate to himself, any lands or tenements in mortmain pain that the immediate lord of the fee, or, on his default f year, the lords paramount, and, in default of all of the king, might enter thereon as a forfeiture.

This seemed to be -a sufficient security against all alien in mortmain: but as these statutes extended only to gii conveyances between the parties, the religious houses n( gan to set up a fictitious title to the land, which it was int they should have, and to bring an action to recover it agah tenant; who, by fraud and collusion made no defence, and by judgment was given for the religious house, which th covered the land by sentence of law upon a supposed pno And thus theyliad the honour of inventing those fictitious dications of right, which are since become the great assi of the kingdom; under the name of common recoveries. Bu this the statute of Westminster the second, 13 Edw. I, enacted, that in such cases a jury shall try the true right demandants or plaintiffs to the land, and if the religious or corporation be found to have it, they shall still recover s otherwise it shall be forfeited to the immediate lord of tl or else to the next lord, and finally to the king, upon the i "diate or other lord's default. And the like provision was by the succeeding chapter k, in case the tenants set up c upon their lands (the badges of knights templars and hospit in order to protect them from the feodal demands of their by virtue of the privileges of those religious and military o So careful indeed was this provident prince to prevent a ture evasions, that when the statute ofyw/'a emptores, 18 E> abolished all sub-infeudations, and gave liberty for all n alienate their lands to be holden of their next immediate a proviso was insertedm that this should not extend to : rize any kind of alienation in mortmain. And when after the method of obtaining the king's licence by writ of at damnum was marked out, by the statute 27 Edw. I. st. 2, i farther provided by statute 34 Edw. I. st. 3, that no such li should be effectual, without the consent of the mesne or

Yet still it was found difficult to set bounds to ecclesiastical ingenuity: for when they were driven out of all their former holds, they devised a new method of conveyance, by which the lands were granted, not to themselves directly,- but to nominal feoffees to the use of the religious houses; thus distinguishing between the possession and the use, and receiving the actual profits, while the seisin of the lands remained in the nominal feoflee; w,ho was held by the courts of equity (then under the direction of the clergy) to be bound in conscience to account to his cestuy que use for the rents and emoluments of the estate. And it is to these inventions that our practisers are indebted for the introduction of uses and trusts, the foundation of modern conveyancing. But, unfortunately for the inventors themselves, they did not long enjoy the advantage of their new device ; for the statute 15 Ric. II. c. 5, enacts that the lands which had been so purchased to uses should be amortised by licence from the crown, or'else be sold to private persons; and that for the future, uses shall be subject to the statutes of mortmain, and forfeitable like the lands themselves. And whereas the statutes had been eluded by purchasing large tracts of land, adjoining to'churches, and consecrating them by the name of church-yards, such subtile imagination is also declared to be within the compass of the statutes of mortmain. And civil or lay corporations, as well as ecclesiastical, are also declared to be within the mischief, and of course within the remedy provided by those' salutary .laws. And lastly, as during the times of popery, lands were frequently given to superstitious uses, though not to any corporate bodies; or were made liable in the hands of heirs and devisees to the charge of obits, chaunteries, and the like, which were equally pernicious in a well-governed state as actual alienations in mortmain ; therefore at the dawn of the reformation, the statute 23 Hen. VIII. c. 10, declares, that all future grants of lands for any of the purposes aforesaid, if granted for any longer term than twenty years, shall be void.

But, during all this time, it was in the power of the crown, by granting a licence of mortmain, to remit the forfeiture, so far as related to it's own rights; and to enable any spiritual or other corporation to purchase and hold any lands Or tenements in per-

petuity; which prerogative is declared and confirmed by the statute 18 Edw. III. st. 3. c. 3. But, as doubts were conceived at the time of the revolution how far such licence was valid", since the kings had no power to dispense with the statutes of mortmain by a clause of non obstante0, which was the usual course, though it seems to have been unnecessary p : and as, by the gradual declension of mesne signiories through the long operation of the statute of quia emptores, the rights of intermediate lords were reduced to a very small compass ; it was, therefore, provided by the statute 7' and 8 W. III. c. 37, that the crown for the future at its own discretion may grant licences to aliene or take jn mortmain, of whomsoever the tenements may be holden.

After the dissolution of monasteries under Henry VIII, though the policy of the next popish successor affected to grant a security to the possessors of abbey lands, yet, in order to regain so much of them as either the zeal or timidity of tfyeir owners, might induce them to part with: the statutes of mortmain were suspended for twenty years by the statute 1 & 2 P. and M. c. 8, and, during that time, any lands or tenements were allowed to be granted to any spiritual corporation without any licence, whatsoever. And, long afterwards, for a much better purpose, the augmentation of poor livings, it was enacted by the statute 17 Car. II, c, 3, that appropriates may annex the great tithes to the vicarages ; and that all benefices under 100/. per annum may be augmented by the purchase of lands, without licence of mortmain in either case; and the like provision hath been since made, in favour of the governors of queen Anne's bounty ^. It hath also been held r, that the statute 23 Hen. VIII, before-mentioned did not extend to any thing but superstitious uses; and that, therefore, a man may give lands for the maintenance of a school, an hospital, or any other charitablei uses. But as it was apprehended from recent experience, that persons on their ' death-beds might make large and improvident dispositions even for these good purposes, and defeat the political end of the sta-

n 2 Hawk. P. C 391, p Co. Litt. 99, r 1 Rep. 24.

o Stat. 1 W. & M. st. 2, c. 2. q Stat 2, & 3 Ann. c. 11.

tutes of mortmain; it is, therefore, enacted by the statute 9 Geo. II, c. 36, that no lands or tenements, or money to be laid out thereon, shall be given for, or charged with, any charitable uses, whatsoever, unless by deed indented, executed in the presence of two witnesses, twelve calendar months before the death of the donor, and enrolled in the court of chancery within six months after it's execution, (except stocks in the public funds, which may be transferred within six months previous to the donor's death) and unless such gift be made to take effect.immediately, and be without power of revocation: and that all other gifts shall be void. The two universities, their colleges, and the scholars upon the foundation of the colleges of Eton, Winchester, and Westminster, are excepted out of this act: but such exemption was granted with this proviso, that no college shall be at liberty to purchase more advowsons, than are equal in number to one moiety of the fellows or students, upon the respective foundations ».

2. Secondly, alienatio'n to an alien, is also a cause of forfeiture to the crown of the lands so alienated: not only on account of his incapacity to hold them, which occasions him to be passed by, in descents of land', but likewise on account of his presumption in attempting, by an act of his own, to acquire any real property; as was observed in the preceding volume*3.

i

3. Lastly, alienations by particular tenants, when they are

greater than the law entitles them to make, and devest the remainder 6K reversion v, are also forfeitures to him whose right is attacked thereby. As, if tenant for his own life alienes by feoffment or fine for the life of another, or in tail, or in fee ; these being estates, which either must or may last longer than

s See page 249, 250. t Book I, page 372. v Co. Litt. 251.

2. By the repeal of all British statutes, in Virginia, V. L. Edi. 1794, c. 147, it would seem that gifts to a corporation, of lands, now remain as at the common law, before the making of the statutes of mortmain herein noticed by the commentator.

3. See Volume I, Appendix Note L. ante p. 249, note 10, and p. 251, note 13, and the notes in the Appendix to this Volume, there referred to.

his own, the creating them is not only beyond his power and inconsistent with the nature of his interest, but is also a forfeiture of his1 own particular estate to him in remainder or reversion u. For which there seem to be two reasons. First, because such alienation amounts to a renunciation of the feodal connexion and dependence ; it implies a refusal to perform the due renders and services to the lord of the fee, of which fealty is constantly one; and it tends in it's consequence to defeat and devest the remainder or reversion expectant: as, therefore, that is put in jeopardy, by such act of the particular tenant, it is but just that, upon discovery, the particular estate should be forfeited and taken from him,, who has shewn so manifest an inclination to make an improper use of it. The other reason is, because the particular tenant, by granting a larger estate than his own, has by his own act determined and put an entire end to his own original interest; and on such determination the next taker is entitled to enter regularly, as in his remainder or reversion. The same law, which is thus laid.down with regard to tenants for life, holds also with respect to all tenants of the mere freehold or of chattel interests4; but if tenant in tail alienes in fee, this is no immediate forfeiture to the remainder-man, but a mere discontinuance (as it is called*) of the estate-tail, which the issue may afterwards avoid by due course of law x: for he in remainder or reversion hath only a very remote'and barely possible interest therein, until the issue in tail is extinct. But, in case of such forfeitures by particular tenants, all legal estates by them before created, as if tenant for twenty years grants a lease for fifteen, and all charges by him lawfully made on the lands, shall be good and available in law *. For the law will not hurt an innocent

u Litt. Sec. 415. w See Book III, c. 10. x Litt. Sec. 595, 6,7. y Col Litt. 233.

4. The act of 1785, c. 67, declares, that all alienations and warranties of lands, made by any purporting to pass, or assure a greater right, or estate than such person may lawfully pass or assure, shall operate as alienations or warranties of so much of the right and estate in such lands, as such person might lawfully convey : but shall not pass' or bar the residue of the said right, or estate, purported to be conveyed or assured. L. V. Edi. 1794, c. 13.

How far this act may have changed the law in respect to forfeiture in such cases, has not yet, I believe, been judicially decided.

lessee for the fault of his lessor; nor permit the lessor, after he has granted a good and lawful estate, by his own act to avoid it, and defeat the interest which he himself has created.

Equivalent, both in it's nature and it's consequences, to an illegal alienation by the particular tenant, is the civil crime of disclaimer; as where a tenant, who holds of any lord, neglects to render hi,m the due services, and, upon an action brought to recover them, disclaims to hold of his lord. Which disclaimer of tenure in any court of record is a forfeiture of the lands to the lord z, upon reasons most apparantly feodal. And so likewise, if in any court of record the particular tenant does any act which 'amounts to a virtual disclaimer j if he claims any greater estate than was granted him at the first infeodation, or takes upon himself those rights which belong only to tenants of a superior class *; if he affirms the reversion to be in a stranger, by accepting his fine, attorning as his tenant, collusive pleading, and the like b; such behaviour amounts to a forfeiture of his particular estate.

III. Lapse is a species of forfeiture, whereby the <right of presentation to a cKurch accrues to the ordinary by* neglect of the patron to present, -to the metropolitan by neglect of the ordinary, and to the ling by neglect of the metropolitan. For -it being for the interest of religion, and the good of the public, that the church should be provided with an officiating minister, the law has therefore given this right of lapse, in order to quicken, the patron; who-might otherwise, by suffering the church to remain vacant, avoid paying his ecclesiastical dues, and frustrate the pious intentions of his ancestors. This right of lapse was first established about the time (though not by the authorityc) Of the council of Lateran d, which was in the reign of our Henry •the second, when the bishops first began to exercise universally the right of institution to churchese. And therefore, where there is no right of institution, there is no right of lapse: so that no donative can lapse to the ordinary f, unless it hath been aug-

z Finch. 270, 271. a Co. Litt. 252.

b Co. Litt. 253. c 2 Roll. Abr. 330. pi. 10.

d Bracton. /. 4. tr. 2. c. 3. e See page 23.

f Bro. Akr. tit §>uar. Imped. 3 Cro. Jac. '518.

mented by the queen's bounty e. But no right of lapse can,accrue, when the original presentation is in the crown h.

The term, in which the title to present by lapse accrues from the one to the other successively, is six calender months'; (following in this case the computation of the church, and not the usual one of the common law) and this exclusive of the day of the avoidance k. But, if the bishop be both patron and ordinary, he shall not have a double time allowed him to collate in'; for the forfeiture accrues by law, whenever the negligence has continued six months in the same person. And also if the bishop doth .not collate his own clerk immediately to the living, and the patron presents, though after the six months are lapsed, yet his .presentation is good, and the bishop is bound to institute the patron's clerk m. For as. the law only gives the bishop this title by lapse, to punish the patron's negligence, there is no reason that, if the bishop .himself be guilty of equal or greater negligence, the patron should be deprived of his turn. If the bishop suffer the presentation to lapse to the metropolitan,the patron also has the same advantage if he presents before the arch-bishop has filled up the benefice; and that for the same reason/ Yet the ordinary cannot, after lapse to the metropolitan, collate his pwn clerk to the prejudice of the arch-bishop *. , For he had no permanent right and interst in the advowson, as the patron hath, but merely a temporary one; which having neglected to make use of, during the time, he cannot afterwards retrieve it. 'But if the presentation lapses to the king, prerogative here intervenes and makes a difference ; and the patron shall never recover his right till the king has satisfied his turn by presentation: for nullum tempus occurrit regi °. And therefore it may seem, as if the church might continue void for ever, unless the king shall be pleased to present;-and a patron thereby be absolutely defeated of his advowson. But to prevent this inconvenience, the law has lodged a power in the patron's hands, of as it were

g St. 1 Geo. I, st. 2. c. 10.

i 6 Rep 62. Regist. 4.2.

1 Gibs. Cod, 769.

n 2 Roll. Abr. 368.

o Dr. and St. d. 2. t. 36. Cro. Car. 355.

h Stat. 17Edw. Hi c. 8.2 Inst, 273. k 2 Inst. 361. m 2 Inst. 273.

compelling the king to present. For if, during the "delay of the crown, the patron himself presents, and his clerk is instituted, the king indeed by presenting another may turn out the patron's clerk ; or after induction, may remove him by quart impedit : but if he does not, and the patron's clerk dies incumbent, or is canonically deprived, the king hath lost his right, which was only to the next or first presentation p.

In case the benefice becomes void by death, or cession •through plurality of benefices, there the patron is bound to take notice of the vacancy at his own peril; for these are matters of equal notoriety to the patron and ordinary: but in case of a vacancy by resignation, or canonical deprivation, or if a clerk presented be refused for insufficiency, these being matters of which the bishop alone is presumed to be cognizant, here the law requires him to give notice thereof to the patron, otherwise he can take no advantage by way of lapse 1. Neither shall any lapse thereby accrue to the metropolitan or to the king; for it is universally true, that neither the archbishop nor the king shall ever present by lapse, but where the immediate ordinary might have collated by lapse, within the six months,-and hath exceeded his time : for the first step or beginning faileth, et'quod non habet principium* non habet fnemr. If the bishop refuse or neglect to examine and admit the patron's clerk, without good reason assigned, or notice given, he is stiled a disturber by the law, and shall not have any title to present by lapse; for no man shall take advantage of his own wrong'. Also if the right of presentation be litigious or contested, and an action be brought against the bishop to try the title, no lapse shall incur till the question of right be decidedr *.

IV. By simony, the right of presentation to a living is forfeited and vested pro hoc vice in the crown. Simony is the cor-

p 7 Rep 28. Cro. Eliz. 44. q 4 Rep. 75. 2 Inst. 632.

t Co. Litt. 344,345. s 2 Roll. Abf. 369.

t Co. Litt. 344. J

5. This species of forfeiture is become obsolete in Virginia. Under the regal government the right of presentation to a church was declared to be in the vestry of the parish for twelve months, in which time if they did not present, the right devolved to the governor. L. V. 1748, c. 28; Edi. 1769.

ruption presentation of any one to an ecclesiastical benefice for money, gift, or reward. It is so called from the resemblance it is said to bear to the sin of Simon Magus, though the purchnsing of holy orders seems to approach nearer to his offence. It was by the canon law a very grievous crime: and is so much the more odious, because, as sir Edward Coke observes u, it is ever accompanied with perjury; for the presentee is sworn to have committed no simony. However it was not an offence punishable in a criminal way at the common laww; it being thought sufficient to leave the clerk to ecclesiastical censures. But as these did not affect the simoniacal patron, nor were efficacious enough to repel the notorious practice of the thing, divers acts of parliament have been made to restrain it by means of civil forfeitures; which the modern prevailing usage, with regard to spiritual preferments, calls aloud to be put in execution. I shall briefly consider them in this place, ,because they devest the corrupt patron of the right of presentation, and vest a new right in the crown.

By the statute 31 Eliz. c. 6, it is for avoiding of simony enacted, that if any patron for any corrupt consideration, by gift or promise, directly or indirectly, shall present or collate any person to an ecclesiastical benefice or dignity j such presentation shall be void, and the presentee be rendered incapable of ever enjoying the same benefice: and the crown shall present to it for that turn only x. Bu£ if the presentee dies, without being convicted of such simony in his'life-time, it is enacted by stat. 1 W. and M. c. 16, that the simoniacal contract shall not prejudice any other innocent patron, on pretence of lapse to the crown or otherwise. Also, by the statute 12 Ann. stat. 2. c. 12, if any person for money or profit shall procure, in his own name, or the name of any other, the next presentation to any living ecclesiastical, and shall be presented thereupon, this is declared to be a simoniacal contract; and the party is subjected to all the ecclesiastical penalties of simony, is disabled from holding the benefice, and the presentation devolves to the crown.

u 3 Inst. 156. w Moor. 564.

s For other penalties inflicted by thK statute, see book IV. ch. 4.

Upon these statutes many questions have arisen, with regard to what is, and what is not simony. And, among others, these points seem to be clearly settled: 1. That to purchase a presentation, the living being actually vacant, is open and notorious simony y; this being expressly in the face of the statute. 2. That fora clerk to bargain for the next presentation, the incumbent being sick and about to die, was simony, even before the statute of queen Anne1: and now, by that statute, to purchase', either in his own name or another's, the next presentation, and be thereupon presented at any future time to the living, is direct and palpable simony. But, 3. It is held, that for a father to purchase such a presentation, in order to provide for his son, is not simony : for the son is not concerned in the bargain, and the father is by nature bound to make a provision for him a. 4. That if a simoniacal contract be made with the patron, the clerk not being privy thereto, the presentation for that turn shall indeed devolve to the crown, as a punishment of the guilty patron ; but the clerk, who is innocent, does not incur any disability or forfeiture1*. S. That bonds given to pay money to charitable uses, on receiving a presentation to a living, are not simoniacal', provided the patron or his relations be not benefited thereby d ; for this is no corrupt consideration, moving to the patron. 6. That bonds of resignation, in case of non-residence, or taking any other living, are not simoniacale; there being no corrupt consideration herein, but such only as is for the good of the public. So also bonds to resign, when the patron's son comes to canonical age, are legal; upon the reason before given, that the father is bound to provide for his son f. 7. Lastly, general bonds to resign, at the patron's request, are held to be legal 8: for they may possibly be given for one of the legal considerations before mentioned; and where there is a possibility that a transaction may be fair, the law will not suppose it iniquitous without proof. But, if the party can prove the contract to have been a corrupt one, such proof will be admitted) in order to shew the bond si-

y Cro. Eliz. 788. Moor. 914.

a Cro. Eliz. 686. Moor. 916.

c Noy. 142.

e Cro. Car. 180.

g Cro. Car. 180, Stra. 227.

7, Hob. 165.

b 3 Inst. 154. Cro.Jac.385.

d Stra. 534.

f Cro. Jac. 248, 274.

moniacal, and therefore void. Neither will the patron be suffered to make an ill use of such a general bond of resignation; as by extorting a composition for tithes, procuring an annuity for his relation, or by demanding a resignation wantonly or without good cause, such as is approved by the law; as, for the benefit of his own son, or on account of non-residence, plurality of livings, or gross immorality in the incumbenth «. '

V. The next kind of forfeitures are those by breach or non-performance of a condition annexed to the estate, either expressly by deed at it's original creation, or impliedly by law from a principle of natural reason 7. Both which we considered at large in a former chapter '.

VI. I therefore now proceed to another species of forfeiture, viz. by waste. Waste,' vastum, is a spoil or destruction in houses, gardens, trees, or other corporeal hereditaments, to the

h 1 Vcrn. 411. 1 Eqii. Cas. Abr. 86,87. Stra. 534. i See cH. 10, p. 152. -

6. Simony, as a civil offencej is unknown to the laws of Virginia.

7. See note 4, p. 154. In all the patents of land granted under the authority of the crown in Virginia, a condition was inserted that the patentee should seat and plant the land therein granted to him within three years from the date of the patent, and the act of 1710, c. 13, sect. 20. (Edi. 1733.) declared, that if any person should fail to scat and plant any lands, granted to him agreeably to such proviso, or should fail to pay the quit-rents thereon for the space of three years, tl>e person so failing should not only lose the lands granted, but those rights upon which he obtained his patent. The act of 1720, c. 3, declares, that for every three acres of land cleared, and put under a fence for pasturage ; and for every ten pounds expended in buildings or improvements, the patentee should save fifty acres. Lands forfeited for either of the above causes, might be obtained by any person petitioning the general court for the same, in the manner directed by the former act. Nearly the same provisions were re-enacted in 1748, c. 1. Edi. 1769. But the act of May 1779, c. 13, declares all reservations and conditions in the patents granted under the regal government, to be absolutely null and void ; and that no petition for lapsed lands shall be admitted or received on account of any failure or forfeiture whatsoever, since the twenty-ninth day of September, If 75. Edi. 1785, p. 98.

disherison of him that hath the remainder or reversion in fee-simple or fee-tailk.

Waste is either voluntary, which is a crime of commission, as by pulling down a house ; or it is permissive, which is a matter of omission only, as by suffering it to fall for want of necesssry reparations. Whatever does a lasting damage to the freehold or inheritance is waste1. Therefore, removing wainscot, floors, or other things once fixed to the freehold of a house, is waste017. - If a house be destroyed by tempest, lightning, or the like, which is the act of providence, it is no waste: but otherwise, if the house be burnt by the carelessness or negligence of the lessee ; though now, by the statute 6 Ann. c. 31s, no action will lie against a tenant for an accident of this kind *. Waste may also be committed in ponds, dove-houses, warrens, and the like ; by so reducing the number of the creatures therein, that there will not be sufficient for the reversioner when he comes to the inheritance ". Timber also is part of the inheritance ° (8). Such are

k Co. Litt. 53.

m 4 Rep. 64. o 4 Rep. 62.

IHetl.Sj. n Co. Litt. 53.

* But if a lessee covenants to pay rent, and to repair, with an express exception of casualties by fire, he may be obliged to pay rent during the whole term, though the premises are burnt down by accident, and never rebuilt by the lessor. 1 f. JR. 310. Nor can he be relieved by a court of equity, Anst. 687, unless perhaps the landlord has received the value of his premises by insuring, Amb. 621. And if he covenants to repair generally without any express exceptions, and the premises are burnt down, he is bound to rebuild them. 6 T. B 650 .... Christian. •

(7) The law upon this subject, as we are told by Mr. Christian in his note upon this passage, has been relaxed in England; for during the term (it hath been held) the tenant may take away chimney pieces, or wainscot, which he has put up ; but not after the term, for he would then be a trespasser. 1 Atk. 477. See, also, 3 Atk. 13, and 1 Hen. Blacks. "258 .... Christian.

8. The statute of 6 Ann. c. 31, here referred to, was never in force in Virginia, nor is there any similar provision in our laws.

(8) If, during the estate of a mere tenant for life, timber is severed by accident, or by wrong, it belongs to the first person who has a vested estate of inheritance. 3 Cox's, p. Wms. 267. 3 Wood. 400 .... C/Vn'»tian.

oak, ash, and elm in all places ; and in some particular countries, by local custom, where other trees are generally used for building, they are for that reason considered as timber; and to cut down such trees, or top them, or do any other act whereby the timber may decay, is waste p. But underwood, the tenant may cut down at any seasonable time that he pleases *; and may take sufficient estovers of common right for house-bote and cart-bote; unless restrained (which is usual) by particular covenants or exceptions r. The conversion of land from one species to another is waste. To convert wood, meadow, or pasture, into arable; to turn arable, meadow, or pasture, into woodland; or to turn arable or woodland into meadow or pasture; are, all of them waste 8. For, as sir Edward Coke observesl, it not only changes the course of husbandry, but the evidence of the estate ; when such a close,'which is conveyed and described as pasture, is found to be arable, and e converse. And the same rule is observed, for the, same .reason, with regard 'to converting one species of edifice into another, even though it is improved in it's value u. To open the land to search for mines of metal, coal, &?c. is waste; for that is a detriment to the inheritance v: but, if the pits or mines were open before, it is no waste for the tenant to continue digging them for his own use w ; for it is now become the mere annual profit of the land. These three are the general heads of waste, viz. in houses, in timber, and in land. Though, as was before said, whatever else tends to the destruction, or depreciating the value of the inheritance, is considered by the law as waste.

Let us next see, who are liable to be punished for committing waste. And, by the feodal law, feuds being originally granted for life only, we find 'that the rule was general for all vasals or feudatories.; " si vasallusfeudum dissipaverit, out instgnt " detrimento deterius fecerit, privabitur*" But, in our antient common law, the rule was by no means so large: for not only he that was seised of an estate of inheritance might do as'he

p Co. Litt. 53. r Co. Litt. 41. t 1 Inst. S3. v 5 Hep. 12. x Wright.44.

q 2 Roll. Abr. 817. s Hob. 296. u 1 Lev. 309. w Hob. 295.

pleased with it, but also waste was not punishable in any tenant, save only in three persons ; guardian in chivalry, tenant in dower, and tenant by the curtesyy; and not in tenant for life or years». And the reason of the diversity was, that the estate of the three former was created by the act of the law itself, which therefore gave a remedy against them; but tenant for life, or for years, came in by the demise and lease of the owner of the fee, and therefore he might have provided against the committing of waste by his lessee; and if he did not, it was his own default. But, in favour of the owners of the inheritance, the statutes of Marlbridge,52 Hen. III. c. 23, and of Glocester 6 Edw. I. c. 5, provided that the writ of waste shall not only lie against tenants by the law of England, (or curtesy) and those in dower, but against any farmer or other that holds in any manner for life or years. So that, for above five hundred years past, all tenants merely for life, or for any less estate, have been punishable or liable to be impeached for waste, both voluntary and permissive ; unless their leases be made, as sometimes they are, without impeachment of waste, absque impetitione vasti; that is, with a provision or protection that no man shall impetre, or sue him, for waste committed. But tenant in tail, after-possibility of issue extinct, is not impeachable for waste; because his estate was at it's creation an estate of inheritance, 'and so not within the statutes a. Neither 'does an action of waste lie for the debtor against tenant by statute, recognizance, or eleglt; because against them the debtor may set off the damages in' accountb : but it seems reasonable that it should \\efor the reversioner, expectant onthe determination of the debtor's own estate, or of these estates derived from the debtor c.

The punishment for waste committed was, by common law and the statute of Marlbridge, only single damages"1; except in the case of a guardian, who also forfeited his wardship6 by the

y It was, however, a doubt whether waste was punishable at the common law in tenant by the curtesy, Regist, 72. Bro. Abr. tit. waste. 88. 2 Inst. SOI.

z 2 Inst. 299. a Co. Litt. 27. 2 Roll. Abr. SA>, 828.

b Co. Litt. 5i. c F. N. B. 58.

4 2 Inst. 146. e Ibid. 300.

provisions of the great charter*: but the statute of Glocester directs, that the other four species of tenants shall lose and forfeit the place wherein the waste is committed, and also treble damages, to him that hath the inheritance. The expression of the statute is, "he shall forfeit the thing which he hath wasted j" and it hath been determined, that under these words the place is also included?. And if waste be done sparsim, or here and there, all over a wood, the whole wood shall be recovered; or if in several rooms of a house, the whole house shall be forfeited11; because it is impracticable for the reversioner to enjoy only the identical places wasted, when lying interspersed with the other. But if waste be done only in one end of a wood (or perhaps in one room of a house, »f that can be conveniently separated'from the rest) that part only is the locus vastatus, or thing wasted, and that only shall be forfeited to the reversioner19.

VII. A seventh species of forfeiture is that of copyhold estates by breach of the customs of the manor10. Copyhold estates are not only liable to the same forfeitures as those which are held in socage, for treason, felony, alienation, and waste; whereupon the lord may seize them without any presentment, by the homagek ; but also to peculiar forfeitures, annexed to this species of tenure, which are incurred by the breach of either the general customs of all copyholds, or the peculiar local customs of certain particular manors. And we may observe that, as these tenements were originally holden by the lowest and most abject vasals, the marks of feodal dominion continue much the strongest upon this mode of property. Most of the pffences, which occasioned a resumption of the fief by the feodal law, and were denominnledfeloniae,per quas vasallus amitteret feudum1, still continue to be causes of forfeiture in many of our modern copyholds. As,

f 9 Hen. HI. c. 4.

h Co. Litt. 54.

k 2 Ventr. 3B. Cro. Eliz. 499.

g 2 Inst. 303.

i 2 Inst. 304

1 Feud. I. 2. (.26. in calc.

9. The act concerning waste, Edi. 1794, c. 139, is pretty nearly a transcript from the English statutes, beforementioned. What shall be deemed waste, is not defined. <

10. We have more than once had occasion to remark that there are no copyholds in Virginia.

by subtraction of suit and service"1: si dominum deservire nolue* ritn : by disclaiming to hold of the lord, or swearing himself not his copyholder0 ; si dominum ejuravit, i. e. negavit se a domino feudum habere? : by neglect to be admitted tenant within a year and a dayq: si per annum et diem cessaverit in petenda investiturar: by contumacy in not appearing in court after three proclamations' ; si a domino ter citatus non comparuerit*: or by refusing, when sworn of the homage, to present the truth according to his oathu; si pares veritatem noverint, et dicant se nescire, cum sciantv. In these, and a variety of other cases, which it is impossible here to enumerate, the forfeiture does not accrue to the lord till after the offences are presented by the homage, or jury of the lord's court baron"; per laudamentumparium suorumy : or as it is more fully expressed in another place1, nemo miles adimatur de possessions sui beneficii, nisi convicta culpa, quae sit laudanda* per judicium parium suorum.

VIII. The eighth and last method, whereby lands and tenements may become forfeited, is that of bankruptcy, or the act of becoming a bankrupt: which unfortunate person may, from the several descriptions given of him in our statute law, be thus defined ; a trader, who secretes himself, or does certain other acts, tending to defraud his creditors.

Who shall be such a trader, or what acts are sufficient to denominate him a bankrupt, with the several connected consequences resulting from that unhappy situation, will be better considered in a subsequent chapter; when we shall endeavour more fully to explain it's nature, as it most immediately relates to personal goods and chattels11. I shall only here observe the

m 3Leon.l88. Dyer. 211. n Feud. I. 1.1. 21.

o Co. Copyh. Sec. 57. p Feud. 1.2. t. 34. and t. 26. Sec. 5.

q Plowd. 372. r Feud. 1.2. t. 24.

s 8 Rep. 99. Co. Copyh. Sec. 57. t Feud. 1.2..«. 22.

u Co. Copyh. Sec. 57. w Feud. I, 2. t. 58.

x Co. Copyh. Sec, 58. y Feud. I, 1. t. 21.

a Feud. I. 1. t. 22.

a i. e. arbitranda, dejinienda. Du Fresne. IV. 79.

11. Congress have power to establish uniform laws on the subject of bankruptcies throughout the United States. C. U. S. Art. 1. J. 8.

manner in which the property of lands and tenements is transferred, upon the supposition that the owner of them is clearly . and indisputably a bankrupt, and that a commission of bankrupt is awarded and issued against him.

By the statute IS Eliz. c. 7, the commissioners for that purpose, when a man is declared a bankrupt, shall have full power to dispose of all his lands and tenements, which he had in hig own right at the time when he became a bankrupt, or which shall descend or come to him at anytime afterwards, before his debts are satisfied or agreed for; and all lands and tenements which were purchased by him jointly with his wife or children to his own use, (or such interest therein as he may lawfully part with) or purchased with any other person upon secret trust for his own use; and to cause them to be appraised to their full value, and to sell the same by deed indented and inrolled, or divide them proportionably among the creditors. This statute expressly included not only free, but customary and copyhold lands: but did not extend to estates-tail, farther than for the bankrupt's life; nor to equities of redemption on a mortgaged estate, wherein the bankrupt has no legal interest, but only an equitable reversion. Whereupon the statute 21 Jac. I. c. 19, enacts, that the commissioners shall be impowered to sell or convey, by deed indented and inrolled, any lands or tenements of the bankrupt, wherein he shall be seised of an estate-tail in possession, remainder, or reversion, unless the remainder or reversion thereof shall be in the crown; and that such sale shall be good against all such issues in tail, remainder-men, and reversioners, whom the bankrupt himself might have barred by a common recovery, or other means; and that all equities of redemption upon mortgaged estates, shall be at the disposal of the commissioners ; for they shall have power to redeem the same, as the bankrupt himself might have done, and after redemption to sell them. And also, by this and a former actb, all fraudulent conveyances to defeat the intent of these statutes are declared void ; but that no purchaser

b 1 Jac. 1. c. 15.

Who may be a bankrupt, in the United States, and what acts are sufficient to denominate him such, will be shewn hereafter,.in the notes,p. 475, and 479. See L. U. S. 6 Cong. c. 19. J. 1.

banafde, for a good or valuable consideration, shall be affected by the bankrupt laws, unless the commission be sued forth within five years after the act of bankruptcy committed(n.)

By virtue of these statutes a bankrupt may lose all his real estateslt; which may at once be transferred by his commissioners to their assignees, without his participation or consent".

(11.) The act of congress directs, that the commissioners of bankruptcy as soon as they shall have declared a person a bankrupt, shall have p&wer to take into their possession all the estate real and personal of every nature and description to which the bankrupt may be entitled, either at law, or equity, (necessary wearing apparel, beds, and bedding excepted) and all his deeds, books of acounts, and papers. Sec. 5. And that they shall assign, transfer, or deliver over the same, with all muniments and evidences to the assignees, who may be chosen by the creditors. Sec. 6. That such assignments shall be good, at law or in equity against the bankrupt, and all persons claiming by, from, or under him, by any act done at, or after, committing the act of bankruptcy, with a proviso in favour of bonafide purchases, made for a valuable consideration, by any person without notice of the act of bankruptcy committed, before the issuing the commission. Ibid J. 10. The assignment is moreover a complete bar, both in law and equity, of any estate-tail which the bankrupt may be entitled to, in possession, reversion, or remainder, for the benefit of the creditors. Sec. 11. And avoids all conveyances made prior to his becoming a bankrupt, with intent to defraud creditors. Sec. 17. And, in case of mortgage of any part of the bankrupt's estate, transfers the right of redemption to the assignees, for the benefit of the creditors. Sec. 12. L. U. S. 6 Cong. 1 Sess. c. 19.

12. The statutes concerning bankruptcies seem never to have been regarded as in force in Virginia .... If they ever were they were all repealed in 1792. Edi. 1794, c. 147.

13. Under this head of forfeiture it will be proper to notice the laws by which lands are liable to be forfeited for non-payment of taxes. By the act of November 1781, c. 40, and the other revenue laws cited at the foot of this note, the sheriffs were authorised after the tenth day of June annually to collect, and receive from the persons chargeable therewith, the taxes imposed in their counties; and in case payment be not made before the first day of July annually, they might distrain the lands or slaves, goods or chattels found on the land, and in the possession of the person so indebted, or failing, notwithstanding any mortgage thereon : and if the owners should not pay the taxes due within five days, the sheriff might lawfully sell the same, or so much thereof,

as would be sufficient to discharge the taxes, giving at least four weeks notice (in the case of lands) in the public papers before any sale thereof ; which sale should be good and effectual in law against all persons whatsoever: provided, that lands should not be distreined, where other sufficient effects could be had thereon. The act of Oct. 1782, c. 8, seems to dispense with this previous step of advertising the lands in the public papers, authorising a sale after six days notice, by advertising the same at the church, or other public places in the parish on the next Sunday after five days from the time of making the distress: but in such cases the sheriff was required to sell the smallest number of acres, thaff the lowest bidder would pay the taxes for. The act of 1787, c. 42, to remedy the abuses in the manner of selling lands for the payment of public taxes, requires that all sales of lands be made upon the premises ; that no sale of lands shall be made where other sufficient property can be found ; that eight weeks notice shall be given in the gazette of the public printer, and advertised at the court-house of the county on the first day of two several courts, and proclaimed at the court-house door between the hours of twelve and four. That all such sales be conducted by the high sheriff or principal collector,,and not by deputy. That the sheriff shall give notice of the sale thirty days before, to the commissioner of the tax for the county, who shall attend; and if the land will not sell for half the value thereof, in his opinion, he shall purchase it on account of the public; but the owner might redeem it within six months by paying the taxes and charges of selling and twenty five per cent, advance thereon ; or within two years by paying double the taxes and charges; after which period the governor with the advice of council, might appoint some person to sell the land, and convey it to the purchaser ; and if any surplus should remain of the price thereof, after paying the taxes, damages, and charges of sale, the same was to be paid to the former proprietor ; all such sales, where the sheriff, collector, or any deputy, or any person in trust for either of them, is the last bidder, shall be considered as held in trust for the proprietor, who may redeem the same by paying the taxes and charges of sale, with interest and damages thereon : no commissioner was by that act authorised to purchase land to a greater amount than the taxes thereon due. Where a tenant covenants to pay the taxes, his property shall first be liable for the payment .... all the former laws were by this act repealed. The act of 1790, c. 5, repeals all laws directing the sale of lands for payment of the tax thereon, and declares, that in case the tax, on any tract of land within the commonwealth, be not paid for the space of three years, the right to such lands shall be lost, forfeited, and vested in the commonwealth ; and any person may acquire a title to the lands so forfeited, in the same manner as he might in unappropriated lands on the eastern waters, by the act of 11785, c. 42, with a proviso in favour of infants, feme coverts, and persons insane, who are allowed three years after their disabilities are re-

moved, to save their lands from forfeiture. And the sheriffs who had not completed their collections, were directed to conform to the regulations prescribed by thatact; but the act of 1791, c. 5, so far repealed this last clause as to allow sheriffs, in certain cases, to sell the lands seisedby them before the passing of the former act. Another act of the same session, c. 6, directs the manner in which lands purchased by the commissioners of the land tax, pursuant to the act of 1787, c. 42, and which were not redeemed by the former proprietors, should be sold. This act permitted the proprietor to redeem the land before the day ofcsate, by payment of the taxes and damages, and five per cent, commission to the sheriff, such sale to be made within three months after receiving the list of forfeited lands, and after two months notice, at the court house door, and such other public places in the county as the sheriff might think proper : the sheriffs were moreover authorised to convey the lands to the purchasers, or, in case of redemption, to reconvey them to the former proprietor. In the revisal of 1792, which is a transcript from the act of 1790, c. 5, the sheriff, where no distress can be had in his county, to pay the tax of any lands therein, shall return a list thereof to his county court, who shall certify the same to the auditor, with the names and places of abode of the owners of each tract, where such information can be had; and the auditor shall certify the amount to the'sheriff of the county where the owner resides, and such sheriff may distreinfor the same ; and if the taxes cannot be collected, the treasurer shall cause the names of the delinquents, the quantity of land, the situation thereof, and the taxes thereon due, to be three weeks successively published in the Virginia Gazette, and in case the taxes be not paid for the space of three years, the lands shall be forfeited, and may be taken up, and patented in like manner, as waste and unappropriated lands. Edi. 1794, c. 83. }. 34, 35, with the like saving in favour of infants, 8cc. The sessions acts of 1794, c. 21, (omitted in the republication of 1794,) declares, that no lands shall be deemed forfeited, unless the returns and notices required by the 34th section of the former act have been complied with. The act of 1795, c. 9, further provides, that persons desiring tolocate lands forfeited for non-payment of taxes, shall procure from the commissioners of the land tax, a certificate of the price at which the same stands charged, which being paid, and other requisites therein mentioned complied with, the party applying shall be entitled to a grant for the same.

For a more minute account of the various provisions in these acts, I must refer the student to the Edi. 1785. Nov. 1781, c. 40. Oct. 1"82, c. 8. Sessions acts of 1787, c. 42. 1790, c. 5. J791, c. 5, C. Edi.' 1794, c. 83. J. 34, 35, 36. Sessions acts 1794, c. 21. 1795, c. 9.

By the law of the United States, laying a direct tax within the United States, it is provided, that •when any tax assessed on land;, or

houses, shall have remained unpaid for a year, the collector of the district in which the same may be, having first advertised the same for two months in six different public places within the district, and in two gazettes of the state, if so many, one of which must bte the gazette in which the laws of such state are published by authority, if any such, •hall proceed to sell at public sale under the direction of the inspector of the survey, either the dwelling house, or so much of the land, as may be necessary to satisfy the taxes and charges thereon, not exceeding one per cent per month. But the owner, his heirs or executors may redeem the same at any time within two years from the-time of sale, upon payment or tender of payment of the tax, costs, and charges, with interest at the rate of twelve per cent, per annum, to the collector for the, time being, for the use of the purchaser, his heirs or assigns: and upon such payment, or tender of payment, such sale shall be void. And no deed shall be given in pursuance of any such'sale, until the time of redemption is expired. L. U. S. 5 Cong. c. 92. (. 13.

The same act declares, that the tax shall be a lien upon the lands, for two years after the time that the tax becomes due. Ibid. J. 8, but the act of 7 Cong. c. 12, continues the lien until the tax is collected, or the lands are sold. The same act also allows the delinquent six months after publication, to pay the tax, either to the collector of the division, or the supervisor of the district. L. U. S. 7 Cong.c. 1?.

CHAPTER THE NINETEENTH,

OF TITLE BY ALIENATION.

THE most usual and universal method of acquiring a title to real estates is that of alienation, conveyance, or purchase in it's limited sense: under which may be comprized any method wherein estates are voluntarily resigned, by one man, and accepted by another: whether that be effected by sale, gift, marriage settlement, devise, or other transmission of property by the mutual consent of the parties.

This means of taking estates, by alienation, is not of equal antiquity in the law of England with that of taking them by descent. For we may remember that, by the feodal law", a pure and genuine feud could not be transferred from one feudatory to another without the consent of the lord; lest thereby a feeble or suspicious tenant might have been substituted and imposed upon him to perform the feodel services, instead of one on whose abilities and fidelity he could depend. Neither could the feudatory then subject the land to his debts; for, if he might, the feodal restraint of alienation would have been easily frustrated and evadedb..,.. And, as he could not aliene it in his life-time, so neither could he by will defeat the succession, by devising his feud to another family j nor even alter the course of it, by imposing particular limitations, or prescribing an unusual path of descent. Nor, in short, could he aliene the estate, even with the consent of the lord, unless he had also obtained the consent of his own next apparent, or presumtive heir*. And therefore it was very usual

a See page 57.

c Co. Lilt. 94. Wright. 1C8.

b Feud. L 1 t. 27.

in antient feoffments to express, that the alienation was made by consent of the heirs of the feoffor; or sometimes for the heir apparent himself to join with thefeofforinthe grantd. And, on the other hand, as the feodal obligation was looked upon to be reciprocal, the lord could not aliene or transfer his signiory without the consent of his vasal: for it was esteemed unreasonable to subject a feudatory to a new superior, with whom he might have a deadly enmity, without his own approbation ; or even to transfer his fealty, without his being thoroughly apprized of it, that he might know with certainty to whom his renders and services were due, and be able to distinguish a lawful distress for rent from a hostile seising of his cattle by the lord of a neighbouring clane. This consent of the vasal was expressed by what was called attorning1, or professing to become the tenant of the new lord: which doctrine of attornment was afterwards extended to all lessees for life or years. For if one bought an estate with any lease for life or years standing out thereon, and the lessee or tenant refused to attorn to the purchaser, and to become his tenant, the grant or contract was in most cases void, or at least incompletee: which was also an additional clog upon alienations1.

But by degrees this feodal severity is wornoffj and experience hath shewn, that property best answers the purposes of civil life especially in commercial countries, when it's transfer and circulation are totally free and unrestrained. The road was cleared

d Madox, Format, Angl. no. 316, 319, 427.

eGilb. Ten. 75.

f The same doctrine and the same denomination prevailed in Bretagne .... possessions injurisdictionalibus won aliter-appreliendiposse, quamper attournancet et dvirances, utloqui solcnt; cum. vasallut, ejurato prioris do-mini obsequio etjide, now se Sacramento naoo item domino acquirentiobstringebatt idquejassu auctoris. D'Argentre Antiq, Comuet. Brit, apud Dufresne. i. 819, 820.

g Litt. §. 551.

1. But the law is now altered. V. L. 1785, c. 62. Edi. 1794, c. 90. \. 17, which declares that grants of rents, or reversions, or remainders, shall be good and effectual without attortxments of the tenants; but no tenant who, before notice of the grant, shall have paid the rent to the grajitor shall suffer any damage thereby.

in the first place by a law of king Henry the first, which allowed a man to sell and dispose of lands which he himself had purchaeed; for over these he was thought to have a more extensive power, than over what had been transmitted to him in a course of descent from his ancestors'1: a doctrine which is countenanced by the feodal constitutions themselves': but he was not allowed tasell the -whole of his own acquirements, so as totally to disinherit his children, any more than he was at liberty to aliene his paternal estatek. Afterwards a man seems to have been at liberty to part with all his own acquisitions, if he had previously purchased to him and his assigns by name; but, if 'his assigns were not specified in the purchase deed, he. was not empowered to aliene1: and also he might part with one-fourth of the inheritance of his ancestors without the consent of his heirm. By the great charter of Henry IIIn, no subinfeudation was permitted of part of the land, unless sufficient was left to answer the services due to the superior lord, which sufficiency was probably interpreted to ^be one half or moiety of the land0. But these restrictions were in general removed by the statute of quia emptoresf, whereby all persons, except the king's tenants in capite, were left at liberty to aliene all or any part of their lands at their own discretion1!. And even these tenants in capitevrere by the statue 1 Edw. III. c. 12, permitted to aliene, on paying a fine to the kingr. By the temporary statutes 7 Hen. VI.I. c. 3, and 3. Hen. VIII. c. 4, all persons attending the king in his wars were allowed to aliene their lands without licence, and were relieved , from other feodal burdens. And lastly, these very fines for alienations were, in all cases of freehold tenure, entirely abolished by the statute 12 Car. II. c. 24. As to the power of charging

h Emptionei vel acquisitimes mat del cui magis velit. Terram autem e/uam eiparentes detlenmt, mm mittatextra cognationem tuam, LL. Hen. I. c. 70.

i Feud. I. 2.«. 39.

k Si questum tantum taburrit is, qui partem. terrat iuac donare voluerit, tun? quidem hoc ei licet ,• teJ non totum questum, quia nonpotett Jilium tuum baeredem etcbaeredare. Glanvil./. 7. c-1.

1 Mirr. c. 1. Sec. 3 This-is also borrowed from the feodal law.&»</. /. 2. t. 48. ' m Mirr. ibid.

n 9 Hen. III. c. 32. o Dalrymple of feuds, 95.

p 18 Edw. l.c.l q See page 72, 91-

r 2 Inst. C7.

'lands with the debts of the owner, this was introduced so early as statute Westm. 2, which* subjected a moiety of the tenant's lands to executions, for debts recovered by law2: as the whole of them was likewise subjected to be pawned in a statute merchant by the statute de mercatoribus, made the same year, and in a statute staple by statute 27 Edw. III. c. 9, and in other similar recognizances by statute 23 Hen3. VIII. c. 6. And, now, the whole of them is not only subject to be pawned for the debts •of the owner, but likewise to be absolutely sold for the benefit of trade and commerce by the several statutes of bankruptcy*. The restraint of devising lands by will, except in some places by particular custom, lasted longer; that not being totally removed, till the abolition of the military tenures. The doctrine of attornments continued still later than any of the rest, and became extremely troublesome, though many methods were invented to evade them; till at last, they were made no longer necessary to complete the grant of conveyance, by statute 4 & 5 Ann/ c. 16, nor shall, by statute 11 Geo. II. c. 19, the attornment of t any tenant affect the possession of any lands, unless made with consent of the landlord, or to a mortgagee after the mortgage is forfeited, or by direction of a court of justice*.

In examining the nature of alienation, let us first inquire, briefly, who may aliene and to whom; and then, more largely, how a man may aliene, or the several modes of conveyance, s 13 Edw. I. c. 18.

2. L. V. 1726, c. 3. 1748. c 8 1794, c. 151, Accordant.

3. These statutes were never practically regarded as in force in Virginia, and are now repealed. Edi. 1794, c. 147.

• 4. These statutes seems never to have been considered as in force in Virginia ; they are now repealed. Edi. 1749, c. 147. See the note 11. p. 286.

But now by the act of 6 Cong. c. 19, they may be sold under a commission of bankruptcy. See note (11.) ante- 286.

S. Grants of rents, or of reversions, or remainders shall be good without the attornment of the tenants; but no tenant who before notice of the grant shall have paid the rent to the grantor, shall be prejudiced thereby. The attornment of a tenant to a stranger shall be void, without consent of the landlord, or pursuant to, or in consequence of the judgment, or decree of a court. V. L. 1785, c. 62. Edi. 1794, c. 90. $. 17,18.

I. Who may aliene, and to whom: or, in other words, who is capable of conveying and who of purchasing. And herein we must consider rather the incapacity, than capacity, of the several parties: for all persons in possession areprima facie capable both of conveying and purchasing, unless the law has laid them under any particular disabilities. But, if a man has only in him the right of either possession or property, he cannot convey it to any other, lest pretended titles might be granted to great men, whereby justice might be trodden down, and the weak oppressed •. Yet reversions and vested remainders may be granted; because the possession of the particular tenant is the possession of him in reversion or remainder: but contingencies, and mere possibilities, though they maybe released, or devised by will, or may pass to the heir or executor, yet cannot (it hath been said) be assigned to a stranger, unless coupled with some present interest '«.

Persons attainted of treason, felony, and praemunire, are incapable of conveying, from the time of the offence committed, provided attainder follows" r: for such conveyance by them may

b Co. Lite. 214.

t Sheppard's touchstone, 238, 239, 322,11 Mod. 152,1 P. Wifls.54, Stia. 132. - u Co. Litt. 42.

,6. No person shall convey or take, or bargain to convey or take any pretensed title to lands or tenements, unless he, or those under •whom he claims, shall have been in possession of the same, or of the reversion or remainder thereof, one whole year, next before, under penalty of forfeiting the -whole value thereof. But any person lawfully possessed of lands or tenements, or of the reversion or remainder thereof, may nevertheless take, or bargain to take the pretensed title of any other person, so far only, as it may confirm his former estate. V. L. 1786, c. 51, Edi.'1794, c. 30. This act is nearly a transcript of the statute 32 H. 8, c. 9, which is said to be an affirmance of the common law. An exposition of that statute, will be found in Co. Litt. 369, and Plowden 87,88, 89. A covenant for a valuable consider, ation to settle or convey a possibility, when it arises, will be enforced in equity. Fonbl. Treat, of Equity 202.

7. Here I must refer the student, to the question formerly hinted, p. 254, note 15, whether the lands of felons attainted, pass to their heirs immediately upon the attainder, or not till the death of the felon: and whether, in the former case, a pardon can devest the interest of the heirs, therein. The reasons for which doubt were suggested in that note.

tend to defeat the king of his forfeiture, or the lord of his escheat. But they may purchase for the benefit of the crown, or the lord of the fee, though they are disabled to hold; the lands so purchased, if after attainder, being subject to immediate forfeiture ; if before, to escheat as well as forfeiture, according to the nature of the crime Utt. So also corporations, religious or others, may purchase lands ; yet, unless they have a licence to hold in mortmain, they cannot retain such purchase; but it shall be forfeited to the lord of the fee".

Idiots and persons of nonsane memory, infants, and persons under duress, are not totally disabled either to convey or purchase, but sub modo only. For their conveyances and purchases art voidable, but not actually void. The king indeed, on behalf of an idiot, may avoid his grants or other acts *. But it hath been said, that a noh compos himself, though he be afterwards brought tov a right m'md, shall not be permitted to alledge his own insanity-in order to avoid such grant: for that no man shall be allowed to stultify himself, or ple^ad his own disability. The progress of this notion is somewhat curious. In the time of Edward I, non compos was a sufficient plea to avoid a man's own bond * : and there is a writ in the register 1 for the alienor himself to recover lands aliened by him during1 his insanity; dam fuit non compos mentis suae, ul dicit, &?<:•. But under Edward Ilia scruple began to arise, whether a man should be permitted to blemish himself, by pleading his own insanity * : and, afterwards, a defendant in assise having pleaded a release by the plaintiff since the last continuance, to which the plaintiff replied (ore terms, as the manner then was) that he was out of his mind when he gave it, the court adjourned the assise; doubting, whether as the plaintiff was sane both then and at the commencement of the suit, he should be permitted to plead an intermediate deprivation

uu Co. Lilt. 2. w Ibid. 247. x Britton, r. 28,ful. 66

yfol. 228. See also, Memorand. Scaub. 22 Eiksi. I, (prefixed to Maynaird's year book Edw. Il.)/o/. 23. z 5 Edw. III, 70.

8. Qucre, if the law herein, be not altered by the general repeal of all British statutes, in which the statutes of mortmain seem to be Unquestionably comprehended. V. L. 1794, c. 147.

of reason; and the question was asked, how he came to remember the release, if out of his senses when he gave ita. Under Henry VI, this way of reasoning (that a man shall not be allowed to disable himself, by pleading his own incapacity, because he cannot know what he did under such a situation) was seriously adopted by the judges in argumentb ; upon a question, whether the heir was barred of his right of entry by the feoffmentof his insane ancestor. And from these loose authorities, which Fitzherbert does not scruple to reject as being contrary to reason6, the maxim that a man shall not stultify himself hath been handed down as settled law d: though later opinions, feeling the inconvenience of the rule, have in many points endeavoured to restrain ite. And, clearly, the next heir, or other person interested, may, after the death of the idiot or non compos, take advantage, of his incapacity and avoid the grantf. And so too, if be purchases under this disability, and does not afterwards upon recovering his senses agree to the purchase, his heir may either waive or accept the estate at his option b. In like manner, an infant may waive such purchase or conveyance, when he comes to full age j or, if he does not then actually agree to it, his heirs may waive it after him h. Persons also, who purchase or convey under duress, may affirm or avqid such transaction, whenever the duress is ceased!. For all these are under the protection of the law; which will not suffer them to be imposed upon, through the imbecility of their present condition; so that their acts are only binding, in case they be afterwards agreed to, when such imbecility ceases. Yet the guardians or committees of a lunatic, by the statute of 11 Geo. III. c. 26, are-impowered to rene.w in his right, under the directions of the court of chancery, any lease for lives or years, and apply the profits of such renewal for the benefit of such lunayc, his heirs, or executors'.

a 35 Attis.pi. 10. b, 39 Hen. VI, 42.

c F. N. B. 202.

d Litt. Sec. 405, Cro. Eliz. 398, 4 Hep. 123, Jenk. 40.

e Comb. 469, 3 Mod. 310, 311,1 Equ. cas. Abr 279.

f Perfcms, Sec. 21. g Co. Litt. 2.

h Co. Litt. 2. i 2 Inst. 483, 5 Rep. 119.

9. The act of 1785, c. 85, Edi. 1794, c. 120, contains a simUar provision.

The case of a feme-covert is somewhat different. She may purchase an estate without the consent of her husband, and the conveyance is good during the coverture, till he avoids it by some act declaring his dissentk. And, though he does nothing to avoid it, or even if he actually consents, the feme-covert herself may, after the death of her husband, waive or disagree to the same: nay, even her heirs may waive it after her, if she dies before her husband, or if in her widowhood she does nothing to express her consent or agreementl. But the conveyance or other contract of a feme-covert (except by some matter of record) is absolutely void, and not merely voidable ™ ; and, therefore, cannot be affirmed or made good by any subsequent agreement l°. '

The case of an alien bora is also peculiar. For he may purchase any thing; but after purchase he can hold nothing except a lease for years of a house for convenience of merchandize *, in case he be an alien-friend; all other purchases (when found by an inquest of office) being immediately forfeited to the king"11.

v, Papists, lastly, and persons professing the popish religion* and neglecting to take the oath prescribed by statute 18 Geo. III, c. 60, within the time limited for that purpose, are by statute 11 and 12 W. III, c. 4, disabled to purchase any lands, rents, or hereditaments; and all estates made to their use, or in trust for them, are void0 #.

k Co. I,itt. 3. . 1 Ibid.

m Perkins, Sec. 154,1 Sid. 120. n Co. Lilt, 9.

o IP.Wms. 354.

* It seems that he has not even this exception in his favour. Harg. Co. ittt. ^...Christian

10. And even if by matter of record, and her privy examination and consent be not recorded, the conveyance shall not bind her, or her heirs. V. L. 1748, c. l .... Edi. -1794, c. 90, Sec. 7.

11. See Vol. 1. Appendix note L .... and this volume ante, p. 249. note iq. p. 251. note (13.) and the Appendix to this volume there referred to.

12. These statutes were never in force in Virginia.

•II. We are next, but principally, to inquire how a man may aliene or convey; which will lead us to consider the several modes of conveyance.

In consequence of the admission of property, or the giving a separate right by the law of society to those things which by the law of nature were in common, there was necessarily some means to be devised, whereby that separate right or exclusive property should be originally acquired ; which, we have more than once observed, was that of occupancy or first possession. But this possession, when once gained, was also necessarily to be continued; or else, upon one man's dereliction of the thing he had seised, it would again become common, and all those mischiefs and contensions would ensue, which property was introduced to prevent. For this purpose, therefore, of continuing the possession, the municipal law has established descents and alienations: the former to continue the possession in the heirs of the proprietor, after his involuntary dereliction of it by his death ; the latter to continue it in those persons, to whom the proprietor, by his own voluntary act, shall choose to relinquish it in his life-time. A translation, or transfer, of property being thus admitted by law, it became necessary that this transfer should be properly evidenced: in order to prevent disputes, either about the fact, as whether there was any transfer at all; or concerning the persons, by whom and to whom it was transferred ; or with regard to the subject matter, as what the thing transferred consisted of; or, lastly, with relation to the mode and quality of the transfer, as for what period of time (or, in other words, for what estate and interest) the conveyance was made. The legal evidences of this translation of property are called the common assurances of the kingdom; whereby every man's estate is assured to him, and all controversies, doubts, and difficulties are either prevented or removed.

These common assurances are of four kinds: 1. By matter in pais, or deed; which is an assurance transacted between two or more private persons in pats, in the country ; that is (according to the old common law) upon the very spot to be transfer-

red. 2. By matter of record, or an assurance transacted only in the king's public courts of record. 3. By special custom, obtaining in some particular places, and relating only to some particular species of property. Which three are such as take effect during the life of the party conveying or assuring. 4. The fourth takes no effect, till after his death ; and that is by devise, contained in his last will and testament. We shall treat of each in it's order.

CHAPTER THE TWENTIETH.

OF ALIENATION BY DEED.

IN treating of deeds I shall consider, first, their general nature ; and, next, the several sorts or kinds of deeds, with their respective incidents. And in explaining the former, I shall examine, first, what a deed is; secondly, it's requisites ; and, thirdly, how it may be avoided.

I. First then, a deed is a writing sealed and delivered by the parties3. It is sometimes called a charter, carta, from its materials ; but most usually, when applied to the transactions of private subjects, it is called a deed, in L>at\nfoctvm, xai' tl-oxw, because it is the most solemn and authentic act that a man can possibly perform, with relation to the disposal of his property; and therefore a man shall always be estopped by his. own deed, ^ or not permitted to aver or prove any thing in contradiction to what he has once so solemnly and deliberately avowedb. If a deed be made by more parties than one, there ought to be regularly as many copies of it as there are parties, and each should be cut or indented (formerly in acute angles instar dentium, like the teeth of a saw, but at present in a waving line) on the top or side, to tally or correspond with the other; which deed, so made, is called an indenture. Formerly, when deeds were more .concise than at present, it was usual to write both parts on the same piece of parchment, with some word or letters of the alphabet written between them ; through which the parchment was cut, either in a strait or indented line, in such a manner as to leave half the word on one -part and half on the other. Deeds thus made were denominated syngrapha by the canonistsc; and ""

a Co. Litt. 171.

b Plowcl. 434.

c L)iidc\v./. 1. /. 10. c. 1.

whh us chlrographa, or hand-writings d ; the word cirographum or cyrogropaum being usually that which is divided in making the indenture : and this custom is still preserved in making out the indentures of a fine, whereof hereafter. But at length indenting only has come into use, without cutting through any letters at all; and it seems at present to serve for little other purpose, than to give name to the species of the deed». When the several parts of an indenture are interchangeably executed by the several parties, that part or copy which is executed by the grantor is usually called the original, and the rest are counterpart.'! : though of late it is most frequent for all the parties to execute every part; which renders them all originals. A deed made by one parly only is not indented, but polled or shaved quite even; and therefore called a deed-poll, or a single deed«.

II. We are in the next place to consider the requisites of a deed. The first of which is, that there, be persons able to contract and be contracted with, for the purposes intended by the deed j ,and also a thing, or subject matter to be contracted for; all which must be expressed by sufficient names f. So as in every grant, there must be a grantor, a grantee, and athing granted : in every lease a lessor, a lessee, and a thing demised.

Secondly ; the deed must be founded upon good and sufficient consideration. Not upon ar. usurious contract*; nor upon fraud or collusion, either to deceive purchasers bona fde h, or just and lawful creditors'; any of which bad considerations

d Mirror, c. 2. Sec. 27. e Itid. Litt. Sec. 371, 372.

f Co. Litt. 35. g Stat. 13 Eliz. c. 8.

h Stat. 27 Eliz. c. 4. i Stat. 13 Eliz. c. 5.

1. The act of 1748, c. 1', requires all deeds and conveyances of land to be made in writing indented, sealed, and recorded, pursuant to that act. Quaere, -whether this renders ttje actual indenting necessary ? Sir Edward Coke says, if a deed beginning haec indentura &c. have not the parchment or paper indented, it is no indenture, for

•words can not make an indenture. Co. Litt, 229, a. .... Our courts

•would probably over-rule this distinction, in favour of a fair purchaser. Indenting is not required by our later acts, 1785, c. 62. 1794, c. 90. See, also the case of Currie v. Donald, 2. Wash. rep. 63, in which the court of appeals have decided, that actual indenting is not requisite, under the act of 1748.

will vacate the deed1, and subject such persons, as put the same inure, to forfeitures, and often to imprisonment. A deed also, or other grant, made without any consideration, is, as it were, of no effect; for it is construed to inure, or to be effectual, only to the use of the grantor himself k*. The consideration may may be either a good or a valuable one. A good consideration is such as that of blood, or of natural love and affection, when a man grants an estate to a near relation ; being founded on motives of generosity, prudence, and natural duty : a valuable consideration is such as money, marriage, or the like, which the law esteems an equivalent given for the grant' ; and is therefore founded in motives of justice. Deeds made upon good consideration only, are considered as merely voluntary, and are frequently set aside in favour of creditors, and bona fde purchasers 3.

k Perk. Sec. 533.

13 Rep. 83.

* Tlus I conceive is only true of a bargain and sale j for " herein it is said " to differ from a gift, that this may be without any consideration or cause at " all; and that hath always some meritorious cause moving it, and cannot he " without it.", Sbep. Touch. 221. But otherwise a voluntary conveyance is good both in law and equity, ff. ofEq. b. 1. c. S. s. 2. It used to be thought, if a person made a voluntary grant of lands, although he could not resume them himself, yet if he afterwards made another conveyance of them for a valuable consideration, that the first grant would be void'with regard to this purchasor under the 27 Eliz! c. 4. But it was determined by lord Mansfield and the court, that there must be some circumstance of fraud to vacate the first conveyance, the want of consideration alone not being sufficient. Cmvjt. 705. But if a person is indebted at the time of making a voluntary grant, or become so soon afterwards, it will be considered fraudulent and void with respect to creditors, under the 13 Eliz. c. 5.

•And if a person makes a voluntary grant and afterwards becomes bankrupt, whether he was indebted or not at,the time, it will be void by 1 Jac. c. 15 j and the estate granted may be conveyed by the commissioners to the assignees for the benefit of the creditors. 1 Atk. 93...C&/ istian.

2. Herewith agree our acts of 1748, c. 30. 1785, c. 64. 1786, c. 55. Edi: 1794, c. 10. 31. 1796. c. 16...to these we may add, deeds made where the consideration, or any part of it, is founded upon money won, or lost, at play, ov lent to play with, at the titne and place of playing, V. I,. 1748, c. 25. Edi. 1794, c. 96.

3. The act to prevent frauds and perjuries, Edi. 1794, c. 10, doth " not extend to any estate or interest in any lands, goods, or chattels, " or any vents, common, or profit out of the same, which shall be upon

Thirdly ; the deed must be written, or, I presume, printed, for it may be in any character or any language ; but it must be upon paper or parchment. For if it be written on stone, board, linen, leather, or the like, it is no deed01. Wood or stone may be more durable, and linen less liable to rasures; but writing on paper or parchment unites in itself, more perfectly than any other way, both those desirable qualities: for there is nothing else so durable, and at the same time so little liable to alteration ; nothing so secure from alteration, that is at the same time so durable. It must also have the regular stamps, imposed on it by the several statutes for the increase of the public revenue; else it cannot be given in evidence4. Formerly many conveyances m Co. Litt. 229. F. N. B. 12.2. •

" good consideration, and bona fide, lawfully conveyed or assured to " any person or persons, bodies politic or corporate."

The late act concerning bankrupts avoids deeds founded upon a good consideration, only, if made at, or at any time after, the act of bankruptcy committed, upon which the commission issues, L. U. S. 6Cong. c. 19. §. 10.

4. Herewith the laws of the United States, 5 Cong. c. 11, and 3T, agree, as to bonds, and some other instruments in writing ; but not as to deeds for land, &c. Quere, ought this act to be interpreted as extending its operation to the state courts ? This is a question of the utmost importance. Those who maintain the affirmative,,may be supposed to argue that congress being invested with power to impose taxes and duties, of whatsoever nature they may judge proper, they are by necessary implication, no less than by the express words of the constitution, authorised to make all laws which may be necessary and proper to carry the powers vested in them into execution : that the prohibiting unstamped papers from being offered in evidence is one necessary means to ensure the collection of the revenue, which might otherwise be defrauded by those unwilling to pay it; the execution of a bond, note, ov deed, being a matter which may be performed so secretly as to elude all the vigilance of revenue officers, who would thus be equally incapable of detecting and punishing the fraud upon the revenue. That although this act in its operationcmay affect the rules of evidence in the state courts, as well as those of the federal government, yet this extension being necessary to carry the law completely into effect,' there can be no doubt 'that congress possess the right of making it, for the reasons before given; and possessing the right, any law made by them on the subject must be the supreme law of the land, and as such binding upon the judges of the state courts, as well, as all ethers. To

were made by parol, or word of mouth only, without writing; but this giving a handle to a variety of frauds, the statute 29 Car. II. c. 3, enacts, that no lease estate or interest in lands, tenements or hereditaments, made by livery of seisin, or by pa-

To these arguments their antagonists might reply, that although congress be authorised to make all laws which may be necessary and proper for carrying into execution the powers confided to them, yet such laws, both according to the spirit, ami-tetter of the constitution must be both necessary and jirojter. Btf which is to be understood, that they must not in any case be unnecessary or improperly exercised, nor extended beyond proper and necessary limits. Congress, for example, have power to impose a tax on a man's head : would it be proper, in case of refusal to pay it, to authorise drawing the delinquent's teeth, until he should comply, as was practised by on6 of the king's of England, upon the Jews, from whom he wanted to extort money ? If congress choose to impose a tax difficult in the collection, this might be a good objection to the measure, but furnishes no reason that they should exceed their just powers, in order to surmount the difficulty. Suppose another case j that congress should think proper to impose a tax similar to that which occasioned Wat Tyler's insur- • rection in England, would they be authorised to enforce it by the same means as were attempted by the collector in that case; The mode of inquiry adopted by the collector in that casei might have been necessary to carry such an infamous tax into complete effect; but will any man contend that such means could be proper, either according to the spirit, or the letter of our constitution ? Every measure therefore must be Jirofier, as well as necessary, which shall be adopted for carrying any law into effect. Those who are disposed to elevate the powers delegated to congress by this clause to a level with British parliamentary omnipotence, would do well to recollect, that these words were meant to restrain, and not to enlarge tlie enumerated powers delegated by the constitution, and as a beacon to warn the states, and the people of an unnecessary or improper exercise of them. If then we must suppose limits to these powers, recourse must be had to sound reason and common sense to point them out, in conformity both to the spirit, and letter of the constitution. v

Taking these for our guide, it may be observed, that at the moment of adopting the constitution there was reason to apprehend, that too much scope was left for the constructive extension of the powers of the federal government in derogation of those of the state governments. To crush this pregnant evil the twelfth article of the amendments to the constitution declares, that the powers not delegated to the United States by the constitution,nor prohibited by it to the states, are reserved to the states respectively, or to the people. This was necessarily implied in the constitution itself, but the stales und the peo-

rol only, (except leases, not exceeding three years from the making, and whereon the reserved rent is at least two-thirds of the real value) shall be looked upon as of greater force than a lease or estate at will; nor shall any assignment, grant, or surrender of any interest in any freehold hereditaments be valid; unless in both cases the same be put in v/riting, and signed by the party granting, or his agent lawfully authorised in writing5.

pie demanded this explicit declaration that all men might know it was never their intention to surrender all the rights of sovereignty to the federal government. The regulation of their own internal police in its utmost extent; and more especially the constitution of their own courts ; the appointment of their own judges, and the modes of proceeding in those courts; together with the rules of evidence therein, are all subjects, which, without such an explanatory article, must have been considered as exclusively belonging to the state governments. The United States have no cognizance of civil suits at common law between citizen and citizen of the same state, in any supposable case, except where lands are claimed by them under' grants of different states. ' Shall they assume the right of dictating to the state courts, what shall or shall not be evidence between such parties litigant im those courts ? If they can pronounce what shall or shall not be evidence, in such cases, may they not with equal propriety prescribe the mode of trial; whether it shall be by the court, or by a judge ? May they not with equal propriety fix the qualifications, and number of the jnrors ? May they not with equal propriety appoint the. judges, fix the tenure of their office, and ascertain the number requisite to constitute a court? May they not with equal propriety assume any other powers over the state governments ? What then is left to the states, for the twelfth article to operate upon ? See Vol. I. p. 324, note 44,

In a case upon this question from the district court of Prince Edward to the general court, it was decided, November term, 1800, by four judges against two, that the act of congress did extend to the state courts,' and that it was not unconstitutional. But it hath been since repealed, 7 Cong. c. 19.

5. By the act of 1785, c. 64. No action shall be brought whereby to charge any person upon the making any contract for the sale of lands, tenements or hereditaments, or the making any lease thereof, for more than a year, unless the agreement or some memorandum or note thereof, be in writing, and signed by the party to he charged therewith, or some other person authorised by him. And by the act of 1748, c. 1, .confirmed by that of 1785, c. 62, no estate of inheritance, or freehold, or for a term of more than five years, in lands or tenements, shall be conveyed from one to another, unless the conveyance be -declared by writing, scaled, and delivered. Edi. 1794, c. 10, 90.

Fourthly : the matter written must be legally and orderly set forth; that is, there must be words sufficient to specify the agreement and bind the parties: which sufficiency must be left to the courts of law to determine". For it is not absolutely necessary in law, to have all the formal parts that are usually drawn out in deeds, so as there be sufficient words to declare clearly and legally the party's meaning. But as these formal and orderly parts are calculated to convey that meaning in the clearest, distinctest, and most effectual manner, and have been well considered and settled by the wisdom of successive ages, it is prudent not to depart from them without good reason or urgent necessity ; and, therefore, I will here mention them in their usual" orden

1. The premises may be used to set forth the number and names of the parties, "with their additions or titles. They also contain the recital, if any, of such deeds, agreements, or matters of fact, as are necessary to explain the reasons upon which the present transaction is founded: and herein also is set down the consideration upon which the deed is made. And then follows the certainty of the grantor, grantee, and thing grantedP.

2. 3. Next c6me the habendum and tenendumt. The office of the habendum is properly to determine what estate or interest is granted by the deed: though this may be performed, and sometimes is performed, in the premises. In which case the habendum may lessen, enlarge, explain, or qualify, but not' totally contradict, or be-repugnant to, the estate granted in the premises. • As if a grant be " to A and the heirs of his body," in the premises, habendum " to him and his heirs forever," or vice versa; here A has an estate-tail, and a fee-simple expectant thereonr8. But, had it been in the premises "to him and his

n Co. Litt. 225. o Co. Lilt. 6. 1> See Appendix, No. II. Sec. p. v. q Ibid. r Co. Litt. 21. 2 Roll. Uep. 19. 23. Cro. Jac. 476. s 2 Rep. 23. 8 Uep. 56.

6. The student will recollect that the law, in the case here supposed is now altered, by the act of 1785, c. 62. Edi. 1794, c. 90. See page 107, note 4.

" heirs," habendum " to him for life," the habmdum would be utterly void*; for an estate of inheritance is vested in him before the habendum comes, and shall not afterwards be taken away, or devested, by it. The tensndum "and to hold," is now of ver.v little use, and is only kept in by custom. It was sometimes formerly used to signify the tenure, by which the estate granted was to be holden ; viz. " tenendum '•'•per servitiummilitare, in burgagio, inlibero socagio, &?c." But, all these being now reduced to free and common socage, the tenure is never specified. Before the statute olquia emptores, 18 Edw. I, it was also sometimes used to denote the lord of whom the land should be holden7: but that statute directing all future purchasers to hold, not of the immediate grantor, but of the chief lord of the fee, this use of the tenendum hath been also antiquated; though for a long time after we find it mentioned in antient charters, that the tenements shall be holden de capitalibwt dominis feodi*; but, as this expressed nothing more than the statute had already provided for, it gradually grew out of use.

4. Next follow the terms of stipulation, if any, upon which the grant is made ; the first of which is the reddendum or reservation, whereby the grantor doth create or reserve some new tiling to himself out of what he had before granted. As, " rendering, therefore, yearly the sum of ten shillings, or a pepper " corn, or two days ploughing, or the HkeV Under the pure feodal system, this render, reditus, return, or rent, consisted in chivalry, principally of military services : in villenage, of the most slavish offices: and in socage, it usually consists of momy, though it may still consist of services, or of any other certain profit*. To make a reddendum good, if it be of any thing newly created by the deed, the reservation must be to the grantors, or some, or one of them, and not to any stranger to the deed". But if it be of antient services or the like, annexed to the land, then the reservation may be to the lord of the fee?.

t Append. No. I. Madox. Formal, passim.

n Append. No. II. Sec. 1. p. iii. w See page 41.

x Plowd. 13. 8 Rep. 71. y Append. No. I. p. i.

7. This statute is now repealed; it may be considered as having been practically obsolete from the first settlement of the country V. L. 1794, c. 157.

5. Another of the terms upon which a grant may be made is a condition; which is a clause of contingency, on the happening of which the estate granted may be defeated ; as, " provided " always, that if the mortgagor shall pay the mortgagee 500/, " upon such a day, the whole estate granted shall determine;" and the like*,.

6. Next may follow the clause of warranty; whereby ^he grantor doth, for himself and his heirs, warrant and secure to the grantee the estate so granted*. By the feodal constitution, if the vasal's title to enjoy the feud was disputed, he might vouch, or call, the lord or donor, to warrant and insure his gift; which, if he failed to do, and the vasal was evicted, the lord was bound to give him another feud of equal value In recompense1". And so, by our antient law, if before the statute of quiet emptores a man eufeoffed another in fee, by the feodal verb dedi, to hold of himself and his heirs by certain services; the law annexed a warranty to this grant, which bound the feoffbr and his htirs, to whom the services (which were the consideration and equivalent for the gift) were originally stipulated to be rendered0 (7). Or if a man and his ancestors had immemorially holden land of another, and his ancestors by the service of homage (which was called homage auncestrel) this also bound the lord to warraijiy* the homage being an evidence of such a feodal grant. And, upon a similar principle, in case, afier a partition or exchange of lands of inheritance, either party or his heirs be evicted of his share, the other and his heirs are bound to warrant) %

z Append. No. II. Sec. 2.p. viii. a Ibid. No. I. p. i.

b Feud. 1. 2 t. 8, is* 25. c Co. Litt. 384.

d Litt. Sec. 143. e Co. Litt. 174.

(7.) Quere, how far this principle of the common law is revived iu this state, by the repeal of the statute of quia emjitores ; and whether the words bargain and sell may not at this day create a warranty equally as the word give would have done, before the statute of quia emfitores. See Co. Litt. 384. a. with Hargrave's note thereon. The answer seems to be that the common law, in this instance, never was in force in Virginia, for the statute of tfuia cm/itores was in force from the first settlement of the colony : and, secondly, the act of 1789, c. 9, • forbids the conclusion that a former law is ic\ ived by the repeal of a subsequent law, by v.hich it was repealed, v ithout express \\ onls to that effect.

because they enjoy the equivalent. And so, even at this day, upon a gift in tail or lease for life, rendering rent, the donor or lessor and his heirs (to whom the rent is payable) are bound to warrant the title*. But inafeoffment in fee by the verbi/infi, since the statute of quia tempores, the feoffor only is bound to the implied warranty, and not his heirsS; because it is a mere personal contract on the part of the feoffer, the tenure (and pf course the antient services) resulting back to the superior lord of the fee. And in other forms of almeation, gradually introduced since that statute, no warranty whatsoever is implied118; they bearing no sort of analogy to the original feodal donation. And, therefore, in such cases it became necessary to add an express clause of warranty, to bind the grantor and his heirs; which is a kind of covenant real, and can only be created by the verb zvarran* ti%o, or warrant'1.

These express warranties were introduced, even prior to the statute of quia emptores, in order to evade the strictness of the feodal doctrine of non-alienation without the consent of the heir, For though he, at the death of his ancestor, might have entered on any tenements that were aliened without his concurrence, yet, if a clause of warranty was added to the ancestor's grant, this covenanp descending upon the heir insured the grantee ; not so much by confirming his title, as by .obliging such heir to yield him a recompense in lands of equal value: the law, in favour of alienations, supposing that no ancestor would wantonly disinherit his next of blood k ; and, therefore, presuming that he had received a valuable consideration, either in land, or |n money which had purchased land, and that this equivalent descended to the heir together with the ancestor's warranty. So that when either an ancestor, being the rightful tenant of the freehold, conveyed the land to a stranger and his heirs, or releas-

f Co. Litt. 3&1. h Ibid. 102. k Co. Litt. 373.

g Ibid:

i Litt. Sec. 733.

8. By the civil law every man js bound to warrant the thing that he selleth or conveyeth, albeit there be no express warranty ; but the common law bindeth him not, unless there be a warranty either in deed or in law. 1. Inst. 102. a. See the last note,

ed the right in fee-simple to one who was already in possession, and superadded a warranty to his deed, it was held that such warranty not only bound the warrantor himself to protect and assure the title of the warrantee, but it also bound his heir: and this, whether that warranty was lineal, or collateral to the title of the land. Lineal warranty was where the heir derived, or might by possibility have derived,his tide to the land warranted, either from or through the ancestor who made the warranty : as where a father, or an elder son in the life of the father, released to the disseisor of either themselves or the grandfather, with Ayarranty, this was lineal to the younger son'. Collateral warranty was where the heir's title to the land neither was, nor could have been, derived from the warranting ancestor; as where a younger brother released to his father's disseisor, with warranty, this was collateral to the elder brother m. But where the very conveyance, to which the warranty was annexed, immediately followed a disseisin, or operated itself as such (as, where a father tenant for years, with remainder to his son in fee, aliened in fee-simple with warranty) this being, in it's original, manifestly founded on the tort or wrong of the warrantor himself, was called a warranty commencing by disseisin ; and, being too palpably injurious to be supported, was not binding upon any heir of such tortious warrantor n.

In both lineal and collateral warranty, the obligation of the heir (in cas'e the warrantee was evicted, to yield him other lands in their stead) was only on condition that he had other sufficient lands by descent from the warranting ancestor °. But though, without assets, he was not bound to insure the title of another, yet, in case of lineal warranty, whether assets descended or not, the heir was perpetually barred from claiming the land himself; for, if he could succeed in such claim, he would then gain assets by descent, (if he had them not before) and must fulfil the warranty of his ancestor: and the same rule? was with less justice adopted also in respect of collateral warranties, which likewise (though no assets descended) barred the heir of the warrantor

1 Litt. Sec. 703,706,707. n Ibid. Sec. 698,702. p Litt. Sec. 711, 712

m Ibid. Sec. 705, 707. o Co. Litt. 103.

from claiming the land by any collateral title ; upon the presumption of law that he might hereafter have assets-by descent either from or through the same ancestor. The inconvenience of this latter branch of the rule was felt very early, when tenants by the curtesy took upon them to aliene their lands with warranty; which collateral warranty of the father descending upon his son. (who was the heir of both his parents) barred him from claiming his maternal inheritance : to remedy which the statute of Gloucester, 6 Edw. I. c. 3, declared, that such warranty should be no bar tothe son, unless assets descended from the father. It was afterwards attempted in 50 Edw. III, to make the same provision universal, by enacting that no collateral warranty should be a bar, unless where assets descended from the same ancestor *; but it then proceeded not to take effect. However, by the statute 11 Hen. VII, c. 20, notwithstanding any alienation with warranty by tenant in dower, the heir of the husband is not barred, though he be also heir to the wife. And by statute 4 and 5 Ann. c. 16, all warranties by any tenant for life shall be void against those in remainder or reversion ; and all collateral warranties by any ancestor who has no estate of inheritance in possession, shall be void against his heir. By the wording of which last statute it should seem, that the legislature meant to allow, that the collateral warranty of tenant in tail in possession, descending (though without assets) upon a remainder-man or reversioner, should still bar the remainder or reversion. For though the judges, in expounding the statute de donis, held that, by analogy to the statute of Gloucester, a lineal warranty by the tenant in tail without assets, should not bar the issue in tail, yet they held such warranty with assets to be a sufficient bar r: which was, therefore, formerly mentioned8, as one of the ways whereby an estate-tail might be destroyed ; it being indeed nothing more in effect, than exchanging the lands entailed for others of equal value. They also held, that collateral warranty was not within the statute de donis; as that act was principally intended to prevent the tenant in tail from disinheriting his own issue : and, therefore, collateral warranty (though without assets) was allowed to be, as at common law, a sufficient bar of the estate tail and

q Co. Litt. 373. t page 116.

r Litt. Sec. 712. 2-Inst. 293.

all remainders and reversions expectant thereon1. And so it still continues to be, notwithstanding the statute of queen Anne, if made by tenant in tail in possession: who therefore may now, without the forms of a fine or recovery, in some cases, make a good conveyance in fee-simple, by superadding a warranty to his grant; which, if accompanied with assets, bars his own issue, and without them bars such of his heirs as may be in remainder or reversion (8).

t Co. Litt. 374. 2 Inst. 335.

(8). The act of 1785, c. 67. Edi. 1794, c. 13, declares, " that all alienations and warranties of lands, 8cc. mailc by any, purporting to pass or assure a greater right or estate than such person may lawfully pass or assure, shall operate as alienations and warranties of so much of the right and estate in such lands, &c. as such person might lawfully convey.; but shall not pass or bar the residue of the said right or estate purported to be conveyed or assured.

" But if the deed of the alienor doth mention that he and his heirs be bound to warranty, and if any heritage descend to the demandant on the* side of the alienor, then shall he be barred for the value of the heritage that is to him descended. And if in time after, any heritage descend to him by the said alienor, then shall the tenant recover against him of the seisin warranted, by judicial writ, that shall issue out of the rolls of the justices before whom the plea was pleaded, to resummon his warranty, as before hath been done in cases where the warrantor coraeth into the court, saying, nothing descended from him by whose deed he is vouched."

This act, so far as it relates to alienations, has been more than once noticed, ante, p. 153; note 2, p. 171; note 2, p. 275 ; note 4. It remains to consider it's operation as to warranties.

Before the statute of Gloster, 6 Ed. I. c. 3, all warranties wlucli descended to the heirs of warrantors, we're bars to the heirs to demand the lands warranted, except such warranties as commenced by disseisin. Litt. $. 697. By that statute, if a tenant by curtesy aliened his lands with warranty, the warranty was no bar to the heir, tuiless assets descended to him from the warrantor. It was attempted in parliament afterwards to make the same provision universal, by declaring that no man should be barred by a warranty collateral, but where assets descend from the same ancestor'; but it never took effect. Co. Litt. 373. b. This, in effect, is what our legislature hath done by this act. So that now all warranties, whether lineal or collateral, which descend without assets, either presently, or in after time, are void, as to the heirs. But, en the other hand, it seems, that

7. After warranty usually follow covenants, or conventions, •which are clauses of agreement contained in a deed, whereby cither party may stipulate for the truth of certain facts, or may bind himself to perform, or give, something to the other. Thus the grantor may covenant that he hath a right to convey; or for the grantee's quiet enjoyment; or the like ; the grantee may covenant to pay his rent, or keep the premises in repair, &?cu. If the covenantor covenants for himself and his heirs, it is then a covenant real, and descends upon the heirs ; who are bound to perform it, provided they have assets by descent, but not otherwise : if he covenants also for his executors and administrator-s, his personal assets, as well as his real, are likewise pledged for the performance of the covenant; which makes such covenant

u Append. No. II. Sec. 2, p. via.

all warranties, as well such as may have commenced by disseisin as others, are by this act confirmed, and made valid against the heirs of the warrantors, if assets descend to such heirs from the warrantors, either presently, or in after time, in proportion to the value of the assets descending.

Sir Edward Coke, in the construction of the second clause of the statute of Gloster, from which ours is a pretty exact transcript, tells us, " It is to be observed, that after assets descended, the recovery shall be by writ of judgment, which shall issue out of the rolls of the justices, &c. And here, two things are to be declared and explained. First, by what writ, &c. and that is clear, viz. by scire facias. But the second is more difficult, and that is, upon what manner of judgment the scire facias is to be grounded; for explanation whereof it is to be understood, that if the tenant will have the benefit of the statute, he must plead the warranty, and acknowledge the title of the demandant, and pray that the advantage of the statute may be saved unto him. And then, if assets afterwards descend, the tenant upon this record shall have a scire facias. And if assets descend but for part, he shall have scire facias for so much. But if the tenant plead the warranty, and plead further that assets descended, &c. and the demandant taketh issue that assets descended not, &c. which issue is found for the demandant, whereupon he recovereth ; the tenant, albeit assets do after descend, shall never have a scire facias upon that judgment, for that by his false plea he hath lost the benefit of the said statute." Co. Litt. 366. a. 373. b. with Hargrave's note thereon, n. 2.

a better security than any warranty*. It is also, in some respects, a less security, and therefore more beneficial to the grantor; who usually covenants only for the acts of himself and his ancestors, whereas a general -warranty extends to all mankind. For which reasons the covenant has in modern practice totally superseded the other.

8. Lastly, comes the conclusion, which mentions the execution and date of the deed, or the time of it's being given or executed, either expressly, or by reference to some day and year before-mentioned w. Not but a deed is good, although it mention no date : or hath a false date e ; or even if it hath an impossible date, as the thirtieth of February ; provided the real day of it's being dated or given, that is delivered, can be provedxf.

I proceed now to t\\effth requisite for making a good deed; the reading of it. This is necessary, wherever any of the parties desire it; and, if it be not done on his request, the deed is void as to him. If he can, he should read it himself: if he be

w Ibid. p. xii.

x'Co. Litt. 46. Dyer. 28.'

* The executors and administrators are bound by every covenant, without being uamsd, unless it is such a covenant as is to be performed personally by the . covenantor, and there has beenno breach before his death. Cro. Eliz. 553 .... Christian.

f In antient times, the date of the deed was generally omitted, and the reason was this, viz. that the time of prescription frequently changed, and a deed dated before the time of prescription was not pleadable, but a deed without a date might be alleged to be made within the time of prescription. Dates began to be added in the reigns of Ed. 2. and Ed. 3. ...Christian.

9. Suppose a deed be falsely dated, in order to bring the date thereof within the time required by law for recording it: would not such post-dating render the deed void, as against creditors and purchasers, subsequent to the actual time of the original delivery? See V.L. 1748, c. 1. Edi. 1794, c. 90.

But suppose a deed be dated and delivered on the first day of January, and afterwards it be re-acknowledged by the grantor, and a memorandum of the re-acknowledgment, and of the time of making it, be made, and within eight months thereafter it be recorded. In this case it hath been lately settled, that such re-acknowledgment is valid, so as to bar creditors. See 2 Call's Uep. 125, 183.

304

THE RIGHTS

BOOK II.

blind or illiterate, another must read it to him. If it be read falsely, it will be void ; at least for so much as is mis-recited: unless -it be agreed by collusion that the deed shall be read false, on purpose to make it void ; for in such case' it shall bind the fraudulent party*.

Sixthly, it is requisite that the party, whose deed it is, should seal, and now in most cases I apprehend should sign it also. The use of seals, as a mark of authenticity to letters and other instruments in writing, is extremely antient. We read of it among the Jews and Persians in the earliest and most sacred records of history z (') And in the book of Jeremiah there is a very remarkable instance, not only of an attestation by seal, but also of the other usual formalities attending a Jewish purchase". In the civil law alsob, seals were the evidence of truth ; and were required, on the part of the witnesses at least, at the attestation of every testament. But in the times of our Saxon ancestors, they were not much in use in England. For though Sir Edward Coke c relies on an instance of king Edwin's making use of a seal about an hundred years before the conquest, yet it does not follow that this was the usage among the whole nation; and perhaps, the charter he mentions, may be of doubtful authority, from this very circumstance, of being sealed; since we are assured by all our antient historians, that sealing was not then in common use. The method of the Saxons was for such as could write to subscribe their names, and, whether they could write or not, to affix the sign of the cross : which custom our illiterate vulgar do, for the most part, to this day keep up : by signing a cross for their mark, when unable to write their names. And in. deed, this inability to write, and, therefore, making a cross in it's stead, is honestly avowed by Caedwalla, a Saxon king, at

y 2 Rep. 3, 9. 11 Rep. 27.

z 1 Kings, c. 21, Daniel, c. 6, Esther, c. 8.

a " And I bought the field of Hanameel, and weighed him the money, even seventeen shekels of silver. And I subscribed the evidence, and sealed it, and took witnesses,'and weighed him the money in the ballances And I took the evidence of the purchase, both that which was sealed according to the la*- and custom, and also that which was open," c. 32.

b Inst. 2, 10, 2 & 3. c 1 Inst. 7.

(9). Mention is made of the Signet,...Gen. c. 38.

CHAP. XX.

OF THINGS.

SOS

the end of one of his charters'1. In like manner, and for the same unsurmountable reason, the Normans, a brave but illiterate nation, at their first settlement in France, used the practice of sealing only, without writing their names : which custom continued, when learning made it's way among them, though the reason for doing it had ceased ; and hence the charter of Edward the confessor to Westminster abbey, himself being brought up in Normandy, was witnessed only by his seal, and is generally thought to be the oldest sealed charter of any authenticity in England e. At the conquest, the Norman lords brought over into this kingdom their own fashions; and introduced waxen seals only, instead of the English methods of writing their names, and signing with the sign of»the cross f. And in the reign of Edward I, every freeman, and ev«n such of the more substantial villeins as were fit to be put upon juries, had their distinct particular seals s. The impressions of these seals were sometimes a knight on horseback, sometimes other devices: but coats of arms were not introduced into seals, nor indeed into any other use, till about the reign of Richard the first, who brought them from the croisade in the holy land; where they were first invented and painted on the shields of the knigh'ts, to distinguish the variety of persons of every Christian nation who resorted thither, and who could not, when clad in complete steel be otherwise known or ascertained.10" »

d " Propria manu fro ignorantia literarum eignum sanctae crucis express} et subscripsi," Seld. Jan. Ang. 1. 1, See. 42. And this, (according to Procopius) the emperor Justin, in the East, and Theodoric king of the Goths, in Italy, had before authorised by their example, on account of their inability to write. t

e Lamb. Arcbeion. 51.

f " Narmanni cbirograpborum confectionem, cum crucibus aureis, aliisquc " tignaculis sacris, in Anglia Jimiari solitam, in caeram impretsam mutant, " modumque seribendi Anglicum rejiciunt." Ingulph.

g Stat: Exon. 14 Edw. I.

10. Any instrument, to which the person making the same shall affix a scroll, by way of seal, shall be adjudged and holden to be of the same force and obligation, as if it were actually sealed. V. L. 1788, c. 67, {. 65. Edi. 1794. c. 76. J. 36. It has moreover been determined that a scroll, used as a seal, constituted a good bond, in Virginia, before the making of that act. Wash. rep. 1. Vol. p. 43.

This neglect of signing, and resting only upon the authenticity of seals, remained very long among us; for it was held in all our books that sealing alone was sufficient to authenticate a deed : and so the common form of attesting deeds .... " sealed and delivered," continues to this day; notwithstanding the statute 29 Car. II. c. 3, before-mentioned revives the Saxon custom, and expressly directs the signing, in all grants of landsr and many other species of deeds : in which, therefore, signing seems to be now as necessary as sealing, though it hath been sometimes held that the one includes the other h u.

A seventh requisite to a good deed is that it be delivered, by the party himself or his certain attorney: which, therefore, is also expressed in the attestation; " sealed and delivered" A deed takes effect only from this tradition or delivery; for if the date be false or impossible, the delivery ascertains the time of it (»). And if another person seals the deed, yet if the party delivers it himself, he thereby adopts the sealing], and by a parity of reason the signing also, and makes them both his own. A delivery may be either absolute, that is, to the party or grantee himself; ortoa third person, to hold till some conditions be peribrmed on the part of the grantee : in which last case it is not

h 3 Lev. 1, Stra. 764.

j Perk. §. 130.

• 11. By the act of 1785, c. 64. Edi. 1794, c. 10, no action shall be brought upon any contract for the sal* of lands, 8cc. unless the promise, or agreement upon which such action shall be brought, or some me* morandum or note thereof shall be in writing, and signed by the party to be charged therewith,' or some other person by him thereunto lawfully authorised. And by the act for regulating conveyances, it is declared, that no estate of inheritance, or freehold, or for a term of more than five years, in lands or tenements shall be conveyed from one to another, unless the conveyance be declared by writing, sealed, and delivered. Edi. 1794, c. 90. Our law seems to make a distinction between contracts for the sale of lands which are executory, and conveyances, by which such contracts are executed. The contract must be signed, but need notbe sealed. The conveyance must be sealed, and 'delivered, but it would seem that the signing, in this case is not required, by the act, though certainly it is the safer way, and in doubtful questions'might be considered as some evidence of the delivery. • (11). See Note 9, p. 304.

delivered as a deed, but as an escrow ; that is, as a scrowl or writing, which is not to take effect as a deed till the conditions be performed; and then it is a deed to all intents and purposes'.

*

The last requisite to the validity of a deed is the attestation, or the execution of it irf the presence oj'witnesses: though this ia necessary, rather for preserving the evidence, than for constituting the essence of the deed. Our modern deeds are in reality nothing more than an improvement or amplification of the brevia testata mentioned by the feodal writers k : which were written memorandums, introduced to perpetuate the tenor of the conveyance and investiture, when grants by parol only became the foundation of freguent dispute and uncertainty. To this end they registered in the deed the persons who attended as witnesses,1 which was formerly done without their signing their names (that not being always in their power) but they only heard the deed read ; and then the clerk or scribe added their names in a sort of memorandum; thus : hijs testibus Johanne *' Moore, Jacobo Smith, et alliis ad hanc rem convocatis'." This, like all other solemn transactions, was originally done only coram paribusm, and frequently when assembled in the court baron, hundred, or county court; which was then expressed in the attestation teste comitatu, hundredo, &?c. n Afterwards the attestation of other witnesses was allowed, the trial 4n case of a dispute being still reserved to the pares ; with whom the witnesses (if more than one) were associated and joined in the verdict °: till that also was abrogated by the statute of York, 12 Edw. II. st. 1. c. 2. And in this manner, with some such clause of hijs testibus, are all old deeds and charters, particularly magna carta, witnessed. And in the time of sir Edward Coke, creations of nobility were still witnessed in the same manner p. But in the king's common charters, writs, or letters patent, the stile is now altered : for at present the king is his own witness, and attests his letters patent thus : " teste meipse, witness our-

i Co. Litt. 36. k Fetid. 1. 1, t. 4. 1 Co. Litt. 7. m Feud. I. 2, t. 32. n Spelm. Gloss. 228, Madox. Formal. No. 221, 322, 660. o Co. Litt. 6. p 2 Inst. 77.

self at Westminster, &?c." a form which was introduced by Richard the firsti, but not commonly used till about the beginning of the fifteenth century; nor the clause of hijs testibus entirely discontinued till the reign of Henry the eighth r: which was also the sera of discontinuing..}! in the deeds of subjects, learning being then revived, and the faculty of writing more general ; and, therefore, ever since that time the witnesses have usually subscribed their attestation, either at the bottom, or on the back of the deed' 12.

q Madox. Formal. No. 515. s 2 Inst. 78. See page 378.

r Madox. Dissert, fol. 32.

12. The same method is usually practised in this country. Bjr the laws of Virginia all bargains, sales, and other conveyances whatsdever, of any lands, tenements, or hereditaments, whether they be made for passing any estate of freehold, or inheritance, or for term of years, and all deeds of settlement upon marriage, wherein either lands, slaves, money, or other personal thing shall be settled, or covenanted to be left, or paid at the death of the party, or otherwise, and all deeds of trust and mortgages whatsoever, shall be void as to all creditors, and subsequent purchase'rs, unless the same be acknowledged by the party or parties who shall have delivered the same, or proved by three witnesses to be his, her, or their act, before the general court, or the court of that district, county, city, or corporation, in which the land conveyedfor some part thereof lieth, within eight months after the time of sealing and delivering ; and be lodged with the clerk of such court to be recorded. But if the grantor reside not in Virginia, or in the district or county where the lands conveyed lie, the acknowledgement by such party, or proof by such witnesses before any court of law, or the mayor, or other chief magistrate of any city, town, or corporation of the county, or country, in which the party shall dwell, certified by such court, or mayor, or chief magistrate, in the manner such acts are usually authenticated by them, and offered to the proper Court to be recorded, within the time before mentioned, or within eighteen months where the party resides out of the commonwealth, .(which last period is now encreased to two years by the act of 17-94, c. 179.) shall be as effectual, as if the acknowledgment, or proof, had been made in the general court, or court of the district, county, city, or corporation where the lands lie. V. L. 1748, c. 1. Edi. 1769. 1785, c. 62. Edi. 1794, c. 90. But such deeds, although not recorded shall nevertheless be binding between the parties and their heirs. Ib.

And by the opinion of two judges at the Staunton district court, September term, 1800. The witnesses to a deed need not subscribe their names thereto, though it is safest for them to do so.

III. We are next to consider, how a deed may be avoided, or rendered of no effect. And from what has been before laid down it will follow, that if a deed wants any of die essential requisites before mentioned ; either, 1. Proper parties, and a proper subject matter: 2. A good and sufficient consideration : 3. Writing, on paper or parchment, duly stamped: 4. Sufficient and legal words, properly disposed: 5. Reading, if desired, before the execution: 6. Sealing; and, by the statute, in most cases signing also : or, 7. Delivery; it is a void deed ab initio. It may also be avoided by matter ex post facto : as, 1. By rasure interlining, or other alteration in any material part; unless a memorandum be made thereof at the time of the execution and attestation' ('*). 2. By breaking off, or defacing the sealu. 3. By delivering it up to be cancelled ; that is to have lines drawn over it in the form of lattice work -or cancelli; though the phrase is now used figuratively for any manner of obliteration or defacing it. 4. By the disagreement of such, whose concurrence is necessary, in order for the deed to stand: ias the husband, where a feme-covert is concerned; an infant, or a person under duress, when those disabilities are removed ; and the like. 5. By the judgment or decree of a court of judicature. This was antiently the province of the court of star-chamber, and now of the chancery : when it appears that the deed was obtained by fraud, force, or other foul practice:. or is proved to be an absolute forgery w '3. In any of these cases the -deed may be voided,

t 11 Ilep. 27. u 5 Uep. 23. w Toth. numo. 24,1 Vern. 348.

(12.) Such an alteration will also render void a bill of exchange or promissory note. 4 Term. 320.1 Anst. 225 .... Christian.

13. Lastly, as against creditors and subsequent purchasers, by failing to have it acknowledged, or proved by the number of witnesses required by law, and recorded within (;he time limited by law. See the last note and the acts there referred to.

And in the case of a married woman, if there be no record made of her privy examination, her deed is neither binding upon her, nor her heirs. V. L. 1748, c. 1. Edi. 1794, c. 90. J. 7.

It has, moreover, been decided by two judges at Fredericksburg district court, May term, 1801. That a mortgage, if not acknowledged in court, by the mortgagor, must be proven by three witnesses, or

either in part or totally, according as the cause of avoidance is more or less extensive.

And, having thus explained the general nature of deeds, we arc next to consider their several species, together with their respective incidents. And herein I $hall only examine the particulars of those, which, from long practice and experience of their efficacy, are generally used in the alienation of real estates : for it would be tedious, nay infinite, to descant upon all the several instruments made use of in personal concerns but which fall under our general definition of a deed; that is, a writing sealed and delivered. The former, being principally such as serve to convey the property of lands and tenements, from man to man, are commonly denominated conveyances : which are either conveyances at common law, or such as receive their force and efficacy by virtue of the statute of uses.

I. Of conveyances by the common law, some may be called original, or primary conveyances; which are those by means whereof the benefit, or estate, is created or first arises: others are derivative, or secondary ; whereby the benefit or estate, originally created, is enlarged, restrained, transferred, or extinguished.

Original conveyances are the following: 1. Feoffment; 2. Gift; 3. Grant; 4. Lease; 5. Exchange; 6. Partition: derivative are, 7. Release ; 8. Confirmation; "9. Surrender; 10. Assignment; 11. Defeasance.

that it will be void as against creditors. And, therefore, a mortgage of slaves, which had three subscribing witnesses to it, and was proved by two of them, and upon that proof admitted to record in Caroline county court, was nevertheless adjudged to be void, as against creditors. Millers vs. Tiraberlake's creditors, and the Sheriff of Caroline.

And it has been settled in the court of appeals, that a lease of lands being proved by one witness does not authorise the recording it under the act; nor can a copy of such deed be given in evidence without any other proof than the clerk's certificate that it was proved by one witness. 1 Call's rep. 121.

1. A feoffment, Jeoffamentum, is a substantive derived from the verb, to enfeoff, feojfare, or infeudare, to give one a fe«d; and, therefore, feoffment is properly donado feudi *. It is th« most antient method of conveyance, the most solemn and public, and, therefore, the most easily remembered and proved.. ....

And it may properly be defined, the gift of any corporeal hereditament to another. He that so gives, or enfeoffs, is called the feojfor; and the person enfeoffed is denominated ihejeojfee.

This Js plainly derived from, or is, indeed, itself the very mode of the antient feod'al donation; for though it may be performed by the word, " enfeo/"" or "grant" yet the aptest word of feoffment is, " do or dedi x." And it is still directed and governed by the same feodal rules; insomuch that the principle rule, relating to the extent and effect of the feodal grant, u tenor est qui legeni dot feudo" is, in other words, become-the maxim, of our law with relation to feoffments, " modus legem dat donationi*.n And, therefore, as in pure feodal donations, the lord, from whom the feud moved, must expressly limit and declare the continuance qr quantity of estate, which he meant'to confer, " ne quis plus donassepraesumatur,quamindonatione expresserit*" so, if one grants by feoffment, lands or tenements to another, and limits or expresses no estate, the grantee (due ceremonies of law, being performed) hath barely an estate for life b 14. For, as the personal abilities of the feoffee were originally presumed to be the immediate or principal inducements to the feoffment, the feoffee's estate ought to be confined to his person and subsist only for his life; unless the feoffer, by express provision, in the creation and constitution of the estate, hath given it -a itujgur continuance. These express provisions are, indeed, generally made; for this was for ages the only conveyance, whereby ouc ancestors, were wont to create an estate in fee-simple c, by giving the land to the feoffee, to hold to him and his heirs for ever;

x Co. Litt. 9. 2 Wright 21. b Co. Litt 42,

y Ibid.

a Page 108.

6 See Appendix, No. I.

14. B»t such a grant would now create a fee simple estate in the grantee. V. L. 1785, c. 62. Edi. 1794, c; 90. J. 12.

though it serves equally well to convey any other estate or freehold d.

But, by the mere words of the deed the feoffment is by no means perfected, there remains a very material ceremony to be performed, called livery of seisin ; without which the feoffee has but a mere estate at wille. This livery of seisin is no other than the pure feodal investiture, or delivery of corporal possession of the land nr tenement j which was held absolutely necessary to complete the donation. " Nam feudum sine investitura " nullo modo constitui potuit{:" and an estate was then, only perfect, when, as the author of Fleta, expresses it in our law, "Jit " juris et seisinae conjunctio «."

Investitures, in their original rise, were probably intended to demonstrate in conquered countries the actual possession of the lord; and that he did not grant a bare litigious right, which the soldier was ill qualified to prosecute, but a peaceable and firm possession. And at a time when writing was seldom practised, a mere oral gift, at a distance from the spot that was given was not likely to be either long or accurately retained in-the memory of by-standers, who were very little interested in the grant. Afterwards they were retained as a public and notorious act, that the country might take notice of, and testify the transfer of the, estate: and that such, as claimed title by other means, might know against whom to bring their actions.

In all well-governed nations, some notoriety of this kind has been ever held requisite, in order to acquire and ascertain the property of lands. In the Roman law plenum dominium was not said to subsist, unless where a man had both the right and the corporal possession ; which possession could not be acquired without both an actual intention to possess, and an actual seisin, or entry into the premises, or part of them, in the name-of the whole h. And even in ecclesiastical promotions, where the free-

J Co. Litt. 9. e Litt. §. 66.

f Wright, 37, g /. 3, c. 13, See. 5.

h Nam apiscimur possessionem corpore et animo; neque per te carfare, neque per se animo. Non autem ita acdpiendmn est, ut qui fundum possidere velit, omnes glebas circuniambulet;'sed ftifficit quamliliet partem ejusjundi introire. (Ff. 41,2,3.^ And again: tiadilionitni& doininia rentm, non nudispactis, transftjvntur. (Cod. 2, 3, 20J

hold passess to the person promoted, corporal possession is required at this day, to vest the property completely, in the new proprietor; who, according to the distinction of the canonists', acquires the jus ad rent, or inchoate and imperfect right, by npmination and institution j but not the jus in re, or complete and full right, unless by corporal possession. Therefore, in dignities, possession is given by installment; in rectories and vicarages by induction, without which, no temporal rights accrue to the minister, though every ecclesiastical power is vested in him by institution. So also even in descents of lands by our law, which are cast on the heir by act of the law itself, the heir has not plenum dominium, or full and complete ownership, till he^ias made an actual corporal entry into the lands: for if he dies before entry made, his heir shall not be entitled to take the possession, but the heir of the person who was last actually seised k. It is not, therefore, only a mere right to enter, but the actual entry, that makes a man complete owner; so as to transmit the inheritance to his own heirs: non jus, sed seisina, facit stipitem l".

Yet the corporal tradition of lands being sometimes inconvenient, a symbolical delivery of possession was, in many cases antiently allowed; by transferring something near at hand, in the presence of credible witnesses, which by -agreement should serve to represent the very thing designed to be conveyed; and. an occupancy of this sign or symbol was permitted as equivalent to occupancy of the land, .itself. Among the Jews we find the evidence of a purchase, thus defined in the Book of Ruth m: " Now this was the manner in former time in Israel, concerning " redeeming, and concerning changing, for to confirm all things: " a man plucked off his shoe, and gave it to his neighbour; and " this was a testimony in Israel.1' Among the antient Goths,

i Decretal. /. 3, t. 4, c. 40. 1 Flet. I. 6, c 2, Sec. 2.

k See page 209, 227, 228. m Chap. 4, v. 7.

15. Here it is proper again to call the attention of the student-to the doubt expressed, p. 209, Note (2.) as to the construction of the wordrtV/e, in our law of descents. Edi. 1794. c. 93. J. 1, the investigation of which well deserves attention, and has been attempted in the Appendix to this volume; Note B.

and Swedes, contracts for the sale of lands were made in the presence of witnesses who extended the cloak of the buyer, while the seller cast a clod of the land into it, in order to give possession; and a staff or wand was also delivered from the vendor to the vendee, which passed through the hands of the witnessesn. With our Saxon ancestors the delivery of a turf was a necessary solemnity, to establish the conveyance of lands0. And, to this day, the conveyance of our copyhold estates is usually made from the seller to the lord or his steward by delivery of a rod or verge, and then from the lord to the purchaser by re-delivery of the same, in the presence of a jury of tenants.

Conveyances in writing were the last and most refined improvement. The mere delivery of possession, either actual or symbolical, depending on the ocular testimony and remembrance of the witnesses, was liable to be forgotten or misrepresented, and became frequently incapable of proof. Besides, the new occasions and necessities, introduced by the advancement of commerce, required means to be devised of charging and incumbering estates, and of making them liable to a multitude of conditions and minute designations for the purposes of. raising money, without an absolute sale of the land; and sometimes the like proceedings were found useful in order to make a decent and competent provision for the numerous branches of a family, and for other domestic views. None of which could be effected by a mere, simple, corporal transfer of the soil from one man to another, which was principally calculated for conveying an absolute unlimited dominion. Written deeds were therefore introduced, in order to specify and perpetuate the peculiar purposes of the party who conveyed : yet still, for a very long series of years, they were never made use of, but in company with the more antient and notorious method of transfer, by delivery of corporal possession.

Livery of seisin, by the common law, is necessary to be made upon every grant of an estate of freehold in hereditaments corporeal, whether of inheritance or for life only. In hereditaments incorporeal it is impossible to be made ; for they arc

n Stier. ilejure Sueon, i- 2. c. 4. o Hickes Dissert, £fistolar, 85.

not the object of the senses: and in leases for years, or other chattel interests, it is not necessary. In leases for years indeed an actual entry is necessary, to vest the estate in the lessee: for the bare lease gives him only a right to enter, which is called his interest in the term, or interesse termini: and when he enters in pursuance of that right, he is then and not before in possession of his term, and complete tenant for years f. This entry by the tenant himself serves the purpose of notoriety, as well as livery of seisin from the grantor could have done; which it would have been improper to have given in this case, because that solemnity is appropriated to the conveyance of a freehold. And this is one reason why freeholds cannot be made to commence in futuro, because they cannot (at the common law) be made but by livery of seisin; which livery, being an actual manual tradition of the land, must take effect in praesenti, or not at all 1.

On the creation of a. freehold remainder, at one and the same time with a particular estate for years, we have before seen that at the common law livery must be made to the particular tenanf. But if such a remainder be created afterwards, expectant on a lease for years now in being, the livery must not be made to the lessee for years, for then it operates nothing: " nam quod " semel meum est, amplius meum esse non potest •" but it must be made to the remainder-man himself, by consent of the lessee for years : for without his consent no livery of the possession can be given*; partly because such forcible livery would be an ejectment of the tenant from hfe term, and partly for the reasons before given u for introducing the doctrine of attornments.

Livery of seisin is either in deed, or in law. Livery in deed is thus performed. The feoffor, lessor, or his attorney, together with the feoffee, lessee, or his attorney, (for this may as effectually be done, by deputy or attorney, as by the principals themselves in person) cbme to the land, or to the 'house; and •there, in the presence of witnesses, declare the contents of the feoffment or lease, on which livery is to be made. And then

p Co. Litt. 46. rPage 167. t Cp. Litt. 43.

q Sec page 165. s Co. Litt. 49. n Pag. 288.

the feoffer, if it be of land, doth deliver, to the feoffee, all other persons being out of the ground, a clod or turf, or a twig or bough there growing, with words to this effect; " I deliever these to you in the name of seisin of all the lands and tenements contained in this deed." But if it be of a house, the feoftbr must take the ring, or latch of the door, the house being quite empty, and deliver it to the feoffee in the same form; and then the feoffee must enter alone, and shut to the door, and then open it, and let in the others w. If the conveyance orfeoffment be of divers lands, lying scattered in one and the same county, then in the feoffor's possession, livery of seisin of any parcel, in the name of the rest, sufficeth for allx; but if they be in several counties, there must be as many liveries as there are counties. For, if the title to these lands comes to be disputed, there must be as many trials as there are counties, and the jury of one county are no judges of the notoriety of a fact in another. Besides, autiently this seisin was obliged to be delivered coram paribus de vicinetO) before the peers or freeholders of the neighbourhood, who attested such delivery in the body or on the back of the deed ; according to the rule of the feodal law ?, pares debent inter esse investiturae feudi, tt non alii: for which this reason is expressly given; because the peers or vasals of the lord, being bound 4>y their oath of fealty, will take care that no fraud, be committed to his prejudice, which strangers might be apt to connive at. And though afterwards, the ocular attestation of the pares was held unnecessary, and livery might be made before any credible witnesses, yet the trial, in case it was disputed, (like that of all other attestations1.) was still reserved to the pare* or jury of the county a. Also, if the lands be out on lease, though all lie in the same county, there must-be as many liveries as there are tenants : because no livery can be made in this case, but by the consent of the particular tenant; and the consent of one will not bind the restb. And in all these cases it is prudent, and usual, to endorse the livery of seisin on the back of the deed, specifying the manner, place and time of making it ;

w Co. Litt. 48. West. Symb. 251. y Feud. 1. 2. *. 58. a Gilb. 10. 35.

x Litt. Sec. 414. z See rag. 307. b Dver. 18.

together with the names of the witnesses '. And thus much for livery in deed ".

Livery in law is where the same is not made on the land, but in sight of it only ; the feoffor saying to the feoffee,>l I give " you yonder land, enter and take possession.'' Here, if the feoffee enter during the life of the feoffor, it is a good livery, but not otherwise j unless he dares not enter, through fear of his life or bodily harm : and then his continual claim, made yearly-, in-due form of law, as near as possible to the lands d, will suffice without an entry'. This livery in law cannot however be given or received by attorney, but only by the paities themselves f.

2. The conveyance by gift, donatio, is properly applied to the creation of an estate-taill7, as feoffment is to that of an estate in fee, and lease to that of an estate for life or years. It differs in nothing from a feoffment, but in die nature of the estate passing by it; for the operative woids of conveyance in this case are do or dedt e ; and gifts in tail are equally imperfect without livery of seisin, as feoffments in fee-simpleh. And this is the only distinction that Littleton seems to make, when he says *, '' it is 41 to be understood that there is feoffor and feoffee, donor and " donee, lessor and lessee ;" viz. feoffor is applied to a feoffment in fee-simple, donor to a gift in tail, and lessor to a lease for life, or for years, or at will. In common acceptation gifts are frequently confounded with the next species of deeds : which are,

c See Appendix, No. 1. e Co. Litt. 48. g West. Symbol, 256. i Sec. 57.

d Litt. Sec. 421, We.

tlbid. S2.

h Litt. Sec. 59.

16. Livery of seisin, where the same is required by law must be acknowledged, or proved, and recorded together with, and in like manner as the deed, or conveyance whereupon it is made, V. L. 1748, c. 1. Edi. 1794, c. 90.

17. The student will recollect that no estate-tail can have been created in Virginia since the seventh day of October, 1776, se"e p. 119, note 13, and the laws there referred to.

3. Grants, concessiones; the regular method by the common law of transferring the property of incorporeal hereditaments, or such things whereof no livery can be had k. For which reason all corporeal hereditaments, as lands and houses, are said to lie in livery; and the others, as advowsons, comrrions, rents, reversions, &?c. to lie in grant'. And the reason is given by Bracton m: traditio, or livery, nihil allud est quam rei corporate de persona in personam, de manu in manum, translatio out in possessionem inductio; sed res incorporates, quae sunt ipsumjus reivelcorpori inhaerens, traditionem non patiuntur." These, therefore, pass merely by the delivery of the deed. And in signiories, or reversions of lands, such grant, together with the attornment of the tenant (while attornments were requisite) were held to be of equal notoriety with, and therefore equivalent to, a feoffment and livery of lands in immediate possession. It therefore differs but little from a feoffment, except in it's subject matter: for the operative words therein commonly used are dedi et concessi, " have given and granted "."

"5. A lease is properly a conveyance of any lands or tenements, (usually in consideration of rent or other annual recompence) made for life, for )fears, or at will, but always for a less time than the lessor hath in the premises: for if it be for the •whole interest, it is more properly an assignment than a lease. The usual words of operation in it are, " demise, grant, and to farm let; dimisi, concessi, et adjirmam tradidi." Farm, orfeorme, is an old Saxon word signifying provisions " : and it came to be used instead of rent or render, because antiently the greater part of rents were reserved in provisions ; in corn, in poultry, and the like ; till the use of money became more frequent. So that a farmer,^/?rffiar/MS, was one who held his lands upon payment of a rent or/eorwe.- though at present, by a gradual departure from the original sense, the vrordfarm is brought to signify the very estate or lands so held upon farm or rent. By this con-

k Co. Liit. 9. m /. 2. c. 18.

1 Ibid. 172.

n Spelm. Gl. 229.

18. The word Grant, when applied to lands in Virginia, is synonimous with Patent, both being indiscriminately applied to grants from the commonwealth. See V. L. 1794, c. 8j>.

veyance an estate for life, for years, or at will, may be created, either in corporeal or incorporeal hereditaments; though livery of seisin is.indeed incident and necessary to one species of leases, viz. leases for life of corporeal hereditaments; but to no other.

Whatever restriction, by the severity of the feodal law, might in times of very high antiquity be observed with regard to leases; yet by the common law, as it has stood for many centuries, all persons seised of any estate might let leases to endure so long as their own interest lasted, but no longer. Therefore tenant in fee-simple might let leases of any duration: for he hath the whole interest: but tenant in tail, or tenant for life, could make no leases which should bind the issue in ta.il or reversioner; nor could a husband seised jure uxoris, make a firm or valid lease for any longer term than the joint lives of himself and his wife, for then his interest expired. Yet some tenants-for life, where the fee-simple was in abeyance, might (with the concurrence of such as have the guardianship of the fee) make leases of equal duration with those granted by tenants in fee-simple, such as parsons and vicars with consent of the patron and ordinary0. So also bishops, and deans, and such other sole ecclesiastical corporations as are seised of the fee-simple of lands in their corporate right, might, with the concurrence and confirmation of such persons as the law requires, have made leases for years, or for life, estates in tail, or in fee, without any limitation or control. And corporations aggregate might have made what estates they pleased, without the confirmation of any other person whatsoever. Whereas, now, by several statutes, this power where it was unreasonable, and might be made an ill use of, is restrained ; and, where in the other cases, the restraint by the common law seemed too hard, it is in some measure removed. The former statutes are called the restraining, the latter the enabling statute19. We will take a view of them all in order of time.

And, first, the enabling statute, 32 Hen. VIII. c. 28, empowers three manner of persons to make leases, to entire for o Co. Liit. 44.

19. These statutes are now repealed. V. L. 1794, c. 147.

three lives or pne and twenty years, which could not do so before. As first, tenant in tail may by such leases bind his issue in tail, but not th'ose in remainder or reversion 20. Secondly, a husband seised in right of his wife, in fee-simple or fee-tail, provided the wife joins in such lease, may bind her and her heirs thereby 21. Lastly, all persons seised of an estate of fee-simple in right of their churches, which extends not to parsons and vicars, may (without the concurrence of any other person) bind their successors58. But then there must many requisites be observed, which the statute specifies, otherwise such leases are not binding f. 1. The lease must be by indenture; and not by deed poll, or by parol. 2. It must begin from the making, and not at any greater distance of time *. 3. If there be 'any old lease in being, it must be first absolutely surrendered, or be within a year of expiring. 4. It must be either for twenty one years,

p Co. Litt. 44.

* By various acts of parliament, and also frequently by private settlements, a power is granted of making leases in possession, but not in reversion, for a. certain term; the object being that the estate may not be encumbered by the act of the party beyond a specific time. Yet persons who had this limited power of making leases in possession only, had frequently demised the premises to \io\AJromtbe day of the date,- and the courts in several instances had determined that the words^-om the day of the date excluded the day of making the deed; and that of consequence these were leases in reversion, and void. But this question having been brought again before lord Mansfield at the court of king's bench, that learned lord proved, with his usual atfility, tlatfrom the day might either " be inclusive or exclusive of the day; and therefore that it ought to be construed 10 as to effectuate these important deede, and not to destroy them. Pugh v. Duke of Leeds, Cowp. 714 .... Christian.

20. V. L. 1764, c. 14. Edi. 1769, enabled tenants in tail to make leases not exceeding three lives or twenty-one years, which should bind not only the issue in tail, but those in remainder and reversion.

21. If a feme-covert join with her husband in any conveyance •whatsoever, if upon being privily examined she consent thereto, and her consent and privy examination be recorded, the conveyance as to her, shall be as effectual as if she were not a married woman. V. L. ' 1748, c. 1. Edi. 1794, c. 90.

22. The statutes which restrain leases by beneficed clergymen being repealed, as above mentioned, it is difficult to say what rights those clergymen who are possessed of glebes may, or may not, lawfully exercise in respect to them.

or three lives, and not for both. 5. It must not exceed the term of three lives, or twenty-one years, but may be for a shorter term.

6. It must be of corporeal hereditaments, and not of such things as lie merely in grant; for no rent can be reserved thereout by the common law, as the lessor cannot resort to them to distreini.

7. It must be of lands and tenements most commonly letten for twenty years past; so that if they had been let for above half the time (or eleven years out of twenty) either for life, for years, at will, or by copy of court roll, it is sufficient. 8- The most usual and customary feorm or rent, for twenty years past, must be reserved yearly on such lease. 9. Such leases must not be made without impeachment of waste. These are the guards, imposed by the statute (which was avowedly made for the security of farmers and the consequent improvement of tillage) to prevent unreasonable abuses, in prejudice of the issue, the wife, or the successor, of the reasonable indulgence here given.

Next follows, in order of time, the disabling or restraining statute, 1 Eliz. c. 19, (made entirely for the benefit of the successor) which enacts, that all grants by archbishops and. bishops (which include even those confirmed by the dean and chapter; the which, however long or unreasonable, were good at common law) other than for the term of one and twenty years or three lives from the making, or without reserving the usual rent, shall be void. Concurrent leases, if confirmed by the dean and chapter, are held to be within the exception of this statute, and therefore valid; provided they do not exceed (together with the lease in being) the term permitted by the actr. But, by a saving expressly made, this statute of 1 Eliz. did not extend to grants made by any bishop to the crown; by which means queen Elizabeth procured many fair possessions to be made over to her by the prelates, either for her own use, or with intent to be granted out again to her favourites, whom she thus gratified without any expence to herself. To prevent which* for the future, the q But now by the staiute 5 Geo. III. c. 17, a lease of tithes or other incorporeal hereditaments, alone, may be granted by any bishop or any such ecclesiastical or eleemosynary corporation, and the successor shall be entitled to recover the rent by an action of debt, which (in case of a freehold lease) he could not have brought at the common law.

r Co. Lilt. 45. s 11 Rep. 71.

statute 1 Jac. I. c. 3, extends the prohibition to grants and leases made to the king, as well as to any of his subjects.

Next comes the statute 13 Eliz. c. 10, explained and enforced by the statutes 14 Eliz. c. 11 and 14. 18 Eliz. c. 11. and 43 Eliz. c. 29, which extend the restrictions, laid by the last mentioned statute on bishops, to certain other inferior corporations, both sole and aggregate. From laying all which together we may collect, that all colleges, cathedrals, and other ecclesiastical, or eleemosynary corporations, and all parsons and vicars, are restrained from making any leases of their lands, unless under the following regulations: 1. They must not exceed twenty-one years, or three lives, from the making. 2. The accustomed rent, or more, must be yearly reserved thereon. 3. Houses in corporations, or market towns, may be let for forty years; provided they be not the mansion-houses of the lessors, nor have above ten acres of ground belonging to them; and provided the lessee be bound to keep them in repairs: and they may also be aliened in fee-simple for lands of equal value in recompense. 4. Where there is an old lease in being, no concurrent lease shall be made, unless where the old one will expire within three years. 5. No lease (by the equity of the statute) shall be made without impeachment of waste *. 6. All bonds and covenants tending to frustrate the provisions of the statutes of 13 and 18 Eliz. shall be void.

Concerning these restrictive statutes there are two observations,to be made. First, that they do not by any construction, enable any persons to make such leases as they were by common law disabled to make. Therefore a parson, or vicar, though he is restrained from making longer leases than for twenty-one years or three lives, even •with the consent of patron and ordinary, yet is not enabled to make any lease at all, so as to bind his successor, without obtaining such consent". Secondly, that though leases contrary to these acts are declared void, yet they are good against the lessor during his life, if he be a sole corporation ; and are also good against an aggregate corporation so long as the head of it lives, who is presumed to be the most con-

tCo.Litt. 45. u/4«W. 44.

cerned in interest. For the act was intended for the benefit of the successor only; and no man shall make an advantage of his own wrong*.

There is yet another restriction with regard to college leases by statute 18 Eliz. c. 6, which directs, that one third of the old rent, then paid, should for the future be reserved in wheat or malt, reserving a quarter of wheat for each 6*. 8d. or a quarter of malt, for every 5s; or that the lessees should pay for the same according to the price that wheat and malt should be sold for, in the market next adjoining to the respective colleges, on the market-day before the rents become due. This is said* to have been an invention of the lord treasurer Burleigh, and sir Thomas Smith, then principal secretary of state; who observing how greatly the value of money had sunk, and the price of all provisions risen, by the quantity of bullion imported from the new-found Indies, (which effects were likely to increase to a greater degree) devised this method for upholding the revenues of colleges. Their foresight and penetration has in this respect been very apparent: for, though the rent so reserved in corn was at first but one third of the old rent, or half of what was still reserved in money, yet now the proportion is nearly inverted; and .the money arising from corn rents is, communibus annis, almost double to the rents reserved in money.

The leases of bentficed clergymen are farther restrained, in case of their non-residence, by statutes 13 Eliz. c. 2O. 14 Eliz. c. 11. 18 Eliz. c. 11, and 43 Eliz. c. 9, which direct, that if any beneficed clergyman be absent from his cure above fourscore days in any one year, he shall not only forfeit one year's profit of his benefice, to be distributed among the poor of the parish ; but that all leases made by him, of the profits of such benefice, and all covenants and agreements of like nature, shall cease and be void*: except in the case of licensed pluralists, who are al-

w Co. Litt. 45.

x Strype's annals of Eliz.

* In a late case it was determined, where an incumbent had leased his rectory, and had been afterwards absent fore more than eighty days in a year, that his tenant could not maintain an ejectment against a stranger who had got into possession without any right or title whatever. 2 T. R. 749. ...Christian.

lowed to demise the living, on which they are non-resident, to their curates only; provided such curates do not absent themselves above forty days in any one year. And thus much for leases, with their several enlargements and restrictions * S3.

5. An exchange is a mutual grant of equal interests, the one in consideration of the other. The word " exchange" is so individually requisite and appropriated by law to this case, that it cannot be supplied by any other word or expressed by any circumlocution*. The estates exchanged must be equal in quantity* ; not of value, for that is immaterial, but ofinterest; as fee-simple for fee-simple, a lease for twenty years for a lease for twenty years, and the like. And the exchange may be of things that lie either in grant or in 15veryb. But no livery of seisin, even in exchanges of freehold, is necessary to perfect the conveyance0 : for each party stands in the place of the other and occupies his right, and each of them hath already had corporal possession of his own land. But entry must be made on both sides ; for, if either party die before entry, the exchange is void, for want of sufficient notoriety*1. And so also, if two pat-sons, by consent of patron and ordinary, exchange their preferments; and the one is presented, and instituted, and inducted, and the other is presented, {and instituted, but dies before induction; the former shall not keep his new benefice, because the exchange was not completed, and therefore he shall return back to his owne. For if, after an exchange of lands or other hereditaments, either party be evicted of those Which were taken by him in exchange, through defect of the other's title; he shall return back

y For the other learning relating to leases, which is very curious and diffusive, I must refer the student to 3 Bac. abridg. 295. (title, leatet and terms far yeart) where the subject is treated in a prespicuous and masterly manner; being tupposed to to be extracted from a manuscript of sir Geoflrey Gilbert.

z Co. Litt. 50, 51. a Litt. Sec. 64, 65.

bI6id.51. dbid.G2.

d Ibid. 50. e Perk. Sec. 288.

23. All these statutes respecting leases by beneficed clergymen are now repealed, as was before-mentioned. V. L. 1794, c. 147. The rights of the present incumbents, as to making leases, have not yet been enquired into, or contested, that I know of.

to the possession of his own, by virtue of the implied warranty contained in all exchangesf.

6. A partition, is when two or more joint-tenants, coparceners, or tenants in common, agree to divide the lands so held among them in severalty, each taking a distinct part. Here, as in some instances, there is a unity of interest, and in all a unity of possession, it is necessary that they all mutually convey and assure to each other the several estates, which they are to take and enjoy separately. By the common law coparceners, being compellable to make partition, might have made it by parol only; but joint-tenants and tenants in common must have done it by deed: and in both cases the conveyance must have been perfected by livery of seisin*. And the statutes of 31 Hen. VIII. c. 1, and 32 Hen. VIII. c. 32, made no alteration in this point. But the statute of frauds 29 Car II. c. 3, hath now abolished this distinction, and made a deed in all cases necessary24.

These are the several species of primary, or original conveyances25. Those which remain are of the secondary, or derivative sort; which presuppose s.ome other conveyance precedent, and only serve to enlarge, confirm, alter, restrain, restore, or transfer the interest granted by such original conveyance. .... As,

7. Releases; which are a discharge or conveyance of a man's right in lands or tenements, to another that hath some former estate in possession. The words generally used therein are "" remised, released, and for ever quit-claimed11:" And these releases may enure either, 1. By way of enlarging an estate, or enlarger I'estate: as, if there be tenant for life or years, remainder

f page 300.

h Litt. Sec. 445.

g Litt. Sec. 250. Co. Litt. 169.

24. A deed seems equally necessary, in Virginia, in all cases since the beginning of the present century. V. L. 1710, c. 13. 1748, c. 1. 1794, c. 90.

25. To these we may add grants of land from the crown, or from the commonwealth, which are in point of dignity the highest species of conveyances : the mode, of obtaining and perfecting of which forms the subject of a future note. p. 347. note 3.

to another in fee, and he in remainder releases all his right to the particular tenant and his heirs, this gives him the estate in lee1. But in this case the relessee must,be in possession of some estate, for the release to work upon; for if there be lessee for years, and before he enters and is in possession, the lessor releases to him all his right in the reversion, such release is void for want of possession, in the relesseek. 2. By way of passing an estate, or mitter Vestate: as when one of two coparceners releaseth all her right to the other, this passeth the fee-simple of the whole1. And in both these cases there must be a privity of estate between the relessor and relesseem ; that is, one of their estates must be so related to the other, as to make but one and the same estate in law. 3. By way of passing a right, or mitter le droit: as if a man be disseised, and releaseth to his disseisor all his right; hereby the disseisor acquires a new right, which changes the quality of his estate, and renders that lawful which before was tortious or wrongful". 4. By way of extinguishment: as if my tenant for life makes a lease to A for life, remainder to B and his heirs, and I release'to A; this extinguishes my right to the reversion, and shall enure to the advantage of B's remainder as well as of A's particular estate0. 5. By way of entry and feoffment: as if their be two joint disseisors, and the disseisee releases to one of them, he shall be sole seised, 'and shall keep out his former companion; which is the same in effect as if the disseisee had entered, and thereby /put an end to the disseisin, and afterwards had enfeoffed one of the disseisors in fee?. And hereupon we may observe, that when a man has in himself the possession of lands, he must at the common law convey the freehold by feoffment and liver}'; which makes a notoriety in the country: but if a man has only a right or a future interest, he may convey that right er interest by a mere release to him that is in possession of the land: for the occupancy of the relessee is a matter of sufficient notoriety already.

8. A confirmation is of a nature nearly allied to a release. Sir Edward Coke defines iti to be a conveyance of an estate or right

i Litt. Sec. 465. 1 Co. Litt. 273. n Litt. Sec. 466. 1> Co. Litt. 278.

k Litt. Sec. 459. m Co. Litt. 272; 273, o Litt. Sec. 470. q 1 In?t. 295.

in esse, whereby a voidable estate is made sure and unavoidable, or whereby, a particular estate is increased : and the words of making it are these, " have given, granted, ratified, approved and confirmed1"." An instance of the first branch of the definition is, if tenant for life leaseth for forty years, and dieth during that term ; here the lease for years is voidable by him in reversion: yet, if he hath confirmed the estate of the lessee for years, before the death of tenant for life, it is no longer voidable but sure*. The latter branch, or that which tends to the increase of a particular estate, is the same in all respects with that species of release, which operates by way of enlargement.

9. A surrender, sursumredditio, or rendering up, is of a nature directly opposite to a release j for, as that operates by the greater estate's descending upon the less, a surrender is the falling of a less estate into a greater. It is defined', a yielding up of an estate for life or years to him that hath the immediate reversion or remainder, wherein the particular estate may merge or drown, by mutual agreement between them. It is clone by these words, " hath surrendered, granted, and yielded up." The surrenderor must be in possession" ; and the surrenderee must have a higher estate, in which the estate surrendered may merge: therefore tenant for life cannot surrender to him in remainder for yearsw. In a surrender there is no occasion for livery of seisin",: for there is a privity of estate between the surrenderor and the surrenderee; the one's particular estate, and the other's remainder are one and the same estate; and livery having been once made at the creation of it, there is no necessity for having it afterwards. And, for the same reason, no livery is required on a release or confirmation in fee to tenant for years or at will, though a freehold thereby passes : since the reversion of the relessor, or confirmor, and the particular estate of the relessee, or confirmee, are one and the same estate ; and where there is already a possession, derived from such a privity of estate, any farther delivery of possession would be vain and nugatory *.

r Litt. Sec. 515, 531, t Co, Litt. 337. w Perk. Sec. 589. y Litt. Sec. 460.

s Litt. Sec. 516. u Ibid. 3S8. x Co. Litt. 50.

10. An assignment is properly a transfer, or making over to another, of the right one has in any estate: but it is usually applied to an estate for life or years. And it differs from a lease only in this: that by a lease one grants an interest less than his own, reserving to himself a reversion; in assignments he parts with the whole property, and the assignee stands to all intents and purposes in the place of the assignor *.

11. A defeazance is a collateral deed, made at the same time with a feoffment or other conveyance, containing certain conditions, upon the performance of which the estate then created may be defeated* or totally undone. And in this manner mortgages were in former times usually made; the mortgagor enfeoffing the mortgagee, and he at the same time executing a deed of defeazance, whereby the feoffment was rendered void on repayment of the money borrowed at a certain day. And this, when executed at the same time with the original feoffment, was considered as part of it by the antient law*: and, therefore, only indulged: no subsequent secret revocation of a solemn conveyance, executed by livery of seisin, being allowed in those days of simplicity and truth; though when uses were afterwards in-z From the French verb defaire, iiifectumreddere. a Co. Lilt. 236.

* This is far from being universally true; for there are a great variety of distinctions when the assignee is bound by the covenants of the assignor, and when he is not. i The general rule is, that he is bound by all covenants, which run with the land; but not by collateral covenants, which do not run with the land. As if a lessee covenants for himself, executors, and administrators, concerning a thing not in existence, as to build a wall upon the premises, the assignee will not be bound; but in that case, the assignee will be bound, if the lessee has covenanted for himself and assigns. There the lessee covenants for himself, his executors and administrators, to reside upon the premises, this covenant binds his assignee, for it runs with, or is appurtenant to the thing demised. 2 Hen. Bl. 133. The assignee in no case is bound by the covenant of the lessee, to build a house for the lessor, or any where off the premises, or to pay money to a stranger. Spenser's case, 5, Co. 16. The assignee is not bound by a covenant broken before assignment. 3 Burr. 1271. See Coin- Dig. Covenant. But if an underlease is made even for a day less than the whole term, the underlessee is not liable for rent or covenants to the original lessee, like an assignee of the whole term. Dcmg. 174.

An assignee is liable for rent only whilst he continues in possession under the assignment. And he is held not to be guilty of a fraud, if lie assigns even to a beggar, or to a person leaving the kingdom, provided the assignment be executed before his departure. Jiosany. 2l .... Ci>riftian.

troduced,' a revocation of such uses was permitted by the courts of equity, but things that were merely executory, or to be completed by matter subsequent, (as rents, of which no seisin • could be had till the time of payment; and so also annuities, conditions, warranties, and the like) were always liable to be recalled by defeasances made subsequent to the time of their creationb. s

II. There yet remain to be spoken of some few convey, ances, which have their force and operation by virtue of the statute of uses.

Uses and trusts are in their original of a nature very similar, or rather exactly the same: answering more to ihej!dei-commis~ sum than the usus-fructus of the civil law; which latter was the temporary right of using a thing, without having the ultimate property, or full dominion of the substance0. But thejtdei-comtnissum, which usually was created by will, was\the disposal of an inheritance to one, in confidence that he should convey it or dispose of the profits at the will of another. And it was the business of a particular magistrate, the praetor Jidei commissarius, instituted by Augustus, to enforce the observance of this confidence11. So that the right thereby given was looked upon as a vested right, and entitled to a remedy from a court of justice: which.occasioned that known division of rights by the Roman law, into jus ligitimum, a legal right, which was remedied by the ordinary course of law; jus Jiduciarium, a right in trust, for which there was a remedy in conscience; and jus precarium, a right in courtesy, for which, the remedy was only by intreaty or request'. In our law a use might be ranked under the rights of the second kind; being a confidence reposed in another who was , tenant of the land, or terre-tenant, that he should dispose of the land according to the intentions of cestuy que use, or him to whose use it was granted, and suffer him to take the profitsf. As if a feoffment was made to A and his heirs, to the use of (or in trust for) B and his heirs ; here at the common law A the terre-

b Co. Litt. 237. c Ff. 7.1. lv

d Inst. 2. tit. 23.

e Ff. 43.26.1. Bacon on Uses. 8°. 306. f Plowd. 352.

tenant, had the legal property and possession of the land, but B the ccstuy que use was in conscience and equity to have the profits and disposal of it.

This notion was transplanted into England from the civil law, about the close of the reign of Edward IIIs, by means of the foreign ecclesiastics; who introduced it to evade the statutes of mortmain, by obtaining grants of lands, not to their religious houses directly, but to the use 0/"the religious houses*1: which the clerical chancellors of those times held to bejidei-commissa, and binding in conscience : and therefore assumed the jurisdiction, which Augustus had vested in his fraetor, of compelling the execution of such trusts in the court of chancery. And, as it was most easy to obtain such grants from dying persons, a maxim was established, that, though by law, the lands themselves were not devisable, yet if a testator had enfeoffed another to his own use, and so possessed of the use only, such use was devisible by will. But we have seen' how this evasion was crushed in it's infancy, by statute 15. Rich. II. c. 5, with respect to religious houses.

Yet, the idea being once introduced, however fraudulently, it afterwards continued to be often innocently, and sometimes very laudably, applied to a number of civil purposes: particularly as it removed the restraint of alienations by will, and permitted the owner of lands in his life-time to make various designations of their profits, as prudence, or justice, or family convenience might from time to time require. Till at length, during our long wars in France, and the subsequent civil commotions between the houses of York and Lancaster, uses grew almost universal: through the desire-that men had (when th'eir lives were continually in hazard) of providing for their children by will, and of securing their estates from forfeitures ; when each of the contending parties, as they became uppermost, alternately attainted the other. Wherefore, about the reign of Edward IV, (before whose time, lord Bacon remarksk, there are not six cases to be found relating to the doctrine of uses) the courts of • equity began to reduce them to something of a regular system.

B Stat. 50 Edw. III. c. 6. 1 Rich. II. c. 9. 1 Rep. 139.

h Sec p. 271. i Page 272. k On Uses, 313.

Originally, it was held that the chancery could give no relief, but.against the very person himself intrusted for cestuy que use, and not against his heir or alienee. This( was altered in the reign of Henry VI, with respect to the heir'; and afterwards the same rule, by a parity of reason, was extended to such alienees as had purchased either without a valuable consideration, or with an express notice of the use m. But a purchaser for a valuable consideration, without notice, might hold the land discharged of-any trust or confidence. And also it was held, that neither the king or queen, on account of their dignity royal", nor any corporation aggregate, on account of it's limited capacity0, could be seised to any use but their own ; that is, they might hold the lands, but were not cotnpellable to execute the trust. And, if the feoffee to uses died without heir, or committed a forfeiture or married, neither the lord who entered for his escheat or forfeiture, nor the husband who retained the possession as tenant by the curtesy, nor the wife to whom dower was assigned, were liable to perform the usei*; because they were not parties to the trust, but came in by act of law ; though, doubtless, their tide in reason was no better than that of the heir.

On the other hand, the use itself, or interest of cestuy que «se, was learnedly refined upon with many elaborate distinctions. And, 1. It was held that nothing could be granted to -a use, whereof the use is inseparable from the possession; as annuities, ways, commons, and authorities, quae ipso usu konsumuntur«.• or whereof the seisin could not be instantly givenr. 2. A use could not be raised without a sufficient consideration. For where a man makes a- feoffment to another without any consideration, equity presumes that he meant it to the use of himself': unless he expressly declares it to bo the use of another, and then nothing shall be presumed contrary to his own expressions *. But, if either a good or a valuable consideration appears, equity will immediately raise a use correspondent to such consideration ". 3. Uses were descendible according to the rules of the common law, in the case of inhe-.

1 Keilw. 42. Vent-book. 22Edw. IV, 6. m Ibid. 46. Bacon of Uses, 312. n Bro. Abr. tit. Feoffm. al uses, 31. Bacon of Uses, 346, 347. o Ibid. 40. Bacon, 347. p 1 Rep. 122. q 1 Jon. 127. r Cro. Ettz. 401. s See page 296.t 1 And. 37. « Moor. 684.

ritances in possessionw; for in this and many other respects aequitas sequitur legem, and cannot establish a different rule of property from that which the law has established. 4. Uses might be assigned by secret deeds between the parties x 38, or be devised by last will and testament *: for, as the legal estate in the soil was not transferred by these transactions, no livery of seisin was necessary; and, as the intention of the parties was the leading principle in this species of property, any instrument declaring that intention was allowed to be binding in equity. But cestuy que use could not at common law, aliene the legal interest of the lands, without the concurrence of his feoffee z; to whom he was accounted by law to be only tenant at sufferancea. 5. Uses were not liable to any of the feodal burthens ; and particularly did not escheat for felony or other defect of blood ; for escheats, &fc. are the cohsequence of tenure, and uses are held of nobody: but the land itself was liable to escheat, whenever the blood of the feoffee to uses was extinguished by crime or by defect} and the lord (as was before .observed) might hold it discharged of the use b. 6. No wife could be endowed, or husband have his cur* tesy, of a use c: for no trust was declared for their benefit, at the original grant of the estate. And, therefore, it became customary, when most estates were put in use, to settle before marriage some joint estate to the use of the husband and wife for their lives; which was the original of modern jointures d. 1, A. use could not be extended by writ of elegit, or other legal process, for the debts of cestuy que use *. For, being merely a creature of equity, the common law, which looked no farther than to the person actually seised of the land, could award no process against it (z8).

w 2 Roll. Abr. 780. zStat. IRic.III.c.!. b Jenk. 190. d See page 137.

x Bacon of Uses, 312. • y Mid. 309. aBro. Abr. Ibid. 23. c 4 Rep. 1. 2 And. 75. e Bro. Abr. tit. executions, 90.

26. This inconvenience is remedied in Virginia, by the law which declares all deeds of trust, and other conveyances void, as to creditors and subsequent purchasers, unless recorded within the time limited by law. See p. 308, note 12. V. L. 1748, c. 1. Edi. 1794, c. 90.

(26.) Estates of every kind, held in trust, are subject to the like debts and charges of the persons to whose use they are holden, as if they were legal estates. V. L. 1785, c. 62. Edi. 1794, c. 90. $. 15.

It is impracticable, upon our present plan, to pursue the doctrine of uses through all the refinements and niceties, which the ingenuity of the times ^abounding in subtile disquisitions) deduced from this child of the imagination; when once a departure was permitted from the plain simple rules of property established by the antient law. These principal outlines will be fully sufficient to shew the ground of lord Bacon's complaintf, that this course of proceeding " was turned to deceive many of "their just and reasonable rights. A man, that had cause to ." sue for land, knew not against whom to bring his action, or 'f who was the owner of it. The wife was defrauded of her *' thirds; the husband of his curtesy; the lord of his wardship, " relief, heriot, and escheat; the creditor of his extent for debt; " and the poor tenant of his lease." To remedy these inconveniences abundance of statutes were provided, which made the lands liable to be extended by the creditors of cestuy que use k, allowed actions for the freehold to be brought against him, if in the actual pernancy or enjoyment of the profits h ; made him liable to actions of waste'; established his conveyances and leases made without the concurrence of his feoffeesk; and gave the lord the wardship of his heir, with certain other feodal perquisites1.

These provisions all'tended to consider cestuy que use as the real owner of the estate; and at length that idea was carried into full effect by the statute 27 Hen. VIII. c. 10, which is usually called the statute of uses, or, in conveyances and pleadings, the

f Use of th«Law, 153.

g Stat. 50 Edw. III, c. 6. 2 Ric. II, sets. 2, 3. 19 Hen. VII, c. 15. hStat. IRic. II, c. 9. 4 Hen. IV, c. 7, c. 15. 11 Hen. VI, c. 3. IHen. VII, c.l.

i Stat. 11 Hen. VI, c. 5. k Stat. 1 Ric. III, c. 1. 1 Stat. 4 Hen. VII, c, 17, 19 Hen. VII, c. 15.

And where any person to whose use, or in trust for whose benefit another is, or shall be, seised of lands, tenements, or hereditaments, hath or shall have such inheritance in the use or trust, as, that if it ha been a legal right, the husband or wife of such persgn would thereof have been entitled to curtesy, or dower, such husband or wife shall have and hold, and may, by the remedy proper in similar cases, recover curtesy, -or dower, of such lands, tenements, or hereditaments. Ibidem, Sect. 16.

statute for transferring uses into possession. The hint seems to have been derived from what was done at the accession of king Richard'111; who having, when duke of Gloucester, been frequently made a feoffee to uses, would, upon the assumption of the crown (as the law was then understood) have been entitled to hold the lands discharged of the use. But, to obviate so notorious an injustice, an act of parliament was immediately passed"1, which ordained, that, where he had been so enfeoffed jointly with other persons, the land should vest in the other feoffees, as if he had never been named; and that, where he stood solely enfeoffed, the estate itself should vest in cestuy que use in like manner as he had the use. And so the statute of Henry VIII, after reciting the various inconveniences before-mentioned, and many others, enacts, that " when any person shall be seised of lands, fcfc. " to the use, confidence, or trust, of any other person or body politic, the person or corporation entitled to the use in fee-simple, fee-tail, for life, or years, or otherwise, shall, from thenceforthj stand and be seised or possessed of the land, &?c. of and in the like estates as they have in the use, trust, or confidence; and that the estate of the person so seised to uses, shall be deemed to be in him or them that have the use, in such quality, manner, form, and condition, as they had before in-the use27." The statute thus executes the use, as our lawyers term it; that is, it conveys the possession to the use, and tranfers the use into possession : thereby making cestuy que use complete owner of the lands and tenements, as well at law as in equity.

The statute having thus not abolished the -conveyance ts uses, but only annihilated the intervening estate of the feoffee, and turned the interest of cestuy que use into a legal, instead of an equitable ownership ; the courts of common law began to take cognizance of uses, instead of sending the party to seek his relief in chancery. And, considering them now as merely a

m 1 Hie. III, c. 5.

27. This statute was In force in Virginia until the first of January, 1787", when the act of 1785, c. 62, by which its provisions were made a part of Our legislative code, took, effect. See p. 337, note 28.

mode of conveyance, very many of the rules before established inequity were adopted, with improvements, by the judges of the common law. The same persons only were held capable of being seised to a use, the same considerations were necessary for raising it, and it could only be raised of the same hereditaments as formerly. But as the statute, the instant it was raised, converted it into an actual possession of the land, a great number of the incidents that formerly attended it in it's fiduciary state, were now at an end. The land could not escheat or be forfeited by the act or defect of the feoffee, nor be aliened to any purchaser discharged of the use, nor be liable to dower or curtesy on account of the sejsin of such feoffee ; because the legal estate never rests in him for a moment, but is instantaneously transferred to cestuy que use, as soon as the use is declared. And, as the use and the land were now convertible terms, they became liable to dower, curtesy, and escheat, in consequence of the seisin of cestuy que use, who was now become the terre-tenant also; and they likewise were no longer devisable by will.

The various necessities of mankind induced also the judges very soon to depart from the rigour and simplicity of the rules of the common law, and to allow a more minute and complex construction upon conveyances to uses than upon others. Hence it was adjudged, that the Use need not always be executed the instant the conveyance is made: but, if it cannot take effect at that time, the operation of the statute may wait till the use shall arise upon some future contingency, to happen within a reasonable period of time; and in the mean while the antient use shall remain in the original grantor : as, when lands are conveyed to the use of A and B, after a marriage shall be had between them ", or to the use of A and his heirs till B shall pay him a sum of money, and then to the use of B and his heirs °. Which doctrine, when devises by will were again introduced, and considered as equivalent in point of construction to declarations of uses, was also adopted in favour of executory devises p. But herein these, which are called contingent or springing uses, differ from an executory devise; in that there must be a person seised to

n 2 HoU. Abr. 791.Cro.Eliz.439. p See page 173.

o Bro. Jtbr. tit. Feaffm. at uses, 30.

such uses at the time when the contingency happens, else they can never be executed by the statute $ and, therefore, if the estate of the feoffee to such use be destroyed by alienation or otherwise, before the contingency arises, the use is destroyed for ever': whereas, by an executory devise, the freehold itself is transferred to the future devisee. And, in both these cases, a fee may be limited to take effect after a fee r ; because, though that was forbidden by the common law in favour of the lord's escheat, yet when the legal estate was not extended beyond one fee-simple, such subsequent uses (after a use in fee) were, before the statute, permitted to be limited in equity: and then the statute executed the legal estate in the same manner as the use before subsisted. It was also held, that a use, though executed, may change from one to another by circumstances ex post facto •; as, if A makes a feoffment to the use of his intended wife and her eldest son for their lives, upon the marriage the wife takes the whole use in severally ; and, upon the birth of a son, the use is executed jointly in them both*. This is sometimes called a secondary, sometimes a shifting, use. And, whenever the use limited by the deed expires, or cannot vest, it returns back to him who raised it, after such expiration, or during such impossibility, and is stiled a resulting use. As, if a man makes a feoffment to the use of his intended wife for life, with remainder to the use of her first-born son in tail: here, till he marries, the use results back to himself; after marriage, it is executed in the wife for life; and, if she dies without issue, the whole results back to him in fee". It was likewise held, that the uses originally declared may be revoked at any future time, and new uses be declared of the land, provided the grantor reserved to himself such a power at the creation of the estate ; whereas the utmost that the common law would allow, was a deed of defeazance coeval with the grant itself (and therefore esteemed a part of it) upon events specifically -mentioned*. And, in case of such a revocation, the old uses were held instantly to cease, and the new ones to become executed in their stead". And this was

ql.Rep. 134,138. Cro. Kite.439. r Pollexf. 78. 10 Mod. 423. s Bro. Abr. tit. Fecfm. at uses, 30.' t Bacon of Uses, 351. n Ibid. 350. 1- Rep. 120. w See page 327. x Co.Litt.23r.

permitted, partly to indulge the convenience, and partly the caprice of mankind; who (as lord Bacon observes?) have always affected to have the disposition of their property revocable in their owp titne, and irrevocable ever afterwards.

By this equitable train of decisions in the courts of law, the power of the court of chancery over landed property was greatly curtailed and diminished. But one or two technical scruples, which the judges found it hard to get over, restored it with tenfold increase. They held in the first place, that " no use could be limited on a use %" and that when a man bargains and sells his land for money, which raises a use by implication to the bargainee, the limitation of a fartheT Hse to another person is repugnant, and therefore void ». And therefore, on a feoffment to A and his heirs, to the use of B and his heirs, in trust for C and his heirs, they held that the statute executed only the first use, and that the second was a mere nullity: not adverting, that the instant the first use was executed in B, he became seised to the use of C, which second use the statute might as well be permitted to execute as it did the first; and so the legal estate might be instantaneously transmitted down, through a hundred uses upon uses, till finally executed in the last cestuy que use*. Again; as the statute mentions only such persons as were seised to the use of others, this was held not to extend to terms of years, or other chattel interests, whereof the termor is not seised^ but only possessed b (Z7); and there-

y On Uses, 316. a 1 And. 37.136.

z Dyer. 155. | b Bacon Law of Uses, 335. Jenk. 244«

* It is the practice to introduce only the names of the trustee and the cettu? ijue trust i the estate being conveyed to A and his heirs, to ti>e use of A 'and ibis heirs, in trust for B and his heirs; and thus this important statute has been effectually repealed by the repetition of half a dozen words...Cbrittiaii.

(27.) Estates of every kind, holden, or possessed, in trust shall be subject to like debts and charges of the persons to whose use, or for whose benefit they were, or shall be respectively holden or possessed, as they would have been subject to, if those persons had owned the like interests in the things holden or possessed, as they own or shall own in the uses or trusts thereof, L. V. Edi. 1794, c. 90. Sec. 15. 1785, c. 62.

fore, if a term of one thousand years be limited to A, to the use of (or in trust for) B, the statute does not execute this use, but leaves it as at common law c. And lastly, (by more modem resolutions) where lands are given to one and his heirs, in trust to receive an'd pay over the profits to another, this use is not executed by the statute: for the land must remain in the trustee to enable him to perform the trustd*.

Of the two more antient distinctions the courts of equity quickly availed themselves. In the first case it was evident, that B was never intended by the parties to have any beneficial interest ; and, in the second, the cestuy que use of the term was expressly, driven into the court of chancery to seek his remedy : and therefore that court determined, that though these were not uses, which the statute could execute, yet still they were trusts in equity, which in conscience ought to be performed e. To this the reason of mankind assented, and the doctrine of uses was revived, under the demomination of trusts: and thus, by this strict construction of the courts of law, a statute made upon great deliberation, and introduced in the most solemn manner, has had little other effect than to make a slight alteration in the formal words of a conveyance f.

However, the courts of equity, in the exercise of this new jurisdiction, have wisely avoided in a great degree those mis-

c Poph. 76. Dyer. 369. d 1 Equ. Cas. Ab. 383, 384. e 1 Hal. P. C. 218. f Vaugh. 50. Atk. 591.

* I should be inclined to think that the case as expressed by the learned judge would be construed an use executed by the statute. In the authority referred to in 1 Er/. Ca. Abr. 383, the trustees were first to pay legacies and annuities, and then to pay over the surplus to a married woman for her separate use. To prevent a trust from being executed by the statute in cases of this kind, it seems necessary that the trustees should have some control and discretion in the application of the profits of the estate, as to make repairs, or to provide for the maintenance of the ccstui que trust. 1 Bro. 75. 2 f. K. 444. Where there is no such special circumstance in the grant, it appears to be equivalent to a direction to the trustees to permit the cestui que trust to take tl-e profits of the estate, which is fully established to be an use executed. 1 Eq. Ca. Abr. 383.

But if it is to permit a married woman to take the rents and profits for her sepaiate use, the legal estate will be vested in the trustees in order to prevent the husband from receiving them subject to no control. 7 f. R. 65%...Christian.

chiefs which made uses intolerable. The statute of frauds, 29 Car. II. c. 3, having required that every declaration, assignment, or grant of any trust in lands or hereditaments, (except such as aiise from implication or construction of law) shall be made in writing signed by the party, or by his written will: the courts now ronsider a trust-estate (either when expressly declared or resulting by such implication) as equivalent to the legal ownership, governed by the same rules of property, and liable to every charge in 'equity, which the other is subject to in law: and,, by a long series of uniform determinations, for now near a century past, with some assistance from the legislature, they have raised antwsystem of rational jurisprudence, by which trusts are made to answer in general all the beneficial ends of uses, withqut their inconvenience or frauds. The trustee is considered as merely the instrument of conveyance, and can in no shape affect the estate, unless by alienation for a valuable consideration to a purchasor without notice e ; which, as cestuy que use is generally in. possession of the land, is a thing that can rarely happen. The trust will descend, may be aliened, is liable to debts, to executions on judgments, statutes, and recognizances, (by the express provision of the statute of frauds) to forfeiture, to leases land other incumbrances, nay even to the curtesy of the husband, as if it was an estate at law. It has not yet indeed been subjected to dower, more, from a cautious adherence to some hasty precedents'1, than from any well-grounded principle*. Ithath also been held not liable to escheat to the lord, in consequence of attainder

gSFreem. 43. ' hi Chan. Rep. 254.2P. Wms. 640.

• It has been decided, that when the legal and equitable estates meet in the *ame peison, the trust or equitable estate is merged in the legal estate; as if a wife should have the legal estate and the husband the equitable ; and it' they have an onlyv child, to whom these estates descend, and who dies intestate without issue, the two estates having united, the descent will follow the legal estate, and the estate will go to an heir on the part of the mother: and thus, which appears strange, the beneficial interest will pass out of one family into another, between whom there is no connexion by blood. Daug. 741.

Before the statute of uses there was neither dower nor tenancy by the curtesey of an use, p. 331. It is therefore an unaccountable inconsistency, that, since the statute, the husband should have curtesey of a trust estate, and that the wife should cut of a similar estate be deprived of dower. See ante, p. 132. note H. .... Ci»ittiaH.

or want of heirs5: because the trust could never be intended fijt his benefit 2». But let us now return to the statute of uses.

The only service, as was before observed, to which this statute is now consigned, is in giving efficacy to certain new and secret species of conveyances S9; introduced in order to render

i Hadr. 494. Burgess and Wheat. Hil 32 Geo II in Cane.

28. " By deed of bargain and sale, or by deeds of lease and release, ' or by covenant to stand seised to use, or deed operating by way of covenant to stand seised to use, the possession of the bargainer, releasor, or covenantor, shall be deemed heretofore to have been, and hereafter to be transferred to the bargainee, releasee, or person entitled to the use, for the estate or interest which such person hath, or shall have in the use, as perfectly as if such bargainee, releasee, or person entitled to the use, had been enfeoffed, with livery of sefsin, of the land intended to be conveyed by such deed or instrument." " Estates of every kind, holden or possessed in trus^, shall be subject to like debts, and charges of the persons to whose use, or for whose benefit, they were, or shall be respectively holden, or possessed, as they would have been subject to, if those persons had owned the like interest in the things holden or possessed, as they own, or shall own in the uses and trusts thereof." " Where any person to whose use, or in trust for whose benefit another is or shall be seised of lands, tenements or hereditaments, hath or shall have such inheritance in the use, or trust, as that if it had been a legal right, the husband or wife of such person would have been entitled to curtesy or dower, such husband or wife shall have and hold, and may by the remedy proper in similar cases, recover curtesy or dower, of such lands, tenements, or hereditaments." V. L. 1785, c. 62. Edi. IT'94, c. 90.

By this act the question frequently agitated in the English courts of equity, viz. whether a widow be dowable of a trust estate, seems to be decided, see page 131, note 15. And it would seem as if it was the intention of the act to give to'Jthe tenant by curtesy, or dowress, a remedy at law, in these cases, without compelling them to go into a court of equity : but quere as to this point.

It would also seem to be the intention of this act to put uses and trusts upon the same footing with each other, in all cases whatsoever*

29. This inconvenience, as was before observed, seems to be effectually guarded against in Virginia, by those lawsjwhich render all deeds of trust, mortgages, and other conveyances of lands, void as to creditors, and subsequent purchasers, unless they be recorded within the time limited by law. See p. 308, note 12, and the acts there referred t.o.

transactions of this sort as private as possible, and to save the trouble of making livery of seisin, the only antient conveyance of corporeal freeholds: the security and notoriety of which public investiture abundantly overpaid the labour of going to the land, or of sending an attorney in one's stead. But this now has given way to

12. A twelfth species of conveyance, called a covenant to stand seised to uses: by which a man, seised of lands, covenants in consideration of blood and marriage that he will stand seised •of the same to the use of his child, wife, or kinsman; for life, in tail, or in fee. Here the statute executes at once the estate; for the party intended to be benefited, having thus acquired the use, is thereby put at once into corporal possession of the landk, without ever seeing it, by a kind of parliamentary magic. But this conveyance can only operate, when made upon such weighty and interesting considerations as those of blood or marriage (29.)

13. A thirteenth species of conveyance, introduced by this statute, is that of a bargain and sale of lands; which is a kind of a real contract, whereby the bargainer for some pecuniary consideration bargains and sells, that is, contracts to convey, the land to the bargainee; and becomes by such a bargain a trustee for, or seised to the use of, the bargainee ; and then the statute of uses completes the purchase': or, as it hath been well expressed™, the bargain first vests the use, and then the statute vests the possession. But as it was forseen that conveyances, thus made, would want all those benefits of notoriety, which the old common law assurances were calculated to give; to prevent therefore clandestine conveyances of freeholds, it was enacted in the same session of parliament by statute 27 Hen. VIII. c. 16, that such bargains and sales should not enure to pass a freehold,

fc flacon Use of the Law. 151. 1 Il/td 150. mCro Jac 696.

(29.) This species of conveyance is as effectual for the purpose of transferring possession to the person, for whoscTuse the covenantor covenants to stand seised, as if the land had been conveyed by feoffment with livery of seisin. V. L. 1785, c. 62. Edi. 1794, c. 90, J. 14'. These conveyances must be recorded. See note 12, p. 308.

unless the same be made by indenture, und enrolled within six months in one of the courts of Westminster-hall or with the custos rotulorum of the county. Clandestine bargains and sales of chattel intests, or leases for years, were thought not worth regarding, as such interests were very precarious till about six years before n j which also occasioned them to be overlooked in framing the statute of uses : and therefore such bargains and sales are not directed to be enrolled30. But how impossible is it to foresee, and provide against, all the consequences of innovations 1 This omission has given rise to

14. A fourteenth species of conveyance, viz. by lease, and release; first invented by serjeant Moore, soon after the statute of uses, and now the most common of any, and therefore not to be shaken; though very great lawyers (as, particularly, Mr. Noy, attorney-general to Charles I.) have formerly doubted it's validity0. It is thus contrived. A lease, or rather bargain and sale, upon some pecuniary consideration, for one year, is made by the tenant of the freehold to the lessee or bargainee. Now this, without any enrollment, makes the bargainer stand seised to the use of the bargainee, and vests in the bargainee the use of the term' for a year; and then the statute immediately annexes the possession. He, therefore, being thus in possession, is capable of receiving a release of the freehold and reversion; which we have seen beforeP, must be made to a tenant in possession: and, accordingly, the next day, a release is granted to hintf. This is held to supply the place of livery of seisin: and so a conveyance by lease and release is said to amount to a feoffmentr 31.

n See p. 142.

p page 324.

r Co. Litt. 270. Cro. Jac. 604.

o 2 Mod. 252.

q See Appendix. No. II. §. 1. 2.

30. All deeds of bargain and sale, and other conveyances of land for any estate of inheritance, or of freehold, or for term of years, are void against creditors and after purchasers, if not recorded according to law. See p. 308, note 12, and the acts there refered to, and p 337, note 28.

31. Deeds of lease and release must also be recorded. See the last note, as also, p. 337. n. 28.

15. To these may be added deeds to lead or declare the uses of other more direct conveyances, as feoffments, fines, and recoveries ; of which we shall speak in the next chapter: and,

16. Deeds of revocation of uses; hinted at in a former page», and founded in a previous power, reserved at the raising of the uses1, to revoke such as were then declared; and to appoint others in their stead, which is incident to the power of revocationu. And this may suffice for a specimen of conveyances founded upon the statute of uses ; and will finish our observations upon such deeds as serve to transfer real property32.

Before we conclude, it will not be improper to subjoin a few remarks upon such deeds as are not to convey, but to charge or incumber, lands, and to discharge them again: of which nature are,, obligations or bonds, recognizances, and defeazances upon them both.

1. An obligation or bond, is a deedv whereby the obligor obliges himself, his heirs, executors, and administrators, to pay a certain sum of money to another at a day appointed. If this be all, the bond is called a single one simplex obligatio: but there is generally a condition added, that if the obligor does some particular act, the obligation shall be void, or else shall remain in full force: as, payment of rent; performance of covenants in a deed; or repayment of a principal sum of money borrowed of the obligee, with interest, which principal sum is usually one half of the penal sum specified in the bond. In case this condition is not performed, the bond becomes forfeited, or absolute at law, and charges the obligor while living; and after his death the obligation descends upon his heir, who (on defect of personal assets) is bound to discharge it, provided he has real assets by descent as a recompense. So that it may be called, though

s Page 335. t See Appendix. No. II. p. xi.

u Co. Litt. 237. v See Appendix. No. III. p. xiii.

32. The student is once more reminded, that all the preceding conveyances of lands, are void in Virginia, as against creditors and after purchasers, if not recorded pursuant to the several acts on that subject, viz. 1710, c. 13. Edi. 1733. 1748, c. 1. 1785, c. 62, and Edi. 1794, c 90. Seep. 308. note 12.

not a direct, yet a collateral, charge upon the lands*. How it affects the personal property of the obligor, will be more properly considered hereafter.

If the condition of a bond be impossible at the time of making it, or be to do a thing contrary to some rule of law that is merely positive, to be uncertain, or insensible, the condition alone is void, and the bond shall stand single, and unconditional: for it is the folly of the obligor to enter into such an obligation, from which he can never be released. If it be to do a thing that is malum in se, the obligation itself is void: for the whole is an unlawful contract, and the obligee shall take no advantage from such a transaction'}1. And if the condition be possible at the time of making it, and afterwards becomes impossible by the act of God, the act 9f law, or the act of the obligee himself, there the penalty of the obligation is saved: for no prudence or foresight of the obligor could guard against such a contingency*. On the forfeiture of a bond, or it's becoming single, the whole penalty was formerly recoverable at law: but here the courts of equity w Co. Litt. 206.

* If in a bond the obligor binds himself, without adding his heirs, executors and administrators, the executors and administrators are bound but not the heir. Step. Touch. 369. A bond does not seem properly to be • called an incumbrance upon land; for it does not follow the land like a recognizance and a judgment; and even if the heirat law aliens the land the obligee in the bond, by which the heir is bound, can have his remedy only against the person of the heir to the amount of the value of the land ; but he cannot' follow it whenit is in the possession of a bonaf.de purchaser. Bull. N. P. 175. ^..Christian.

f And if the bond be simply conditioned for the payment of money, yet if it was in fact given upon a turpis contractus, a contract either illegal or immoral, it has1 been determined, that the turpitude of the transaction may be pleaded in bar to an action upon the bond in a court of law. 2 W'th. 347. But it is the common practice to apply to'a court of equity for an injunction to such actions. Where bonds have been.given in consideration of seduction and incontinence, a distinction has been made between bonds given for future cohabitation, which / being for a clear immoral consideration, are void (3 Burr. 1568.) and those which are given as a compensation (the prxmium pudorisj for the injury done to a woman by her seducer, which, in general, are good, 2 P. Wins. 432. 2 Wits. 339. Yet in one case, where a young woman had been seduced by a married man; and had occasioned a separation between him and his wife, lord Hardwicke held that she was too criminal to derive any benefit from «uch a bond. 2 Vet. 160. Fonbl. Tr. of Eq. 216. Christian.

interposed, and would not permit a man to take more than in conscience he ought; viz. his principal, interest, and expences, in case the forfeiture accrued by non-payment of money borrowed; the damages sustained upon non-performance of covenants; and the like. And the like practice having gained some footing in the courts of la'.v", the statute 4 and 5 Ann. c. 16, at length enacted,' in the same spirit of equity, that in case of a bond, conditioned for the payment of money, the payment or tender of the principal sum due, with interest and costs, even though the bond be forfeited and a suit thereon commenced, shall be a full satisfaction and discharge33.

2. A recognizance is an obligation, of record which a man enters into before some court of record or magistrate duly authorized y, with condition to do seme particular act; as to appear at the assises, to keep the peace, to pay a debt, or the like. It is in most respects like another bond: the difference being chiefly this : that the bond is the creation of a fresh debt or obligation de nouo, the recognizance is an acknowlegement of a former debt upon record ; the form whereof is, " that A. B. doth acknowlege to owe to our lord the king, to the plaintiff, to C. D. or the like, the sum of ten pounds," with condition to be void on performance of the thing stipulated: in which case the king,

x 2 Keb. 553, 555. Salk. 596, 597,6 Mod. 11, 60,101.

y Bro. Mr. tit. recognizance. 24.

33. In all actions which shall be brought upon^any bond for the payment of money, wherein the plaintiff shall recover, Judgment shall be entered for the penalty of such bond, to be discharged by the payment of the principal and interest due thereon, and costs of suit; and if, before judgment, the defendant shall bring into court the principal and interest due upon such bond, judgment shall be entered for the costs only. And in any action of debt upon a bond, if before action brought,-the defendant hath paid the principal and interest due by the condition, he may plead payment in bar. V. L. 1748, c. 5. Edi. 1794, c. 76. i.

In England it hath been held that interest beyond the penalty may be recovered in a court of law, in the shape of damages. 2 Term. Rep. 388. But our law seems otherwise ; vide su/ira, this note.

Every bond must be stamped pursuant to the act of 5 Cong. c. 11, and 37, otherwise it cannot be given in evidence in any court. See note. Ante. 297: But that act is now repealed: the repeal took effect the first day of July, 1802. L. U. S. 7 Cong. c. 19.

the plaintiff C. D. &?c. is called the cognizee, " is cut cognoscitur;" as he that enters into the recognizance is called the cogniior," it qui cognoscit." This, being either certified to, or taken by the officer of some court, is witnessed only by the record of that court, and not by the party's seal: so that it is not in strict propriety a deed, though the effects of it are greater than a common obligation; being allowed a priority in point of payment, and binding the lands of the cognizor, from the time of enrollment on record *. There are also other recognizances, of a private kind, in nature of a stat ute staple, by virtue of the statute 23 Hen. VIII, c. 6, which have been already explained*, and shewn to be a charge upon real property 34.

t

3. A defeazance, on a bond, or recognizance, or judgment recovered, is a condition which, when performed, defeats or undoes it, in the same manner as a defeazance of an estate before-mentioned. It differs only from the common condition of a bond, in that the one is always inserted in the deed or bond itself, the other is made between the same parties by a separate, and frequently a subsequent deedb. This, like the condition of a bond, when performed, discharges and disincumbers the estate of the obligor.

These are the principal species of deeds or matter in pats, by which estates may be either conveyed, or at least affected. Among which the conveyances to uses are by much the most frequent of any ; though in these there is certainly one palpable defect, the want of sufficient notoriety: so that purchasers or creditors cannot know with any absolute certainty, what the estate, and the title to it, in reality are, upon which they are to lay out or to lend their money. In the antient feodal method of conveyance (by giving corporal seisin of the lands) this notoriety was in some measure answered; but all the advantages

Z Stat. 29 Car. II, c. 3. See page 161. a See page 160.

b Co. Lift. 237. 2 Sand. 47.

34. It was before observed, that this statute hath never been regarded as hi force in Virginia, and is now repealed. Edi. 1794, c. 147.

resulting from thence are now totally defeated by the introduction of death-bed devises and secret conveyances: and there has never been yet any sufficient guard provided against fraudulent charges and incumbrances; since the disuse of the old Saxon custom of transacting all conveyances at the county court, and entering a memorial of them in the chartulary or leger-book of some adjacent monastryc; and the failure of the general register established by king Richard the first, for 'the stairs or mortgages made to Jews, in the capitula de Judaeis, of which Hoveden has preserved a copy. However far the establishment of a like general register, for deeds, and wills, and other acts affecting real property, would remedy this inconvenience, deserves to be well considered. In Scotland every act and event, regarding the transmission of pro.perty, is regularly entered on record d. And some of ouY own provincial divisions, particularly the extended county of York, and the populous county of Middlesex, have prevailed with the legislature« to erect such registers in their several districts. But, however plausible these provisions may appear in theory, it hath been doubted by very competent judges, whether more disputes have not arisen in those counties by the inattention and omissions of parties, than prevented by the use of registers3S.

c Hickes Distertat. epittolar. 9.

d Dalrymple on feodal property. 262, &c.

e Stat. 2 and 3 Ann. c. 4. 6 Ann. c. 35. 7 Ann. c. 20. 8 Geo. II, c. 6.

35. See note 32. p. 339 .... See also 1 Vezey, 64.

CHAPTER THE TWENTY-FIRST.

OF ALIENATION BY MATTER OF RECORD.

ASSURANCES by matter of record are such as do not entirely depend on the act or consent of the parties themselves : but the sanction of a court of record is called in to substantiate, preserve, and be a perpetual testimony of the transfer of property from one man to another; or of it's establishment, when already-transferred. /Of this nature are, 1. Private acts of parliament. 2- The king's grants. 3. Fines. 4. Common recoveries.

I. Private acts of parliament are, especially of late years, become a very common mode of assurance. For it may sometimes happen, that by the ingenuity of some; and the blunders of other practitioners, an estate is most grievously entangled by a multitude of .contingent remainders, resulting trusts, springing" uses, executory devises, and the like artificial contrivances ; (a confusion unknown to the simple conveyances of the common law) so thdt. it is out of the power of either the courts of law or equity to relieve the owner. Or, it may sometimes happen, that_by the strictness or omissions of family settlements, the tenant of the estate is abridged of some reasonable power, (as letting leases, making a jointure for a wife, or the like) which power cannot be given him by the ordinary judges either in common law or equity. . Or it may be necessary, in settling an estate, to secure it against the claims of infants or other persons under legal- disabilities ; who are not bound by any judgments or decrees of the ordinary courts of justice *. In these, or other

1. The act of 1797, c. 98, provides, that thc/iarol shall not demur in any suit at common law or in equity, by reason of'the infancy of either party, but the court may nevertheless proceed to judgment, or final decree in the cause. Sessions acts of 1797, c. 98. Quere, how far this act may operate against the principle here mentioned ?

cases of the like kind, the transcendent power of parliament is called in, to cut the Gordian knot; and by a particular law, enacted for this very purpose, to unfetter an estate ; to give it's tenant reasonable powers ; or to assure it to a purchaser, against the remote or latent claims of infants or disabled persons, by settling a proper equivalent in proportion to the interest so barred. This practice was carried to a great length in the year succeeding the restoration; by setting aside many conveyances alleged to have been made by constraint, or in order to screen the estates from being forfeited during the usurpation. And at last it proceeded so far, that, as the noble historian expresses ita, every man had raised an equity in his own imagination, that he thought was intitled to prevail against any descent, testament, or act of law, and to find relief in parliament: which occasioned the king at the close of the session to remarkb, that the good old rules of law are the best security; and to wish, that men might not have too much cause to fear, that-the settlements which they make of their estates shall b.e top easily unsettled when they are dead, by the power of parliament.

Acts of this kind are, however, at present carried on, in both houses, with great deliberation and caution; particularly in the house of lords, they are usually referred to two judges to examine and report the facts alleged, and to settle all technical forms. Nothing also is done without the consent, expressly given, of all parties in being and capable of consent, that have the remotest interest in the matter; unless such consent shall appear to be perversely, and without any reason withheld. And, as was before hinted, an equivalent in money or other estate is usuaHy settled upon infants, or persons not in csse, or not of capacity to act for themselves, who are to be concluded by this act. And a general saving is constantly added, at the close of the bill, of the right and interest of all persons, whatsoever; except those whose consent is so given or purchased, and who are therein particularly named: though it hath been holden, that, even if such saving be omitted, the act shall bind none but the par. ties « (»),

a Lord Clar. Contin. 162. b Ibid. 163. c Co. 138, Godb. 171.

(1.) Private acts of assembly were very frequent before the revolution, for the purpose of barring estates tail; fines and recoveries for

A law, thus made, though it binds all parties to the bill, is yet looked upon rather as a private conveyance, than as the solemn act of the legislature. It is not, therefore, allowed to be a public, but a mere private statute; it is not printed or published among the, other laws of the session; it hath been relieved against, when obtained upon fraudulent suggestionscc; it hath been holden to be void, if contrary to law and reason d; and no judge or jury, is bound to take notice of it, unless the same be specifically set forth and pleaded to them*. It remains, however, enrolled among the public records of the nation, to be for ever preserved as a perpetual testimony of the conveyance or assurance so made or established.

II. The king's grants are also matter of public record. For, as St. Germyn sayse, .the king's excellency is so high in the law, that no freehold may be given to the king, nor derived from him, but by matter of record. And to this end a variety of offices are erected, communicating in a regular subordination one with another, through which all the king's grants must pass and be transcribed, and enrolled; that the same may be narrowly inspected by his officers, who will inform him if any thing contained therein is improper, or unlawful to be granted. These grants, whether of lands, honours, liberties, franchises, or ought besides, are contained in charters, or letters patent, that is, open letters, literae patentes: so called because they are not sealed up but exposed to open view, with the great seal pendant at the bottom : 'and are usually directed or addressed by the king to all

cc Richardson vs. Hamilton. Cane. 8 Jan. 1773, M'Kenzie vs. Stuart. Dam. Proc. 13 Mar. 1754.

d 4 Rep. 12.

e Dr. & Stud, b. 1, d. 8.

that purpose being expressly prohibited, by several successive laws... [1710, c. 13 .... 1748, c. 1.] The time employed by the legislature in this manner is one of the reasons assigned for abolishing estates-tail, 1776. c. 26. Since that period private acts of assembly, though still applied for, and occasionally passed, have been much less frequent. There is some reason to apprehend, that of late, the same caution has not been observed in passing them, in this country, as seems to be practised in the British parliament.

2. Private acts of assembly may be given in evidence, without being specially pleaded, Edi. 1794. c. 76.

his subjects at large. And therein they differ from certain other letters of the king, sealed also with his great seal, but directed to particular persons, and for particular purposes: which, therefore, not being proper for public inspection, are closed up and sealed on the outside, and are, thereupon, called writs close, literae clausae; and are recorded in the close-rolls, in the same manner as the others are in the patent-rolls.

Grants, or letters patent must first pass by bill; which is prepared by the attorney and solicitor general, in consequence of a warrant from the crown; and is then signed, that is, subscribed at the top, with the king's own sign manual, and sealed with his privy signet, which is always in the custody of the principal secretary of state: and then sometimes it immediately passes under the great seal, in which case the patent is subscribed in these words, per ipsum regem, by the king himself dd.". .... Otherwise the course is to carry an extract of the bill to the keeper of the p'rivy seal, who makes out a writ or warrant thereupon to the chancery ; so that the sign manual is the warrant to the privy seal, and the privy seal is the warrant to the great seal: and in this last case the patent is subscribed, "per breve deprivato- sigillo, by writ of privy seal"." But there are some grants, which only pass through certain offices, as the admiralty or treasury, in consequence of a sign manual, without the confirmation of either the signet, the great,' or the privy seal3.

The manner of granting by the king does not more differ from that by a subject, than the construction of his grants, when made. 1. A grant made by the king, at the suit of the grantee, shall be taken most beneficially for the king, and against the party: whereas the grant of a subject is construed most strongly against the grantor. Wherefore it is usual to insert in the king's grants, that they are made, not at the suit of the grantee, but " ex speciali gratia, certa scientia, et mero motu regis; and then they have a more liberal construction f. 2. A subject's grant shall be construed to include many things, besides what

dd 9 Rep. 18. ee Ibid. 2 tyst. 555. f Finch. L. 100, 10 Rep. 112.

3. See Appendix, Note D.

are expressed, if necessary for the operation of the grant. Therefore, in a private grant of the profits of land for one year, free ingress, egress, and regress, to cut and cany away those profits, are also inclusively granted s: and if a feoffment of land was made by a lord to his villein, this operated as a manumission h ; for he was otherwise unable to hold it. But the king's grant shall not enure to any other intent, than that which is precisely expressed in the grant. As, if he grants land to an alien, it operates nothing * ; for such grant shall not also enure to make him a denizen, that so he may be capable of taking by grant 'l. 3. When it appears, from the face of the grant, that the king is mistaken, or deceived, either in mater of fact or matter of law, as in case of false suggestion, misinformation, or misrecital of former grants ; or if his own title to the thing granted be different from what he supposes; or if the grant be informal; or if he grants an estate contrary to the rules of law j in ariy of these cases the grant is absolutely void k. For instance ; if the king grants lands to one and his heirs male, this is merely void : for it shall not be an estate-tail, because there want words of procreation, to ascertain the body, out of which the heirs shall issue : neither is it a fee-simple, as in. common grants it would be ; because it may reasonably be supposed, that the king meant to give no more than estate tail': the grantee is therefore (if any thing) nothing more than tenant at willm. And, to prevent deceits of the king, with regard to the value of the estate granted, it is particularly provided by the statute 1 Hen. IV. c. 6, that no grant of his shall be good, unless, in the grantee's petition

g Co. Litt. 56. h Litt. Sec. 206.

i Bro. Abr. tit. Patent. 62. Finch. L. 110.

k Freem. 172. 1 Finch. 101,102.

m Bro. Abr. tit. Estates, 34, tit. Patents, 104, Dyer. 270, Dav. 45.

,4. This well deserves notice. .Our law provides, that all persons as well foreigners, as others, shall have a right to assign or transfer warrants or certificates of survey for lands ; and any foreigner purchasing warrants for lands, may locate and have the same surveyed, and after returning a certificate of survey to the land-office, shall be allowed two years to become a citizen, ov to transfer his right therein. V. L. May, 1779, c. 13. Edi. 1785, Edi. 1794, c. 86. But what if he obtains a grant for the land ? As the law i s here laid down it is void. Foreigners would do well to attend to this circumstance.

for them, express mention be made of the real value of the lands (<).

III. We are next to consider a very usual species of assurance, which is also of record ; viz. a fine of lands and tenements. In which it will be necessary to explain, 1. The nature of a fine j 2. It's several kinds; and 3. It's/era? and effect.

1. A fine is sometimes said to be a feoffment of record n : though it might with more accuracy be called, an acknowlegement of a feoffment on record. By which is'to be understood, that it has at least the same force and effect with a feoffment, in the conveying and assuring of lands: though it is one of those methods of transferring estates of freehold by the common law, in which livery of seisin is not necessary to be actually given ; the supposition and acknowlegement thereof in a court of record, however fictitious, inducing an equal notoriety. But, more particularly, a fine may be described to be tin amicable composition or agreement of a suit, either actual or fictitious, by leave of the king or his justices ; whereby the lands in question become, or are acknowledged to be, the right of one of the parties0. In it's original it was founded on an actual suit, commenced at law for recovery of the possession of land or other hereditaments ; and the possession thus gained by such composition was found to be so sure and effectual, that fictitious actions were, and continue to be, every day commenced, for the sake of obtaining the1 same security. i

A fine is so called, because it puts an end, not only to the suit thus commenced, but also to all other suits and controversies concerning the same matter. Or, as it is expressed in an antient record of parliament p, 18 TLd\v. I, " non in regno Anglice providetur, vel est, aliqua securitas major velsolennior,per quam aliquis statum certiorem habere fossil, neque ad siatum

n Co. Litt. 50. o Ibid. 120. p 2 Roll. Abr. 13.

(4.) This statute stands repealed, under the general law repealing all British statutes. Edi. 1794, c. 147.

" suwn verificandum aliquod solennius testimoniwn producere^ " quam-Jinem in curia domini regis levatum: qui qiiidemjinis sic " vocatur," eo quodjiriis et consummatio omnium placitorum esse " debet, et hoc de causa providebatur." Fines indeed are of equal antiquity with the first rudimepts of the law itself; are spoken of by Glanvill and Bracton' in the reigns of Henry II, and Henry III, as things then well known and long established ; and instances have been produced of them even prior to the Norman invasion". So that the statute 18 Edw. I, called modus levandi fnes, did not give them original, but only declared and regulated the manner in which they should be levied, or carried on. And that is as follows:

1.' The party, to whom the land is to be conveyed or assured, commences an action or suit at law against the other, generally an action of covenant*, by suing out a writ of praecipe^ called a writ of covenantv : the foundation of which is a supposed agreement or covenant, that the one shall convey the lands to the other; on the breach of which agreement the action is brought. On this writ there is due to the king, by antient prerogative, a primer Jine, or a noble for every five marks of land sued for; that is, one-tenth of the annual value". The suit being thus commenced, then follows,

2. The licentia concordandi, of leave to agree the suitw. For, as soon as the action is brought, the defendant, knowing himself to be in the wrong, is supposed to make overtures of peace and accommodation to the plaintiff. Who, accepting them, but having, upoh suing o'ut the writ, given pledges to prosecute his suit, which he endangers if he now deserts it without licence, he. therelore applies to the court for leave to-make thexmatter up.'

q /. 8. c. 1. r /. 5. f. 5. c. 28.

s Plowd. 369.

t A fine may also be levied on a writ of metne, ofwarrantiae cbartae, or de comuttudinibus et servitiis. (Finch. L.278.)

v Seeappendix, No. IV. §. 1. « 2 Inst. 511.

w Append. No. IV. Sec. 11. In the times of strict feodal jurisdiction, ifa vasal hud commenced a suit in the lord's court, he could not abandon it without leave; lest the lord should be deprived of his perquisites for deciding the cause. (Robertson, Cha. V. i. 31.)

This leave is readily granted, but for it there is also another fine due to the king by his prerogative, which is an ancient revenue of the crown, and is called the king's silver, or sometimes the pout fine, with respect to the primerjine before-mentioned. And it is as much as the primer fine, and half as much more, or ten shillings for every five marks of land; that is,three-twentieths of the supposed annual value *.

3. Next comes the concord, or agreement itself y, after leave obtained from the court; which is usually an acknowlegment from the deforciants (or those who keep the other out of possession) that the lands in question are the right of the complainant. ^And from this acknowlegment, or recognition of right, the party levying the fine is called the cognizor, and he to whom it is levied the cognizee. This acknowlegment must be made either openly in the court of common pleas, or before the lord chief justice of that court; or else before one of the judges of that court, or two or mfcre commissioners in the country, empowered by a special authority called a writ of dedimus polestotem; which judges and commissioners are bound, by statute 18 Edw. I. st. 4, to take care that the cognizors be of full age, sound memory, and out of prison. If there be any feme-covert among the cognizors, she is privately examined whether she does it willingly and freely, or by compulsion of her husband.

By these acts all the essential parts of a fine are completed : and, if the cognizor dies the next moment after the fine is acknowleged, provided it be subsequent to the day on which the writ is made returnable2, still the fine shall be carried on in all it's remaining parts : of which jhe next is,

4. The note of the fine a : which is only an abstract of the writ of covenant, and the concord ; naming the parties, the parcels of land, and the agreement. This must be enrolled of record in the proper office, by direction of the statute 5 Hen. IV, c. 14.

x 5 Rep. 39. 2 Inst. 511. Stat. 32 Geo. II. c. 14.

y Append. No. IV. Sec. 3.

z Comb. 71. a Append. No. IV. Sec. 4.

5. The fifth part is the foot of the fine, or conclusion of it: which includes the whole matter, reciting the parties, day, year, and place, and before whom it was acknowleged or levied1". Of this there are indentures made, or engrossed, at the- chirographer's office, and delivered to the cognizor and the cognizee; usually beginning thus," haec est jinalis concordia, this is the final agreement," and then reciting the whole proceeding at length. And thus the fine is completely levied at common law.

By several statutes still more solemnities are superadded, in order to render the fine more universally public, and less liable to be levied by fraud or covin. And, first, by 27 Edw. I. c. 1, the note of the fine shall be openly read in the court of common pleas, at two several days in one week, and during such reading all pleas shall cease. By 5 Hen. IV. c. 14, and 23 Eliz. c. 3, all the proceedings on fines, either at the time of acknowlegment, or previous, or subsequent thereto, shall be enrolled of record in the courtof common pleas. By 1 Ric. III. c. 7, confirmed and enforced by 4 Hen. VII. c. 24, the fine, after engrossment, shall be openly read and proclaimed in court (during which all pleas shall cease) sixteen times; viz. four times in the term in which it is made, and four times in each of the three succeeding terms j which is reduced to once in each term by 31 Eliz. c. 2, and these proclamations are indorsed on the back of the record c. It is also enacted by 23 Eliz. c. 3, that the chirographer of fines shall, every term, write out a table of the fines levied in each county in that term, and shall affix them in some open part of the court of common pleas all the next term: and shall also deliver the contents of such table to the sheriff of every county, who shall, at the next assises, fix the same in some open place in the court, for the more public notoriety of the fine.

2. Fines thus levied, are of four kinds. 1. What in our law

French is called a fine " sur cognizance de droit, come ceo que il

" ad de son done;" or, a fine upon acknowlegment of ,the right

of the cognizee, as that which he hath the gift of the cognizor11.

This is the best and surest kind of fine; for thereby the deforci-

b Append. No. IV, Sec. 5. c Appendix, No. IV. Sec. 6. ,

d This is that sort, of which au example is given in the Appendix, No. IV.

ant, in order to keep his covenant with the plaintiff, of conveying to him the lands in question, and at the same time to avoid the formality of an actual feoffment and livery, acknowleges in court a former feoffment, or gift in possession, to have been made by him to the plaintiff. This fine is therefore said to be a feoffment of record j the livery, thus acknowleged in court, being equivalent to an actual livery; so that this assurance is rather a confession of a former conveyance, than a conveyance now originally made ; for the deforciant, or cognizor, ackpowleges cognoscit, the right to be in the plaintiff, or cognizee, as that which he hath de son done, of the proper gift of himself, the cognizor. 2. A fine " sur cognizance de droit tantum" or, upon acknowlegment of the right merely; not with the circumstance of a preceding gift from the cognizor. This is commonly used to pass a reversionary interest, which is in the cognizor. For of such reversions there can be no feoffment, or donation with livery, supposed ; as the possession during the particular estate belongs to a third persone. It is worded in this manner; " that the cognizor *' acknowleges the right to be in the cognizee; and grants for " himself and his heirs, that the reversion, after the particular " estate determines, shall go to the cognizeef." 3. A fine " sur " concessit" is where the cognizor, in order to make an end of disputes, though he acknowleges no precedent right, yet grants to the cognizee an estate de novo, usually for life or years, by way of supposed composition. And this may be done reserving a rent, or the like : for it operates as a new grant«. 4. A fine, " sur done, grant, et render" is a double fine, comprehending the fine sur cognizance de droit come ceo, &?c. and the fine sur concessit: and may be used to create particular limitations of estate: whereas the fine sur cognizance de droit cum ceo, fc?c. conveys nothing but an absolute estate, either of inheritance or at least of freehold h. In this last species of fine, the cognizee, after the right is acknowleged to be in him, grants back again, or renders to the cognizor, or perhaps to a stranger, some other estate in the premises. But, in general, the first species of fine, sur cognizance de droit come ceo, fc?c. is the most used, as it conveys a clean and absolute freehold, and gives the cognizee a seisin

e Moor. 629. f West. Symb. p. 2. §. 95.

g West. p. 2. Sec. 66. h Salk. 340.

in law, without any actual livery; and is therefore called a fine executed, whereas the others are but executory.

3. We a\-e next to consider the force and effect of a fine. .... These principally depend, at this day, on the common law, and the two statutes, 4 Hen. VII. c. 24, and 32 Hen. VIII. c. 36 .... The a/itient common law, with respect to this point, is very forcibly declared by the statute 18 Edw. I. in these words. " And the reason, why such solemnity is required in the passing of a fine, is this; because the fine is so high a bar, and of so great force, and of a nature so powerful in itself, that-it precludes not only those which are parties and privies to the fine, and and their heirs, but all other persons in the world, who are of full age, out of prison, of sound memory, and within the four seas, the day of the fine levied ; unless they put in their claim on the foothh of the fine within a year and a day." But this doctrine, of barring the right by non-claim, was abolished for a time by a statute made in 34 Edw. III. c. 16, which admitted persons to claim, and falsify a fine, at any indefinite distance*: whereby, as sir Edward Coke observesk, great contention arose, and few men were sure of their possessions, till the parliament held 4 Hen. VII. reformed that mischief, and excellently moderated between the latitude given by the statute and the rigour of the common law. For the statute, then made1, restored the doctrine of non-claim ; but extended the time of claim. So that now, by that statute, the right of all strangers whatsoever is bound unless they make claim, by way of action or lawful entry, not within one year and a day, as by the common law, but within^SW years afteV proclamations. made: except feme-coverts, infants, prisoners, persons beyond'the seas, and such as are not of whole mind; who have five, years allowed to them and their heirs, after the death of their husbands, their attaining full age, recovering

bli Stir la file as it is in the Cotton MS, and not pur le pats as printed by Berthelet and in 2 Inst. 51J. There were then four methods of claiming, so as to avoid being concluded by a fine : 1. By action. 2. By entering such claim on the record at the foot of the fine. 3. By entry on the lands. 4.'By continual claim. 2. Inst. 518.' The second is not now in force under the statute of Henry

VII.

i Litt. Sec. 441. k 2 Inst. 518.

1 4 Hen. VIZ, c. 24, See page 118.

their liberty, returning into England, or being restored to their right mind'.

It seems to have been the intention of that politic prince, king Henry VII, to have covertly by this statute extended fines to have been a bar of estates tail, in order to unfetter the more easily the estates of his powerful nobility, and lay them more open to alienations ; being well aware that power will always accompany property. But doubts having arisen whether they could, by mere implication, be adjudged a sufficient bar (which they were expressly declared not to be by the statute de donts) the statute 32 Hen. VIII. c. 36, was thereupon made; which removes all difficulties, by declaring that a fine levied by any person of full age, to whom or to whose ancestors lands have been entailed, shall be a perpetual bar to them and their heirs claiming by force of such entail: unless the fine be levied by a woman after the death of her husband, of lands which were, by the gift of him or his ancestors, assigned to her in tail for her jointure"1; or unless it be of lands entailed by^ act of parliament or letters patent, and whereof the reversion belongs to the crown.

From this view of the common law, regulated by these statutes, it appears, that a fine is a solemn conveyance on record from the cognizor to the cognizee, and that the persons bound by a fine are par ties, privies, and strangers,

The parties are either the cognizors orcognizees ; and these are immediately concluded by the fine and barred of any latent right they might have, even though under the legal impediment of coverture. And indeed, as this is almost the only act that a feme-covert, or married woman, is permitted by law to do, (and that

m See statute 11 Henry VIZ, c. £0.

5. The force and effect of a fine levied in this manner being so great by the common law, it may deserve consideration by those who purchase lands (especially such as have been taken up since the revolution) whether it would not be advisable to confirm their titles thereto, by a conveyance of this nature, in the general court, or district courts.

because she is privately examined as to her voluntary consent, which removes the general suspicion of compulsion by her husband) (*) it is therefore the usual and almost the only safe method, whereby she can join in the sale, settlement, or incumbrance, of any estate.

Privies to a fine are such as are any way related to the parties who levy the fine, and claim under them by any right of blood, or other right of representation.1 Such as are the heirs general of the cognrzor, the issue in tail since the statute of Henry the eighth, the vendee, the devisee, and all others who must take title by the persons who levied the fine. For the act of the ancestors shall bind the heir, and the act of the principal his substitute, or such as claim under any conveyance made by him subsequent to the fine so levied".

Strangers to a fine are all other persons in the world, except only parties and privies. And these are also bound by a fine, unless, within five years after proclamations made, they interpose their claim; provided they are under no legal impediments, and have then a present interest in the" estate. The impediments, as hath before been said, are coverture, infancy, imprisonment, insanity, and absence beyond sea: and persons, who are thus incapacitated to prosecute their rights, have five years allowed them to put in their claims after such impediments are removed. Persons also that have not a present, but a future interest only, as those in remainder or reversion, have five years allowed them to claim in, from 'the time that such right accrues °. And if within that time they neglect to claim, or (by the statute 4 Ann. c. 16.) if they do not bring an action to try the right, within one year after making such claim, and prosecute the same with effect, all persons whatsoever are barred of whatsoever right they may have, by force of the statute of non-claim.

n 3 Rep. 87.

o Co. Litt. 372.

(5.) She must be examined in the same manner as to all deeds and conveyances executed by her during her coverture, and such privy examination must be recorded, otherwise her deed is merely void« L. V. 1748, c. 1. Edi. 1769 .... 1794, c. 90.

But, in order to make a fine of any avail at all, it is necessary that the parties should have some interest or estate in the lands to be affected by it. Else it were possible that two strangers, by a mere confederacy, might without any risque defraud the owners by levying fines of their lands ; for if the attempt be discovered, they can be no sufferers, but must only remain in statu quo: whereas if a tenant for life levies a fine, it is an absolute forfeiture of his estate to the remainder-man or reversioner p, if claimed in proper time. It is not therefore to be supposed that such tenants will frequently run so great a hazard ; but if they do, and the claim is not duly made within five years after their respective terms expire •», the estate is for ever barred by it. Yet where a stranger, whose presumption cannot thus be punished, officiously interferes in an -estate which in no wise belongs to him, his fine is of no effect; and may at any time be set aside (unless by such as are parties or privies thereunto r) by pleading that "paries jfinis nihil habucrunt" And, even if a tenant for years, who hath only a chattel interest, and no freehold in the land, levies a fine, it operates nothing, but is liable to be defeated by the same plea'. Wherefore when a lessee for years is disposed to levy a fine, it is usual for him to make a'feoffmeht first, to displace the estate of the reversioner1, and ^create a new freehold by disseisin. And thus much for the conveyance or assurance by fine: which not only, like other conveyances, binds the grantor himself, and his heirs; but also all mankind, whether concerned in the transfer or no, if they fail to put their claims within the time allotted by law''.

IV. The fourth species of assurance, by matter of record, is a common recovery. Concerning the original of which it was formerly observed u, that common recoveries were invented by the ecclesiastics to elude the statutes of mortmain; and after-

p Co. Litt. 251.

r Hob. 334.

tHardr. 402. 2 Lev. St.

q 2 Lev. 52.

s 5 Rep. 123- Hardr. 401. u Page 2171. 27.

6, Fines and recoveries, as a species of conveyance are unknown in Virginia, at this day...they were formerly prohibited from being levied, as a means of barring an estate tail, either general, or special. V. L. 1710, c. 13...1748, c. l...See page 116,note 11. and page 254.

wards encouraged by the finesse of the courts of law in 12 Edw. IV, in order to put an end to all fettered inheritances, and bar not only estates-tail, but also all remainders and reversions expectant thereon. I am now therefore only to consider, first, the nature of a common recovery; and, secondly, it's force and effect.

1. And, first, the nature of it; or what a common recovery is. A common recovery is so far like a fine, that it is a suit or action either actual or fictitious: and in it the lands are recovere dagainst the tenant of the freehold; which recovery, being a supposed adjudication of the right, binds all persons, and vests a free and absolute fee-simple in the recoverer. A recovery therefore being in the nature of an action at law, not immediately compromised like a fine, but carried on through every regular stage of proceeding, I am greatly apprehensive that it's form and method will not be easily understood by the student, who is not yet ac-r quainted with the course of judicial proceedings; which cannot be thoroughly explained, till treated of at large in the third book of these commentaries. However I shall endeavour to state it's nature and,progress, as clearly and concisely as I can; avoiding, as far as possible; all technical terms, and phrases not hitherto interpreted.

Let us, in the first place, suppose David Edwardsw to be tenant of the freehold, and desirous to suffer a common recovery, in order to bar all entails, remainders, and reversions, and to convey the same in fee-simple to Francis Golding: To effect this, Golding is to bring an action against him for the lands ; and he accordingly sues out a writ, called apraecipe quod reddat, because those were it's initial or most operative words, when the law proceedings were in Latin. In this wr.it the demandant Golding alleges, that the defendant Edwards (here called the tenant) has no legal title to the land ; but that he came into possession of it after one Hugh Hunt had turned the demandant out of it *. The subsequent proceedings are made up into a record or recovery roll *, in which the writ and complaint of the demandant are first recited: whereupon the tenant appears, and calls

w See Appendix, No. V.

x Sec. 1.

j Sec. 2.

upon one Jacob Morland, who is supposed, at the original purchase, to have warranted the title to the tenant: and thereupon he prays, that the said Jacob Morland may be called in to defend the title which he so warranted. This is called the voucher, vocatio, or calling of Jacob Morland to warranty ; and Morland is called the vouchee. Upon this, Jacob Morland, the vouchee, appears, is impleaded, and defends the title. Whereupon Golding, the demandant, desires leave of the court to impart, or confer with the vouchee in private; which is (as usual) allowed him. And soon afterwards the demandant, Golding, returns to court, but Morland the vouchee disappears, or makes default. Whereupon judgment is given for the demandant, Golding, now called the recoveror, to recover the lands in question against the tenant, Edwards, who is now the recoveree: and Edwards has judgment to recover of Jacob Morland lands of equal value, in recompence for the lands so warranted by him, and now lost by his default; which is agreeable to the doctrine of warranty mentioned in the preceding chapter *. This is called the recompense, or recovery in value. But Jacob Morland having no lands of his own, being usually the cryer of the court (who, from being frequently thus vouched, is called the common vouchee) it is plain that Edwards has only a nominal recompense for the lands so recovered against him by Golding; which lands are now absolutely vested in the said recoveror by judgment of law, and seisin thereof is delivered by the sheriff of the county. So that this collusive recovery operates merely in the nature of a conveyance in fee-simple, from Edwards the tenant in tail, to

Golding the purchaser.

• t

The recovery, here described, is with a. single voucher only; but sometimes it is with double, treble, or farther voucher, as the exigency of the case may require. And indeed it is now usual always to have a recovery with double voucher at the least: by first conveying an estate of freehold to any indifferent person, against whom the praecipe is brought; and then he vouches the tenant in tail, who vouches over the common vouchee a. For, if a recovery be had immediately against tenant in tail, it bars only such estate in the premises of.which he is then actually seised;

z page 301. a See Appendix, page xviii.

whereas if the recovery be had against another person, and the tenant in tail be vouched, it bars every latent right and interest which he may have in the lands recovered b. If Edwards therefore be tenant of the freehold in possession, and John Barker be tenant in tail in remainder, here Edwards doth first vouch Barker, and then Barker vouches Jacob Morland the common vouchee; who is always the last person vouched, and always makes default: whereby the demandant Golding recovers the land against the tenant Edwards, and Edwards recovers a recompense of equal value against Barker the first vouchee 4 who recovers the like against Morland the common vouchee, against whom such ideal recovery in value is always ultimately awarded.

This supposed recompense in value is the reason why the issue in tail- is held to be barred by a common recovery. For, if the recoveree should" obtain a recompense in lands from the common vouchee (which there is a possibility in contemplation of law, though a' very improbable one, of his doing) these lands would supply the place'of those so recovered from him by collusion, and would descend to the issue in tail0. This reason will also hold with equal force, as to most remainder-men and reversioners; to whom the possibility will remain and revert, as a full recompense for the reality, which they were otherwise entitled to: but it will not always hold; and therefore as Pigot says d, the judges have been even astttti, in inventing other reason$ to maintain the authority of recoveries. And, in particular, it hath been said, that, though the estate-tail is gone from the recoveree, yet it is not destroyed, but only transferred; and still subsists, and will ever continue to subsist (by construction of law) in the recoveror, his heirs and assigns: and, as the estate-tail so continues to subsist for ever, the remainders or reversions expectant on the determination of such estate-tail can never take place.

To such awkward shifts, such subtile refinements, and such strange reasoning, were our ancestors obliged to have recourse, in order to get the better oTthat stubborn statute de donis. The

bBro. Abi. tit. faile. 32 Plowd. 8. c Dr & St. b. 1. dial. 26. d of com. recov. 13,14.

design for which these contrivances were set on foot, was certainly laudable j the unrivetting the fetters of estates-tail, which were attended with a legion of mischiefs to the commonwealth: but, while we applaud the end, .we cannot but admire the means. Our modern courts of justice have indeed adopted a more manly way of treating the subject; by considering common recoveries in no other light, than as the formal mode of conveyance, by which tenant in tail is enabled to aliene his lands. But, since the ill consequences of fettered inheritances are now generally seen and allowed, and of course the utility and expedience of setting them at liberty are apparent; it hath often been wished, that the process of this conveyance was shortened, and rendered less subject to niceties, by either totally repealing the statute de donis ; which perhaps, by reviving the old doctrine of conditional fees, might give birth to many litigations (a): or by vesting in every tenant in tail of full age the same absolute fee-simple at once, which now he may.obtain whenever he pleases, b)'. the collusive fiction of a common recovery ; though this might possibly bear hard upon those in remainder or reversion, by abridging the chances they would otherwise frequently have, as no recovery can be suffered in the intervals between term and term, which sometimes continue for near five months together : or, lastly, by empowering the tenant in tail to bar the estate-tail by a solemn deed, to be made in term time and enrolled in some court of record; which is liable to neither of the other objections, and is warranted not only by the usuage of our American' colonies, and the decisions of our own courts o/justice, which allow a tenant in tail (without fine or recovery) to appoint his estate to any charitable use e, but also by the precedent of the statute f 21 Jac. I. c. 19, which, in case of a bankrupt tenant in ta'J, empowers his commissioners to sell the estate at any time, by deed indent-

e See page 376.

f See page 286.

(6.) This inconvenience is guarded against by the act of 1785. c. 62, Edi. 1794, c. 90. §. 9,-which declares that all conditional fees, shall be discharged froih the conditions annexed thereto by the common law restraining alienations before the donee shall have issue,' so that the person in wh>'im such conditional fees vested, or shall vest, shall have the same power over them as if they were pure and absolute fees.

ed and enrolled. And if, in so national a concern, the emoluments of the officers, concerned in passing recoveries, are thought to be worthy attention, those might be provided for in the fees to be paid upon each enrollment.

2. The force and effect of common recoveries may appear, from what has been said, to be an absolute bar not only of all estates tail, but of remainders and reversions expectant on the determination of such estates. So that a tenant in tail may, by this method of assurance, convey the lands held in tail to the recoveror his heirs and assigns, absolutely free and discharged of all conditions and limitations in tail, and of all remainders and reversions. But, by statute 34 and 35 Hen VIII. c. 20, no recovery had against tenant in tail, of the king's gift, whereof the remainder or reversion is in the king, shall bar such estate-tail, or the remainder or reversion of the crown. And by the statute 11 Hen. VII. c. 20, no woman, after her husband's death, shall suffer a recovery of lands settled on her by her husband, or settled op her husband and her, by any of his ancestors. And by statute 14 Eliz. c. 8, no tenant for life, of any sort, can suffer a recovery, so as to bind them in remainder or reversion. For which reason, if there be tenant for life, with remainder in tail, and other remainders over, and the tenant for life is desirous to suffer a valid recovery; either he, or the tenant to the praetipe by him made, must vouch the remainder-man in tail, otherwise the recovery is void: but if he does vouch such remainder-man, and he appears and vouches.the common vouchee, it is then good; for if a man be vouched and appears, and suffers the recovery to be had against the tenant to the praecipe, it is as effectual to bar the estate-tail as if he himself were the recoveree ff.

In all recoveries it is necessary that the recoveree, or tenant to the praecipe, as he is usually called, be actually seised of the freehold, else the recovery is void 8. For all actions, to recover, the seisin of lands, must be brought against the actual tenant of the freehold, else the suit will lose it's effect j since the freehold cannot be recovered of him who has it not. And, though these recoveries are in themselves fabulous and fictitious, yet it is ne-

ff Salk. 571.

g Pigot. 28.

cessary that there be actores fabulae, properly qualified. But the •nicety thought by some modern practitioners to be requisite in conveying the legal freehold, in order to make a good tenant to the praecipe is removed by the provisions of the statute 14 Geo. II. c. 20, which enacts, with a retrospect and conformity to the antient rule of law h, that though the legal freehold be vested in lessees, yet those who are entitled to the next freehold estate in remainder or reversion may make a good tenant to thepraecipe; .... that, though the deed or fine which creates such tenant be subsequent to the judgment of recovery, yet, if it be in the same term, the recovery shall be valid in law ; .... and that, though the recovery itself do not appear to be entered, or be not regularly entered, on record, yet the deed to make a tenant to the praecipe, and declare the uses of the recovery, shall after a possession of twenty years be sufficient evidence, on behalf of a purchasor for valuable consideration, 'that such recovery was duly suffered. And this may suffice to give the student a general idea of common recoveries, the last species of assurances by matter of record 7.

Before I conclude this head, I must add a word concerning deeds to lead, or to declare, the uses of fines, and of recoveries. For if they be levied or suffered without any good consideration, and without any uses declared, they, like other conveyances, enure only to the use of him who levies or suffers them* .... And if a consideration appears, yet, as the most usual fine," sur cognizance de droit come ceo, &?c." conveys an absolute estate, without any limitations, to the cognizee; and as common recoveries do the same to the recoveror, these assurances could not be made to answer the purpose of family settlements, (wherein

h Pigot. 41, &c. 4 Burr. 1. 115. i Dyer, 18.

7. Fines and recoveries being prohibited, and declared void 111 all cases where levied with intent to bar an estate-tail, seem to have fallen utterly into disuse in Virginia. Yet, as from the period when tenants in tail were declared to hold the same in fee simple, the reason of the prohibition has ceased, and as there is no reason at this day to be offered against the use of them, it is proper that the student should befulljr apprised of their nature, and the purposes to which they may be applied.

a variety of uses and designations is very often expedient) unless their force and effect were subjected to the direction of other more complicated deeds, wherein particular uses can be more particularly expressed. The fine or recovery, iiself, like a power once gained in mechanics, may be applied and directed to give efficacy to an infinite variety of movements, in the vast and intricate machine of a voluminous family settlement. And, if these deeds are made previous to the fine, or recovery, they are called deeds to lead the uses; if subsequent, deeds to declare them. As, if A, tenant in tail, with reversion to himself in fee, would settle his estate on B for life, remainder to C in tail, remainder to D in fee j this is what, by law, he has no power of doing effectually, while his own estate-tail is in being. He, therefore, usually, after making the settlement proposed, covenants to levy a fine (or, if there be any intermediate remainders, to suffer a recovery) to E, and directs that the same shall enure to the uses in such settlement mentioned. This is now a deed to lead the uses of the fine or recovery ; and the fine when levied, or recovery when suffered, shall enure to the uses so specified and no other. For though E, the cognizee or recoveror, hath a fee-simple vested in himself by the fine or recovery; yet, by the operation of this deed, he becomes a mere instrument or conduit-pipe, seised only to the use of B, C, and D, in successive order: which use is executed immediately, by force of the statute of uses k. Or, if a fine or recovery be had without any pre-

k This doctrine "may, perhaps, be more clearly illustrated by example. .... In the deed or marriage settlement in the Appendix, No. II,' Sec. 2, we may suppose the lands to have been originally settled on Abraham and Cecilia Barker for life, remainder to John Barker in tail, with divers others remainders over, reversion to Cecilia Barker in fee; and now intended to be settled to the several uses therein expressed, via, to Abraham and Cecilia Barker, till the marriage of John Barker with Katherine Edwards, and then to John Barker for life; remainder to trustees to preserve the contingent remainders: remainder to his wife Katherine, for life, for her jointure ; remainder to other trustees, for a term of five hundred year's; remainder to the first and other sons of the marriage in tail; remainder to the daughters in tail; remainder to John Barker in tail; remainder toTlecilia Barker in fee. Now it is necessary, in order to bar the estate tail of John Barker, and the remainders expectant thereon, that a recovery be suffered of the premises. and it is thought proper (for though usual, it is, by no means, necessary; see Forrester, 167), that, in order to make a good tenant of the freehold, or tenant to thepiaecife, during the co-

vious settlement, and a deed be afterwards made between the parties, declaring the uses to which the same shall be applied, this will be equally good, as if it had been expressly levied or suffered in consequence of a deed directing it's operation to those particular uses. For by statute 4 and 5 Ann. c. 16, indentures to declare the uses of fines and recoveries, made after the fines and recoveries had and suffered, shall be good and effectual in law, and the fine and recovery shall enure to such uses, and be esteemed to be only in trust, notwithstanding any doubts that had arisen on the statute of frauds, 29 Car. II. c. 3, to the contrary. '

verture, a fine should be levied by Abraham, Cecilia. and John Barker; and that the recovery, itself, be suffered againt this tenant to the praccipe, who lhall vouch John Barker, and thereby bar his estate-tail, and become tenant to the fee-simple, by virtue of such recover) : the uses of which estate, so acquired, are to be those expressed in this deed. Accordingly the parties covenant to do these several acts: (see page viii) and, in consequence thereof, the fin« and recovery are had and suffered, (No. IV, and No. V.) of which this conveyance is a deed to lead the uses.

CHAPTER THE TWENTY-SECOND.

OF ALIENATION BY SPECIAL CUSTOM.

WE are next to consider assurances by special custom, obtainingonly in particular places, and relative only to a particular species of real property. This, therefore, is a very narrow title; being confined to copyhold lands, and such customary estates, as are holden in antient demesne, or in manors of a similar nature: which, being of a very peculiar kind, and originally no more than tenancies in pure or privileged villenage, were never alienable by deed; for, as that might tend to defeat the lord of his signiory, it is, therefore, a forfeiture of a copyhold ». Nor are they transferrable by matter of record, even in the king's courts, but only in the court baron of the lord. The method of doing this is generally by surrender: though in some manors, by special custom, recoveries may be suffered of copyholds b: but these differing in nothing material from recoveries of free land, save only that they are not suffered in the king's courts, but in the court baron of the manor, I shall confine myself to conveyances by surrender, and their, consequences.

Surrender, sursumredditio, is the yielding up of the estate by the tenant into the hands of the lord, for such purposes as in the surrender are expressed. As, it may be, to the use and behoof of A and his heirs; to the use of his own will; and the like. The process, in most manors, is, that the tenant comes to the steward, either in court, (or, if the custom permits, out of court) jor else to two customary tenants of the same manor, provided there be also a custom to warrant it: and there by delivering up a rod, a glove, or other symbol, as the custom directs, resigns into the hands of the lord, by the hands and acceptance of his said steward, or of the saM. two tenants, all his

a. Litt.5e<;. 74. b Moor. 637.

interest and title to the estate; in trust to be again granted out by the lord, to such persons and for such uses as -are named in the surrender, and the custom of the manor will warrant. If the surrender be made out of court, then, at the next or some subsequent court, the jury or homage must present and find it upon their oaths ; which presentment is an information to the lord or his steward of what has been transacted out of court. Immediately upon such surrender in court, or upon presentment of a surrender made out of court, the lord, by his steward, grants the same land again to cestuy queuse, (who is sometimes, though rather improperly, called the surrenderee,) to hold by the antient rents and customary services; and thereupon admits him tenant to the copyhold, according to the form and effect of the surrender, which must be exactly pursued. And this is done by delivering up to the new tenant, the rod, or glove, or the like, in the name, and as the symbol, of corporal seisin of the lands and tenements. Upon which admission he pays a fine to the lord, according to the custom of the manor, and takes the oath of fealty.

In this brief abstract of the manner of transferring copyhold estates, we may plainly trace the visible footsteps of the feodal institutions. The fief, being of a base nature and tenure, is unalienable without the knowlege and consent of the lord. For this purpose it is resigned up, or surrendered into his hands. Custom, and the indulgence of the law, which favours liberty, has now given the tenant a right to name his successor; but formerly it was far otherwise. And I am apt to suspect that this right is of much the same antiquity with the introduction of uses, with respect to freehold lands : for the alienee of a copyhold had merely jus jiduciarium, for which there was no remedy at law, but only by sub-poena in chanceryc. When, therefore, the lord had accepted a surrender of his tenant's interest, upon confidence to re-grant the estate to another person, either then expressly named, or to be afterwards named in the tenant's will, the chancery inforced this trustas a matter of conscience-; which iurisdiction. though seeminclv new in the time of Edward IVd.

ation of copyholds, as well as of freehold estates, and as it rendered the use of them both equally devisable by testament. Yet even to this day, the new tenant cannot be admitted but by composition with the lord, and paying him a fine, by way of acknowledgment, for the licence of alienation. Add to this the plain feodal investiture, by delivering the symbol of seisin in presence of the other tenants in open court; " quandofiasta vel aliud corporeum quidlibet porrigitur a -domino se investituramfacere dicente; quae saltern coram duobus vanallis solemniter jieri debete:" and, to crown the whole, the oath of fealty is annexed, the very bond of feodal subjection. From all which we may fairly coiv elude, that, had there been no other evidence of the fact in the rest of our tenures and estates, the very existence of copyholds, and the manner in which they are transferred, would incontestably prove the very universal reception, which this northern system of property for a long time obtained in this island; and which communicated itself, or at least it's similitude, even lo our Very villeins and bondmen.

This method of conveyance is so essential to the nature" of a copyhold state, that it cannnot properly be transferred by any other assurance. No feoffment or grant has any operation thereon. If I would exchange a copyhold estate with another, I cannot do it by an ordinary deed of exchange at the common law; but we must surrender to each other's use, and the lord will admit Us accordingly. If I would devise a copyhold, I must surrender it to the use of my last will and testament; and in my will I must declare my intentions, and name a devisee, who will then be intitled to admissionf. A fine or recovery had of copyhold lands in the king's court may indeed, if not duly reversed, alter the tenure of the lands, and convert them into frank fee «r, which is defined in the old book of tenures h to be " land pleadable at the common law:" but upon an action on the case, in the nature of a writ of a deceit, brought by the lord in the king's court, such fine or recovery will be reversed, the lord will recover his jurisdiction, and the lands will be restored to their former state of copyhold1.

e Feud. 1. 2. f. 2. f Co. Copyh. Sec. 36. g Old Nat. Brev. t. briefe de recto clause. F. N. B. 13. h t. tenirenfrankefee. i See Vol. III p. 166*.

In order, the more clearly to apprehend the nature of- this peculiar assurance, let us take a separate view of it's several parts: the surrender, the presentment, and the admittance.

1. A surrender, by an admittance subsequent whereto the conveyance is to receive it's perfection and confirmation, is rather a manifestation of the alienor's intention, than a transfer of any interest in possession. For, till admittance of cestuy que use, the lord taketh notice of the surrenderor as his tenant; and he shall receive the profits of the land to his own use,, and shall discharge all services due to the lord. Yet the interest remains in him not absolutely, but sub niodo; for he cannot pass away the land to any other, or make it subject to any other incumbrance than it was subject to at the time of the surrender. But no manner of legal interest is vested in the nominee before admittance. If he enters he is a trespasser, and punishable in an action of trespass ; and if he surrenders to the use of another, such surrender is merely void, and by no matter ex post facto can be confirmed. For though he be admitted in pursuance of the original surrender, and thereby acquires afterwards a sufficient and plenary interest as absolute owner, yet his second surrender, previous to his own admittance, is absolutely void ab initio; because at the time of such surrender he had but a possibility of an interest, and could therefore transfer nothing; and no subsequent admittance can make an act good, which was ab initio void .... Yet, though upon the original surrender the nominee hath but a possibility, it is, however, such a possibility, as may whenever he pleases be reduced to a certainty: for he cannot either by force or fraud be deprived or deluded of the effect and fruits of the surrender: but if the lord refuse to admit him, he is compellable to do it by a bill in chancery, or a mandamus*: and the surrenderor can in no wise defeat his grant; his hands being for ever bound from disposing of the land in any other way, and his mouth for ever stopped from revoking or countermanding his own deliberate act1.

2. As to the presentment: that, by the general custom of manors, is to be made at the next court baron immediately after the surrender; but by special custom in some places it will be k 2 R<4I. Rep. 107. 1 Co. Copyh, Sec. 39.

good, though made at the second or other subsequent court. And it is to be brought into court by the same persons that took the surrender, aud then to be presented by the homage; and in all points material must correspond with the true tenor of the surrender tself. And, therefore, if the surrender be conditional, and the presentment be absolute, both the surrender, presentment, and admittance, thereupon, are wholly voidm : the surrender, as being never truly presented; the presentment as being false; and the admittance, as being founded on such untrue presentment. If a man surrenders out of court, and dies before presentment, and presentment be made after his death, according to the custom, this is sufficient11. So too, if cestuy que use dies before presentment, yet, upon presentment made after his death, his heir according to the custom shall be admitted. The same law is, it those, in whose hands the surrendor is made, die before presentment; for, upon sufficient proof in court that such a surrender was made, the lord shall be compelled to admit accordingly. And if the steward, the tenants, or others into whose hands such surrender is made, refuse or neglect to bring it in to be presented, upon a petition preferred to the lord in his court baron, the party grieved shall find remedy. But if the lord will ,not do him right and justice, he may sue both the lord, and them that took the surrender, in chancery, and shall there find relief0.

3. Admittance is the last stage, or perfection of copyhold assurances. And .this is of three sorts: first, an admittance upon a voluntary grant from the lord; secondly, an admittance upon surrender by the former tenant; and, thirdly, an admittance upon a descent from $he ancestor.

In admittances, even upon a voluntany grant from the lord, •when copyhold lands have escheated or reverted to him, the Iqrd is considered as an instrument. For though it is in his power to keep the lands in his own hands, or to dispose of them at his pleasure, by granting an absolute fee-simple, a freehold, or a chattel interest therein; and quite to change their nature from

m Co. Copyh. 40. • Co. Copyh. Sec. 40.

n Co. Litt. 62.

copyhold to socnge tenure, so that he may well be reputed their absolute owner and lord; yet if he will still continue to dispose of them as copyhold, he is bound to observe the antient custom precisely in every point, and can neither in tenure nor estate introduce any kind of alteration ; for that were to create a new t opyhold: wherefore in this respect the law accounts him custom's instrument. For, if a copyhold for life falls into the lord's hands by the tenant's death, though the lord may destroy the tenure and enfranchise the land, yet if he grants it out again by copy, he can neither add to nor diminish the antient rent, nor make any the minutest variation in other respects'"; nor is the tenant's estate so granted, subject to any charges or incumbrances by the lord'.

In admittances upon surrender of another, the lord is to no intent reputed as owner, but wholly as an instrument: and the tenant admitted shall likewise be subject to no charges or incumbrances of the lord; for his claim to the estate is solely under him that made the surrenderr.

And, as in admittances upon surrenders, so in admittances upon descents by the death of the ancestor, the lord is used as a mere instrument; and, as no manner of interest passes into him by the surrender or the death of his tenant, so no interest passes out of him by the act of. admittance. And therefore neither in the one case, nor the other, is any respect had to the quantity or quality of the lord's estate in the manor. For whether he be tenant in fee or for years, whether he be in possession by right or by wrong, it is not material; since the admittances made by him shall not be impeached on account of his title, because'they are judicial, or rather ministerial, acts, which every lord in possession is bound to perform1.

Admittances, however, upon surrender, differ from admittances upon descent in this : that by surrender nothing is vested in cestuy que use before admittance, no more than in voluntary admittances; but, upon descent, the heir is tenant by copy imme-

p Co. Copyh. Sec. 41. q 8 Rep. 63.

r 4 Rep. 27. Co. Litt, 59. s 4 Re;-27. 1 Rep. 140. '

diately upon the death of his ancestor: not indeed to all intents and purposes, for he cannot be sworn on the homage, nor maintain an action in the lord's court as tenant; but, to most intents, the law taketh notice of him as of a perfect tenant of the land instantly upon the death of his ancestor, especially where he is concerned with any stranger. He may enter into the land before admittance ; may take the profits j may punish any trespass done upon the ground *; nay, upon satisfying the lord for his fine due upon the descent, may surrender into the hands of the lord to whatever use he pleases. For which reasons we may conclude, that the admittance of an heir is principally for the benefit of the lord, to intitle him to his fine, and not so much necessary for the strengthening and compleating the heir's title. Hence indeed an observation might arise, that if the benefit, which the heir is to receive by the admittance, is not equal to the charges of the fine, he will never come in and be admitted to his copyhold in court; and so the lord may be defrauded of his fine. But to this we may reply in the words of sir Edward Coke", " I assure myself, if it were in the election of the heir to be admitted, or not to be admitted, he would be best contented without admittance : but the custom in every manor is in this point compulsory. For, either upon pain of forfeiture of their copyhold, or of incurring some great penalty, the heirs of copyholders are inforced, in every manor, to come into court and be admitted according to the custom, within a short time after notice given of their ancestor's decease *."

14Jlep. 23. u Copyh. Sec. 41.

1. There being no copyholds in Virginia, the subject of this chapter may be regarded as obsolete.

CHAPTER THE TWENTY-TH1UD.

OF ALIENATION BY DEVISE.

THE last method of conveying real property, is by devise, or disposition contained in a man's last will and testament. And, in considering this subject, I shall not at present inquire into the nature of wills and testaments, which are more proptrly the instruments to convey personal estates; but only into the original and antiqu\ty of devising real estates by will, and the construction of the several statutes upon which that power is now founded.

It seems sufficiently clear, that, before the conquest, lands were devisable by will B. But, upon the introduction of the military tenures, the restraint of devising lands naturally took place, as a branch of the feodal doctrine of non-alienation without the consent of the lordb. And some have questioned, whether this restraint (which we may trace even from the antient Germansc) was not founded upon truer principles of policy, than the power of wantonly disinheriting the heir by will, and transferring the estate, through the dotage or caprice of the ancestor, from those of his blood to utter strangers. For this, it is alleged, maintained the ballance of property, and prevented one man from growing too big or powerful for his neighbours ; since it rarely happens, that the same man is heir to many others, though by art and management he may frequently become their devisee. Thus the antient law of the Athenians directed that the estate of the deceased should always descend to his children ; or, on failure of lineal descendants, should go to the collateral relations : which had an admirable effect in keeping up

a Wright of Tenures, 172. , b See page 57. c tacit, tlemor. Germ. c. 21.

equality and preventing the accumulation of estates. But when Solon d made a slight alteration, by permitting them (though only on failure of issue) to dispose of their lands by testament, and devise away estates from the collateral heir, this soon produced an excess of wealth in some, and of poverty in others: which, by a natural progression, first produced popular tumults and dissentions ; and these at length ended in tyranny, and the utter extinction of liberty; which was quickly followed by a total subversion of their state and nation. On the other hand, it would now seem hard, on account of some abuses, (which are the natural consequence of free agency, when coupled with human infirmity) to debar the owner of lands from distributing them after his death, as the exigence of his family affairs, or the justice due to his creditors, may perhaps require. And this power, if prudently managed, has with us a peculiar propriety; by preventing the very evil which resulted from Solon's institution, the too great accumulation of property: which is the natural consequence of our doctrine of succession by primogeniture, to which the Athenians were strangers. Of this accumulation the ill effects were severely felt even in the feodal times: but it should always be strongly discouraged in a commercial country, whose welfare depends, on the number of moderate fortunes engaged in the extension of trade.

However this be, we find that, by the common law of England, since the conquest, no estate, greater than for term of years, could be disposed of by testamentc; except-only in Kent, and in, some antient burghs, and a few particular manors, where their Saxon immunities, by special indulgence subsistedf. »And, though the feodal restraint on alienations by deed vanished very early, yet this on wills continued for some centuries after; from an apprehension of infirmity and imposition on the testator in extremis, which made such devises suspicious s. Besides, in devises, there was wanting that general notoriety, and public designation of the successor, which, in .descents, is apparent to the neighbourhood, and which the simplicity of the common law always required in every transfer and new acquisitioir~of property.

d Plutarch, in vita Solon. " e 2 Inst. 7.

f Litt. Sec. 167. 1 Inst. 111. g Glanv. /. T. f. 1.

But when ecclesiastical ingenuity had invented the doctrine of uses, as a thing distinct from the land, uses began to be devised very frequently11, and the devisee of the use could iu chanceTy compel it's execution. For it is observed by Gilbert J, that, as the popish clergy then generally sate in the court of chancery, they considered that men are most liberal when they can enjoy their possessions no longer: and therefore at their death would choose to dispose of them to those, who, sccording to the superstition of the times, could intercede for their happiness in another world. But, when the statute of uses' had annexed the possession to the use, these uses, being now the very land itself, became no longer devisable: which-might have occasioned a great revolution in the law of devises, had not the statute of wills been made about five years after, viz. 32 Hen. VIII. c. 1, explained by 34 Hen. VIII. c. 5, which enacted, that all persons being seised1 in fee-simple (except feme-coverts *, infants, ideots and persons of nonsane memory) might by will and testament in writing devise to any other person, except to bodies corporate a, two-thirds of their lands, tenements and hereditaments, held in chivalry, and the whole of those held in socage: which now, through the alteration of tenures by the statute of Charles the second, amounts to the whole of their landed property, exicept their copyhold tenements.

h Plowd. 414. j on devises. 7. i 27 Hen. VIII. c. 10. See Dyer. 143.

* Where lands are conveyed to trustees, a married woman may have the power of appointing the disposition of them after her death, which appointment must be execused like the will of afeme sole, and will be subject to the same rules of construction. 2 Ves. 6to. 1 Bfo. 99. And though the contrary has been held, yet it has been determined by the house of lords, that the appointment of a married woman is effectual against the heir at law; though it depends only upon an agreement of her husband before marriage, without any conveyance of the estate to trustees. 6 Bro. p. C. 156 .... Christian,

1. Actual seisin at the time'of making the devise is not necessary under our present laws. V. L. 1785, c. 61. Edition of 1794, c. 92. See Turpin v. Turpin, and Harrison and Al v. Allen, Wythe's reports, p. 22, 33, and 1 Wash. 75.

2. There is no exception in respect to corporations in our present laws: and the whole, instead of two-thirds, only, may be devised. V» L. 1785, c. 61. Edi. 1794, c. 92,

Corporations were excepted in these statutes, to prevent the extension of gifts in mortmain ; hut now, by construction of the statute 43 Eliz. c. 4, it is held, that a devise to a corporation for a charitable use is valid, as operating in the nature of an appointment, rather than of a bequc t. And indeed the piety of the judges had formerly carried them great lengths in supporting such charitable uses k ; it being held that the statute of Elizabeth, which favours appointments to charities, supersedes and repeals all former statutes', and supplies all defects of assurances'" : and therefore not only a devise to a corporation, but a devise by a copyhold tenant without surrendering to the use of his will", and a devise (nav even a settlement) by tenant in tail without either fine or recovery, if made to a charitable use, are good by way of appointment °.

With regard to devises in general, experience soon shewed how difficult, and hazardous a thing it is, even in matters of public utility, to depart from the rules of the common law; which are so nicely constructed arid so artificially connected together, that the least breach in any one of them disorders for a time the texture of the whole. Innumerable frauds and perjuries were quickly introduced by this parliamentary method of inheritance: for so loose was the construction made upon this act b\ the courts of law, that bare notes in the hand-writing of another person were allowed to be good wills within the statute p. To remedy which, the statute of frauds and perjuries, 29 Car. II. c. 3, 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 3 j and be subscribed in his presence, by three or four credible wittnesses4. And a so-

kCh. Free. 272.

m Duke's charit. uses. 84.

o 2 Vern 453. Ch. Free. 16.

1 Gilb. Rep-45. 1 P. Wins. 248.

n Moor. 890.

p Dyer. 72. Cro. Eliz. 100.

3. L. V. 1748, c. 3. 1785, c. 61, and 1794, c. 92, accordant.

4. The laws of Virginia require only two witnesses to a will, 1748, c. 3, 1785, c. 61.1794, c. 92. And since the first of January 1787, a will of lands, if wholly written by the testator, and signed by him, is good, although there be no subscribing witnesses thereto. V.L. 1785, c. 61. Edi. 1794, c. 92.

lemnity nearly similar is requisite for revoking a devise by writing ; though the same may be ,also revoked by burning, cancelling, tearing, or obliterating thereof by the devisor, or in his presence and with his consent5: as likewise impliedly, by such a great and intire alteration in the circumstances and situation of the devisor, as arises from marriage and the birth of a child 18.

In the construction of this last statute, it has been adjudged that the testator's name, written with his own hand, at the beginning of his will, as, " I John Mills do make this my last " will and testament," is a sufficient signing, without any name at the bottom*1; though the other is the safer way *. It has also been determined, that though the witnesses must all see the

q Christopher v. Christopher Scucch, 6 Jd. 1771. Spragge v. Stone, at the Cockpit, 3" Maich, 177.i. by Wilmot, de Grev, and Parker. See page 502. (<])3 Lev. 1.

* I conceive that \\ riting the name at the beginning would never be considered a signing according to the statute, unless the whole will was written by the testator himself; for whatever is written bv a stianger after the name of the testalor, affords no evidence of the testator's assent to it, if the subscription of his name in Ins own hand is not subjoined...Christian.

5. No devise of land made pursuant to the acts above referred to, or any clause thereof, shall be revocable, bu by the testators destroying, cancelling, or obliterating the same, or causing it to be done in his presence, or by a subsequent will, codicil, or declaration in writing made in like manner. ibid. See also, 1. p. Wms. 343.

6. Every last will and testament made when the testator had no child living, wherein any child he might have is not provided for, or mentioned, if at the time of his death he leave a child, or leave his wife enseint of a child, which shall be born, shall have no effect during the life of such afterborn child, and shall be void, unless the child die without having been married, or before he shall have attained the age of twenty-one years. 1785, c. 61. And by the same act, any posthumous child, or children ; and by the act of 1794, c. 170, any child or children born after the making and publishing the last will and testament of the father, if unprovided for by settlement, and neither provided for nor disinherited, but only pretermittedby the will, shall succeed to the same portion of the father's estate, as if he had died intestate : towards raibing which the devisees and legatees shall contribute proportionably. V. L. Edi. 1794, c. 92, and c. 170. See also the case of Wilcox v. Rootes and Al, in the court of Appeals. 1 Wash. rep. 140.

testator sign, or at least acknowledge the signing, yet they may do it at different times r. But they must all subscribe their names as witnesses in his presence, lest by any possibility they should mistake the instrument * *. And, in one case determined by the court of king's-bench ', the judges were extremely strict in regard to the credibility, or rather the competency, of the witnesses: for they' would not allow any legatee, nor by consequence a creditor, where the legacies and debts were charged on the real estate, to be a competent witness to the devise, as being too deeply concerned in interest not to wish the establishment of the will; for, if it were established, he gained a security for his legacy or debt from the real estate, whereas otherwise he had no claim but on the personal assets. This determination however alarmed many purchasers and creditors, and threatened to shake most of the titles in the kingdom, that depended on devise.8 by will. For, if the will was attested by a servant to whom wages were due, by the apothecary or attorney whose very attendance made them creditors, or by the minister of the parish who had any demand for tithes or ecclesiastical dues, (and these are the persons most likely to be present in the testator's last illness) and if in such case the testator had charged his real estate.with the payment of his debts, the whole will, and every disposition therein, so far as related to real property, were held to be utterly void. This occasioned the statute 25 Geo. II, c. 6, which restored both the competency and the credit of such legatees, by declaring void all legacies given to witnesses,

and thereby removing all possibility of their interest affecting

1 , i

r Freem. 485. 2 Ch. Cas. 109. Pr. Ch. 185.

s 1 P. Wms. 740. t Stra. 1253.

• It has been determined to be in his presence, if he is apprized at the time of the attestation of the witnesses, and was in a situation from which h« might have seen the witnesses subscribe their names. As in a ease where the testator's carriage was drawn opposite the windows of an attorney's office, in which the witnesses attested the will, this was cleaily determined to be in the testator's presence. 1 Bro. 99. The object of this requisition in the statute is to prevent the testator and the witnesses from being imposed upon by the substitution of another instrument or a fabricated will. Hence the attestation of a will is void, if at the time the testator is in a state of insensibility. 'JJoug, 313...Christian.

their testimonyr. The same statute likewise established the competency of creditors, by directing the testimony of all such creditors to be admitted, but leaving their credit (like that of all other witnesses) to be considered, on a view of all the circumstances, by the court and jury before whom such will shall be contested 8. And in a much later case u the testimony of three witnesses, who were creditors, was held to be sufficiently credible, though the land was charged with the payment of debts ; and the reasons given on the former determination were said to be insufficient #.

Another inconvenience was found to attend this, new method of conveyance by devise; in that creditors by bond and other specialties, which affected the heir provided he had assets, by descent, were now defrauded of their securities, not having the same remedy against the devisee of their debtor. To obviate which, the statute 3 and 4 W, and M, c. 14, hath providded, that all wills, and testaments, limitations, dispositions, and appointments of real estates, by tenants, in fee-simple or having , power to dispose by will, shall (as against such creditors only) be deemed to be fraudulent and void: and that such creditors may maintain their actions jointly against both the heir and the devisee 9. t

A will of lands, made by the permission and under the control of these statutes, is considered by the courts of law not so u M. 31 Geo. II. 4 Bur. I. 430.

* The subscribing witnesses may afterwards be admitted to prove the testator was insane when he executed his will. But in a case where the three witnesses and twelve servants swore to the testator's insanity, they were contradicted by the whole neighbourhood, and the subscribing witnesses were afterwards convicted of perjury. Lowe v. Jollift'e, 1 SI. Kep. 3&5...Cbrifti'an.

7. The laws of Virginia 1785, c. 61. Edi. 1794. c.92. Acdt.

8. Our law is silent as to creditors.

9. This statute was declared in force in Virginia, 1726, c. 3, confirmed by 1748, c. 8. In 1789, it was enacted nearly in the same word* as in the British statute. Edi. 1794, c. 51 .... Considering the great importance of this statute, it is matter of some surprise, that for more than half a century it seems not to have been known to be in force here.

much in the nature of a t?stanvnt, as of a conveyance declar-. ing the uses to which the land shall be rubject: with this difference, that in other conveyances the actual subscription of the witnesses is not required by law w, though it is prudent for them so to do, in order to assist their memory when living, and to supply their evidence when dead ; but in devises of lands such subscription is now absolutely necessary by statute, in order to identify a conveyance, which in it's nature can never be set up till after the death of the devisor 10. And upon this notion, that a divise affecting lands is merely a species of conveyance, is founded this distinction between such devises and testaments of personal chattels; that the latter will operate upon whatever the testator dies possessed of, the former only upon such real estates as were his at the time of executing and publishing his will *. Wherefore no after-purchased lands will pass under such devise > u, unless, subsequent to the purchase or contract1, the devisor republishes his willa *.

•w See pag. 307, 308.

y Moor. 255. 11 Mod. 127.

aSalk.238.

x 1 P. Wms. 575. 11 Mod. 148. z 1 Ch. Cas. 39. 2Ch. Cas. 144.

* If an estate is given to A and his heirs, or to A and the heirs of hie body, or any interest whatever to A, and A dies before the testator, the devise is lapsed and void, and the heir of A can claim no benefit from the devise. A severe instance of this rule occurred not long ago in Ireland. A father devised his. estate to his eldest son and the heirs of his body, and upon failure of his issue to his second son in like manner in tail j the eldest son died before the father, leaving several children j and the father, supposing that the eldest of them would take under the devise, made no alteration in his will; the consequence was, that the devise was lapsed and void, and the second son was entitled by the will to an estate-tail, in exclucion of the children of the eldest brother, the first objects of the father's bounty and regard.

The court of king's bench in Ireland decided in favour of the grandson; but that decision was reversed by the king's bench and house of lordshere, th« question being too clear to admit a doubt. White •». White, 6 1'. R. 5181 Bro. 219. Doug. 330...Cbristian.

10. But the subscription of witnesses is not necessary in Virginia, if the will be wholly written by the testator himself- V. L. 1748, c. 3. $. r. 1794, c. 92.

11. Herein the law is altered in Virginia ; for by the act of 1785, c. 61, which took effect Jan. 1, 1787, it is enacted, that every person

We have now considered several species of common asun./> :esj"whereby a title to lai.ds and tenements may be transferred and conveyed from one man to another. But before we conclude this head, it may not be improper to take notice of a

aged twenty-one years, or upwards, being of sound mind, and not a married .wsman, shall have power, at his will and pleasure, by last will and testament in writing, to devise all the estate, right, title, and interest in possession, reversion, or remainder, which he hath, or, at the time of his death, shall have, of, in, or to lands, tenements, or hereditaments, or annuities or rents charged upon, or issuing "out of them, so as such last will and testament be signed by the testator, or by some other person in his presence, and by his direction : and moreover, if not wholly written by himself, be attested by two,6r morecredible witnesses, subscribing their names in his presence ; saving to the •widows of the testators their dowers, which shall not be prejudiced by any devise thereof. Edi. 1794, c. 92.

It hath been decided, that after-purchased lands pass by will* by virtue of this act. Turpin v. Turpin, Wythe's Rep. 22, which judgment was affirmed in the court of appeals. 1 Wash. Rep. 75.

The student will remark, that there are several material points in which the laws'of Virginia differ from the English stautcs in relation to a will of lands.

1. By the act of 1748, c. 3, with which our present law agrees, not more than two subscribing witnesses are required in Virginia, whereas in England there must be at least three, in every case.

2. That a will wholly written by the testator's own hand, if signed by him, is a good will of lands in Virginia, under the same acts, al-. though there be no subscribing witness thereto ; whereas in England it would be a perfect nullity. i

3. That since the first of January, 1787, lands purchased after the making of a will, may pass by virtue of a devise>in the will contained, whereas in England the law is expressly otherwise held.

4. That a child, or children born, after the making a will by the father, or after his death, if only pretermittcd by the will, shall succeed to a portion of the father's inheritance; whereas in England such posthumous child, unless it be the heir at law to his fatlicr, would be disinherited.

By the act of 1748, c. 3, when any will shall be exhibited to be proved, the court may proceed immediately to receive the proof thereof, but if the lands of the testator, or any part of them, be devised away from the heir at law, such proof, as to him, shall not be bind-

few general rules and maxims, which have been laid down by courts of justice, for the construction and exposition of them all. These are,

1. That the construction be favourable, and as near the

minds and apparent intents of the parties, as the rules of law

• will admitb. For the maxims of law are, that " verba intentioni

'• debentinservire;" and"benigne interpretamur chartas proffer

b And. 60.

ing, but the court shall cause the heir to be summoned to the nextcourt, to contest the validity of the will, if he thinks fit. And if no heir be known to the court, or to the executor, proclamation of the will being exhibited and provevd, is to be made by the sheriff at the court house, on two successive court days, and public notice to be set up at the door of every church in the county; and all persons concerned in interest, at the time of proving the will, being infants, femes-covert, non compos mentis, imprisoned, or out of the colony, shall have liberty to contest the proof within ten years qfter their several disabilities are removed, and not afterwards.

But now the course of proceeding is so far altered, as that the heir at law need not be summoned, nor proclamation made. But all-persons interested may, within seven years after proof of the will, contest the validity of it, by.bill in chancery ; and thereupon an issue shall be made up, whether the writing produced be the will of the testator or not, which shall be tried by a jury ; after which period, if no person appear, the probate shall be for ever binding; saving to infants, femes-covert, persons absent from the state, or non compos-mentis the like period, after removal of their several disabilities. V. L. 1794, c. 92.

A will of lands must be proved in the general courl, or in the court of the district, county, or corporation, where the mansion house, or known place of residence of the testator maybe ; or where there may be no such place of residence, where the lands, or a part of them, lie. And, authenticated copies of wills relative to any estate within this commonwealth, proved according to the laws of the United States, or of any country beyond the limits of the same, may be offered for probate in the general court, or where the estate devised shall lay altogether in any one county, district, or corporation, the court of such county, district, or corporation, may admit the same to record. But the same shall be liable to be contested in the same manner as the original might have been. Ibid. c. 92. 1796, c. 13. See, also, the act of 1787", c. 21.

" simplicitatem faicorum." And therefore the construction must also be reasonable, and agreeable to common understanding0.

2. That quoties in verbls nulla est ambiguitas, ibi nulla expositio contra verba jienda estA : but that where the intention is clear, too minute a stress be not laid on the strict and precise signification of words ; nam qui haerak in lilera, haeret in cortice. Therefore, by a grant of a remainder a reversion may well pass, and e converse/*. And another maxim of law is, that, " mala " grammatica non vitiat chartam;" neither false English nor bad Latin will destroy a deedf. Which perhaps a classical critic may think to be no unnecessary caution.

I

3. 1* hat the construction be made upon the entire deed, and not merely upon disjointed parts of it. " Nam ex antecedentibus " et comequentibm Jit optima interpretation", And, therefore, that every part of it, be (if possible) made to take effect; and no word but what may operate in some shape or otherh. " Nam " verba debent intelligi cum ejfectu, ut res magis valeat quern "pereat1."

i

4. That the deed be taken most strongly against him that is the agent or contractor, and in favour of the other party. " Ver" ba fortius accipkmter contra proferentum" As,, if tenant in fee-simple grants to any one an estate for life, generally, it shall be construed an estate for the life of the granteeJ. For the principle of self-preservation will make men sufficiently careful, not to prejudice their own interest by the too extensive meaning of their words : and hereby all manner of deceit in any grant is avoided; for men would always affect ambiguous and'intricate expressions, provided they were afterwards at liberty to put their own construction upon them. But here a distinction must be taken between an indenture and a deed-poll: for the words of an indenture, executed by both parties, are to be considered as the. words of them both; for though delivered as the words

c 1 Bulstr. 175. Hob. 304- d 2 Saund. 157. e Hob. 27.

f 10 Rep. 133. Co. Litt. 223. 2 Show. 334. g 1 Bulstr. 101. h 1 P. Wms. 457. Plowd. 156. Co. Litt. 42.

of one party, yet they are not his words only, because the other party hath given his consent to every one of them. But in a deed-poll, executed only by the grantor, they are the words of the grantor only, and shall be taken most strongly against him1'. And, ip general, this rule, being a rule of some strictness and rigour, is the last to be resorted to; and is never to be relied upon, but where all other rules of exposition fail1.

5. That, if the words will bear two senses, one agreeable to, and another against, law ; that sense be preferred, which is most agreeable thereto"1. As if tenant in tail lets a least to have and to hold during life generally, it shall be construed to be a lease for his own life only, for that stands with the law; and not for the life of the lesee, which is beyond his power to grant.

6. That, in a deed, if there be two clauses so totally repugnant to each other, that they cannot stand together, the first shall be received and the latter rejected": wherein it differs from a will j for there, of two such repugnant clauses the latter shall stand0. Which is owing to the different natures of the two instruments ; for the first deed, and the last will are always most available in law*. Yet in both cases we should rather attempt to reconcile them p.

7. That a devise be most favourably expounded, to pursue if possible the will of the devisor, who for want of advice or learning-may have omitted the legal or proper phrases. And therefore many times the law dispenses-with the want of words in devises^ that are absolutely requisite in all other instruments. Thus a fee may be conveyed w ithout words of inheritance «; and

k Co. Litt. 134, m Co. Litt. o Co, Litt. 112. q See page 108.

1 Bacon's Elem. c. 3. n Hardr. 94. p Cro. Eliz. 420,1 Vein. 30.

i * Such was held to be the law in the time cjf lord Coke j but now where the same estate is given by the testator to two persons in different parts of his will, they are construed to take the estate as joint-tenants, or tenants in common according to t4ie limitations of the estates and interests devised, 3 Atk. 493. ffmg. Co. Litt, 112, b .... Cbrutian.

an estate-tail without words of procreationr ". By a will also an estate may pass by mere implication, without any express words to direct its course. As, where a man devises lands to his heir at law, after the death of his wife: here, though no estate is given to the wife in express terms, yet she shall have an estate for life by implication'; for the intent of the testator is

r See page 115.

s H. 1, 3 Hen. VII, 17, 1 Ventr. 376.

12. The first and great rule in the exposition of wills, and to which all other rules must bend, is, that the intention of the testator expressed in his will, shall prevail, provided it be consistent with the rules of law ; that is, provided it can be effectuated consistently with the limits and bounds which the law prescribes. P. Buller, judge. Doug. 322. See, also, 1 Blacks. Rep. 672. 4^ Burr. 2579. Doug. 329. Fearne 113. Hargrave's Law Tracts, 351,490. See, also, 2 Wash. Rep. 31. P. Pendleton, president. 1 Wash. 5G, 57. Ibid. 99, 100, 102. In this latter case the president made the following remarks : .... That the intention of the testator is, to give the rule of construction, is declared by all the judges, both ancient and modem: bdt the judges, after laying down the true rule built vLponintention, unfortunately admitted, that if there were no words of limitation, the common law rule must prevail ; by which they tied a gordian knot, which they have since struggled to untie. It would hare been better to have cut it at once..

This rule of construing wills, according to the intention, is laid down with some limitation. As, " first, the disposition intended to " be made, must not conflict with the rules of law;" which I understand as applying to restraints upon the creation of perpetuities, devises in mortmain, and the like. " Secondly, the intention must be "collected from the will itself." This is true, if we admit those •words to be explained by the relative situation of the parties ; and the circumstances of the testator ; which a multiplicity of cases prove ought to be considered. " Thirdly, the intention is not to prevail against settled and fixed rules of-construction." If we could discover those settled rules, continues the president, we would pursue them ; but, after all our researches, we are much inclined to affirm what was said by judge Wilmot, 3 Burr. 1533, that cases on wills serve rather to obsqure, than illumine questions of this sort. So it is said by the court, 3 Wilson, 141. " That cases on wills may guide as to general rules of-construction, but, unless a case cited be in every respect directly in point, and agree in every circumstance, it will have little or no weight with the court, who always look upon the intention of the testator as the polar star to direct them, in the construction of wills." Kennon v. Mac Roberts and wife, 1 Wash. Rep. 102, 103. Ibid. 271. Ibid. 302. Ibid. 338. 1 Call's Rep. 13, 14 16.

clearly to postpone the heir till after her death; and, if she does not take it, nobody else can*. So also, where a devise is of black-acre to A, and of white-acre to B in tail, and if they both die without issue, then to C in fee; here A and Bhave cross remainders by implication, and on the failure of cither's issue, the other or his.issue shall take the whole; and C's remainder over shall be postponed till the issue of both shall faile. But, to avoid confusion,, no such cross remainders are allowed between more than two devisees" 13: and,in general, where any implications are allowed, they must be such as are necessary (or at least highly probable) and not merely possible implications w. And herein there is no distinction between the rules of law and of equity; for the will, being considered in both courts in the light of a limitation of uses *, is construed in each with equal favour and benignity, and expounded rather on it's own particular circumstances, than by any general rules of positive law.

And thus we have taken a transient view, in this and the three preceeding chapters, of a very large and diffusive subject, the doctrine of common assurances: which concludes our observations on the title to things real: or the means by which they may be reciprocally lost and acquired. We have before considered the estates which may be had in them, with regard to their duration or quantity of interest, the time of their enjoyment, and the number and connections of the persons entitled to hold them: we have examined the tenures, both antient and modern, whereby those estates have been, and are now, holden: and have.

tFreem,484.

« Cro. Jac. 655, 1 Ventr, 224, 2 Show. 139. - wVaugh. 262. x Fitz. 236, 11 Mod. 153.

* But it has been thought, that,if it is given to a stranger after the wife's death, the devise raises no implication in favour of the wife, for it may descend to the heir during the life of the wife, which possibly may have been the testator's intention. Cro. yac. 75. ...Christian.

13. " There have been many cases upon cross remainders by implication : and I take the rule settled by them to be this: that wherever cross remainders are to be raised by implication between two, and no more, the presumption is in favour of cross-remainders: but that presumption may be answered by circumstances of plain and manifest intention either way." Per Lord Mansfield. Cowper's rep. 780. ibid. 800. See also 4 T. R. 710. 5. T. R. 431, 521.

distinguished the object of all these inquiries, namely, things real, into the corporeal or substantial, and incorporeal or ideal kind ; and have thus considered the rights of real property in every light wherein they are contemplated by the laws of England.. ....

A system of laws, that differs much from every other system, except those of the same feodal origin, in it's notions and regulations of landed estates : and which, therefore, could in this particular be very seldom compared with any other.

The subject, which has thus employed our attention, is of very extensive use, and of as extensive variety. And yet I am afraid, it has afforded the student less amusment and pleasure in the pursuit, than the matters discussed in the preceding volume. To say the truth, the vast alterations which the doctrine of real property has undergone from the conquest to the present time ; the infinite determinations upon points that continually arise, and which have been heaped one upon another for a course of seven centuries, without any order or method; and the multiplicity of acts of parliament which have amended, or sometimes only altered, the common law; these causes have made the study of this branch of our national jurisprudence a little perplexed and intricate. It hath been my endeavour principally to select such parts of it, as were of the most general use, where the principles were the most simple,the reasons of them the most obvious and the practice the least embarrassed. Yet I cannot presume that I have always been thoroughly intelligible to such of my readers, as were before stangers even to the very terms of art, which I have been obliged to make use of: though, whenever those have first occurred, I have generally attempted a short explication of their meaning. These are indeed the more numerous, on account of the different languages, which our law has at different periods been taught to speak; the difficulty arising from which will insensibly diminish by use and familiar acquaintance. And therefore I shall close this branch of our inquiries with the words of Sir Edward Coke 1: " albeit the student shall not at any one day, do what he can, reach to the full meaning of all that is here laid down, yet let him noway discourage himself but proceed ; for on some other day, in some other place," (or perhaps upon a second perusal of the same) " his doubts will be probably removed."

j Froeme to 1 Inst.

CHAPTER THE TWENTY-FOURTH.

OF THINGS PERSONAL.

UNDER the name of things personal are included all sorts of things moveable, which may attend a man's person wherever he goes; and, therefore, being only the objects of the law while they remain within the limits of it's jurisdiction, and being also of a perishable quality, are not esteemed of so high a nature, nor paid so much regard to by the law, as things that are in their nature more permanent and immoveable, as lands, and houses, and the profits issuing thereout. These being constantly within the reach, and under the protection of the law, were the principal favourites of our first legislators: who took all imaginable care in ascertaining the rights, and directing the disposition, of such property as they imagined to be lasting, and which would answer to posterity the trouble and pains that their anscestors employed about them; but, at the same time, entertainedavery low and"contemptuous opinion of all personal estate which they regarded as only a transient commodity. The amount of it indeed was comparatively very trifling, during the scarcity of money and the ignorance of luxurious refinements, which prevailed in the feodal ages. Hence it was, that a tax of the fifteenth, tenth, or sometimes a much larger proportion, of all the moyeables of the subject, was frequently laid without scruple and is mentioned with much unconcern by our antient historians though now it would justly alarm our opulent merchants and stockholders. And hence, likewise, may be derived the frequent forfeitures inflicted-by the common law, of all a man's goods and chattels, for misbehaviours and inadvertencies that at present hardly seem to deserve so severe a punishment. Our antient

law-books, which are founded upon the feodal provisions, do not, therefore, often condescend to regulate this species of pro. perty. There is not a chapter in BrLton or the Mirroir, that can fairly be referred to this head; and the little that is to be found in Glanvil, Bracton, and Fleta, seems principally borrowed from the civilians. But of later years, since the introduction and extension of trade and commerce, which are entirely occupied in this species of property, and have greatly augmented it's quantity, and of course it's value, we have learned to conceive different ideas, of it. Our courts now regard a man's personalty in a light nearly, if not quite, equal tq his realty: and have adopted a more enlarged and less technical mode of considering the one than the other; frequently drawn from the rules which they found already established by the Roman law, wherever those rules.appeared to be well grounded and apposite to the case in question, but principally from reason and convenience adapted to the -circumstances of the times^ preserving withal a due regard to antient usages, and a certain feodal tincture, which is still to be fpund in some branches of personal property.

But things personally aurlaw, do not only include things moveable, but also something more: the whole of which is comprehended under the general name of chattels, which, Sir Edward Coke says *, is a French word, signifying goods. The appellation is in truth derived from the technical Latin word, catalla; which primarily signified only beasts of husbandry, or (as we still call them) cattle, but in it's secondary sense was applied to all moveables in generalb. In the grand coustumier of Normandy c, a chattel is described as a mere moveable, but.at the same time, it is set in opposition to*a fief or feud -. so that not only goods, but whatever was not a feud, were accounted chattels .... And it is in this latter, more extended, negative sense, that our law adopts it j the idea of goods, or moveables only, being not sufficiently comprehensive to take in every thing that the laow considers as a chattel interest. For since, as the commentator on the coustumierd observes, there are two requisites to make

a 1 Inst. 113. b Dufresne, II, 409. c c, 87. d // conviemlroit quit fust non mouuabte, et de cluree a teusiaun.fol, 107, a,

a fief or heritage, duration as to time, and immobility with regard to place j whatever wants either of these qualities is not, according to the Normans, an heritage or fief; or, according to us, is not a real estate: the consequence of which, in both laws is, that it must be a personal estate, or chattel.

Chattels, therefore, are distributed by the law into two kinds; chattels real, and chattels personale.

1. Chattels rra/, saith Sir Edward Coke f,' are such as con. cern, or savour of, the realty 4 as terms for years of land, wardships in chivalry(while the military tenures subsisted) the next presentation to a church, estates by a statute-merchant, statute-staple, elegit, or the like; of all which we have already spoken. And these are called real chattels, as being interests issuing out of, or annexed to, real estates: of which they have one quality, viz. immobility, which denominates them real; but want the other, viz. a sufficient) legal, indeterminate duration: and this want it is, that constitutes them chattels. The utmost period for which they can last is fixed and determined, either for such a space of time certain, or till such a particular sum of money he raised out of such a particular income; so that they are not equal in the eye of the law to the lowest estate of freehold, a lease for another's life: their tenants were considered upon feodal principles, as merely bailiffs or farmers; and the tenant of the freehold might, at any time, have destroyed their interest, till the reign of Henry VIII«. A freehold, which alone is a real estate, and seems (as has been said) to answer to the fief in Normandy, is conveyed by corporal investiture and livery of seisin; which gives the tenant so strong a hold of the land, that it never after can be wrested from him during his life, but by his own act, of voluntary transferor of forfeiture; or else by the happening of some future contingency, as 'in estates fur outer W<?,and the determinable freeholds mentioned in a former chapter1*. And even these, being of an uncertain duration, may

e So too, in the Norman law, Cateux tant meubles et immeubles i sicomme wais meuile* emit qui transporter sefoment, et erauivir le corps,- immeubles sent ehotet qui nepeuvent ensutvir le corps, niestre transported, et tout eg qui n'ett point en heritage. LL. Will. Nothi, c. 4, apud, Dufresne, II, 409,

f 1 Inst. 118. g See page 142.'

h Page 120.

by possibility last for the owners life; for the law will not presuppose the contingency to happen before it actually does, and till then the estate is to all intents and purposes a life estate, and, therefore, a freehold interest. On the other hand, a chattel interest in lands, which the Normans put in opposition to fief, and we to freehold, is conveyed by no seisin or corporal investiture, but the possession is gained by the mere entry of the tenant himself; and it will certainly expire at a time prefixed and determined, if not sooner. Thus a lease for years must necessarily fail at the end and completion of the term; the next presentation to a church is satisfied and gone the instant it comes into possession, that is by the first avoidance and presentation to the living; the conditional estates by statutes and elegit are determined as soon as the debt is paid; and so guardianships in chivalry expired of course, the moment that the heir came of age... ....

And if there be any other chattel real, it will be found to correspond with the rest in this essential quality, thatUt's duration is limited to a time certain, beyond which, it cannot subsist.

2. Chattels personal are, properly and strictly speaking things moveable: which may be annexed to or attendant on the person of the owner, and carried about with him from one part of the world to another. jSuch are animals, household-stuff, money, jewels, corn, garments, and every thing.else that can properly be put in motion, and transferred from place to place. And of this kind of chattels it is, that we are principally to speak in the remainder of this book; having been unavoidably led to consider the nature of chattels real, and their incidents, in the former chapters which were employed upon real estate.1-: that kind of property being of a mongrel amphibious nature, originally endowed with one only of the characteristics of each species of things: the immobility of things real, and the precarious duration of things personal.

Chattel interests being thus distinguished and distributed, it will be proper to consider, first, the nature of that property, or dominion, to which they are liable; which must be principally, nay solely, referred to personal chattels: and, secondly, the title to that property, or how it may be lost and acquired. Of each of these in it's order.

CHAPTER THE TWENTY-FIFTH.

OF PROPERTY IN THINGS PERSONAL,

PROPERTY, in chattels personal, may be either in possession ; which is where a man hath not only the right to enjoy, but hath the actual enjoyment of, the thing ;,or else it is in action ; where a man hath only a bare right, without any occupation or enjoyment. And of these the former, or property in possession, is divided into two sorts, an absolute and a qualified property.

I. First then of property in possession absolute; which is where a man hath, solely and exlcusively, the right, and also the occupation, of any moveable chattels; so that they cannot be transferred from him, or cease to be his, without his own act or default. Such may be all inanimate things, as goods, plate, money, jewels, implements of war, garments, and the like: such also may be all vegetable productions, as the fruit or other parts of a plant, when severed from the body of it; or the whole plant itself, when severed from the ground: none of which can be moved out of the owner's possession without his own act or consent, or at least without doing him any injury, which it is the business of the law to prevent or remedy. Of these therefore there remains little to be said.

But, with regard to animals, which have in themselves a principle and power of motion, and (unless particularly confined) can convey themselves from one part of the world to another, there is a great difference made with respect to their several classes, not only in our law, but in the law of nature and of all civilized nations. They are distinguished into such as are domitae, and such as are/f rae naturae: some being of a tame and odiers of

a wild disposition. In such as are of a nature tame and domestic, (as horses, kine, sheep, poultry, and the like) a man may have as absolute a property as in any inanimate beings; because these continue perpetually in his occupation, and will not stray from his house or person, unless by accident or fraudulent enticement, in either of which cases the owner does not lose his property a; in which our law agrees with the laws of France and Holland b. The stealing, or forcible abduction, of such property as this, is also felony ; for these are things of intrinsic value, serving for the food of man, or else for the uses of husbandryc. But in animals ferae naturae a man can have no absolute property.

Of all tame and domestic animals, the brood belongs to the ow(ner of the dam or mother; the English law agreeing with the civil, that "partus sejuitur ventrem"in the brute creation, though for the most part in the human species it disallows that maxim1. And therefore in the laws of England d, as well as Rome % " si " equam meum equus tuns praegnantem fecerit* non est tuum sed " meum yM0</natMwas£."And,forthis,Puffendorff gives a sensible reason : not only because the male is frequently unknown; but also because the dam, during the time of her pregnancy, is almost useless to the proprietor, and must be maintained with greater expence and care: wherefore as her owner is the loser by her pregnancy, he ought to be the gainer toy her brood. An exception to this rule is in the case of young cvgnets; which belong equally to the owner of the cock and hen, and shall be divided between them b. But here the reasons of the general rule cease and " cessante ratione ce.isat et ipso lex:" for the male is well known, by his constant association with the female ; and for the same reason the owner of the one doth not suffer more disadvantage, during the time of pregnancy and nurture, than the owner of the other.

a 2 Mod. 319.

c 1 Hal. P. C. 511, 512.

c Ff. 6,1, S.

g 7 Rep. 17.

b Vim. in Inst. I. 2. tit. 1. See. 15. d Bro. Abi. tit. propertic. 29. f L.of N. 1.4.c. 7.

1. The laws of Virginia follow the civil law maxim in the case of slaves. V. L. 1794, c. 103.

II. Other animals, that are not of a tame and domestic nature, are either not the objects of property at all, or else fall under our other division, namely, that of qualified, limited, or special property: which is such as is not in it's nature permanent, but may sometimes subsist, and at other times not subsist. In discussing which subject, I shall in the first place shew, how this species of property may subsist in such animals as are ferae naturae, or qf a wild nature; and then, how it may subsist in any other things, when under particular circumstances.

First then, a man may be invested with .a qualified, but not an absolute, property in all creatures that Ate ferae naturae, either per industriam, propter impotentiam, or propter privilegium. -

1. A qualified property may subsist in animalsymre naturae, per industriam hominin: by a man's reclaiming and making them tame by art, industry, and education; or by so confining them within his own immediate power, that they cannot escape and use their natural liberty. And under this head some writers have ranked all the former species of animals we have mentioned, apprehending none to be originally and naturally tame, but Only made so by art and custom: as horses, swine, and other cattle; which, if originally left to themselves, would have chosen to rove up and down, seeking their food at large, and are only made -domestic by use and familiarity; and are therefore, say they, calletitnatKueta quasi manui assueta.BM however well this notionmay be founded, abstractedly considered, our law apprehends the most obvious distinction to be, between such animals as we generally see tame, and are, therefore, seldom, if ever, found wandering at large, which it calls domitae naturae: and such creatures as are usually found at liberty, which are, therefore, supposed to be more emphatically ferae naturae, though it may happen that the latter shall be sometimes tamed and confined by the art and industry of man. Such as are deer in a park, hares or rabbets in an inclosed warren, doves in a dovehouse, pheasants or partridges in a mew, hawks that are fed and commanded by their owner, and fish in a private pond or in trunks. These are no longer the property of a man, than'while they continue in his keeping or actual possession: but if at any time they regain their natural liberty, his property instantly ceases; unless they have animum

revertendi, which is only to be known by their usual custom of returning11. A maxim which is borrowed from the cilvil law'; " revertendi animum videntur desinere habere tune, cum revertendi consuetudinem deseruerint." The law, therefore, extends this possession farther than the mere manual occupations; for my tame hawk that is pursuing his quarry in my presence, though he is at liberty to go where he pleases, is nevertheless my property; for he hath animum revertendi. So are my pigeons, that are flying at a distance from their home, (especially of the carrier kind) and likewise the deer that is chased out of my park or forest, and is instantly pursued by the keeper or forester: all which remains still in my possession, and I still preserve my qualified property in them. But if they stray without my knowlege, and do not return in the usual manner, it is then lawful for any stranger to take them k. But if a deer, or any wild animal reclaimed, hath a collar or other mark put upon him, and goes and returns at his pleasure; or if a wild swan is taken, and marked and turned loose in the river, the owner's property in him still continues, and it is not lawful for any one else to take him' ('); but otherwise, if the deer has been long absent without returning, or the swan leaves the neighbourhood. Bees also are ferae naturae: but, when hived and reclaimed, a man may have a qualified property in them, by the law of nature, as well as by the civil law m. And to the same purpose, not to say in the same words, with the civil law, speaks Bracton ": occupation, that is, hiving or including them, gives the property in bees; for, though a swarm lights upon my tree, I have no more property in them till I have hived them, than I have in the birds which make their nest thereon j and, therefore, if another hives them, he shall be their proprietor: but a swarm, which fly from and out of my hive, are mine so long as I can keep them in sight, and have power to pursue them; and in these circumstances no one else is entitled to take them. But it hath been also said °, that with us the only ownership in bees is ratione soli; and the charter of

h Bracton. I, 2, c. 1, 7 Rep. 17. i Inst. 2, 1, 15. k Finch. L. 177. 1 Crompt.ofcourts,167.7Rep 16. . mPutf./.4,c.6,sec,5,/nrt.2,l,14. n/. 2, c. 1, Sec. 3. o Bro. Abr. tit fropertie, 37, cites 43 Edw. III, c. 13.

(1). L. V. 1794, c. 113, Accordant.

the forest *, which allows every freeman to be entitled to the honey found within his own woods, affords great countenance to this doctrine, that a qualified property may be had in bees, in consideration of the property of the soil whereon they are found.

In all these creatures, reclaimed from the wildness of their nature, the property is not absolute, but defeasible: a property, that may be destroyed if they resume their antient wildness, and are found at large. For if the pheasants escape from the mew, or the fishes from the trunk, and are seen wandering at large in their proper element, they become ferae naturae again; and are free and open to the first occupant that has ability to seize them. But while they thus continue my qualified or defeasible property, 'they are as much under the protection of the law, as if they were absolutely and indefeasibly mine: and an action will lie against any man that detains them from me, or unlawfully destroys them. It is also as much felony by common law to steal such of them as are fit for food, as it is to steal tame animals «: but not so, if they are only kept for pleasure, curiosity, or whim, as dogs, bears, cats, apes, parrots, and singing birds r; because their value is not intrinsic, but depending only on the caprice of the owner*: though it is such an invasion of property as may amount to a civil injury, and be redressed by a civil action1. Yet to steal a reclaimed hawk is felony both by common law and statuteu; which seems to be a relic of the tyranny of our antient sportsmen. And, among our elder ancestors the antient Britons, another species of reclaimed animals,w'z.cats,were looked upon as creatures of intrinsic value; and the killing or stealing one was a grievous crime, and subjected the offender to a fine; especially if it belonged to the king's houshold, and was the custos horrei regti, for which there was a very peculiar forfeiture w. And thus much

p 9 Hen.. ///, c. 13. q 1 Hal. P. C. 512.

r Lamb. Eiren. 275. s 7 Rep. 18, 3 Inst. 109.

t Bro. Abr. tit. tiespass. 407.

\i 1 Hal. P. C 512, 1 Hawk. P: C. c. 33.

vr " Si qtiisfelem, hoirei regii citstodem, ocMerit velfurto abstulerit, felts . tumma cauda wspendatur, capite aream. attingente,et in earn grana tritid effimdantur, usr/ueitum summitas caudae trttico co-operiatur." Wotton LJL. Wall. 1. 3. c. 5 Sec-5. An amercement similar to which, Sir Edward Coke tells us, (7 Rep 18,) there antientlj was for stealing swans i only suspending them bj the beak, instead of the tail.

of qualified property in wild animals, reclaimed per industriam.

2. A qualified property may also subsist with relation to animals ferae naturae, ratione impotentiae, on account of their own inability. As when hawks, herons, or other birds build in my trees, or coneys or other creatures make their nests or burrows in my land, and have young ones there ; I have a qualified property in those young ones till such time as they can fly or run away, and then my property expires *: but, till then, it is in some cases trespass, and m others, felony, for a stranger to take them away *. For here, as the owner of the land has it in his power to do what he pleases with them, the law therefore vests a property in him of the young ones, in the same manner as it does of the old ones if reclaimed and confined: for these cannot through weakness, any more than the others through restraint, use their natural liberty and forsake him.

3. A man may, lastly, have a qualified property in animals ferae naturae, propter privilegium: that is, he may have the privilege of hunting, taking, and killing them, in exclusion of other persons. Here he has a transient property in these animals, usually called game, so long as they continue within his libertyz; and may restrain any stranger from taking them therein: but the instant they depart into another liberty, this qualified property ceases *. The manner, in which this privilege is acquired, will be shewn in a subsequent chapter.

The qualified property which we have hitherto considered, extends only to animals ferae naturae, when either reclaimed, impotent, or privileged. Many other things may also be the objects of qualified property. It may subsist in the very ele-

x Carta deforest, 9 Hen. III, c. 13, y 7 Rep. 17, Lamb. Eiren. 274. z Cro. Car. 554, Mar. 48, 5 Mod. 376,- 12 Mod. 144._________

2 The law of Virginia makes it penal to hunt, fish, or fowl upon the lands, or in any creeks or waters included within the bounds of any other person, without a licence from the owner, Edi. 1794, c. 88. Killing of deer, except in the counties West of the Alleghany mountain is prohibited, between the first of January and the first of August. Setsions acts 1800, c. 40.

ments, of fire or light, of air, and of water. A man can have no absolute permanent property in these, as he may in the earth and land; since these are of a vague and fugitive nature, and therefore can admit only of a precarious and qualified ownership, which lasts so long as they are in actual use and occupation, but no longer. If a man disturbs another, and deprives him of the lawful enjoyment of these; if one obstructs another's antient windows3, corrupts the air of his house or gardens1*, fouls his water0, or unpens and lets it out, or if he diverts an antient watercourse that used to run to the other's mill or meadow11; the law will,animadvert hereon as an injury, and protect the party injured in his possession. But the property in them ceases the instant they are out of possession: for, when no man is engaged in their actual occupation, they become again common, and every man has an equal right to appropriate them to his own use.

These kinds of qualification in property depend upon the peculiar circumstances of the subject matter, which is not capable of being under the absolute dominion of any proprietor. But property may also be of a qualified or special nature, on account of the peculiar circumstances of the owner, when the thing itself is very capable of absolute ownership. As in case of bailment^ or delivery of goods to another person for a particular use; as to a carrier to convey to London, to an innkeeper to secure in his inn, or the like. Here there is no absolute property in either the bailor or the bailee, the person delivering, or him to whom it is delivered: for the bailor hath only the right, and not the immediate possession; the bailee hath the possession, and only a temporary right. But it is a qualified property in them both; and each of them is entitled to an action, in case the goods be damaged or taken away: the bailee on account of his immediate possession ; the bailor, because the possession of the bailee is, immediately, his possession also*. So also in case of goods pledged or pawned upon condition, either to repay money or otherwise; both the pledgor and pledgee have a qualified, but neither of them an absolute, property in them: the pledger's property is

a. 9 Rep. 5& c 9 Rep. 59. e 1 Roll. Abr. 607

b Ibid. 59. I,i)t. S3. dlLeon.273. Skin. 389.

conditional, and depends upon the performance of the condition of re-payment, &?.:; and so too is that of the pledgee, which depends upon it's non-performance f. The same maybe said of goods distrained for rent, or other cause of distress: which are in the nature of a pledge, and are not, at the first taking, the absolute property of either the distreinor, or party distreined upon; but may be redetmed, or else forfeited, by the subsequent conduct of the latter. But a servant, who hath the care of his master's goods or chattels, as a butler of plate, a shepherd of sheep, and the like, hath not any property or possession either absolute or qualified, but only a mere charge or oversight s.

Having thus considered the several divisions of property in possession, which subsists there only, where 'a man hath both the right and also the occupation of the thing; we will proceed next to take a short view of the nature of property in action, or such where a man hath not the occupation, but merely a bare right to occupy the thing in question; the possession whereof may however be recovered by a suit or action at law: from whence the thing so recoverable is called a thing, or chose, in action11. Thus money due on a bond is a chose in action; for a property in the debt vests at the time of forfeiture mentioned in the obligation, but there is no possession till recovered by course of law. If a man promises, or covenants with me, to do any act, and fails in it, whereby I suffer damage, the recompence for this damage is a chose in action: for though a right to some recompense vests in me, at the time of damage done, yet what and how large such recompense shall be, can only be ascertained by verdict; and the possession can only be given me by legal judgment and execution. In the former of these cases the student will observe, that the property, or right of action, depends upon an express contract or obligation to pay a stated sum: and in the latter it depends upon an implied contract, that if the covenanter does not perform the act he engaged to do, he shall pay me the damages

f Cro. Jac. 245. g 3 Inst. 108.

h The same idea, and the same denomination, of property prevailed in the eivil law. " Jtem in bonis noitris babere intelligimur, quotient ad recuperamlunt eamactionem babeamus." (Ff. 41,1, 52.) And again, " ae'tm bonis adnunierabitur etiam, si yuidest in actionib:is, petilionibus,persecutiunilius. Namct bate in bonis esse -cidentur." (Ff. 50,16,40.)

I sustain by this breach of covenant. And hence it may be collected, that all property in action depends entirely upon contracts, either express or implied; which are the only regular means of acquiring a chose in action, and of the nature of which we shall discourse at large in a subsequent chapter.

At present we have only to remark, that upon all contracts or promises, either express or implied, and the infinite variety of cases into which they are and may be spun out, the law gives an action of some sort or other to the party injured in case of non- performance; to compel the wrongdoer to do justice to the party with whom he has contracted, and, on failure of performing the identical thing he engaged to do, to render a satisfaction equivalent to the damage sustained. But while the thing, or it's equivalent, remains in suspense, and the injured party has only the right and not the occupation, it is called a chose in action; being a thing rather mpotentia than in ease: though the owner may have as absolute a property in, and be as well entitled to, such things in action, as to things in possession.

And, having thus distinguished the different degree or quantity of dominion or property to which things personal are subject, we may add a word or two concerning the time of their enjoyment^ and the number of their owners: in conformity to the method before observed in treating of the property of things real.

First, as to the time of enjoyment. By the rules of the antient 'common law, there could be no future property, to take place in expectancy, created in personal goods and chattels; because, being things transitory, and by many accidents subject to be lost, destroyed, or otherwise impaired, and the exigencies of trade requiring also a frequent circulation thereof, it would occasion perpetual suits and quarrels, and put a stop to the freedom of commerce, if such limitations in remainder were generally tolerated and allowed. But yet in last wills and testaments such limitations of personal goods and chattels, in remainder after a bequest for life, were permitted': though originally that indulgence was only shewn, when merely the use of the goods, and not the goods themselves, was given to the first legatee k ; the

i 1 Equ. Cas. abr. 360. k Mar 106.

property being supposed to continue all the time in the executor of the devisor. But now that distinction is disregarded': and therefore if a man either by deed or will limits his books or furniture to A for life, with remainder over to B, this remainder is good. But where an estate-tail in things personal is given to the first or any subsequent possessor, it vests in him the total property, and no remainder over shall be permitted on such a limitation m. For this, if allowed, would tend to a perpetuity, as the devisee or grantee in tail of a chattel has no method of barring the entail: and therefore the law vests in him at once the entire dominion of the goods, being analogous to the fee-simple which a tenant in tail may acquire in a real estate.

Next, as to the number of owners. Things personal may belong to their owners, not only in severalty, but also in joint-tenancy, and in common, as well as real estates. They cannot indeed be vested in coparcenary ; because they do not descend from the ancestor to the heir, which is necessary to constitute coparceners. But if a horse, or other personal chattel, be given or two or more, absolutely, they are joint-tenants hereof: and, unless the jointure be severed, the same doctrine of survivorship shall take place as in estates of lands and tenements"3 .... And, in like manner, if the jointure be severed, as l>y either of them selling his share, the vendee and the remaining part-owner shall be tenants in common, without any jus accrescendi or survivorship °. So also if 100/. be given by will to two or more, equally to be divided between them, this makes them tenants in common p ; as we have formerly seen 1, the same words would have done in regard to real estates*. But, for the encourage-

1 2 Freem. 206. in 1 P. Wms. 2JO.

nLitt. sec.282. 1 Vern.462. oLitt. sec 321.

p 1 Equ. Cas. Abr. 232. q pag. 193.

* Residuary legatees and executors are joint-tenants,, unless the .cstator uses some expression which converts their interest into a tenancy in common; and if one dies before a division or severance of the sin plus, the whole that is undivided will pass to the survivor or survivors. 2 P. Wms. 113. 3 21, u. 4SS. See p. 193. ante .... Christian.

3. The right of survivorship between joint-tenants is abolished in all cases, whatsoever, in Virginia. V. L. Ecli. 1794 c. 24. Seep. 184. Note 6.

ment of husbandry and trade, it is held that a stock on a farm, though occupied jointly, and also a stock used in a joint undertaking, by way of partnership in trade, shall always be considered as common and not as joint property ; and there shall be no survivorship therein r *.

rl Vein. Sir. Co. Litt 182.

4. Here it may be proper to take a review of the laws which relate to slaves, as property; for which see Appendix note E.

CHAPTER THE TWENTY-SIXTH.

OF TITLE TO THINGS PERSONAL BY OCCUPANCY.

WE are next to consider the title to-things personal, or the various means of acquiring, and of lo.iing, such property as may be had therein: both which considerations of gain and loss shall be blended together in one and the same view, as was done in our observations upon real property; since it is for the most part impossible to contemplate the one, without contemplating the other also. And these methods of acquisition or loss are principally twelve: 1. By occupancy. 2. By prerogative. 3. By forfeiture. 4. By custom. 5. By succession. 6. By marriage. 7. By judgment. 8. By gift, or grant. 9. By contract. 1O. By bankruptcy. 11. By testament. 12. By administration.

And, first, a property in goods and chattels may be acquired by occupancy ; which we have more than once a remarked, was the original and only primitive method of acquiring any property at all; but which has been since restrained and abridged, by the positive laws of society, in order to maintain peace and harmony among mankind. For this purpose, by the laws of England, gifts, and contracts, testaments, legacies, and administrations, have been introduced and countenanced, in order to transfer and continue that property and possession in things personal, which has once been acquired by the owner. And, where such things are found without any 9ther owner, they for the most part belong to the king, by virtue of his prerogative ; except in some few instances, wherein the original and natural right of occupancy is still permitted to subsist, and which we are now to consider, a See page 3, 8,258.

1. Thus, in the first place, it hath been said, that any body may seise to his own use such goods as belong to an alien enemy b. For such enemies, not being looked upon as members of our society, are not entitled, during their state of enmity, to the benefit or protection of the laws ; and, therefore, every man that has opportunity is permitted to seise upon their chattels, without being compelled, as in other cases, to make restitution or satisfaction to the owner. But this, however generally laid down by some of our writers, must, in reason and justice, be restrained to such captors as are authorized by the public authority of the state, residing in the crownc ' ; and to such goods as are brought into this country by an alien enemy, after a declaration of war, without a safe-conduct or passport. And, therefore, it hath been holdend, that where a foreigner is resident in England, and afterwards a war breaks out between his country and ours, his goods are not liable to be seised *. It hath also been adjudged, that if an enemy take the goods of an Englishman, which are afterwards retaken by another subject of this kingdom, the former owner shall lose his property therein, and it shall be indefeasibly vested in the second taker; unless they were retaken the same day, and the owner before sun-set puts in his claim of property*. Which is agreeable to the law of nations, as understood in the time of Grotius f, even with regard to captures made at sea; which were held to be the property of the captors after a possession of twenty-four hours ; though the modern authorities^ require, that before the property can be changed, the goods must have been brought into port, and have continued a night intra praesidia, in a place of safe-custody, so that all hope of recovering them was lost {?).

b Pinch. L. 178. c Freem. 40.

d Bro. Mr. tit. propertie, 38. forfeiture, 57.

e Ibid. f de j. b. & p. I. 3, c. 6, §. 3.

g Bynkersh. quaest. jur. publ. I, 4. Uocc. de Aisecur. not. 66.

1. In the United States, this authority is vested in Congress. C. U. S. Art. 1, §. 8.

2. Herewith the laws of Virginia, 1785, c. 79, Edi. 1794, c. 12', >eem to agree, as also our various treaties with the several European powers, and especially the treaty of 1794, with Great-Britain, as also the act of 5 Cong. c. 83, which is a perpetual act.

(2). See L. U. S. 5 Cong. c. 77, and 85, which declare that all i-e-captured property shall be restored, upon payment of a reasonable salvage.

And, as in the goods of an enemy, so also in his person, a man may acquire a sort of qualified property, by taking him a prisoner in warh ; at least till his ransom be paid-). And this doctrine seems to have been extended to negro-servants!, who are purchased, when captives, of the nations with whom they are at war, and are therefore supposed to continue, in some degree, the property of their masters who buy them : though, accurately speaking, that property (if it indeed continues) consists rather in the perpetual service, than in the body or person of the captive k.

2. Thus again, whatever moveables are found upon the surface of the earth, or in the sea, and are unclaimed by any owner, are supposed to be abandoned by the last proprietor; and, as such, are returned into the common stock and mass of things: and therefore they belong, as in a state of ^nature, to the first occupant or fortunate finder, unless they fall within the description of waifs, or estrays, or wreck, or hidden treasure; for these, we have formerly seenJ, are vested by law in the king, and form a part of the ordinary revenue of the crown.

i

3. Thus too the benefit of the elements, the light, the air, and the water, can only be appropriated by dccupancy. If I have an antient window overlooking my neighbour's ground, he may not erect any blind to obstruct the light: but if I build my house close to his wall, which darkens it, I cannot compel him to demolish his wall; for there the first occupancy is rather in him, than in me. If my neighbour makes a tan-yard, so as to annoy and render less salubrious the air of my house or gardens, the law will furnish me with a remedy; but if he is first in posit Bro. Abr. tit. propertie, 18.

j We meet with a curious writ of trespass in the register, (102) for breaking a man's house, and setting such his prisoner at large. " §>uare domwin ipsiut A. apud W. fin qua idem A. quendam H. Scotum per ipmm A. de guerra captum tanquam prisonem suum, qvousyue Mi (k centum libris, per quas idem H. retlemptionem main cum pracfato A. pro vita ma salvunda facerat satitfactumforet, delimit Jfregit, et iptum H. cepit et abduxit, vel quo volult abhc permisit, Isfc. " i 2 Lev. 201. k Carth. 396, Ld. Raym. 147. Salk. 667. 1 Book I, c. 8.

session of the air, and I fix my habitation near him, the nuisance is of my own seeking, and may continue. If a stream be unoccupied, I may erect a mill thereon, and detain the water ; yet not so as to injure my neighbour's prior-mill, or his meadow: for he hath, by the first occupancy acquired a property in the current.

4. With regard, likewise, to animals ferae naturae, all mankind had by the original grant of the creator a right to pursue and take any fowl or insect of the air, any fish or inhabitant of the waters, and any beast or reptile of the field: and this natural right still continues in every individual, unless where it is restrained by the civil laws of the country3. And when a man has once so seised them, they become, while living, his qualified property, or, if dead, are absolutely his own: so that to steal them, or otherwise invade this property, is, according to their respective values, sometimes a criminal offence, sometimes only a civil injury. The restrictions which are laid upon this right by the laws of England, relate principally to royal'fish,'as whale and sturgeon, and such terrestrial, aerial, or aquatic animals as go under the denomination of game; the taking of which is made the exclusive right of the prince, and such of his subjects to whom he has granted the same royal privilege. But those animals, which are not expressly so reserved, are still liable to be taken and appropriated by any of the king's subjects, upon their own territories; in the same manner as they-nlight have taken even game itself, till these civil prohibitions were issued : there being in nature no distinction between one species of wild animals and another, between the right of acquiring property in a hare or a squirrel, in a partridge or a butterfly : but the difference, at present made, arises merely from the positive municipal law.

5. To this principle of occupancy also must be referred the method of acquiring a special personal property in corn growing on the ground, or other emblements, by any possessor of the land who hath sown or planted it, whether he be owner of the inherit-

3. See V. L. Edi. 1794, c. 88, and c. 113, before referred to. See also Sessions Acts of 1800, c. 40, see page 395, 'Note 2.

ance, or of a less estate4: which emblements are distinct from the real estate in the land, and subject to many, though not all, the incidents attending personal chattels. They were devisable by testament before the statute of wills"1, and, at the death of the owner shall vest in his executor and not his heir; they are forfeitable by outlawry in a personal action " : and by the statute 11 Geo. II, c. 19, though hot by the common law0, they may be distreined for rent arrere *. The reason for admitting the acquisition of this special property, by tenants who have temporary interests, was formerly given*" ; and it was extended to tenants in fee, principally for the benefit of their creditors: and, therefore, though the emblements are assets in the hands of the executor, are forfeitable upon outlawry, and distreinable for rent, they are not, in other respects considered as personal chattels; and particularly they are not the object of larceny, befoie they • are severed from the ground ',

6. The doctrine of property arising from accession is also grounded on the right of occupancy. By the Roman law, if any given corporeal substance received afterwards an accession by natural or by artificial means, as by the growth of vegetables, the pregnancy of animals, the embroidering of cloth, or the conversion of wood or metal into vessels and* utensils, the original owner of the thing was entitled by his right of possession to the property of it under such it's state of improvementr: but if the thing itself, by such operation, was changed into a different species, as by making wine, oil, or bread, out of another's grapes, olives, or wheat, it belonged to the new operator; who was only to make a satisfaction to the former proprietor for the materials, which he had so converted '. And these doctrines are implicitly copied and adopted by our Bracton % and have since been con-

m Perk. $. 512.

n Bro. Mr. tit. emblements, 21. 5 Rep. 116.

o 1 Roll. Abr. 666- p Page 123,146.

q 3 Inst. 109. ilnst.2,1,25,26, 31. Ff. 6,1,5. -

s Inst. 2,1, 25, 34. t/.2.c. Stt1.?.

4. Herein the student will r-emember, the law is altsred in Vir,

ginia. See page 122, Note 2 .... also page 124, Note 5.

5. This statute was never in force in Virginia,

firmed by many resolutions of the courts ". It hath even been held, that if one takes away and cloaths another's wife or son, and afterwards they return home, the garments shall cease to be his property who provided them, being annexed to the person of the child or woman*.

7. But in the case of confusion of goods, where those of two persons are so intermixed, that the several portions can be no longer distinguished, the English law partly agrees with, and partly differs from, the civil. If the intermixture be by consent, I apprehend that in both laws the proprietors have ,an interest in cpmmon, in proportion to their respective shares* . But if one wilfully intermixes his money, corn, or hay, with that of another man, without his approbation or knowlege, or casts gold in like manner into another's melting pot, or crucible, the civil law, though it gives the sole property of the whole to him who has not interfered in the mixture, yet allows a satisfaction to the other for what he has so improvidently lost*. But our law, to guard against fraud, gives the entire property, without any account, to him whose original dominion is invaded, and endeavoured to be rendered uncertain, without his own consent».

8. There is still another species of property, which (if it subsists by the common law) being grounded on labour and invention is more properly reducible to the head of occupancy than any other; since the right of occupancy itself is supposed by Mr. Locke a, and many others'1", to be founded on the personal labour of the occupant. And this is the right, which an author may be supposed to have in his own original literary compositions ; (30 that no other person without his leave may publish or make prpfit of the copies. When a man by the exertion of his rational powers has produced an original work, he seems to have clearly a right to dispose of that identical work as he pleases, and any attempt to vary the disposition he has made of it, appears to be an invasion of that right. Now the identity of a

u Bro. Abr. tit. propertie. 23 Moor. 20. Poph. 38.

w Moor. 214. x Imt. 2,1, 27, 28. 1 Vern. 217.

y/ns«.2, I, 28.

z Poph. 38. 2 Bulstr. 325. 1 Ha,l. P. C. 513. 2 Vern. 516.

a on Gov. part 2. ch. S. b See page 8.

literary composition consists entirely in the sentiment and the language: the same conceptions, cloathed in the same words, must necessarily be the same composition: and whatever method be taken of exhibiting that composition to the ear or the eye of another, by recital, by writing, or by printing, in any number of copies, or at any period of time, it is always the identical work of the author which is so exhibited; and no other man (it hath been thought) can have a right to exhibit it, especially for profit, without the author's consent. This consent may perhaps be tacitly given to all mankind, when, an author suffers his work to be published by another hand, without any claim or reserve of right, and without stamping on it any marks of ownership ; it being then a present to the public, like building a church or bridge, or laying out a new highway: but, in case the author sells a single book, or totally grants the copyright, it hath been supposed, in the one case, that the buyer hath no more right to multiply copies of that book for sale, than he hath to imitate for the like purpose the ticket which is bought for admission to an opera or a concert, and that, in the other, the whole property, with all it's exclusive rights, is perpetually transferred to the grantee. On the other hand it is urged, that though the exclusive property of the manuscript, and all which it contains, undoubtedly belongs to the author, before it is printed or published ; yet from the instant of publication, the exclusive right of an author or his assigns to the sole communication of his ideas immediately vanishes and evaporates; as being a right of too subtile and unsubstantial a nature to become the subject of property at the common law, and only capable of being guarded by positive statutes and special provisions of the magistrate.

The Roman law adjudged, that if one man wrote any thing on the paper or parchment of another, the writing should belong to the owner of the blank materials0: meaning thereby the mechanical operation of writing, for which it directed the scribe to receive a satisfaction; for,in works of genius and invention, as in painting on another man's canvas, the same law d gave the can-

c Si in ebartis meniAranisve tuit carmen vel bistoriam vel orationem Tittus tcripserit, bujus corporis non litius ted tu Jomimit etse videris. List. 2.1. 33. See page 404. x

d Ibid. Sec. 34.

vas to the painter. As to any other property in the works of the ' understanding, the law is silent; though the sale of literary copies, for the purposes of recital or multiplication, is certainly as antient as the times of Terence % Martialf, andStatiusS. Neither with us in England hath there been (till very lately) any final11 determination upon the right of authors at the common law.

But whatever inherent copyright might have been supposed to subsist by the common law, the statute 8Ann. c. 19.(amended by statute 15 Geo. III. c. 53.) hath now declared that the author and his assigns shall have the sole liberty of printing and reprinting his works for the term of fourteen years, and no longer'; and hath also protected that property by additional penalties and forfeitures: directing farther, that if, at the .end of that term, the author himself be living, the right shall then return to him for another term of the same duration: and a similar privilege is extended to the inventors of prints and engravings, for the term of eight and twenty years, by the statute 8 Geo. II. c. 13, and 7 Geo. III. c. 38, besides an action for damages, with double costs, by statute 17 Geo. III. c. ST. All which parliamentary protections appear to have been suggested by the exception in the statute of monoplies, 21 Jac, I. c. 3, which allows a royal patent of privilege to be granted for fourteen years to any in? ventor of a new manufacture, for the sole working or making of the same ; by virtue whereof it is held, that a temporary proper-, ty therein becomes vested in the king's patentee16,

e Prol. in Eunuch. 20.'

f Epigr. i, 67, iv, 72, xiii, 3, xiv, 194.

g ym>. vii. 83.

1) Since this was first written, it was determined in the case of Millar ta. faylor, in B. R. Patch. 9 Geo. III, 1769, that an exclusive and permanent copyright in authors subsisied by the common law. But afterwards, in the case of Donaldson vs. Beclet, before the house of lords, 22d. February 1774, it was held that no copyright now subsists in authors, after the expiration of the several terms created by the statute of queen Anne.

i By statute 15 Geo. III. c. 53, some additional privileges in this respect are granted to the universities, and certain other learned societies.

klVern.62. ___ ___________________________

6. By the laws of Virginia the exclusive right of printing, and vending their works, was secured to authors for twenty-one years. 1785, c. 6. Edi. 1794, c. 8. But

But by the constitution of the United States congress are authorised to promote the progress of science and useful arts, by securing tor a limited time to authors and inventors the exclusive right to their respective writings and inventions. C. U. S. Art. 1 J. 8'.

And now, by the law of the United States, the authors of any map, chart, or book, being a citizen of, or resident in, the United States, his executors, administrators, and assigns shall have the exclusive right of printing, and vending the same, for fourteen years, and if at the end of that term the author be living, and a citizen of, or resident in, the United States, the same exclusive right shall be continued to him, his executors, administrators, or assigns, for the further term of fourteen years. L. U. S. 1 Cong. 2 Sess. c. 15. As this act is more extensively beneficial than the law of the state, the former will probably fall into disuse.

The like exclusive right is secured to the inventors of any new and useful art, machine, manufacture, or. composition of matter, or of any new and useful improvement of any art, &c. for a term not exceeding fourteen years. L. U. S. 1 Cong. 2 Sess. c. 7. 2 Cong. c. 55.

By the act of 7 Cong. c. 36, any person seeking to obtain a copyright for any map, chart, or book, before he shall be entitled to the benefit of the former act, shall, in addition to the requisites thereby enjoined, if a book, give information by causing- a copy of the record required by that act to be published in one, or more newspapers, to be inserted at full length, in the title page, or next succeeding page ; and if a map or chart, shall cause the date when the same is deposited in the office, the author's, or proprietor's name, and the state in which he resides to be impressed on the face of it. And if any person shall print or publish any map, chart,, book, or print, and notify that the copyright thereof hath been secured, when in fact it hath not, he shall be liable to a penalty of one hundred dollars. And by the same act the same exclusive privileges are secured to those who shall invent, design, engrave, etch, or work any historical or other print, for the term of fourteen years, under similar regulations and conditions.

A fair and bonajide abridgment of any book is considered a new work; and however it may injure the sale of the original, yet it is not deemed in law to be a violation of the author's copy-right. 2 Alk. 141. 1 Browne'sRep. 451.

Books originally printed in England, if afterwards reprinted abroad, and imported and exposed to sate, in England, are liable to be forfeited, and the importer and seller are moreover subject to a penalty, of ten pounds, and double the value of the book, by \ irtue of some late statutes .... Christian.

CHAPTER THE TWENTY-SEVENTH.

OF TITLE BY PREROGATIVE AND FORFEITURE.

A SECOND method of acquiring property in personal chattels is by the king's prerogative: whereby a right may accrue either to the crown itself, or to such as claim under the title of the crown, as by the king's grant, or by prescription, which supposes an antient grant.

Such in the first place are all tributes, taxes, and customs; whether constitutionally inherent in the crown, as flowers of the prerogative and branches of the census regalis or antient royal revenue, or whether they be occasionally created by authority of parliament: of both which species of revenue we treated largely in the former volume. In these the king acquires and the subject loses a property, the instant they become due: if' paid, they are a chose in possession; if unpaid, a ctwse in action. Hither also may be referred all forfeitures, fines, and amercements due to the king, which accrue by virtue of his antient prerogative, or by particular modern statutes >: which revenues created by statute do always assimilate, or take the same nature, with the antient revenues ; and may therefore be looked upon as arising from a kind of artificial or secondary prerogative. And, in either case, the owner of the thing forfeited, and the person fined or amerced, lose and part with the property of the forfeiture, fine or amercement, the instant the king or his grantee acquires it.

1. All escheats, penalties and forfeitures, heretofore going to the king, shall go to the commonwealth, save only such as the legislature may abolish or otherwise provide for. C. V. Art. 20.

In these several methods of acquiring property by prerogative there is also this peculiar quality, that the king cannot have a joint property with any person in one entire chattel, or such a one as is not capable of division or separation; but where the titles of the king and a subject concur, the king shall have the whole: in like manner as the king cannot, either by grant or contract, become a joint-tenant of a chattel real with another person a; but by such grant or contract shall become entitled to the whole in severally. Thus, if a horse be given to the king and a private person, the king shall have the sole property: if a bond be made to the king and a subject, the king shall have the whole penalty; the debt or duty being one single chattel1"; and so, if two persons have the property of a horse between them, or have a joint debt owing them on bond, and one of them assigns his part tp the king, or is attainted, whereby his moiety is forfeited to the crown; the king shall have the entire horse, and entire debt0. For as it is not consistent with the dignity of the crown to be partner with a subject, so neither does the king ever Jose his right in any instance; but, where they interfere, his is always preferred to that of another person d: from which two principles it is a necessary consequence, that the innocent though unfortunate partner must lose his share in both the debt and the horse, or in any other chattel in the same circumstances a.

This doctrine has no opportunity to take place in certain other instances of title by prerogative, that remain to be mentioned ; as the chattels thereby vested are originally and solely vested in the crown, without any transfer or derivative assignment either by deed or law from any former proprietor. Such is the acquisition of property in wreck, in treasure-trove, in waifs, in estrays, in royal fish, in swans, and the like; which are not transferred to the sovereign from any former owner, but are ori-

a See page 184. '

bFiuh./<Ar. t. dette. 38. Plowd. 243.

c Cro. Eliz. 263. Plowd. 323. Finch. Law. 178. 10 Mod. 245.

d Co. Litt. 30.

2. As the prerogatives here mentioned relate rather to the person of the king, than to the kingly office, it is presumable that they have •ever been transplanted into our soil.

ginally inherent in him by the rules of law, and are derived to particular subjects, as royal franchises, by his bounty. These are ascribed to him, partly upon the particular reasons mentioned in the eighth chapter of the former book ; and partly upon the general principle of their being bona vacantia, and therefore vested in the king, as well to preserve the peace of the public, as in trust to employ them for the safety and ornament of the commonwealth.

There is also a kind of prerogative copyright subsisting in certain books, whidi is held to be1 vested in the crown upon different reasons. Thus, 1. The king, as the executive magistrate, has the right of promulging to the people all acts of state and government. This gives him the exclusive privilege of printing, at his own press, or that of his grantees, all acts of parliament, proclamations, and orders of council. 2. As supreme head of the church, he hath a right to the publication of all liturgies and books of divine service. 3. He is also said to have a right by purchase to the copies of such law books, grammars, and other compositions, as were compiled of translated at the expence of the crown. And upon these two last principles, combined, the exclusive right of printing the translation of the bible is founded.

There still remains another species of prerogative property, founded upon a very different principle from any that have been mentioned before; the property of such animals ferae naturae, as are known by the denomination of game, with the right of pursuing, taking, and destroying them : which is vested in the king alone, and from him derived to such of his subjects as have received the grants of a chase, a park, a free warren, or free fishery. This may lead us into an inquiry concerning the original of these franchises, or royalties, on which we touched a little in a former chapter f: the right itself feeing Tan incorporeal hereditament, though the fruits and profits of it are of a personal nature.

In the first place then we have already shewn, and indeed it cannot be denied, that by the law of nature every man from th* f page 3F, 39.

prince to the peasant, has .an equal right of pursuing, and taking to his own use, all such -creatures as are ferae naturae, and therefore the property of nobody, but liable to be seized by the first occupant. And so it was held by the imperial law, even so late as Justinian's time : " ferae igitur bestiae, et valueres, ct omnia animalia quae mari, ccelo, et terra nascuntur, sitnul atque ab aliquo captafuerint,jure gentium statim illius esse incipiunt. §>uodenim nullius est, id natural! ratione occupant! concerfetur*," But it follows from the very end and constitution of society, that this natural right, as well as many others belonging to man as an individual, may be restrained by positive laws enacted for reasons of state, or for the supposed benefit of the community. This restriction may be either with respect to the place in which this right, may, or may not, be exercised ; with respect to the ani<mals that are the subject of this right; or with respect to the per-, ions allowed or forbidden to exercise it. And, in consequence of, this authority, we find that the municipal laws of many nation? have exerted such power of restraint; have in general forbidden the entering on another man's grounds, for any cause, with-x out the owner's leave j have extended their protection to such particular animals as are usually the objects of pursuit; and have invested the prerogative of hunting and taking such animals in the sovereign of the state only, and such as he shall suthorise >>, Many reasons have concurred for making these, constitutions; as, 1. For the encouragement of agriculture and improvement of lands, by giving every man an exclusive dominion over his own soil. 2. For preservation of the several species of these animals, which would soon be extirpated by a general liberty. 3. For prevention of idleness and dissipation in husbandmen, artificers, and others of lower rank ; which would be the unavoidable consequence of universal licence. 4. For prevention of popular insurrections and resistance to the government, by disarming the bulk of the people': which last is a reason oftener meant, than avowed, by the makers of forest or game laws, Nor, certainly, in these prohibitions is there any natural injustice, as some have weakly enough supposed; since, as Puffendorf obt serves, the law does not hereby take from any man his present

g Art. 2,1,12.

i Warburton's AUiance, 334.

hPuff.L.N.I.4. c.6.Sec.$.

property, or what was already his own, but barely abridges him of one means of acquiring a future property, that of occupancy; which indeed the law of nature would allow him, but of which the laws of society have in most instances very justly and reasonably deprived him.

Yet, however defensible these provisions in general may be, on the footing of reason, or justice, or civil policy, we must notwithstanding acknowlege that, in their present shape, they owe their immediate original to slavery. It is not till after the irruption of the northern nations into the Roman empire, that we read of any other prohibitions, than that natural one of not sporting on any private grounds without the owner's leave 5 and another of a more spiritual nature, which was rather a rule of ecclesiastical discipline, than a branch of municipal law. The Roman or civil law, though it knew no restriction as to persons or animals, so far regarded the article of place, that it allowed no man to hunt or sport upon another's ground, but by consent of the owner of the soil. u §>t{i alienumfundum ingreditur, venandl out aucnpandi gratia, potest a domino prohiberi ne ingrediatur k." For if there can, by the law of nature, be any inchoate imperfect property supposed in wild animals before they are taken, it seems most reasonable to fix it in him upon whose land they are found. And as to the other restriction, which relates to persons and not to place, the pontifical or canon law' interdicts " venattones,etsylvaticasvagationescum canibus et accipitribus" to all clergymen without distinction; grounded on a saying of St. Jerom m, that it never is recorded that these diversions were used by the saints, or primitive fathers. And the canons of our Saxon church, published in the reign of king Edgar ", concur in the same prohibition: though our secular laws, at least after the conquest, did even in the times of popery dispense with this canonical impediment; and spiritual persons were allowed by the common law to hunt for their recreation, in order to render them fitter for the performance of their duty: as a confirmation whereof we may observe, that it is to this day a branch of

kliat. 2. 1. Sec. 12.

w Decret. fart. 1. distl 34. /. 1.

1 Decretal. I. 5. til. 24. c. 2. n Cap, 64.

the king's prerogative, at the death of every bishop, to have his kennel of hounds, or a composition in lieu thereof0'.

But, with regard to the rise and original of our present civil prohibitions, it will be found that all forest and game laws were introduced into Europe at the same time, and by the same policy, as gave birth to the feodal system; when those swarms of barbarians issued from their northern hive, and laid the foundation of most of the present kingdoms of Europe, on, the ruins of the western empire. For when a conquering general came to settle the oeconomy of a vanquished country, and to part it out among his soldiers or feudatories, who were to render him military service for such donations; it behoved him, in,order to secure his new acquisitions, to keep the rustici or natives of the country, and all who were not his military tenants, in as low a condition as possible, and especially to prohibit them the use of arms. Nothing could do this more effectually than a prohibition of hunting and sporting; and therefore it wis the policy of the conqueror to reserve this' right to himself, and such on whom he should bestow it; which were only his capital feudatories, or greater barons. And accordingly we find, in the feudal constitutions f, one and the same law prohibiting the rustici in general from'carrying arms, and also proscribing the use of nets, snares, or other engines for destroying the game. This exclusive privilege well suited the martial genius of the conquering troops, who delighted in a sport 1 which in it's pursuit and slaughter bore some resemblance t war. Vita omnis, (says Caesar, speaking of the antient Germans,) in venationibus atque in studiis rei militaris consist!?. And Tacitus in like manner observes, that quotiesbella nonineunt multum venalibui, plus per otium transigunt8. And indeed, like some of their modern successors, they had no other amusement to entertain their vacan^ hours; despising all arts as effeminate, and having no other learning, than was couched in such rude ditties, as were

o 4 Inst. o09. p Feud. I. 2 tit. 27. Sec. 5.

q In the laws of Jenghiz Khan, founder of the Mogul and Tartarian empire, published A. D. 1205, there is one which prohibits the killing of all game from March to October ; that the court and soldiery might find plenty enough in the winter, during their recess from war. (Mod. Univ Hist. iv. 458 )

i Z>e Bell. Gall. i. 6. t. 20. sc.15.

sung at the solemn carousals which succeeded these antient huntings. And it is remarkable, that, in those nations where die feodal policy remains the most uncorrupted, the forest or game laws continue in their highest rigor. In France all game is properly the king's; and in some parts of Germany, it is death for a peasant to be found hunting in the woods of the nobility ".

With us in England also, hunting has ever been esteemed a most princely diversion and exercise. The whole island was replenished with all sorts of game in the times of the Britons ; who lived in a wild and pastoral manner, without inclosing or improving their grounds, and derived much of their subsistence from the chace, which they all enjoyed in common. But when husbandry took place under the Saxon government, and lands began to be cultivated, improved, and enclosed, the beasts naturally fled into the woody and desart tracts ; which were called the forests, and, having never been disposed of in the first distribution of lands, were therefore held to belong to the crown. These were filled with great plenty of game, which our royal sportsmen reserved for their own diversion, on pain of a pecu-

t Mattheus de Criinin. c. 3. tit. 1. Carpzov. Practic- Saxonic. p. 2. c. 84.

3. An attentive perusal of the preceding pages must be sufficient to'convince us, that the game-laws are among the powerful instruments of state-enginery, for the purpose of retaining the mass of the people in a state of the most abject subjection.

'The bill of rights, 1W. and M, says Mr. Blackstone, (Vol. 1. p. 143,) secures to the subjects of England the right of having arms for their defence, suitable to their condition and degree. In the construction of these game laws it seems to be held, that no person who is not qualified according to law to kill game, hath any right to keep a gun in his house. Now, as no person, (except the game-keeper of a lord or lady of a manor) is admitted to be qualified to kill game, unless he has IQQl. per annum, &c. it follows that no others can keep a gun for their defence ; so that the whole nation are completely disarmed, and left at the mercy of the government, under the pretext of preserving the breed of hares and partridges, for the exclusive use of the independent country gentlemen. In America we may reasonably hope that the people will never cease to regard the right of keeping and ^earing arms as the surest pledge of their liberty.

niary forfeiture for such as interfered with their sovereign. But every freeholder had the full liberty of sporting upon his own territories, provided he abstained from the king's forests: as is fully expressed in the laws of Canute v, and of Edward the Confessor" : " sit qiiilibet homo dignus venations sua, in sylva, et in agrisy sibl propriis, et in dominio sito: et absinsat omnis homo a venariis, regiis, ubicunque pacem eis habere voluerit;" which indeed was the antient law of the Scandinavian continent, from "whence Canute probably derived it. " Cuique enim in proprio "fundo quamlibetferam quoquo modo venaripermissum™ "

However, upon the Norman conquest, a new doctrine took place ;-and the right of pursuing and taking all beasts of chase or venary, and such other animals as were accounted game, was then held to belong to the king, or to such only as were authorized under him. And this, as well upon the principles of the feodal law, that the king is the ultimate proprietor of all the lands in the kingdom, they being all held of him as the chief lord, or lord paramount of the fee; and, that therefore, he has the right of the universal soil, to enter thereon, and to chase and take such creatures at his pleasure: as also upon another maxim of the common law, which we have frequently cited and illustrated, that these animals are bona vacantia, and, having no other owner, belong to the king by his prerogative. As, therefore, the former reason was held to vest in the king a right to pursue and take them any where; the latter was supposed to give the king, and such as he should authorize, a sole and c.vclusive right.

This right, thus newly vested in the crown, was exerted with the utmost rigor, at and after die time of the Norman establishment ; not only in the antient forests, but in the new ones which the conqueror made, by laying together vast tracts of country, depopulated for that purpose, and reserved solely for the king's royal diversion; in which were exercised the most horrid tyrannies and oppressions, under colour of forest law, for the sake of preserving the beasts of chase ; to kill any of which, within the

v c. 77. \\ c. 36. w Stiernhoek ikjure Siteo». 1.2. c. 8.

limits of the forest, was as penal as the death of a man. And, in pursuance of the same principle, king John laid a total interdict upon the winged as well as thefourfooled creation: " capturam " avium per totam AngUam interdixit *." The cruel and insupportable hardships, which these forest laws created to the subject, occasioned our ancestors to be as zealous for their reformation, as for the relaxation of the feodal rigors and the other exactions introduced by the Norman family; and, accordingly, we find the immunities of carta deforesta as warmly contended for, and extorted from the king with as much difficulty, as those of magna carta itself. By this charter, confirmed in parliament^, many forests were disafforested, or stripped of their oppressive privileges, and regulations were made in the regimen of such as remained: particularlyz killing the king's deer was made no longer a capital offence, but only punished by a fine, imprisonment, or abjuration of the realm. And by a variety of subsequent statutes, together with the long acquiescence of the crown without exerting the forest laws, this prerogative is now become no longer a grievance ,to the subject.

But, as the king reserved to himself the forests for his own exclusive diversion, so he granted out from time to time other tracts of lands to his subjects under the names of chases or parks*, or gave them licence to make such in their own grounds ; which indeed are smaller forests, in the hands of a subject, but not governed by the forest laws: and by the common law no person is at liberty to take or kill any beasts of chase, but such as hath an antient chase or park; unless they be also beasts of prey.

As to all inferior species of game, called beasts and fowls of warren, the liberty of taking or killing them is another franchise or royalty, derived likewise from the crown, and calledfree warren; aword,which signifies preservation or custody: as the exclusive liberty of taking and killing fish in a public stream or river is called a freefishery; of which however no new franchise can at present be granted, by the express provision of magna carta,

x M.Paris, 303. leap. 10.

y 9 Hen. III. ' a See page 38.

c. 16 b. The principal intention of granting to any one these franchises'or liberties was in order to protect the game, by giving the grantee a sole and exclusive power of killing it himself, provided he prevented other persons. And no man, but he who has a chase or free warren, by grant from the crown, or prescription which supposes one, can justify hunting or sporting upon another man's soil; nor indeed, in thorough strictness of common law, either hunting or sporting at all.

However novel this doctrine may seem, to such as call themselves qualified sportsmen, it is a regular consequence from what has been before delivered ; that the sole right of taking and destroying game belongs exclusively to the king. This appears, as well from the historical deduction here made, as because he may grant to his subjects an exclusive right of taking them; which he could not do, unless such a right was first inherent in himself. And hence it will follow, that no person whatever, but he who has such derivative right from the crown, is by common law entided to take or kill any beasts of chase, or other game whatsoever. It is true, that, by the acquiescence of the crown, the frequent grants of free-warren in antient times, and the introduction of new penalties of late by certain statutes for preserving the game, this exclusive prerogative of the king is little known or considered; every man, that is exempted from these modern penalties, looking upon himself as at liberty to do what he pleases widi the game: whereas the contrary is strictly true, that no man, however well qualified he may vulgarly be esteemed, has a right to encroach on the royal prerogative by the killing of game, unless he can shew a particular grant of free warren; or a prescription, which presumes a grant: or some authority under an acfof parliament. As for the latter, I recollect but two instances wherein an express permission to kill game was ever given by statute: the one by 1 Jac. I. cap. 27, altered by 7 Jac. I. cap. 11, and virtually repealed by 22 and 23 Car. II. c. 25, which gave authority, so long as they remained in force, to the owners of free warren, to lords of manors, and to all freeholders having 40/. per annum in lands of inheritance, or 80/. for life or

t Mirr. c. 5. Sec. 2. See p. 40.

lives, or 400/. personal estate, (and their servants) to take partridges and pheasants upon their own, or their master's, free warren, inheritance, or freehold: the other by 5 Ann. c. 14, which empowers lords and ladies of manors to appoint game-r keepers to kill game for the use of such lord or lady; which with some alteration still subsists, and plainly supposes such power not to have been in them before. The truth of the matter is, that these game laws (of which we shall have occasion to speak again in the fourth book of these commentaries) do indeed qualify nobody, except in the instance of a gamekeeper, to kill game: but only, to save the trouble and formal process of an action by the person injured, who perhaps too might remit the offence, these statutes inflict additional penalties, to be recovered either in a regular or summary way, by any of the king's subjects, from certain persons of inferior rank who may be found offending in this particular. But it does not follow that persons, excused from these additional penalties, are, therefore, authorised to kill game. The circumstance of having 100 /. per annum, and the rest, are not properly qualifications, but exemptions. And these persons, so exempted from the penalties of the game statutes, are not only liable to actions of trespass by the owners of the land ; but also, if they kill game within the limits of any royal franchise, they are liable to the actions of such who may have the right of chase or free warren therein.

Upon the whole it appears, that the king, by his prerogative, and such persons as have, under his authority, the royal franchises of chase, park, free-warren, or free fishery, are the only persons who may acquire any property, however fugitive and transitory, in these animalsferae naturae, while living; which is said to be vested in them, as was observed in a former chapter, propter privilegium. And it must also be remembered, that such persons as may thus lawfully hunt, fish, or fowl, ratione privilegii, have (as has been said) only a qualified property in these animals: it not being absolute or permanent, but lasting only so long as the creatures remain within the limits of such respective franchise or liberty, and ceasing the instant they voluntarily pass out of it. It is held, indeed, that if a man starts any game within his own grounds,and follows into another's, and kills,it there, the pro-

/

perty remains in himself6. And this is grounded on reason and natural justice"1: for the property consists in the possession ; which possession commences by the finding it in his own liberty, and is continued by the immediate pursuit. And so, if a stranger starts game in one man's chase or free-warren, and hunts it into another liberty, the property continues in the owner of the chase or warren; this property, arising from,privilege5, and not being changed by the act of a mere stranger. Or if a jman start* game on another's private grounds, and kills it there, the property belongs to him in whose ground it was killed, because it was also started theref 5 this property arising ratione soli. Whereas if, after being started there, it is killed in the grounds of a third person, the property belongs not to the owner of the first ground, because the property is local; nor yet to the owner of the second, because it was not started in his soil; but it vests in the person who started and killed its, though guilty of a trespass against both the owners.

III. I proceed now to a third method, whereby a title to goods and chattels may be acquired and lost, viz. by forfeiture; as a punishment for some crime or misdemesnor, in the party forfeiting, and as a compensation for the offence and injury committed against him to whom they are forfeited. Of forfeitures, considered as the means whereby real property might be lost and acquired, we treated in a former chapter11. It remains, therefore, in this place only to mention by what means, or for what offences goods and chattels become liable to forfeiture.

In the variety of penal laws with which the subject is at^ present encumbered, it were a tedious and impracticable task to reckon up the various forfeitures, inflicted by special statutes, for particular crimes and. misdemesnors : some of which are mala in se, or offences against the divine law, either natural or revealed; but by far the greatest part are mala prohibita, or such as derive their guilt merely from their prohibition by the laws of the land: such as is the forfeiture of 40*. per month

c 11 Mod. 75.

e Lord Ra) m. 251.

g Fan. 18. L6'rd Raym. ibid.

d Puff. L. N. 1. 4. c/6.

f Ibid.

h See page 26r.

by the statute 5 Eliz. c. 4, for exercising a trade without having served seven years as an apprentice thereto; and the forfeiture of 107, by 9 Ann. c. 23, for printing an almanac without a stamp. I shall therefore confine myself to those offences only; by which «//the goods and chattels of the offender are forfeited: referring the student for such, where pecuniary mulcts of different quantities are inflicted, to their several proper heads, under which very many of them have been, or will be mentioned; or else to the collections of Hawkins, and Burn, and other laborious compilers. Indeed, as most of these forfeitures belong to the crown, they may seem as if they ought to have been referred to the preceding method of acquiring personal property, namely, by prerogative. But as, in the instance of partial forfeitures, a moiety often goes to the informer, the poor, or sometimes to other persons ; and as one total forfeiture, namely, that by a bankrupt who is guilty of felony by concealing his effects, accrues entirely to his creditors, I have therefore made it a distinct head of transferring property.

Goods and chattels then are totally forfeited by conviction of high treason or misprision of treason ; of petit treason; of felony in general, and particular of felony de se, and of man-slaughter ; nay, even by conviction of excusable homicide*; by outlawry for treaso.n or felony; by conviction of petit larceny; by flight in treason or felony, even though the party be acquitted of the fact; by standing mute, when arraigned of felony; by drawing a.wea~ pan on a judge, ot striking any one in the presence of the king's courts,- by praemunire ; by pretended prophecies^ upon a second conviction; by owling; by the residing abroad of artificers; and by challenging tofght on account of money won at gaming. All these offences, as will more fully appear in the fourth book of these commentaries, induce a total forfeiture of goods and chattels.

And this forfeiture commences from the; time of conviction^ not the time of committing the fact, as in forfeitures of real property. For chattels are of so vague and fluctuating a nature, that to affect them by any relation back, would be attended with i Co. Lite. 391,2 Inst. 316. 3 Inst. 320.

more inconvenience than in the case of landed estates: and part, if not the whole of them, must be expended in maintaining the delinquent, between the time of committing the fact and his conviction. Yet a fraudulent conveyance of them, to defeat the interest of the crown, is made void by statute 13 Eliz. c. 5 *.

4. No attainder of treason, misprision of treason, murder, piracy, felony, or other offence enumerated in the act for punishment of crimes against the United States, shall work corruption of blood, or any forfeiture of estate. C. U. S. Art. 3. L. U. S. 1 Cong. 2 Sess. c. 9.

Whensoever any person shall happen to be attainted of treason, murder, or other felony whatsoever, there shall in no case be a forfeiture to the commonwealth, of lands, slaves, or personal estate ; but the same shall descend and pass in like manner as is directed by law, in case of persons dying intestate. V. L. IT'89, c. 30. Edi. 1794, c. 74. Sec. 31. See page 254, note 15, and the doubt there suggested. Quere, Whether the law which incapacitates a felon from making a will from the time of his conviction, be altered by this act ? vide post p. 499.

CHAPTER THE TWENTY-EIGHTH,

OF TITLE BY CUSTOM.

A' FOURTH method of acquiring property in things personal, or chattels, is by custom: whereby a right vests in some particular persons, either by the local usage of some particular place, or by the almost general and universal usage of the kingdom. It were endless, should I attempt to enumerate all the several kinds of special customs, which may entitle a man to a chattel interest in different parts of the kingdom: I shall therefore content myself with making some observations on three sorts of customary interests, which obtain pretty generally throughout most parts of the nation, "and are therefore of more universal concern; viz. heriots, mortuaries, and heir-looms.

1. Heriots, which were slightly touched upon in a former chapter*, are usually divided into two sorts, hmot-service, and heriot-custom.. The former are such as are due upon a special reservation in a grant or lease of lands, and therefore amount to little more than a mere rentb: the latter arise upon no special reservation whatsoever, but depend merely upon immemorial usage and custom0. Of these therefore we are here principally to speak: and they are defined to be, a customary tribute of goods and chattels, payable to the lord of the fee on the decease of the owner of the land.

The first establishment, if not introduction, of compulsory heriots into England, was by the Danes: and we find in the laws of king Canute4 the several heregeates or heriots specified, which

a page 97. .^ c Co. Cop. Sec. 24.

b 2 Saund. 166. d c. 69.

were then exacted by the king on the death of divers of his subjects, according to their respective dignities ; from the highest eorle down to the most inferior thegne or landholder. These, for the most part, consisted in arms, horses, and habiliments of War: which the word itself, according to Sir Henry Spelman% signifies. These were delivered up to the sovereign on the death of the vasal, who could no longer use them, to be put into other hands for the service and defence of the country. And upon the plan of this Danish establishment did William the conqueror fashion his laws of reliefs, as was formerly observedf; when he ascertained the precise relief to be taken of every tenant in chivalry, and, contrary to the feodal custom, and the usage of his own duchy of Normandy, required arms and implements of war to be paid instead of moneys.

The Danish compulsive heriots, being thus transmuted into reliefs, underwent the same several vicissitudes as the feodal tenures, and in socage estates do frequently remain to this day, in the shape of a double rent payable at the death of the tenant: the heriots which now continue among us, and preserve that name, seeming rather to be of Saxon parentage, and at first to have been merely discretionary1". These are now, for the most part confined to copyhold tenures, and are due by custom only, which is the life of all estates by copy; and perhaps are the only instance where custom has favoured the lord. For this payment was originally a voluntary donation, or gratuitous legacy of the tenant; perhaps in acknowledgment of his having been raised a degree above villenage, when all his goods and chattels were quite at the mercy of the lord: and custom, which has on the one hand confirmed the tenant's interest in exclusion of the lord's will, has on the other hand established this discretional piece of gratitude into a permanent duty. An heriot may also appertain to free land, that is held by service and suit of court; in which case it is most commonly a copyhold enfranchised, whereupon the heriot is still due by custom. Bracton' speaks of heriots as frequently due on the death of both species of te-

e of feuds c. 18.

g LL. Guil Conq. c. 22,23, 24.

i ;.2. c.36. Sec. 9.

f page 65. - , h Lambard. Peramb. of Kent. 492.

nants: "est quidem alia praestatio quae nominatur heriettum; vbi tenens, liber velservus, in morte sua dominum suum, de quo tenuerit, respicit de meliori averio stio, vel de secundo meliori, secundum diversam locorum consuetudinem," And this he adds," magin Jit de gratia quam de jure,-" in which Fletak and Britton1 agree: thereby plainly intimating the original of this custom to have been merely voluntary, as a legacy from the tenant; though now the immemorial usage has established it as of right in the lord.

This heriot is sometimes the best live beast, or overturn, which the tenant dies possessed of, (which is particularly denominated the villein's relief in the twenty-ninth law of king William the conqueror) sometimes the best inanimate good, under which a jewel or piece of plate may be included: but it is always a personal chattel, which, immediately on the death of the tenant who was the owner of it, being ascertained by the option of the lord"1, becomes vested in him as his property; and is no charge upon the lands, but merely on the goods and chattels. The tenant must be the owner of it, else it cannot be due ; and therefore on the death of a feme-covert no heriot can be taken; for she can have no ownership in things personal". In some places there is a customary composition in money, as ten or twenty shillings in lieu of a heriot, by which the lord and tenant are both bound, if it be an indisputable antient custom: but a new composition of this sort will not bind the representatives of either party; for that .amounts to the creation of a new custom,1 which is now impossible0.

2. Mortuaries are a sort of ecclesiastical heriots, being a customary gift claimed by and due to the minister in very many parishes on the death of his parishioners. They seem originally to have been, like lay ,heriots, only a voluntary bequest to the church; being intended, as Lyndewode informs us from a constitution of archbishop Langham, as a kind of expiation and amends to the clergy for the personal tithes, and other ecclesias-

k / 3. c. 18. m Mob 60. • Co. Cop. Sec. 31.

1 c. 69.

n Keilw. 84. 4Leon.239.

tical duties, which the laity in their life-time might have neglected or forgotten to pay. For this purpose, after* the lord's heriot or best good was taken out, the second best chattel was reserved to the church as a mortuary: " si decedens plura kabuerit animalia, optima cui dejure fuerit debitum reservito, ecclesieau^ae sine dolo fraude, seu contradictione qualibet,pro recompensatione subtractions decimarum personalium, necnon et oblationum, sccundum melius animal reservetur,post obitum, pro salute animae suaei." And therefore in the laws of king Canute' this mortuary is called soul-scot .(paplpceax) orsymbolum animae. And in pursuance of the same principle, by the laws of Venice, where no personal tithes have been paid during the life of the party, the'y are paid at his death out of his merchandize, jewels and other moveables". So also, by a similar policy, in France, every man that died without bequeathing a part of his estate to the church, which was called dying -without confession, was formerly deprived of Christian burial: or if he died intestate, the relations of the deceased, jointly with the bishop, named proper arbitrators to determine what he ought to have given to the church, in case he had made a will. But the parliament, in 1409, redressed this grievance1.

It was antiently usual in this kingdom to bring the mortuary to church along with the corps when it came to be buried; and thence" it is sometimes called a corse-present: a term which bespeaks it to have been once a voluntary donation. However, in Bracton's time, so-earlyasHenry.il!, we find it rivetted into an established custom : insomuch that the bequests of heriots and mortuaries were held to be necessary ingredients in every testament of chattels. " Imprimis autem debet quilibet, qui testamentum fecerit, dominum suum de meliori re quam habuerit recognoscere; etpostea ecclesiam de alia meliori:" the lord must have the best good left him as an heriot; and the church the second best as a mortuary. But yet this custom was different in different places: "in quibusdam locis habet ecclesiae melius " animal de consuetudine; in quibusdam secundum, vel tertium

p Co. Litt.JSS. q Prmiinc.1. 1. tit. 3. s Panormitan. ad Decretal. 1. S, '.20. c. 32.

r c. 13.

t Sp. L. b. 28. c. 41.

u Seld. Hilt, of tithes, c, 10.

mclius; et in quibusdam niliil: etideo consider-andaest consuetudo lociv" This custom still varies in different places, not onlyas to the mortuary to be paid, but the person to whom it is payable. In Wales, a mortuary or corse-present was due upon the death of every clergyman to the bishop of the diocese ; till abolished, upon a recompense given to the bishop, by the statute 12 Ann. st. 2. c. 6. And in the archdeaconry of Chester a custom also prevailed, that the bishop, who is also archdeacon, should have, at the death of every clergyman dying therein, his best horse or mare, bridle, saddle and spurs, his best gown or cloak, hat, upper garment under his gown, and tippet, and also his best signet or ring11 .... But by statute 28 Geo. 2. c. 6, this mortuary is directed to cease, and the act has settled upon the bishop an equivalent in it's room. The king's claim to many goods, on the death of all prelates in England, seems to be of the same nature: though sir Edward Coke? apprehends, that this is a duty due upon death and not a mortuary: a distinction which seems to be without a difference. For not only the king's ecclesiastical character, as supreme ordinary, but also tile species of the goods claimed, which bear so near a resemblance to those in the archdeaconry of Chester, which was an acknowledged mortuary, puts the matter out of dispute. The king, according to the record vouched by sir Edward Coke, is entitled to six things; the bishop's best horse or palfrey, with his furniture: his cloak, or gown, and tippet: his cup, and cover: his bason and'ewer: his gold ring: and lastly, his muta canum, his mew or kennel of hounds ; as was mentioned in the preceding chapter1.

This variety of customs, with regard to mortuaries, giving frequently a handle to exactions on the one side, and frauds, or expensive litigations on the'other; it was thought proper by statute 21 Hen. VIII. c. 6, to reduce them to some kind of certainty. For this purpose it is enacted, that all mortuaries, or corse-presents to parsons of any parish, shall be taken in the following manner; unless where by custom less or none at all is due: viz. for every person who does not leave goods to the value of ten

w Bracton. /. 2. c. 26. Flet. /. 2. c. 57. x Cro. Car. 237. 7 2 Inst. 491. 2 page 413.

marks, nothing: for every person who leaves goods to the value of ten marks and under thirty pounds, 3s. 4d. if above thirty pounds, and under forty pounds, 6*. 8d. if above forty pounds, of what value soever they may be, 10*. and no more. And no mortuary shall throughout the kingdom be paid for the death of any feme-covert: nor for any child j nor for any one of full age, that is not a housekeeper j nor for any wayfaring man; but such wayfaring man's mortuary shall be paid in the parish to which he belongs. And upon this statute stands the law of mortuaries to this day.

3. Heir-looms are such goods and personal chattels, as, con» trary to the nature of chattels, shall go by special custom to the heir along with the inheritance, and not to the executor of the last proprietor. The termination, loom, is of Saxon original; in which language it signifies a limb or member * ; so that an heirloom is nothing else, but a limb or member of the inherita'nce. They are generally such things as cannot be taken away without damaging or dismembering the freehold: otherwise the general rule is, that no chattel interest whatsoever shall go to the heir, notwithstanding it be expressly limited to a man and his heirs, but shall vest in the executor b *. But deer in a real authorized park, fishes in a pond, doves in a dove-house, &fc. though in themselves personal chattels, yet they are so annexed to and so necessary to the well-being of the inheritance, that they shall accompany the .land wherever it vests, by either descent or purchase c. For this reason also I apprehend it is, that the antient jewels of the crown are held to be heir-looms d; for they are ne-

•a Spelm. Gloss. 277. c Co. Litt. 8.

b Co. Litt. 388. d Ibid. 18.

* Or if any chattel be given to a man and the heirs of his body, he take; the entire and absolute interest in it. There have been many fruitless attempts to make pictures, plate, books, and household furniture, descend to the heir with a family mansion. Where they are left to be enjoyed as heir-looms by the persons who shall respectively be in possession of a certain house, or to descend as heir-looms as far as courts of law and equity will admit, the absolute interest of them, subject to the life-interests of those who have life-estates in the real property, will vest in that person who is entitled to the first estate-tail or estate of inheritance, and upon his death that interest will puss to his perr fonal representautive. lJiro.274. 3 Bro. \0\ .... Christian.

cessary to maintain the state, and support the dignity, of the sovereign for the time being. Charters likewise, and deeds, court-rolls, and other evidences of the land, together with the chests in which they are contained, shall pass together with the land to the heir, in the nature of heir-looms, and shall not go to the executor e. By special custom also, in some places, carnages, utensils, and other household implements, may be heir-looms f; -but such custom must be strictly proved. On the other hand, by almost general custom, whatever is strongly affixed to the freehold or inheritance, and cannot be severed from thence without violence or damage, " quod ab aedibus non facile revellitur *," is become a member of the inheritance, and shall thereupon pass to the heir; as chimney-pieces, pumps, old fixed or dormant tables, benches, and the like h. A very similar notion to which prevails in the "duchy of Brabant; where they rank certain things moveable among those of the immoveable kind, calling them by a very particular appellation, praedia vo/antia, or volatile estates: such as beds, tables, and other heavy implements of furniture, which (as an author of their own observes) " dignitatem is tarn nacta sunt, ut villis, sylvis, et aedibus, aliisquepraediis, comparentur ; quod solidiora mobilia ipsis aedibus ex destinatione patris f amilias cohaerere videantur, et proparte ipsarum aedium aestimentar'."

Other personal chattels there are, which also descend to the heir in the nature of heir-looms, as a monument or tomb stone in a church, or the coat-armour of his ancestor there hung up, with the pennons and other ensigns of honour, suited to his degree. In this case, albeit the freehold of the church is in the parson, and these are annexed to that freehold, yet cannot the parson or any other take them away or deface them, but is liable to an action from the heir k. Pews in the church are somewhat of the same nature, which may descend by custom immemorial (without any ecclesiastical concurrence) from the ancestor to the heir1. But though the heir has a property in the monuments

__e Bro. Abr. tit. cbatteles. 18. f Co. Litt. 18. 185. g Spelm. Gloss. 277. h 12 Mod. 520. i Stockman's dejure devolutions, c. 3. Sec. 16. k 12 Rep. 105. Co. Litt. 18. 13 Inst. 202. 12 Rep. 105.

and escutcheons of his ancestors, yet he has none in their bodies or ashes ; nor can he bring any civil action against such as indecently at least, if not impiously, violate and disturb their remains, when dead and buried. The parson indeed, who has the freehold of the soil, may bring an action of trespass against such as dig and disturb it: and, if any one in taking up a dead body steals the shroud or other apparel, it will be felony m ; for the property thereof remains in the executor, or whoever was at the charge of the funeral *.

But to return to heir-looms: these, though they be mere chattels, yet cannot be devised away from the heir by will; but such a devise is void", even by a tenant in fee-simple. For, though the owner might during his life have sold or disposed of them, as he might of the timber of the estate, since, as the inheritance was his own, he might mangle or dismember it as he pleased; yet, they being at his death instantly vested in the heir, the devise (which is subsequent, and not to take effect till after his death) shall be postponed to the custom, whereby they have already descended'.

m 3 Inst. 110. 12 Rep. 113. 1 Hal. P. C. 515. n Co. Litt. 185.

* It has been determined, that stealing dead bodies, though for the improvmcnt of the science of anatomy, is an indictable offence as a misdemeanour; it being a practice contrary to common decency, and'shocking to the general sentiments and feelings of mankind. 1 T. B. 733. .... Christian.

1. There being no local customs in Virginia.for the reasons formerly assigned, the subject of this chapter may be considered as wholly obsolete. See page 36, note 7, and vol. I. page 76, note 7.

CHAPTER THE TWENTY-NINTH.

OF TITLE BY SUCCESSION, MARRIAGE AND JUDGMENT.

IN the present chapter we shall take into consideration three other species of title to goods and chattels.

V. The fifth method therefore of gaining a property in chattels, either personal or real, is by succession: which is, in strictness of law, only applicable to corporations aggregate of many, as dean and chapter, mayor and commonalty, master and fellows, and the like ; in which one set of men may, by succeeding anoother set, acquire a property in all the goods, movenbles, and other chattels of the corporation. The true reason whereof is, because in judgment of law a corporation never dies: and therefore the predecessors, who lived a century ago, and their successors now in being, are one and the same body corporatea. Which identity is a property so inherent in the nature of a body politic, that, even when it is meant to give any thing to be taken in succession by such a body, that succession need not be expressed : but the law will of itself imply it. So that a gift to such a corporation, either of lands or of chattels, without naming their successors, vests an absolute property in them so long as the corporation subsists1*. And thus a lease for years, an obligation, a jewel, a flock of sheep, or other chattel interest, will vest in the successors, by succession, as well as in the identical members, to whom it was originally given.

a 4 llc-p. 65.

b Bro. Abr. t. estates. 90. Cro. Eliz. 464.

But, with regard to sole corporations, a considerable distinction must be made. For if such sole corporation be the representative of a number of persons ; as the master of an hospital, who is a corporation for the benefit of the poor brethren; an abbot, or prior, by the old law before the reformation, who represented the whole convent; or the dean of some antient cathedral, who stands in the place of, and represents in his corporate capacity, the chapter; such sole corporations as these have In this respect the same powers, as corporations aggregate have, to take personal property or chattels in succession. And therefore a bond to such a master, abbot, or dean, and his successors, is good in law; and the successor shall have the advantage of it, for the benefit of the aggregate society, of which he is in law the representativec. Whereas in the case of sole corporations, which represent no others but themselves, as bishops, parsons, and the like, no chattel interest can regularly go in succession : and therefore, if a lease for years be made to the bishop of Oxford and his successors, in such case his executors, or administrators, and not his successors, shall have itd. For the word successors, when applied to a person in his political capacity, is equivalent to the word heirs in his natural; and as such a lease for years, if made to John and his heirs, would not vest in his heirs, but his executors ; so if it be made to John bishop of Oxford and his successors, who are the heirs of his body politic, it shall still vest in his executors and not in such his successors. The reason of this is obvious: for, besides that the law looks upon goods and chattels as of too low and perishable a nature to be limited either to heirs, or such successors as are equivalent to heirs; it would also follow, that if any such chattel interest (granted to a sole corporation and his successors) were allowed to descend to such successor, the property thereof must be in abeyance from the death of the present owner until the successor be appointed: and this is contrary to the nature of a chattel interest, which can never be in abeyance or without an owner'; but a man's right therein, when once suspended, is gone for ever. This is not the case in corporations aggregate, where the right is never in suspence j nor in the other

c Dyer 48. Cro. Eliz. 4G4. e J3rowiU, 132.

d Co. Lilt 40.

sole corporations before-mentioned, who are rather to be considered as heads of an aggregate body, than subsisting merely in their own right: the chattel interest therefore, in such a case, is really and substantially vested in the hospital, convent, chapter or other aggregate body ; though the head is the visible person in whose name every act is carried on, and in whom every interest is therefore said (in point of form) to vest. But the general rule, with regard to corporations merely sole, is this, that no chattel can go lo or be acquired by them in right of succession f.

i Yet to this rule there are two exceptions. One in the case

of the king, in whom a chattel may vest by a grant of it formerly made to a preceding king and his successors £. The other exception is, where, by a. particular custom, some particular corporations sole have acquired a power of taking particular chattel interests in succession. And this custom, being against the general tenor of the common law, must be strictly interpreted, and not extended to any other chattel interests than such immemorial usage will strictly warrant. Thus the chamberlain of London, who is a corporation sole, may by the custom of London, take bonds and recognizances to himself and his successors, for the benefit of the orphan's fund h : but it will not follow from thence, that he has a capacity to'take a lease for years to himself and his successors for the same purpose ; for the custom extends not to that: nor that he may take a bond to himself and his successors, for any other purpose than the benefit of the orphan's fund; for that also is not warranted by the custom, Wherefore, upon the whole, we may close this head with laying down this general rule ; that such right of succession to chattels is universally inherent by the common law in all aggregate corporations, in the king, and in such single corporations as represent a number of persons ; and may, by special custom, belong to certain other sole corporations for some particular purpose: although, generally, in sole corporations no such right can exist.

f Co. Litt. 45.

g Ibid. 90.

h 4 llep. 65. Cro. Eliz. 682.

VI. A sixth method of acquiring property in goods and chattels is by marriage; whereby those chattels, which belonged formerly to the wife, are by act of law vested in the husband, with the same degree of property and with the same powers, as the wife, when sole, had over them.

This depends entirely on the notion of an unity of person between the husband and wife; it being held that they are one person in law ', so that the very being and existence of the woman is suspended during the coverture, or entirely merged or incorporated in that of the husband. And hence it follows, that whatever personal property belonged to the wife, before marriage, is by marriage, absolutely vested in the husband. In a real estate, he only gains a title to the rents and profits during coverture: for that, depending upon feodal principles, remains entire to the wife after the death of her husband, or to her heirs, if she dies before him ; unless, by the birth of a child, he becomes tenant for life by the curtesy. But in chattel interests, the sole and absolute property vests in the husband, to be disposed of at his pleasure, if he chuses to take possession of them: for, unless he reduces them to possession, by exercising .some act of ownership upon them, no property vests in him, but they shall remain to the wife, or to her representatives, after the coverture is determined *.

i See book I. c. 15.

* If he assigns her choses in actions for a valuable consideration in her lifetime, and she survives, she is bound only to the amount of the consideration, and the residue survives to her. 1 Att. 207. Cox's P. Wins. 380. But if the husband before marriage makes a settlement upon the wife in consideration of the wife's fortune, the representative of the husband will be entitled to all her things in action : (3 P. Wins. 199.) but if it is in considei utinn of part of the estate only, the residue not reduced into possession will survive to the wife: and where there is a settlement made equivalent to the wife's fortune, though no mention be made of her personal estate, the husband's representative will be entitled to the whole. See Mr. Sutler's note to Co. Litt. 352, where these distinctions are clearly and fully collected. If the husband cannot recover the things in action of his wife but by the assistance of a court of equity, the court, upon the principle that he who seeks equity must do equity, will not assist him in recovering the property, unless he either has made a previous provision for her, or agrees to do it out of the estate prayed for; or unless the wife appeals personally in court, and consents to the property being given to him. 2 Vet,

There is therefore a very considerable difference in the acquisition of this species of property by the husband, according to the subject-matter; viz. whether it be a chattel real, or a chattel personal; and, of chattels personal, whether it be in possession, or in action only. A chattel real vests in the husband, not absolutely, but sub modo. As, in case of a lease for years, the husband shall receive all the rents and profits of it, and may, if he pleases, sell, surrender, or dispose of it during the coverture k : if he be outlawed or attainted, it shall be forfeited to the king'; it is liable to execution for his debts m: and, if he survives his wife, it is to all intents and purposes his own n. Yet, if he has made no disposition thereof in his lifetime, and dies before his wife, he cannot dispose of it by will ° : for, the husband having made no alteration in the property during his life, it never was transferred from the wife ; but after his death she shall remain in her antient possession, and it shall not go to his executors. So it is also of chattels personal (or chases} in

k Co. Litt. 46.

'm Co. Litt. 351.

o Poph. 5. Co. Litt. 351.

1 Plowd. 263. n Md. 300.

669. But the court will not direct the fortune in all cases to be paid to the husband, though the wife appears to consent, where no previous provision whatever is made upon her. 2 Vet. 579. Lord Thurlow has declared that he did not find it any where decided, that if the husband makes an actual assignment by contract for a valuable consideration, the assignee should be bound to make any provision for the wife out of. the property assigned: but that a court of equity has much greater consideration for the assignment actually made by contract, than for an assignment by mere operation of law; for as to the latter his lordship declared it .to be his opinion, that when the equitable interest of the' wife was transferred to the creditor of the husband by mere operation of Jaw, (as in the case of an assignee under a commission of bankrupt,) he stood exactly in the place of the husband.and was subject precisely to the same equity in respect of the wife. Cox's P. Wms. 459. And it is determined, the wife shall huve1 the same relief, under a general assignment by the husband of his estate for the benefit of his creditors. 4 Bro. 139.

The courts of equity at present are not inclined to make any distinction between an assignee b\ contract and an assignee by operation of law, but I should think they would compel the former to make the same provision for the wife as the latter. 4 Sro. 326. 2 Vet.jun. 680.

But if the wife's fortune is paid to the husband, or he can receive it without applying to a court of equity, then it can give no relief to the wife. 2 Att. «0. But. Co. Litt. 3S1. 1 Foali. Tr. Eq. 304...C*mt<a;i1

action; as debts upon bond, contracts, and the like: these the husband may have if he pleases ; that is, if he reduces them into possession by receiving or recovering them at law. And, upon such receipt or recovery, they are absolutely and entirely his own ; and shall go to his executors or administrators, or as he shall bequeath them by will, and shall not revest in the wife. But, if he dies before he has recovered or reduced them into possession, so that at his death they still continue choses in action, they shall survive to the wife; for the husband never exerted the power he had of obtaining an exclusive property in them v. And bo, if an estray comes into the wife's franchise, and the husband seises it, it is absolutely his property: but if he dies without seising it, his executors are not now at liberty to seise it, but the wife or her heirs *; for the husband never exerted the right he had, which right determined with the coverture. Thus in both these species of property the law is the same, in case the wife survives the husband; but, in case the husband survives the wife, the law is very different with' respect to chattels real and choses in action; for he shall have the chattel realhy survivorship, but not the chose in action1; except in the case of arrears of rent, due to the wife before her coverture, which in case of her death are given to the husband by statute 32 Hen. VIII. c. 37'. And the reason for the general law is this: that the husband is in absolute possession of the chattel real during the coverture, by a kind of joint-tenancy with his wife; wherefore the law will not •wrest it out of his hands, and give it to her representatives; though, in case he had died first, it would have survived to the wife, unless he thought proper in his lifetime to alter the possession. But a chose in action shall not survive to him, because he never was in possession of it at all, during the coverture ; and the only method he had to gain possession of it, was by suing in his wife's right: but as, after her death, he cannot (as husband) bring an action in her right, because they are no longer one and the same person in law, therefore he can never (as such) recover the possession. But he still will be entitled to be her administrator; and may, in that capacity, recover such p Co. Litt. 351. q Kid. . r 3 Mod. 136.

1." L. V. Edi. 1794. c. 89. $. 22, Accordant.

things in action as became due to her before or during the coverture *.

Thus, and upop these reasons, stands the law between husband and wife, with regard to chattels real, and chases in action : but, as to chattels personal (or chases) in possession, which the wife hath in her own right, as ready money, jewels, household goods, and the like, the husband hath therein an immediate and absolute property, devolved to him by the marriage, not only potentially but in fact, which never, can again revest in the wife or her representatives * 3.

s Co. Litt. 351.

2. Herewith the laws of Virginia also agree; nor shall he be compelled to make any distribution of them after they are recovered. 1 V. L. 1794, c. 92. §. 27. And if he dies before administration is granted to him, the right passes to his personal representatives, and not to the next of kin in the wife. 1. p. Wms. 378, and Butler's notes on Co. Litt. 351.

3. Slaves being a species of property, for near a century past reducible to no certain class, a question arose some years ago, what right the husband by marriage gained in those to which his wife, before the marriage was entitled, but which were never reduced into possession, either before, or at any time during the coverture. This doubt arose upon the construction of the act of 1705, c. 3, declaring them to be real estate in all cases whatever, not excepted by that act, •wherein no exception was made as to the husband's right therein; and the act of 1727, c. 4, which declares, that where a slave shall be given, o^ bequeathed, or shall descend to a feme covert, the absolute right, property and interest, shall be vested in the husband; and where & feme sole is, or shall be possessed of a slave, as of her own property, the same shall accrue to, and be absolutely vested in the husband when she shall marry. It was contended, that before this last act the husband would be only tenant by the curtesy of the wife's slaves, which he had reduced into his possession, and that such as he had not reduced into his possession should immediately descend and pass to the heirs of the wife ; that in this latter case the law still remained unaltered, inasmuch as the clause above recited, relates only to slaves, of which the wife was actually possessed, and not to such as she was barely entitled to. That if the husband reduced them into possession during the Coverture, and in that case only, he became absolutely en- , titled to them ; otherwise they must still be considered as real estate. The court of appeals, however, (though supposed to have been nearly

And, as the husband may thus generally acquire a property in all the personal substance of the wife, so in one particular instance the wife may acquire a property in some of her husband's goods ; which shall remain to her after his death, and not go to his executors. These are called her paraphernalia; which is a term borrowed from the civil law % and is derived from the Greek^anguage, signifying something over and above her dower. Our law uses it to signify the apparel and ornaments of the wife, suitable to her rank and degree; and, therefore, even the jewels of a peeress, usually worn by her, have been held to be paraphernalia*. These she becomes entitled to at the death of her husband, over and above her jointure or dower, and preferably to all other representatives w. Neither can the husband devise by his will such ornaments and jewels of his wife; though during his life perhaps he hath the power(if unkindly inclined to exert it) to sell them or give them away x. But if she continues in the use of them till his death, she shall afterwards retain them against' his executors and administrators, and all other persons except creditors where there is a deficiency of assets y. And her necessary apparel is protected even against the claim of creditors » *.

t Ff. 23, 3, 9, Sec. 3. u Moor, 213.

w Cro. Car. 343. 1 Roll. Abr. 911. 2 Leon. 166.

x Noy's Max. c. 49. Grahme vs. Ld. Londonderry. 24 Nov. 1746. Cane.

y 1 P. Wms. 730. z Noy's Max. c. 49.

equally divided in opinion,) decided in favor of the husband's right; the presiding judge, contrary to his own opinion, declaring the opinion of the court to be, that in all cases where the right of the husband is concerned, slaves, since the year 1727, are to be considered as personal estate. Snead vs. Drummond, in the court of appeals, November Term, 1786. The same case is now reported in 2 Call, 491. In Dade vs. Alexander, 1 Wash. rep. 30. The president stated that this was the constant decision iu the old general court, from the year

* The husband may dispose absolutely of his wife's jewels Or other paraphernalia in his lifetime. 3 Alt. 394. And although after his death the) are liable to his debts, if his personal estate is exhausted,yet the widow may recover from the heir the amount of what she is obliged to pay in consequence of her husband's specialty creditors out of her paraphernalia. 1 P. Wms. 730,

But she is not entitled to them after his death, if she has barred herself by an agreement before marriage of every thing she could claim out of his personal •state either by the common law or custom. 2 Atk. 642 .... C6rutian.

VII. A judgment, in consequence of some suit or action in a court of justice, is frequently the means of vesting the right and property of chattel interests in the prevailing party. And here we must be careful to distinguish between property, the right of which is before vested in the party, and of which only possession is recovered by suit or action; and property, to which a man before had no determinate title or certain claim, bat he gains as well the right as the possession by the process and judgment of the law. Of the former sort are all debts andchoses in action; as if a man gives bond for 2o/. or agrees to buy ahorse at a stated sum, or takes up goods of a tradesman upon an implied contract to pay as much as they are reasonably worth: in all these cases the right accrues to the creditor, and is completely vested in him, at the time of the bond being sealed, or the contract or 'agreement made; and the law only gives him a remedy to recover the possession of that right, which already injustice belongs to him. But there is also a species of property to which a man has not any claim or title whatsoever, till after suit commenced and judgment obtained in a court of law : where the right and the remedy do not follow each other, as in common cases, but accrue at one and the same time; and where, before judgment had, no man can say that he has any absolute property, either in possession or in action. Of this nature are,

1. Such penalties as are given by particular statutes, to be recovered on an action popular; or, in other words, to be recovered by him or them that will sue for the same. Such as the penalty of 500 /. which those persons are by several acts of par-

1753, to the Revolution, and has since been confirmed in the cases of Snead & Drummond, and Hord & Upshaw, and had now become a settled and fixed rule of property. And in the case of Wallace vs. Taliaferro, it seems now to be fully settled, that the husband's right to the slaves of his wife, whether in possession, or in action, stands precisely upon the same footing, in all cases whatsover, as his right to her personal chattels, whether in possession, or in action. 2 Call's Reports, 490.

.But, although slaves are now declared to be personal, in all cases, yet, the widows of persons dying intestate, shall only have the use of them, for their lives, and not the property. L. V. 1794, c. 92, Section "27.

liament made liable to forfeit, that, being in particular offices or situations in life, neglect to take tlv, oaths to the government: which penalty-is given to him orthem that will sue for the same. Now here it is clear that no particular person, A or B, has any right, claim, or demand, in or upon this penal sum, till after action brought* ; for he that brings his action, and can bcr<a jlda obtain judgment first, will undoubtedly secure a title to it, in exclusion of every body else. He obtains an inchoate imperfect degree of property, by commencing his suit; but it is not consummated till judgment: for, if any collusion appears, he loses the priority he has gained b 4. But otherwise the right so attaches in the first informer, that the king (who before action brought may grant a pardon which shall be a bar to all the world) cannot after suit commenced remit any thing but his own part of the penalty0. For by commencing the suit the informer has made the popular action his own private action, and it is not in the power of the'crown, or of any thing but parliament, to release the informer's interest *. This therefore is one instance, where .a suit and judgment at law are not only the means of recovering, but also of acquiring, property. And what is said of this one penalty is equally true of all others, that are given thus at large to a common informer, or to any person that will sue for the same. They are placed as it were in a state of nature, accessible by all the king's subjects, but the acquired right of none of them: open therefore to the first occupant, who declares his intention to possess them by bringing his action: and who carries that intention into execution, by obtaining judgment to recover them'.

a 2 Lev. 141. Stra. 1169. Combe vs. Pitt. B. R. Tr. 3 Geo. III. b Stat. 4 Hen. VII, c. 20. c Cro. Eliz. 138. 11 Rep. 65.

4. L. V. 1794, c. 25. Accordant.

5. It may be doubted whether the legislature of Virginia constitutionally possess this branch of the omnipotent power of the British parliament.

6. By the laws of Virginia, all actions upon penal laws must be brought within one year, and not after. Edi. 1794, c. 74, $. 34 .... The act of 1 Cong. 2 Sess. c. 9, $. 32, limits the time for prosecuting for any fine or forfeiture incurred under any penal law of the United States, to two years.

2. Another species of property, that is acquired and lost by suit and judgement at law, is th.it of damages given to a man by a jury, as a compensation and satisfaction for some injury sustained ; as for a battery, for imprisonment, for slander, or for trespass. Here the plaintiff has no certain demand till after verdict : but, when the jury has assessed his damages, and judgment is given thereupon, whether they amount to twenty pounds or twenty shillings, he instantly acquires, and the defendant loses at the same time, a right to that specific sum. It is true, that this is not an acquisition so perfectly original as in the former instance: for here the injured party has unquestionably a vague and indeterminate right to some damages or other, the instant he receives the injury; and the verdict of the jurors, and judgment of the court thereupon, do not in this case so properly vest a new title in him, as fix and ascertain the old one; they do not give, but define, the right. But, however, though strictly speaking the primary right to a satisfaction for injuries is given, by the law of nature, and the suit is only the means of ascertaining and recovering that satisfaction; yet, as the legal proceedings are the only visible means of this acquisition of property, we may fairly enough rank such damages, or satisfaction assessed, under the head of property acquired by suit and judgment at law.

3. Hither also may be referred, upon the same principle, all title to costs and expenses of suit; which are often arbitrary, and rest entirely upon the determination of the court, upon weighing all circumstances, both as to the quantum, and also (in the courts of equity especially, and upon motions in the courts of law) whether there shall be any costs at all. These costs therefore, when given by the court to either party, may be looked upon as an acquisition made by the judgment of law7.

7. Wherever judgment upon an appeal, writ of error, sujiercedeaa or certiorari, from the inferior courts, or in any original suit, is given for the defendant, in the district courts, he seems entitled to his costs. Upon motions, the court may give, or refuse costs at their discretion... In all other causes, if the plaintiff recover, the costs shall be governed by law .... Edi. 1794, c. 6|i, $. 44. But the laws of costs shall not be ' interpreted as penal laws .... Ibid. c. 76, $. 44.

CHAPTER THE THIRTIETH.

OF TITLE BY GIFT, GRANT, AND CONTRACT.

WE are now to proceed, according to the order marked out, to the discussion of two of the remaining methods of acquiring a title to property in things personal, which are much connected together, and answer in gome measure to the conveyances of real estates ; being those by gift or grant, and by contract : whereof the former vests a property in possession, the latter a property in action.

VIII. Gifts then, or grants, which are the eighth method of transferring personal property, are thus to be distinguished from each other, that gifts are always gratuitous, grants are upon some consideration or equivalent: and they may be divided with regard to their subject-matter, into gifts or grants of chattels real, and gifts or grants of chattels personal. Under the head of gifts or grants of chattels real, may be included all leases for years of land, assignments, and surrenders of those leases; and all the other methods of conveying an estate less than freehold,which were considered in the twentieth chapter of the present book, and, therefore, need not be here again repeated: though these very seldom cany the outward appearance of a gift, 'however freely bestowed ; being usually expressed to be made in consideration of blood, or natural affection, or of five or ten shillings nominally paid to the grantor ; and in case of leases, always reserving a rent, though it be but a peppercorn :• any of which'considerations will, in the eye of the law, convert the gift, if executed, into a grant; if not executed, into a contract.

Grants or gifts, of chattels personal, arc the act of transferring the right and the possession of them ; whereby one man renounces, and another man immediately acquires, all title and interest therein : which may be done either in writing, or by word of mouth a attested by sufficient evidence, of which the delivery of possession is the strongest and most essential. But this conveyance, when merely vqluntary, is somewhat suspicious; and is usually construed to be fraudulent, if creditors or othersbecome sufferers thereby. And, particularly, by statute 3 Hen. VII, c. 4, all deeds of gift of goods, made in trust to the use of the donor, shall be void1: because otherwise persons might be tempted to commit treason or felony, without danger of forfeiture; and the creditors of the donor might also be defrauded of their rights'. And, by statute 13 Eliz. c. 5, every grant or gift of chattels, as well as lands, with an intent to defraud creditors or others b, shall be void as against such persons to whom such fraud would be prejudicial; but, as against the grantor himself, shall stand good and effectual2; and all persons partakers in, or privy to, such fraudulent grants, shall forfeit the whole value of the goods, one moiety to the king, and another moiety to the party grieved ; and also, on conviction, shall suffer imprisonment • for half a year3.

a Perk. Sec. 57.

b See 3 Rep. 82.

1. Herewith the act of 1785, c. 64. Edi. 1794, c. 10, seems to agree.

2. V. L. Edi. 1794, c. 10, Accordant.

3. These penalties are not inflicted by our' law, and the statute of Elizabeth, above cited, is repealed. Edi. 1794, c. 147.

-Every gift, grant, or conveyance of lands, goods, or chattels, made with intent to defraud creditors or purchasers, shall be utterly void, as against such creditors or others intended to be thereby defrauded, only. And any conveyance of goods or chattels, not being made on a valuable consideration, shall be taken to be fraudulent within the act, if the same be not, by will or deed, duly proved, in the case of a deed, by two witnesses, or acknowledged and recorded in the general court, or court of the county wherein one of the party Jives, within eight months, or unless possession shall really and bona fide^ remain with the donee. And, in case of a loan of goods and chattels pretended to have been made, or wher^any reservation or limitation shall be pretended to have been made of a use or property, by way of condition,

A true and proper gift or grant is always accompanied v/ith delivery of possession, and takes effect immediately: as if A gives to B 100/. or a flock of sheep, and puts him in possession of them directly, it is then a gift executed in the donee; and it is not in the donor's power to retract it, though he did it without any consideration or recompense c : unless it be prejudicial to

c Jenk. 109.

reversion, remainder, or otherwise, after five years possession by the persons to whom such pretended loan was made, the same shall be taken as to the creditors, and purchasers of the persons so remaining in possession to be fraudulent, and that the absolute property is with the possession, unless such loan, reservation, or limitation, were declared by will or by deed in writing, proved and recorded, as before mentioned. But that act shall not extend to any estate or interest in any lands, goods, or chattels, or any rents, common, or profit out of the same, which shall be upon good consideration, and bona fide lawfully conveyed, or assured to any person or persons, bodies politic or corporate. L. V. 1785, c. 64. Edi. 1794, c. 10.

No gift of a slave shall be good or sufficient to pass any estate therein to any person whatsoever, unless the same be made by will, duly proved and recorded, or by deed in writing, to be proved by two witnesses, at the least, or acknowledged by the donor, and* recorded in the general court [but now in the district court] or court of the county [or corporation] where one of the parties lives within eight months, after the date of such deed or writing. V. L. 1758, c. 1.

In the construction of this act, the court of appeals decided, that no gift of a slave, though accompanied with an actual delivery and possession in the donee, and though founded upon a good consideration, was valid, unless such gift were made, pursuant to the directions of that act, in writing, proved by two witnesses, or acknowledged by the donor, and recorded .... This gave rise to the following act, whereby it was declared,

That the .before-mentioned act shall be construed to extend only to gifts of slaves, whereof the donors, notwithstanding such gifts, remained in possession, and not to gifts of such slaves, as have at any time come into the actual possession of, and remained with the donee, or other person claiming under him. 1787, c. 22.

But it has been held that this act does not operate to render valid any gift of a sla\ e not made in writing, proved, or acknowleged, and recorded, before the thirty-first day of December, 1787, on which da.y the act passed, and according to the rule then established, had its commencement. These two acts were consolidated in the late revisal. Edi. 1794, c. 103. Sect. 47 and 48.

creditors ; or the donor were under any legal incapacity, as infancy, coverture, duress, or the like; or if he were drawn in, circumvented, or imposed upon, by false pretences, ebriety, or surprize. But, if the gift does not take effect, by delivery of immediate possession, it is then not properly a gift, but a contract: and this a man cannot be compelled to perform, but upon good and sufficient consideration; as we shall see under our next division *.

IX. A contract, which usually conveys an interest merely in action, is thus defined;" an agreement upon sufficient consideration, to do or not to do a particular thing." From which definition there arise three points to be contemplated in all contracts; 1. The agreement: 2. The consideration: and 3. The thing to be done or omitted, or the different species of contracts.

First, then, it is an agreement, a mutual bargain or convention ; and therefore there must at least be two contracting parties, of sufficient ability to make a contract: as where A contracts with B to pay him 100/, and thereby transfers a property in such sum to B. Which property is, however, not in possession, but in action merely, and recoverable by suit at law; wherefore it could not be transferred to another person by the strict, rules of the antient common law : for no chose in action could be assigned or granted overd, because it was thought to be a great encouragement to litigiousness, if a man were allowed to make over to a stranger his right of going to law. But this nicety is now disregarded : though, in compliance with the antient principle, the form of assigning a chose in action is in the nature of a declaration of trust, and an agreement to permit the assignee to make use of the name of the assignor, in order to recover the possession. And therefore, when in common accep-

d Co. Litt 214.

* If a man sells goods, and still continues in possession as visible owner, the.sale is fraudulent, and void against creditors. 2 T. B. 5S6. But the sale or mortgage of a ship at sea is valid, if the grand bill of sale be delivered to the vendee or mortgagee, and he take possession the first opportunity after the ship arrives in port. 1 T. R. 462. .... Cbrutiai..

tation a debt or bond is said to be assigned over, it must still be sued in the original creditor's name ; the person, to whom it is transferred, being rather an attorney than an assignee •*. But

4. By the act of 1748, c. 27, confirmed by the act of 1780, c. 68. The assignee of any bond, bill for debt, or note for the payment of money or tobacco, (his executors and administrators) may maintain an action thereupon in his own name ; but in sucli suit the defendant shall be allowed all discounts that he can prove, either against the assignee, or the original obligee, before notice of such assignment given the defendant.

And in a late case it has been determined, in the court of appeals, that the bare endorsement of a bond, by the obligee, raises an assumpsit in favour of the assignee, for the amount of the money appearing to be due by such bond, provided due diligence being used by the assignee for the recovery of the money, the obligor, or obligors, shall prove insolvent. Mackie's Executors, v. Davis and Young, Sec. November term, 1796. 2 Wash. Rep. 219.

In the same term it was decided, contrary to the principles of a former decision * in the high court of chancery, that the assignee of a bond takes the same subject to all the equity of the obligor against the obligee. Between Norton and Rose. 2 Wash. 233, 255. •

It was also decided, at the same term, that if a bond be assigned to A, and his name be stricken out with a pen, and the name of B inserted over it, this is a sufficient assignment for B to maintain an action on the bond, as the immediate assignee of the original obligor. Between Drummond and Crutcher. Ibid. p. 218. And since the decision in the case of Mackie's executors against Davis and Young, it may be of consequence to those who take, and make assignments of bonds, to pursue this method, where they are not sure of the obligor's or original assignor's sufficiency.

As to what may be admitted as a discount against the assignee. .... In the general court, October term, 1788, a bond from, the original obligee, to the defendant, was admitted to be given in evidence, without proof of the delivery, inan'action brought by an assignee, against the obligor in the first bond ; and the court held, that this, and every other admissible discount which the defendant could prove against the obligee, before actual notice of the assignment given to the defendant, was admissible evidence on behalf of the defendant. Between Taylor and Popes.

The foregoing cases relate to common bonds for the payment of money or tobacco. Edi. 1794, c. 29. By a variety of subsequent acts, other bonds are also made assignable.

By

* Overstreet v. Randolph's Executors, and Griffin. Wythe's Kep US.

the king is an exception to this general rule; for he might always either grant or receive a chose in action by assignmente: and our courts of equity, considering that in a commercial country almost all personal property must necessarily lie in contract, will protect the assignment of a chose in action, as much as the law will that of a chose in possessionf.

e Dyer. SO. Bro. Alir. tit. chose in action. 1 and 4. f SP.Wms. 199.

By the act of 1787, c. 7, replevin bonds (the nature of which will be more fully explained hereafter) taken by a sheriff serving an execution, as also bonds taken by the sheriff for goods sold upon credit, on executing a writ of fieri facias, pursuant to the directions of that act, are made assignable, and have the force of judgments.

•And by the act of 1788, c. 77, upon any such sale, if the value of the goods sold shall amount to more than the execution, the sheriff bhall take a bond to the debtor for the surplus, which bonds are also made assignable, and have the force of judgments. And in all these cases the assignor, or assignors, arc expressly declared to be liable, if the obligors be not sufficient.

And now, by the act of 1795, c. 14, the assignee of any bond, bill, or obligation whatever, may maintain a suit in his own name, in like manner as the assignee of a bond for the payment of money or tobacco ; a law which will probably cut out ample business for the courts of equity. Before this act, no suit could be maintained by the assignee of a bond, with a collateral condition, in his own name. 1 Call. 483, and 2 Call. 232.

For a more full view of this subject,"and the proceedings in certain cases, to be had upon assigned bonds, the consideration of which will more properly belong to the next book of the commentaries, the student may consult the acts before referred to in this note ; as also the following acts of 1791, c. 3. 1792, c. 5. Sec. 23, 26, &c. 1794, c. 151, and c. 176. •

In a late case it has been decided, that if there be several indorsers to a promissory note, which is protested, the holder of the note can maintain an action only against that indorser from whom he took the note, there being no privity between him and any prior indorser, and promissory notes, though assignable, not being put upon the same footing with bills of exchange in this country, although they are in England, and this upon the ground of the decision in Mackie's executors, vs. Davis. By Nelson Judge, at Dumfries, May term, 1801. Between Theophilus Harris and Dunlop .... in which case an appeal was prayed.' -And, in the case of Lee v. Love, 1 Call's Rep. 497, it hath been settled, that the assignee of a note of hand must sue the maker, before he can

This contract or agreement may he either express or implied. Express contracts are where the terms of the agreement are openly uttered and avowed at the time of the making, as to deliver an ox, or ten load of timber, or to pay a stated prue for certain goods. Implied are such as reason and justice dictate, and which therefore the law presumes that every man undertakes to perform. As, if I employ a person to do any business for me, or perform any work; the law implies that I undertook, or contracted, to pay him as much as his labour deserves. If I take up wares from a tradesman, without any agreement of price, the law concludes thai I contracted to pay their real value. And there is also one species of implied contracts, which runs through and is annexed, to all other contracts, conditions, and covenants, viz. that if I fail in my part of the agreement, I shall pay the other party such damages as he has sustained by such my neglect or refusal. In short, almost all the rights of personal property (Vvhen not in actual possession) do in great measure depend upon contracts of one kind or other, or at least might be reduced under some of them: which indeed is the method taken by the civil 'law; it having referred the greatest part of the duties and rights, which it treats of, to the head of obligations ex contractu and quasi ex contractu s.

A contract may also be either executed, as if A agrees to change horses with B, and they do it immediately; in which case the possession and the right are "transferred together: or it may be executory, as if they agree to change next week; here the right only vests, and their reciprocal property in each other's horse is not in possession, but in action; for a contract executed (which differs nothing from a grant) conveys' a chose in possession ; a contract executory conveys only a chose in action.

Having thus shewn the general nature of a contract, we are, secondly, to proceed to the consideration upon which it is found-

g Inst. 3, 14, 2.

-- -- -- -- -- -- -- -- -- -- -- -- -- i -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- --

resort to the assignor. And in another case it has been settled, that in a suit against the indorser of a bond, the hand writing of the prior indorsers need not be proved ; this action being founded principally on the privity which exists between the assignor, and assignee, per Roan, judge. Me. Williams v. Smith. 1 Call's Rep. 125.

ed; or the reason which moves the contracting par.ty to enter into the contract. " It is an agreement, upon sufficient consideration." The civilians hold, that in all contracts, either express or implied, there must be something given in exchange, something that is mutual or reciprocalh. This thing, which is the price or motive of the contract, we call the consideration: and it must be a thing lawful in itself, or else the contract is void. A good consideration, we have before seen', is that of blood or natural affection between near relations; the satisfaction accruing from which the law esteems an equivalent for whatever benefit may move from one relation to another J. This consideration may sometimes however be set aside, and the contract become void, when it tends in it's consequences to defraud creditors, or other third persons, of their just rights. But a contract for any valuable consideration, as for marriage, for money, for work done, or for other reciprocal contracts, can never be impeached at law5; and, if it be of a sufficient adequate value, is never set aside in equity: for the person contracted with has then given an equivalent in recompense, and is therefore as much an owner, or a creditor, as any other person.

These valuable considerations are divided by the civilians k into four species. 1. Do, ut des: as • when I give money or goods, on a contract that I shall be repaid money or goods for them again. Of this kind are all loans of money upon bond, or .promise of repayment j and all sales of goods, in which there is either an express contract to pay so much for them, or else the law implies a contract to pay so much as they are worth. 2. The second species \s,facio, ut facias: as, when I agree with a man to do his work for him, if he will do mine for me ; or, if two persons agree to marry together ; or to do any other posi-

h In omnibus contractibus, five nominath siiie innaminatis, permutatio continetar. Gravin. 1.2. Sec. 12.

i page 297. j 3 Rep. 83. k ff. 19, S, 5.

S. A contract for the loan of money, if the contract be usurious, or if it be for money lent to play with, at the time and place of gaming, seems to be utterly void at law, as well as in equity. See V. L. Edi. 1794, c. 31, and c. 96.

tive acts on both sides. Or, it may be to forbear on one side on consideration of something done on the other; as, that in consideration A, the tenant, will repair his house, B, the landlord, will not sue him for waste. Or, it may be for mutual forbearance on both sides; as, that in consideration that A will not trade to Lisbon, B will not trade to Marseilles ; so as to avoid interfering with each other. 3. The third species of consideration is facio, ut des: when a man agrees to perform any thing for a price, either specifically mentioned, or left to the determination 'of the law to set a value to it. And when a servant hires himself to hfs master for certain wages, or .an agreed sum of money: here the servant contracts to do his master's service, in order to earn that specific sum. Otherwise, if he be hired generally ; for then he is under an implied contract to perform this service for what it shall be reasonably worth. 4. The fourth species is, do, ut facias: which is the direct counterpart of the preceding. As, when I agree with a servant to give him such wages upon his performing such work : which, we see, is nothing else, but the last species inverted; for servusfacit, ut herus det, and hems dat, ut servusfaciat.

A consideration of some sort or other is so absolutely necessary to the forming of a contract, that a nudum pactum, or agreement to do or pay any thing on one side, without any compensation on the other, is totally void in law: and a man .cannot be compelled to perform itl #. As if one man promises to give 1 Dr. and St. d. 2. c. 24.

*- See a very learned dissertation upon this passage, and the learned Judge's observation and reference upon a nudinnpactum in the preceding page, by Mr. Fonblanque in his edition of the Treatise of Equity, 1 vol. p. 326. That learned gentleman abundantly proves that a consideration was not necessary to constitute a binding contract in the civil law; and he concludes, that " from a view of the different modes by which an obligation could be created by the civil law, it appears that, without any consideration, a verbal agreement or promise might, in respect of certain prescribed solemnities,acquire a binding force and legal validity; and further, that for want of a consideration, a written acknowledgment of a debt might be avoided; and that though a consideration was alleged in writing, it might be denied. If then it be asked, what was a nudum pactum by the civil law? I should submit that, from the above observations, it appears to have been an undertaking to give or to do some particular thing or act, which neyue veriis prascripttt

another 10O/. here there is nothing contracted for or given on the one side, and"therefore there is nothing binding on the other. And, however a man may or may not be bound to perform it, in honour or conscience, which the municipal laws do not take upon ^hern to decide; certainly those municipal laws will not compel the execution of what he had no visible inducement to engage for: and therefore our law has adopted m the maxim of the civil law ", that ex nudo pacto non oritur actio. But any degree of reciprocity will prevent the pact from being nude : nay, even if the thing be founded on a prior moral obligation, (as a promise to pay a just debt, though barred by the statute of limitations) it is no longer nudum pactum *. And as this rule was principally established, to avoid the inconvenience that would arise from setting up mere verbal promises, for which no good reason could be assigned0, it therefore does not hold in some cases, where such promise is authentically proved by written documents. For if a man enters into a voluntary bond, or gives a promissory note, he shall not be allowed to aver the want of a consideration in order to evade the payment: for every bond from the solemnity of the instrument p, and every note from the

m Bro. Abr. tit. dette. 79. Sulk. 129. oPIowdj308,309.

n Cod. 2,3,10. and 5; 14. 1. p Hardr. 200. 1 Ch. Rep. 157.

" to'.emitibus <veatitnm sit, tuxpie facto out datione rei traruiit in contractum " innominatum."...Christian.

* Where a man is under a moral obligation which no court of law or equity can enforce, and promises, the honesty and rectitude of the thing is a consideration. As if a man promise to pay a just debt, the'recovery of which, is barred by the statute of limitations ; or if a man, after he comes of age, promise to pay a meritorious debt contracted during his minority, but not fornecessaries ; or if a bankrupt, in affluent circumstances afier his certificate, promise to pay the whole of his debts; or if a man promise to perform a secret trust, or a trust void for want of writing by the statute of frauds.

In such and many other instances, though the promise gives a compulsory remedy where there was none before, either in law or equity, yet as the promise is only to do whac an honest man ought to do, the ties of conscience upon an upriglit man are a sufficient consideration. Lil. Mansfield, 1 Gawp. 290. But u u bankrupt, after obtaining his certificate, promise to pay a prior debt when !.:• is able, it has been held that this is a conditional jpromtse, and that the plainiiu must prove the defendant's ability to pay'. 2 Hen. HI. 116.

Christian.

subscription of the drawer 1 *, carries with it an internal evidence of a good consideration. Courts of justice will therefore support them both, as against the contractor himself; but not to the prejudice of creditors, or strangers to the contract.

We are next to consider, thirdly, the thing agreed to be done or omitted. " A contract is an agreement, upon sufficient consideration, to do or not to do a particular thing" The .most usual contracts, whereby the right of chattels personal may he acquired in the laws of England, are, 1. That of sale or exchange. 2. That of bailment. 3. That of hiring and borrowing. 4. That of debt.

1. Sale or exchange is a transmutation of property from one man to another, in consideration of some price or recompense in value: for there is no sale without a recompense ; there must

q Lord Raym. 760.

* Mr- Fonblanque, in his discussion of the subject of consideration, referred to in the last note but one, has taken notice of this inaccuracy ^ he says, what certainly is fully established, " that the want of consideration cannot be averred by the maker of a note, if the action be.brought by an indorsee; but if the action be brought by the payee, the want of consideration is a bar to the plaintiff's recovering upon it." 1 Stra. 674. Bull. N. P. '274. An indorsee, who has given full value for a bill of exchange, may maintain an action both against him who drew it, and who accepted it, without any consideration. The most important authority respecting the consideration of written contracts is the case of Kann v. -Hughes before the house of lords, in which lord chief baron Sfynner delivered the unanimous opinion of the judges, that an administratrix was not bound by a written promise to pay the debt of her intestate out of her own property. See it reported in 7 T. R. 350. In that case, the chief baron advanced, that " all contracts are by the laws of Englaml distinguished into agreements by specialty, and agreements by parolj nor is there any such third classas some of the counsel have endeavoured to main-, tain, as contracts in writing. If they be merely written, and not specialties, they are parol, and a consideration must be proved. He observed that the words of the statute of frauds were merely negative, and that executors and administrators should not be liable out of their own estates, unless the agreement upon which the action was brought, or some memorandum thereof, wai in writing and signed by the party. But this dees not prove that the agreement was still not liable to be tried and judged of as all other agreements merely in writipg are by the common law, and does not prove the converse of the proposition that vhen in writing the party must be at all events liable."

Christian.

be quid pro quor. If it be a commutation of goods for goods, it is more properly an exchange; but, if it be a transferring of goods for money, it is called a sale: which is a method of exchange introduced for the convenience of mankind, by establishing an universal medium, which may be exchanged for all sorts of other property: whereas if goods were only to be exchanged for goods, by way of barter, it would be difficult to adjust the respective values, and the carriage would be intolerably cumbersome. All civilized nations adopted therefore very early the use of money ; for we find Abraham giving " four hundred " shekels of silver, current money with the merchant," for the field of Machpelah •: though the practice of exchange still subsists among several of the savage nations. But, with regard to the law of sales and exchanges, there is no difference. I shall therefore treat of them both under the .denomination of sales only; and shall consider their force and effect, in the first place where the vendor hath in himself, and secondly where he hath not the property of the thing sold,

Where the vendor hath in himself the property of the goods sold, he hath the liberty of disposing of them to whom ever he pleases, at any time, and in any manner: unless judgment has been obtained against him for a debt or damages, and the writ of execution is actually delivered to the sheriff6. For then, by the statute of frauds ", the sale shall be looked upon as fraudulent, and the property of the goods shall be bound to answer the debt, from the time of delivering the writ. Formerly it was bound from the teste, or issuing, of the writ *, and any subsequent sale was fraudulent; but the law was thus altered in favour of purchasers, though it still remains the same between the parties ; and therefore if a defendant dies after the awarding and before

r Noy's Max. c. 42.

s Gen. c-23. v. 16.

ss 29 Car. //, c. 3.

t 8 Rep. 171. 1 Mod. 188.

6. V. L. 1748, c. 8. Edi. 1094, c. 151, Accordant. But the lands of sheriffs, coroners, and other public collectors are bound from the •date of the judgment. Ibid. c. 84, J. 10.

the delivery of the writ, his goods are bound by it in the h and of his executors v *.

If a man agrees with another for goods at a certain price, he may not carry them away before he hath paid for them; for it is no sale without payment, unless the contrary be expressly agreed. And therefore, if the vendor, says, the price of a beast is four pounds, and the vendee says he will give four pounds, the bargain is struck: and they neither of them are at liberty to be off, provided immediate possession be tendered by the other side. But if neither the money be paid, nor the goods delivered, nor tender made, nor any subsequent agreement be entered into, it is no contract, and the owner may dispose of the goods as he pleases u. But if any part of the price is paid down, if it be but a penny, or any portion of the goods delivered by way of earnest (which the civil law calls arrha, and interprets to be " emptionis-venditionis contractae argumentum™ " the property of the goods is absolutely bound by it: and the vendee may recover the goods by action, as well as the vendor may the price of them * f. And such regard does the law pay to earnest as an evidence of a contract, that by the same statute 29 Car. II. c. 3, no contract for the sale of goods, to the value of 10/. or more, shall be valid, unless the buyer actually receives part of the goods

v r-,omb.3J. 12 Mod. 5. 7 Mod. 95. n Hob. 41. Noy's Max. c. 42.

•vr'lnst. 3 tit. 24. x Noy. ibid.

* If two writs are delivered to the sheriff on the same day, he is bound to execute the first which he receives ; but if he levies and sells under the second, the sale to a' vendee, without notice of the first, is irrevocable, and the sheriff makes himself answerable to both parties. I Salt. 320.1 T- R. 729...Ci>riitian.

t The property does not seem to be absolutely bound by the earnest; for lord Holt has laid down the following rules, viz. " That notwithstanding the earnest, the money must be paid upon fetching away the goods, because no other time for payment is appointed; that earnest only binds the bargain, and gives the party a right to demand i but then a demand without the payment of the money is void; that after earnest given the vendor cannot sell the goods to another, without » default in the vendee; and therefore if the vendee does not come and pay, and take the goods, the vendor ought to go and request him; and then if he docs not tome and pay, and take au ay the goods in convenient time, the agicemenl is dissolved, and he is at liberty to sell them to any other person " ISaU. 113 ..Gbiitiija.

sold, by way of earnest on his part; or unless he gives part of the price to the vendor by way of earnest to bind the bargain, or in part of payment; or unless some note in writing be made and signed by the party, or his agent, who is to be charged with the contract7. And, with regard to goods under the value of 1O/. no contract or agreement for the sale of them shall be valid, unless the goods are to be delivered within one year, or unless the contract be made in writing, and signed by the party, or his agent', who is to be charged therewith*. Antiently, among all the northern nations, shaking of hands was held necessary to bind the bargain; a custom which we still retain in many verbal contracts. A sale thus made was called handsate, " venditio per mutuam manuum complexionem?; till in process of time the same word was used to signify the price or earnest, which was given immediately after the shaking of hands, or instead thereof.

As soon as the bargain is struck, the property of the goods is transferred to the vendee, and that of the price to the vendor; but the vendee cannot take the goods, until he tenders the price agreed on». But if he tenders the money to the vendor, and he refuses it, the vendee may seize the goods, or have-an action y Stiei-nhook dejure Goth. 1.2. c. 5. z Hob. 41.

* It seems to be established, that contracts for goods which cannot be dedelivered immediately, are not within the statute, and are binding without a writing; at an agreement to take a carriage when it is built, or corn when it is threshed, and the- like. 4 Burr. 2101. And this is binding, though in fact the carriage is not delivered within the year; but if the original agreement was, that should it not at any event be delivered till after a year, then the contract will not be valid unless it is reduced into writing. But if the article exists at the time in astate fit for delivery, if the agreement is for mote than 10/. it must be in writing, notwithstanding the delivery is to be postponed to a future day. Cooper v. Elston,7 f. R. \b...Cbristian.

7. This statute was never in force in Virginia, nor is there any similar provision in our law.

8. No action shall be brought whereby to charge any person upon any'agreement which is not to be performed within the space of one year from the making thereof, unless the promise or agreement, or some memorandum or note thereof shall be in writing, and signed by the party to be charged therewith, or seme other person by him thereunto lawfully authorised. V.- L. 1785, c. 64. Edi. 1794, c. 10. The student will observe the difference between this art, and the stattuc.

against the vendor for detaining them. And by a regular sale, without delivery, the property is so absolutely vested in the vendee, that if A sells a horse to B for 1O/. and B pays him earnest, or signs a note in writing of the bargain; and afterwards, before the delivery of the horse or money paid, the horse dies in the vendor's custody; still he is entitled to the money, because by the contratt, the property was in the vendee a. Thus may property in goods be transferred by sale, where the vendor hath such property in himself.

But property may also in some cases be transferred by sale, though the vendor hath none at all in the goods: for it is expedient that the buyer, by taking proper precautions, may at all events be secure of his purchase; otherwise all commerce between man and man must soon be at an end. And therefore the general rule of law isb, that all sales and contracts of any thing vendible, in fairs or markets overt, (that is, open) shall not only be good between the parties, but also be binding on all those tfiat have any right or property therein. And for this purpose, the Mirroir informs us% were tolls established in markets, viz. to testify the making of contracts ; for every private contract was discountenanced by law: insomuch, that our Saxon ancestors prohibited the sale of any thing above the value of twenty pence, unless in open market, and directed every bargain and sale to be contracted in the presence of credible witnesses d. Market overt in the country is only held on the special days, provided for particular towns by charter or prescription: but in London every day, except Sunday, is market daye. The market place, or spot of ground set apart by custom for the sale of particular goods, is also in the country the only market overtf; but in London every shop in which goods are exposed publicly to sale, is market overt, for such things only as the owner professes to trade in«. But if my goods are stolen from me, and sold, out of market overt, my property is not altered, and I may take them wherever I find them9. And it is expressly provided by statute 1 Jac. I.

a Noy. c. 42. b 2 Inst. 713. c c. 1. Sec. 5.

d LL. Ethel. 10,12. LL. Eadg. W ilk. 80.

e Cro. Jac- 68. f Goclb. 131. g 5 Rep. 83. 12 Mod. 521.

9. These local customs,* it is presumed, have no force Hi Virginia.

c. 21, that the sale of any goods wrongfully taken, to any pawnbroker in London, or within two miles thereof, shall not alter the property: for this, being usually a clandestine trade, is therefore made an exception to the general rule. And, even in market overt, if the goods be the property of the king, such sale (though regular in all other respects) will in no case bind him; though it binds infants, feme coverts, idiots or lunatics, and men beyond sea or in prison: or if the goods be stolen from a common person, and then taken by the king's officer from the felon, and sold in open market; still, if the owner has used due deligence in prosecuting the thief to conviction, he loses not his property in the goods h ». So likewise, if the buyer knoweth the property not to be in the seller; or there be any other fraud in the transaction; if he knoweth the seller to be an infant, or feme covert not usually trading for herself; if the sale be not originally and wholly made in the fair or market, or not at the usual hours; the owner's property is not bound thereby'. If a man buys his own goods in a fair or market, the contract of sale shall not bind him, so that he shall render the price; unless the property had been previously altered by a former sale k. And, notwithstanding any number of intervening sales, if the original vendor, who sold without having the property, comes again into possession of the goods, the original owner may take them, when found in his hands who was guilty of the first breach of justice'. By which wise regulations the common law has secured the right of the proprietor in personal chattels from being devested, so far as was consistent with that other necessary policy, that purchasers, bonajlde, in a fair, open, and regular manner, should not be afterwards put to difficulties by reason of the previous knavery of the seller.

But there is one species of personal chattels, in which the property is not easily altered by sale, without the express consent of the owner, and those are horses m. For a purchaser gains

h Bacon's Use(of the Law. 158. i 2 Inst. 713,714.

kPeik. Sec. 93. « 12Inst. 713.

m Inst. 719.

(9.) V. L. Edi. 1794, c. 75, Accordant, as to felons goods.

no property in a horse that has been stolen, unless it be bought in a fair or market overt, according to the directions of the statutes 2 P. and M. c. 7, and. 31 Eliz. c. 12. By which it is enacted, that the horse shall be openly exposed, in the time of such fair or market, for one whole hour together, between ten in the morning and sunset, in the public place used for such sales, and not in any private yard or stable; and afterwards brought by both the vtndor and vendee to the book-keeper of such fair or market: that toll be paid, if any be due ; and if not, one penny to the book-keeper, who shall enter down the price, colour, and marks of the horse, with the names, additions, and abode of the vendee and vendor ; the latter being properly attested. Nor shall such sale take away the property of the owner, if within six months after the horse is stolen he puts in his claim before some magistrate, where the horse shall be found; and, within forty days more, proves such his property by the oath of two witnesses, and tenders to the person in possession' such price as he bonafide paid for him in market overt. But in case any one of the points before-mentioned be not observed, such sale is utterly void: and the owner shall not lose his property, but at any distance of time may seise or bring an action for his horse, wherever he happens to find himI0.

But by the civil law" an implied warranty was annexed to every sale, in respect to the title of the vendor: and so too, in our law, a purchaser of goods and chattels may have a satisfaction from the seller, if he sells them as his own and the.title proves deficient, without any express warranty for that purpose0. But with regard to the goodness of the wares so purchased, the vendor is not "bound to answer; unless he expressly warrants them to be sound and good"1, or unless he knew them to be otherwise and hath used any art to disguise them"*, or unless they

n Ff. 21. 2.1. p F. N. B. 94.

o Cro. Jac. 474. 1 Roll Abr. 90. q 2 Roll. Hep. 5.

10. These statutory provisions are no longer in force in Virginia, the statutes above referred to being repealed. V. L. 1794, c. 147.

turn out to be different from what he represented to the buyer*'.

2. Bailment, from the French bailler, to deliver, is a deliery of goods in trust, upon a contract expressed or implied, that the trust shall be faithfully executed on the part of the baillee. As if cloth be delivered, or, (in our legal dialect) bailed, to ataylor to make a suit of cloaths, he has it upon an implied contract to render it again when made, and that in a workmanly manner1'. If money or goods be delivered to a common carrier, to convey from Oxford to London, he is under a contract in law to {Jay, or carry, them to the person appointed'. If a horse or other goods, be delivered to an inn-keeper or his servants, he is bound to keep them safely, and restore them when his guest leaves the house1. If a man takes in a horse, or other cattle, to graze and depasture in his grounds, which the law calls agistment, he takes them upon an implied contract to return them on demand to the owner". If a pawn-broker receives plate or jewels as a pledge, or security, for the repayment of money lent thereon at a day certain, he has them upon an express contract or condition to restore them, if the pledger performs his part by redeeming

r lVern.268. I 12 Mod. 482. t Cro. Eliz. 622. u Cro. Car. 271.

* The following distinctions seem peculiarly referable to the sale of horses. If the purchaser gives what is called a sound price, that is, such as from the appearance and nature of the horse would be a fair and full price for it, if it were in fa^free from blemish and vice, andheafterwardsdiscovers it to be unsound or vicious, and returns it in a reasonabe time, he may recover back the price he has paid in an action against the seller for so much money had and received to his use, provided he can prove the seller knew of the unsoundness or vice at the time of the sale ; for the concealment of such a material circumstance is a fraud, which vacates the contract.

But if a horse is sold with an express warranty by the seller that it is sound and free from vice, the buyer may maintain an action upon this warranty or special contract without returning the horse to the seller, or without even giving him notice of the unsoundness or viciousness of the horse; yet it will raise a prejudice against the buyer's evidence, if he does not give notice within a reasonable time that he had reason to be dissatisfied with his bargain H- Bi. 17.

The warranty cannot be tried inageneral action ot ussumpsitto recover back the price of the horse. Crnap. 819. In a warranty it is not necessary to shew that the seller knew of the hoise's imperfections at the time of the sale .... Cbi istlan.

them in due time"* : for the due execution of which contract many useful regula ions are made by statute 30 Geo. II. c. 24". And so if a landlord distrains goods for rent, or a parish officer for taxes, these for a time are only a pledge in the hands ot the distreinors, and they are bound by an implied contract in law to restore them on payment of the debt, duty, and expenses, before the time of sale ; or, when sold, to render back the overplus, if a friend delivers any thing to his friend to keep for him, the receiver is bound to restore it on demand: and it was formerly held that in the mean time he was answerable for any damage or loss it might sustain, whether by accident or otherwise" : unless he expressly undertook* to keep it only with i the same care as his own goods, and then he should not be answerable for theft or other accidents. But now the law seems to be seuLd*, that such a general bailment Will not charge the bailee with any loss, unless it happens by gross neglect, which is an evidence of fraud: but if he undertakes specially to keep the goods safely and securely, he is 'bound to take the same care of them, as a prudent man would take of his own3.

In all these instances there is a special qualified property transferred from the bailor to the bailee, together with the possession. It is not an absolute property, because of his contract for restitution i the bailor having still left in him the right to a chose in action, grounded upon such contract. And on account of this qualified property of the bailee, he may, (as well as the bailor) maintain an action against such as injure or take away these chattels. The taylor, the carrier, the inn-keeper, the agisting farmer, the pawn-broker, the distreinor, and the general bailee, may all of them vindicate, in their own right, this their possessory interest, against any stranger or third person1". For being responsible to the bailor, if the goods are lost or damaged

w Cro. Jac. 245. Yelv 178. x Co. Litt.89.

y 4 Hep. 84. z LordRaym. 909. 12 Mod. 487. •a By the laws of Sweden the depositary of bailee of goods is not bound to restitution, in case of accident by hre or theft; provided his own goods perished in the same manner: " jura enitn nostra," says Stiernhook, " dolumpraesu* " munt, si una non pereant." (.Dejtire Sueon. 1.2. c. 5.J ^

b 13 Rep. 69.

11. This statute was never in force in Virginia.

by his willful default or gross negligence, or if he do not deliver up the chattels on lawful demand, it is therefore reasonable that he should have a right of action against all other persons who may have purloined or injured them; that he may always be ready to answer the call of the bailor(u).

3. Hiring and- borrowing are also contracts by which a qualified property may be transferred to the hirer or borrower: in which there is only this difference, that hiring is always for a price, a stipend, or additional recompence; borrowing is merely gratuitous. But the law in both cases is the same*. They are both contracts, whereby the possession and a transient property is transferred for a particular time or use, on condition to restore the goods so hired or borrowed, as soon as the time is expired or use performed ; .together with the price or stipend (in case of hiring) either expressly agreed on by the parties, or left to be implied by law according to the value of the service. By this mutual contract, the hirer or borrower gains a temporary property in the thing hired, accompanied with an implied condition to use it with moderation and not abuse it; and the owner or lender retains a reversionary interest in the same, and acquires a new property in the price or reward. Thus if a man hires or borrows a horse for a month, he has the possession and a qualified property therein during that period; on the expiration of which his qualified property determines, and the owner becomes (in case of hiring) entitled also to the price, for which the horse was hiredc.

There is one species of this price or reward, the most usual of any, but concerning which many good and learned men have c Yelv. 172. Cro. Jac. 236.

* The learned Commentator has here followed lord Holt, who has treated a onmmodatuin and a locatio without distinction. Lord £aym. 916. But this seems to be properly corrected by Sir W. Sfoncs, 85; who concludes, that the hirer of a thing is answerable only for ordinary neglect; but that a gratuitoui borrower is responsible even for slight negligence, lit. J20 .... CMstian.

(11.) See Sir William Jones's Law of Bailments, and Christian's note upon this passage: as also the celebrated case of Coggs, tit. Bernard, 2 Lord Raym. 909, and 4 Burrow. 2214.

in former times very much perplexed themselves and other people, by raising doubts about it's legality in foro conscicntiae. .... That is, when money is lent on a contract to receive not only the principal sum again, but also an increase by way of compensation for the use ; which generally is called interest by those who think it lawful, and usury by those who do not so. For the enemies to interest in general make no distinction between that and usury, holding any increase of money to be indefensibly usurious. And this they ground as well on the prohibition of it by the law of Moses among the Jews, as also upon what is said to be laid down by Aristotled, that money is naturally barren, and to make it breed money is preposterous, and a perversion of the end of it's institution, which was only to serve the purposes of exchange, and not of increase. Hence the school divines have branded the practice of taking interest, as being contrary to the divine law both natural and revealed; and the canon law' has proscribed the taking any, the least, increase for the loan of money as a mortal sin.

But, in answer to this, it hath been observed, that the Mosaical precept was clearly a political, and not a moral precept. It only prohibited the Jews from taking usury from their brethren the Jews ; but in express words permitted them to take it of a strangerf: which proves that the taking of moderate usury, or a reward for the use, for so the word signifies, is not malum in se; since it was allowed where any but an Israelite was concerned. And as to the reason supposed to be given by Aristotle, and deduced from the natural barrenness cf money, the same may with equal force be alleged of houses, which never breed houses; and twenty other things, which nobody doubts it is lawful to make profit of, by letting them to hire. And though money was originally used only for the purposes of exchange, yet the laws of any state may be well justified in permitting it to be turned to the purposes of profit, if the convenience of society (the great end for which money was invented) shall require it. And that the allowance of moderate interest tends greatly to the benefit of the public, especially in a trading country, will appearfrom that generally acknowledged principle, thatcommerce cannot subsist with-

d Polity 1.1. c. 10. Thii passage hath been suspected to be spurious.

e Depttal. I. 5. tit. 19. i' Dent, xxiii. 20.

out mutual and extensive credit. Unless money therefore cart be borrowed, trade cannot be carried on: and if no premium were allowed for the hire of money, few persona would care to lend it; or at least the ease of borrowing at a short warning (which is the life of commerce) would be entirely at an end .... Thus, in the dark ages of monkish superstition and civil tyranny, when interest was laid under a total interdict, commerce was also at it's lowest ebb, and fell entirely into the hands of the Jews and Lombards : but when men's minds began to be more enlarged, when true religion and real libtrty revived, commerce grew again into credit; and again introduced with itself it's inseparable companion, the doctrine of loans upon interest .... And, as to any scruples of conscience, since all other conveniences of life may either be bought or hired, but money can only be hired, there seems to be no greater oppression in taking a recompense or price for the hire of this, than of any other convenience. To demand an exorbitant price is equally contrary to conscience, for the loan of a horse, or the loan of a sum of money : but a reasonable equivalent for the temporary inconvenience, which the owner may feel by the want of it, and for the hazard of his losing it entirely, is not more immoral in one case than it is in the other. Indeed the absolute prohibition of lending upon any, even moderate interest, introduces the very inconvenience which.it seems meant to remedy. The necessity of individuals will make borrowing unavoidable. Without some profit allowed by law, there will be but few lenders: an'd those principally bad men, who will break through the law, and take a profit; and then will endeavour to indemnify themselves from the danger of the penalty, by making that profit exorbitant. A capital distinction must therefore be made between a moderate and exorbitant profit; to the former of which we usually give the name of interest, to the latter the truly odious appellation of usury: the former is necessary in every civil state, if it were but / to exclude the latter, which ought never to be tolerated in any well regulated society. For, as the whole of this matter is well summed up by Grotius«, " if the compensation allowed by law " does not exceed the proportion of the hazard run, or the want " felt, by the loan, it's allowance is neither repugnant to the re-g dej. b.Wp.l. 2. c. 12. §.22.

" vealed nor the natural law: but if it exceeds those bounds, it is " then oppressive usury; and though the municipal laws may " give it impunity, they never can make it just."

We see, that the exorbitance or moderation of interest, for money lent, depends upon two circumstances; the inconvenience of parting with it for the present, and the hazard of losing it entirely. The inconvenience to individual lenders can never be estimated by laws; the rate, therefore of general interest must depend upon the usual or general inconvenience. This results entirely from the quantity of specie or current money in the kingdom: for, the more specie there is circulating in any nation, the greater superfluity there will be, beyond what is necessary to carry on the business of exchange and the common concerns of life. In every nation or public community, there is a certain quantity of money thus necessary ; which a person well skilled in political arithmetic might perhaps calculate as exactly, as a private banker can the demand for running cash in his own shop: all above this necessary quantity may be spared, or lent, without.much inconvenience to the respective lenders ; and the greater this national superfluity's, the more numerous will be the lenders, and the lower ought the rate of the national interest to be ; but where there is not enough circulating cash, or barely enough, to answer the ordinary uses of the public, interest will be proportionably high ; for lenders will be but few, as few can submit to the inconvenience of lending.

So also the hazard of an entire loss has it's weight in the regulation of interest: hence, the better the security, the lower will the interest be ; the rate of interest being generally in acornpound ratio, formed out of the inconvenience, and the hazard. And as, if there were no inconvenience, there should be no interest but what is equivalent to the hazard, so, if there were no hazard, there ought to be no interest, save only what arises from the mere inconvenience of lending. Thus, if the quantity of specie in a nation be such, that the general inconvenience of lending for a year is computed'to amount to three per cent: a man that has money by him will perhaps lend it upon good personal security at five per cent, allowing two for the hazard run:

he will lend it upon landed security or mortgage a*, four per cent. the hazard being proportibnably less; but he will lend it to the state, on the maintenance of which all his property depends, at three per cent, the hazard being none at all.

But sometimes the hazard may be greater, than the rate of interest allowed by law will compensate. And this gives rise to the practice of, 1. Bottomry, or respondentia. 2. Policies of insurance. '3. Annuities upon lives.

And first, bottomry (which originally arose from permitting the master of a ship, in a foreign country, to hypothecate the ship in order to raise money to refit) is in the nature of a mortgage of a ship ; when the owner takes up money to enable him to carry on his voyage, and pledges the keel or bottom of the ship (partem pro toto) as a security for the repayment: In which case it is understood, that if the ship be lost, the lender loses also his whole^money; but, if it returns in safety, then he shall receive back his principal, and also the premium or interest agreed upon, however it may exceed the legal rate of interest. And this is allowed to be a valid contract in all trading nations, for the benefit of commerce, and by reason of the extraordinary hazard run by the lenderh. And in this case the ship and tackle, if brought home, are answerable (as well as the person of the borrower) for the money lent. But if the loan is not upon the vessel, but upon the goods and merchandize, which must necessarily be sold or exchanged in the course of the voyage, then only the borrower, personally, is bound to answer the contract; who, therefore, in this case is said to take up money at respondentia. These terms are also applied to contracts for the repayment of money borrowed, not on the ship and goods only, but on the mere hazard of the voyage itself; when a man lends a merchant 1000/. to be employed in a beneficial trade, with condition to be repaid with extraordinary interest, in case such a voyage be safely performed': which kind of agreement is sometimes called foemis nauticum, and sometimes usura maritima J.

h Moll, dejur. mar, 361. Malyne. lex mcrcat. b. 1, c. 31. Bacon's Essays, c. 41. Cro. Jac. 208. Bynkersh. quaestjur privat. I, 3, c. 16. i 1 Sid. 27. j Molloy ibid. Malyne ibid.

But fcs this gave an opening for usurious and gaming contracts, especially upon long voyages, it was enacted by the statute 19 Geo. II. c. 37 1S, that all monies lent on bottomry or-at res/iondentia.t on vessels bound to or from the East-Indies, shall be expressly lent only upon the ship or upon the merchandize; that the lender shall have the benefit of salvage k; and that if the borrower hath not an interest in the s.hip, or in the eftVcls on board equal to the value of the sum borrowed, he shall be responsible to the lender for so much of the principal as hath not been laid out, with legal interest and all other charges, though the ship and merchandize be totally lost*.

Secondly, a policy of insurance is a contract between A and B, that, upon A's pay ing a premium equivalent to the hazard run, B will indemnify or insure him against a particular event. This is founded upon one of the same principles as the doctrine of interest upon loans, that of hazard; but not that of inconvenience. For if I insure a ship to the Levant, and back again, zi Jive per cent; here I calculate the chance that she performs her voyage to be twenty to one against her being lost: and, if she be lost, I lose 10O/. and get 5/. Now this is much the same as if I lend the

k Se.e volume I, page 294.

* It is an established rule, that no contract is within the statute of usury although more than live per cent, is to be paid upon money advanced, if the principle is actually put in hazard, and may be totally lost to the lender. The general nature of a respondentia bond is this, the borrower binds himself in a large penal sum, upon condition that the obligation shall be void, if he pay the lender, the sum borrowed, and so much a month from the date of the bond till the ship arrives at a certain port, or if the ship be lost or captured in the course of the voyage. The respondentia interest is frequently at the rate of forty or fifty per cent, or in proportion to the risk and profit of the voyage; for the respondentia lender may be considered as a material partner in the loss and gain of the adventure; and, therefore, he may insure his interest in the success of the voyage, but it must be expressly specHied in the policy to be rcspondentia interest, o Burr. 13'J4; unless there is a particular usage to the contrary. Park. Inst. 11. A lender upon respondentia is not obliged to pay salvage oraverage losses, but he is entitled to receive the whole sum advanced, provided the ship and cargo arrive at the port of destination; nor will he lose the benefit of the bond, if an accident happens by the default of the borrower or the captain of the ship. Ibidem 421..i.C6ristian.

12. This statute was never in force in Virginia.

merchant whose whole fortunes are embarked in this vessel, I 100/. at the rate of eight per cent. For by a loan I should be immediately out of possession of my money, the inconvenience of which we have supposed equal to three per cent: if therefore I had actually lent him 100/. I must have added 3/. on the score of inconvenience, to the Si. allowed for the hazard, which together would have made 8/. But, as upon an insurance, I am never out of possession of my money till the loss actually happens, nothing is therein allowed upon the principle of inconvenience, but all upon the principle of hazard. Thus too, in a loan, if the chance of repayment depends upon the borrower's life, it is frequent (besides the usual rate of interest) for the borrower to have his life insured till the time of repayment; for which he is loaded with an additional premium, suited to his age and constitution. Thus, if Sempronius has only an annuity for his life, and would borrow 100 /. of Titius for a year; the inconvenience and general hazard of this loan, we have seen, are equivalent to Si. which is therefore the legal interest: but there is also a special hazard in this case; for, if Sempronius dies within the year, Titius must lose the whole of his 1OO/. Suppose this chance to be as one to ten : it will follow that the extraordinary hazard is worth 10/. more, and therefore that the reasonable rate of interest in this case would bejifteen per cent. But this the law, to avoid abuses, will not permit to be taken: Sempr 'nius therefore gives Titius the lender only Si. the legal interest; but applies to Gaius an insurer, and gives him the other 1O/. to indemnify Titius against the extraordinary hazard. And in this manner may an); extraordinary or particular hazard be provided against, which the established rate of interest will not reach ; that being calculated by the state to answer only the ordinary and general hazard, together with the lender's inconvenience in parting with his specie for the time. But, in order to prevent these insurance! from being turned into a mischievous kind of gaming, it is enacted by statute 14 Geo. III. c. 48, that no insurance shall be made on lives, or on any other event, wherein the party insured hath no interest; that in all policies the name of such interested party shall be inserted; and nothing more shall be recovered thereon than the amount of the interest of the insured 13. •

13. The statute of 14 Geo. III, here referred to was never in force in Virginia.

This doth not however extend to marine insurances, which were provided for by a prior law of their own. The learning relatingto these insurances hath of late years been greatly improved by a series of judicial decisions ; which have now established the law in such a variety of cases, that (if well and judiciously collected) they would form a very complete title in a code of commercial jurisprudence : but, being founded on equitable principles, which chiefly result from the special circumstances of the case, it is not easy to reduce them to any general heads in mere elementary institutes. Thus much, however, may be said; that, being contracts, the very essence of which consists in observing the purest good faith and integrity, they are vacated by any the least shadow of fraud or undue concealment: and, on the other hand, being much for the benefit and extension of trade, by distributing the lessor gain among a number of adventurers, they are greatly encouraged and protected both by common law and acts of parliament. But as a practice had obtained of insuring large sums without having any property on board, which were called insurances, interest or no interest; and also of insuring the same goods several times over; both of which were a species of gaming, without any advantage to commerce, and were denominated wagering policies: it is therefore enacted, by the statute 19 Geo. II. c. 37, that all insurances, interest or no interest, or without farther proof of interest than the policy itself, or by way of gaming or wagering, or without benefit of salvage to the insurer, (all which had the same pernicious tendency) shall be totally null and void, except upon privateers, or upon ships or merchandize from the Spanish and Portuguese dominions, for reasons sufficiently obvious; and that no re-assUrance shall be lawful, except the former insurer shall be insolvent, a bankrupt, or dead; and lastly, that, in the East-India trade the lender of money on bottomry, or at respondentia, shall alone have a right to be insured for the money lent, and the borrower shall (in case of a loss) recover no more upon any insurance than the surplus of his property, above the value of his bottomry or respondentia bond14.

14. The statute of 19 Geo. II, here referred to was never ia force in Virginia.

Thirdly, the practice of purchasing annuities for lives at a certain price or premium, instead of advancing the same sum on an ordinary loan, arises usually from the inability of the borrower to give the lender a permanent security for the return of the money borrowed, at any one period of time. He therefore stipulates (in effect) to repay annually, during h's life, some part of the money borrowed ; together with legal interest for so much of the principal as annually remains unpaid, and an additional compensation for the extraordinary hazard run, of losing that principal jntirely by the contingency of the borrower's death : all which considerations, being calculated and blended together, will constitute the just proportion or quantum of the annuity which ought to be granted. The real value of that contingency must depend on the age, constitution, situation, and conduct of the borrower; and therefore the price of such annuities cannot, without the utmost difficulty, be reduced to any general rules. So that if, by the terms of the contract, the lender's principal is bonafde (and not colourably') put in jeopardy, no inequality of price will make it an usurious bargain; though, under some circumstances of imposition, it may be relieved against in equity. To throw, however, some check upon improvident transactions of this kind, which are 'usually carried on with great privacy, the statute 17 Geo. III. c. 26 ", has directed, that upon the sale of any life annuity of more than the value of ten pounds per annum unless on a sufficient pledge of lands in fee simple or stock in the public funds) the true consideration, which shall be in money only, shall be set forth and described in the security itself; and a memorial of the date of the security, of the names of the parties, cestuy que trusts, cestuy que vies, and witnesses, and of the consideration money, shall, within twenty days after it's execution, be inrolled in the court of chancery; else the security shall be null and void: and, in case of collusive practices respecting the consideration, the court, in which any action is brought, or- judgment obtained upon such collusive security, may order the same to be cancelled, ami the judgment (if any) to be vacated : and also all contracts for the purchase of annuities from infants, shall remain utterly void, and be incapable of confirmation after such

1 Carih. 67.

15. This statute is posterior to the American revolution.

infants arrive to the age of maturity. But to return to che doctrine of common interest on loans :

Upon the two principles of inconvenience and hazard, compared together, different nations have -at different times, established different rates of interest, The Romans, at one time, allowed centesimae, one per <•"»!. monthly, or twelve per cent, per annum, to be taken for common loans; but Justinian ra reduced

m Cod. 4. 32. 25 Nov. 53, 34, 35 .... .... A short explication of these terms,

and of the division of the Roman as, will be useful to the student, not only for understanding the civilians, but also the more classical writers, who perpetual^ refettothis distribution. Thus Horace, ad Pisonet. o25.

Romani pueri longit rationibiu assem Discunt in partescentum diducere. Dicat Filiui Albini si de quincunce remote est Uncia, quidsuperet? poterat dixisae, triens! eu, Hempoteris strvare tuain .' redit imcia, quid Jit? Semis .... .... ....

It is therefore to be observed, that, in calculating the rate of interest, the Romans divided the principal sum into an hundred parts ; one of which they allowed to be taken monthly: and this, which was the highest rate of interest permitted, they called tuurae centetimae, amounting yearly to twelve per cent. Now as the as, or Roman pound, was commonly used to express any integral sum, and was divisable into twelve parts or unciae, therefore these twelve monthly payments or unciae were held to amount annually to one pound, or at usurariiu; and so the usurae asses were synonymous to the usurae rentesimae. And all lower rates of interest were denominated according to the relation they bore to this centesimal usury, or usurae asses: for the several multiples of the unciae, or duodecimal parts of the as, were known by different names according to their different combinations; sextans, quadrant, trieiis, quincunx, semis, stptunx, Acs, dotlrans, dextans, deunx, containing respectively, 2,3, 4, 5, 6, 7, 8,9,10, 11, uiiciae or duodecimal parts of an as. (ff. 23. 5. 50. See. 2. Gravin. orig. jur. civ. i. 2. Se;. 47.) This being premised, the following table will clearly exhibit at once the subdivisions of the as, and the denominations of the rate of interest.

USURAE. PARTES ASSIS. PER ANNUM.
Jlstcs, tive centcsimae,...





.. .... il .... .... , .... .... .... ; .... .... n
Dexlances, -vel decunces

.. .... .... .... .... .... 10


3 .. .... .... .... .... .... 9


' 2 .. .... .... .... .... .... 8


.. .... £ .... .... .. .... .... .... .... .... 7

it to <nV:''«, or one third of the as or centesimae, that is, four per cent, but allowed higher interest to be taken of merchants, because there th.°. hazard was greater. So too Grotius informs us", that in Holland the rate of interest was then eight per cent. in common loans, but twelve to merchants. And lord Bacon was desirous of introducing «\ similar policy in England ° : but our law establishes one standard for all alike, where the pledge of security itself is not put in jeopardy ; lest, under the general pretence of vague and indeterminate hazards, a door should be opened to fraud and usury : leaving specific hazards to be provided against by specific insurances, by annuities for lives, or by loans upon respondentia, or bottomry. But as to the rate of legal interest, it has varied and decreased for two hundred years past, according as the quantity of specie in the kingdom has increased by accessions of trade, the introduction of paper credit, and other circumstances. The statute 37 Hen. VIII, c. 9, confined interest to ten per cent, and so did the statute 13 Eliz. c. 8. But as, through the encouragements given in her reign to commerce, the nation grew more wealthy, so under her successor the statute 21 Jac. I, c. 17, reduced it to eight per cent, as did the statute 12 Car. II, c. 13, to six: and lastly, by the statute 12 Ann. st. 2. c. 16, it was brought down to five per cent, yearly, which is now the extremity of legal interest that can be takenl6. n dejur. b. &p. 2.12. 22. . o Essays, c. 41.

USURAE. PARTES ASSIS. PER ANNUM.


.... .... £ .... ....



.... .... ^ .... .... . .... .... .... .... .... 5


1 . .... .... .... .... .... 4


. .... .... 1 .... .... .. .... .... .... .... .... 3


.... .... | .... .... . .... .... .... .... .... 2


.... .... Tv .... .... . .... .... .... .... .... 1

16. The act of 1730, c, 12, limited interest to six per cent, per annum ; that of 1748, c. 30, reduced it to five per cent, which rate was afterwards confirmed by the act of 1786, c. 31, which declares that no person shall, upon any contract, take directly or indirectly, for .loan of any money, wares, or merchandise, or other commodity, above the value of five pounds, for the forbearance of one hundred pounds for a year ; and that all bonds, contracts, covenants, conveyances, and as-

But yet, if a contract which carries interest, be made in a foreign country, our courts will direct the payment of interest according to the law of that country in which the contract was made p. Thus Irish, American, Turkish,' and Indian interest, have been allowed in our courts to the amount of even twelve per cent, for the moderation or exorbitance of interest depends upon local circumstances ; and the refusal to inforce such contracts would put a stop to all foreign trade. And, by statute 14 Geo.' III, c. 79 ", all mortgages and other securities upon estates, or other property in Ireland or the plantations, bearing interest not exceeding six per cent, shall be legal; though executed in the kingdom of Great Britain ; unless the money lent shall be known at the time to exceed the value of the thing in pledge; in which case also, to prevent usurious contracts at home, under colour of such foreign securities, the borrower shall forfeit treble the sum so borrowedl*.

4. The last general species of contracts, which I have to mention, is that of debt,• whereby a chose in action, or right to a certain sum of money, is mutually acquired and lost 4. This may be the counterpart of, and arise from, any of the other species of contracts. As, in case of a sale, where the price is not paid in ready money, the vendee becomes indebted to the vendor for the sum agreed on; and the vendor has a property in this price, as a chose in action, by means of this contract of debt. In bailment, if the bailee loses or detains a sum of money bailed to him for any special purpose, he becomes indebted to the bailor in the same numerical sum, upon his implied contract, that he should execute the trust reposed in him, or repay the money to the bailor. Upon hiring or borrowing, the hirer or borrower, at the

p 1 Equ. Cas. abr. 289. 1 P. Wms. 395. q F. N. B. 119.

surances made for payment of money, &c. on which a higher interest is reserved, or taken, than is thereby allowed, shall be utterly void. V. L. 1794, c. 31. The former acts on the subject are to the same effect. By the act of 1796, c. 16, six per cent, interest is allowed to be taken after the first day of May, 1797.

17. This statute wasnever in force in Virginia.

18. Sec Appendix, note F.

same time that he acquires a property in the thing lent, may also become indebted to the lender, upon his contract to restore the money borrowed, to pay the price or premium of the loan, the hire of the horse, or the like. Any contract, in short, whereby a determinate sum of money becomes due to any person, and is not paid but remains in action merely, is a contract of debt. And, taken in this light, it comprehends a great variety of acquisition j being usually divided into debts of record, debts by special, and debts by simple contract.

A debt of record is a sum of money, which appears to be due by the evidence of a court of record. > Thus, when any specific sum is adjudged to be due from the defendant to the plaintiff, on an action or suit at law; this is a contract of the highest nature, being established by the sentence of a court of judicature. Debts upon recognizance are also a sum of money, recognized or acknowledged to be due to the crown or a subject, in the presence of some court or magistrate, with a condition that such acknowlegement shall be void upon the appearance of the party, his good behaviour, or the like; and these, together withstatutes merchant, and statutes staple, ^c. if forfeited by non-performance of the condition, are also ranked among this first and principal class'of debts, viz. debts of record j since the contract, on which they are founded, is witnessed by the highest kind of evidence, viz. by matter of record19.

19. Debts of record are of various kinds in Virginia; for, in addition to debts due by judgment, or recognizance, (those by statutes merchant, and statutes staple being unknown here) we may reckon the following, which are either debts of record, or quasi debts of record, as having, by the particular provisions of our laws, the force of judgments ; of this latter description are, 1. Debts due by an executor, administrator, or guardian, to the estate of his testator, intestate, or ward; every such person being required by law'to give bond in that court in which he may qualify as such, with security for the faithful performance of the trust committed to him. V. L. 1?05, c. 7. 1748, c. 2, 3. 1785, c. 81, 86. Edi. 1794, c. 92, 95, 172. 2. Debts due upon bonds given upon replevying goods taken in execution; or for goods taken in execution, and purchased upon credit; or for the forthcoming of property taken in execution at the time and place appointed for the sale. V. L. 1748, c. 8. 1769, c. 3. [Edi. 1785.] 1787, c. 7.

Debts by specialty, or special contract, are such whereby a sum of money becomes, or is acknowleged to be, due by deed or instrument under seal. Such as by deed of covenant, by deed of sale, by lease reserving rent, or by bond or obligation: which last we took occasion to explain in the twentieth chapter of the present book ; and then shewed that it is a creation or acknowlegement of a debt from the, obligor to the obligee, unless the obligor performs a condition thereunto usually annexed, as the payment of rent or money borrowed, the observance of a covenant, and the like; on failure of which the bond becomes forfeited, and the debt becomes due in law. These are looked upon as the next class of debts after those of record, being confirmed by special evidence, under seal30.

Debts by simple contract are such, when the contract upon \vhich the obligation arises is neither ascertained by matter of record, nor yet by deed or special instrument, but by mere oral evidence, the most simple of any; or by notes unsealed, which are capable of a more easy proof, and (therefore only) better, than a verbal promise. It is easy to see into what a vast Variety of obligations this last class may be branched out, through the numerous contracts fpr money, which are not only expressed by the parties, but virtually implied in law. Some of these we have already occasionally hinted at j and the rest, to avoid repetition, must be referred to those particular heads in the third, book of these commentaries, where the breach of such contracts will be considered. I shall only observe at present, that by the statute 29 Car. II, c. 3, no executor or administrator shall be charged upon any special promise to answer damages out of his own estate, and no person shall be charged upon any promise to

1788, c.77. 1791, c. 3. Edi. 1794, c. 151,176. These are taken by the sheriff serving the execution, are to be returned to the clerk's office, and have the force of judgments. 3. Bonds given by tenants, whose goods have been distreined for rent. These, like the last, are to be taken by the sheriff, and returned to the office, and have the force of judgments. V. L. 1748, c. 10. ' Edi. 1794, c. 89.

20. But these kind of debts were not considered as equal in dignity to a foreign bill of exchange. V. L. 1748, c. 27. But the law, in that respect, seems to be altered. Edi. 1794, c. 77, there being no such preference given to bttlbof exchange by that act, as in the former.

answer for the debt or default of another, or upon any agreement in consideration of marriage, or upon any contract or sale of any real estate, or upon any agreement that is not to be performed within one year from the making; unless the agreement or some memorandum thereof be in writing, and signed by the party himself, or by his authority 81.

But there is one species of debts upon simple contract, which being a transaction now introduced into all sorts of civil life, under the name of paper credit, deserves a more particular regard. These are debts by bills of exchange, and promissory notes.

A bill "of exchange is a security, originally invented among merchants in different countries, for the more easy remittance of money from the one to the other, which has since spread itself into almost all pecuniary transactions. It is/an open letter of request from one man to another, desiringHiim to pay a sura named therein to a third person on his account \ by which means a man at the most distant part of the world ms(y have money remitted to him from any trading country. If A lives in Jamaica, and owes B, who lives in England, 1000/, now if C be going irom England to Jamaica, he may pay B this 1OOO/, and take a bill of exchange drawn by B in England upon A in Jamaica, and receive it when he comes thither. Thus does B receive his debt, at any distance of place, by transferring it to C ; who carries over his money in paper credit, without danger of robbery or loss. This method is said to have* been brought into general use by the Jews and Lombards, when banished for their usury and other vices; in order the more easily to draw their effects Out of France and England, into those countries in which they had chosen to reside. "But the invention of it was a little earlier: forthe Jews were banished out of Guienne in 1287, and out of England in 1290r; and in 1236 the use of paper credit was introduced into the Mogul empire in China *. In common speech •uch a bill is frequently called a draft, but a bill of exchange u r 2 Carte Hist. Engl 203,206. s Mod. Un. Hist. iv. 499.

21. V. L. 1785, c. 64. Edi. 1794, c. 10. Accordant.

the more legal as well as mercantile expression. The person, however, who writes this letter, is called in law the drawer, and he to whom it is written the drawee; and the third person, or negotiator, to whom it is payable (v\ hether specially named, or the bearer generally) is called the payee.

These bills are either foreign, or inland; foreign, when drawn by a merchant residing abroad upon his correspondent in England, or vice versa; and inland) when both the drawer and the drawee reside within the kingdom. Formerly, foreign bills of exchange were much more regarded in the eye of the law than inland ones, as being thought of more public concern in the advancement of trade and commerce *2. But now by two statutes, the one 9 and 1O W. III. c. 17, the other 3 and 4 Ann. c. 9, inland bills of exchange are put upon the same footing as foreign ones ; what was the law and custom of merchants with regard to the one, and taken notice of merely as such *, being by those sta-

tlRoll.Abr.6.

22. Foreign bills of exchange, seem to have been always regarded as of great consequence in Virginia. Before the year 1666, the damages upon foreign bills of exchange, in case of protest, were thirty per cent. At that period they were reduced to fifteen per cent. .'...In 1730, the damages in solidum, were converted into interest at the rate of ten per cent, per annum. In 1792, the damages were again raised to fifteen per cent, upon the amount of the bill, and the bill carries interest at the rate of five per cent, per annum, from the date of the protest. Inland bills of exchange, that is, bill* drawn by any person residing in this state, on any person within the United States, in case of protest, entitle the holder to one per cent, damages, only, and five per cent, interest from the date of the protest. An action of debt lies against the drawer and indorsevs of a foreign bill of exchange, either jointly or severally, at the election of th'e holder. But it would seem that an action of debt does not lie upon an inland bill of exchange, nor does it appear that the drawer and indorser can be sued jointly, as they may be upon a foreign bill. Formerly, all bills of exchange, after being protested, and after the death of the drawer or indorser, were declared of equal dignity with a judgment, and the executors or administrators of every drawer or indorser were compellable to suffer judgment to pass against them, for all debts due upon pro. tested bills of exchange, before any bond, bill, or other debt of equal or inferior dignity, under the penalty of being liable to pay the same out of their own proper goods. But this clause was omitted in the reyisal of 1792, but is still in force as to protested bills drawn before the

tiites expressly enacted with regard to the other. So that now there is not in law any manner of difference between them *3.

Promissory notes, or notes of hand, are a plain and direct engagement in writing, to pay a sum specified at the time therein limited to a person therein named, or sometimes to his order, or often to the bearer at large. These also, by the same statute 3 and 4 Ann. c. 9, are made assignable andindorsible in like manner as bills of exchange z4. But, by statute 15 Geo. III, c. 51, all promissory or other notes, bills of exchange, drafts, and undertakings in writing, being negotiable or transferable, for the payment of less than twenty shillings, are declared to be null and void : and it is made penal to utt.tr or publish any such; they being deemed prejudicial to trade and public credit. And, by 17 Geo. III, c. 3O, all such notes, bills, drafts, and undertakings, te the amount of twenty shillings, and less than five pounds, are subjected to many other regulations and formalities; the omission of any one of which vacates the security, and is penal to him that utters it25.

commencement of that act. See V. L. 1748, c. 27, and Edi. 1794, c. 77, as to foreign bills; and V. L, 1786, c. 68. Edi. 1794, c. 29, and Sessions acts of 1795, c. 14, as to inland bills.

23. These statutes were never In force in Virginia. See the last' note.

, 24. Bonds, tills for debt, and promissory notes for the payment of money or tobacco, were made assignable by the act of 17^8, c. 27, and the assignee was authorised to bring a suit thereon in his own name. But the debtor, is entitled to all just discounts against the assignee, which he can prove against the first obligee before notice of assignment given. V. L. 1748, c. 27, and Edi. 1794, c. 29.

Promissory notes, in Virginia, are not put upon the same footing •with bills of exchange; for it hath been decided here, that the assignee of a note of hand must sue the maker before he can resort to the assignor. Lee vs. Love and Co. 1 Call. 497.

25, These statutes, 15 and 17 Geo. 3, were never in force in Virginia. •• But, by the act of 1785, c. 68, if any person shall offer in payment a private bank bill, or note for money, payable to the bearer, he shall forfeit ten times the value thereof. Edi. 1794, c. 11.

The payee, we may observe, either of a bill of exchange or promissory note, has clearly a property vested in him (not indeed in possession but in action) by the express contract of the drawer in the case of a promissory note, and, in the case of a bill of exchange, by his implied contract, viz. that, provided the drawee does not pay the bill, the drawer will: for which reason, it is usual, in bills of exchange, to express that the value thereof hath been received by the drawer u ; in order to shew the consideration, upon which the implied contract of repayment arises (aj.) And this property, so vested, may be transferred and assigned from the payee to any other man ; contrary to the general rule of the common law, that no chose in action is assignable: which assignment is the life of paper credit. It may, therefore, be of some use, to mention a few of the principal incidents attending this tranfer or assignment, in order to make it regular, and thereby to charge the drawer with the payment of the debt to other persons than those with whom he originally contracted.

In the first placeUhen the payee, or persons to whom or whose order such bill of exchange or promissory note is payable, may, by indorsement, or writing his name in dorso or on the back of it, assign over his whole property to the bearer, or else to another person by name, either of whom is then called the indorsee ; and he may assign the same to another, and so on in inJlnitum. And a promissory note, payable to A or bearer, is negotiable without any indorsement, and payment thereof may be

uStra.1212.

(25.) In all bills of exchange given for any debt due in current money in Virginia, or for current money advanced and paid for such bills, the sum in current money that was paid, or allowed for the same, must be mentioned in the bill; in default whereof, if the bill be protested, and a suit thereupon be brought, the sum expressed in the bill ehall be taken as current money, and judgment shall be entered accordingly, and if any person receiving or purchasing a bill of exchange shall express therein any other than the true sum in current money paid or allowed, the offender shall forfeit to the drawer the whole sum for which the bill is drawn, to be recovered with c^sts, by action of debt, in any court pf. record. V. L. 1755, c. 2. Edi. 1769. Edi. 1794, c. 77. '

demanded by any bearer of itv »«. But, in case of a bill of exchange, the payee, or the indorsee, (whether it be a general or particular indorsement) is to go to the drawee, and offer his bill for acceptance ; which acceptance (so as to charge the drawer with costs) must be in writing, under, or on the back of the bill. If the drawee accepts the bill, either verbally or in writing w, he then makes himself liable to pay it; this being now a contract on his side, grounded on an acknowlegment that the drawer haa effects in his hands, or at least credit sufficient to warrant the payment. If the drawee refuses to accept the bill, and it be of the value of 20/. x>r upwards, and, expressed to be for value received, the payee or indorsee may protest it for non-acceptance; which protest must be made in writing, under a copy of such bill of exchange, by some notary public; or, if no such notary be resident in the place, then by any other substantial inhabitant in the presence of two credible witnesses; and notice of such protest must, within fourteen days after, be given to the drawer 4T.

V 2 Sjhow. 235. Grant v. Vaughan., T. 4 Geo. III. B. R. w Stra. 1000.

26. And in England, the finder, or other person who comes honestly by it in the way of business, may maintain an action upon it against the drawer. But it is other wise in Virginia. Nor can the finder of a military certificate, or a bonajide purchaser from him retain it, unless actually assigned in an action of trover, at the suit of the grantee. Wilson vs. Rucker, 1 Cull's Rep. 500.

Promissory notes, payable to bearer, are prohibited by law in Virginia ; the reason for which is assigned in the preamble to the act of October 1777, c. 24, which recites, that divers persons had presumed, upon their own private security, to issue bills of credit, or notes payable to the bearer, in the nature of paper qirrency, which may tend to the deception and loss of individuals, as well as to the great injury of the public, by increasing the quantity of money in circulation, already exceeding the medium of commerce at that period. This act was reenacted in 1735, but the preamble was then omitted. See V. L. 1794, c. 11 .... Notes payable to A, or bearer, perhaps may not be within the' intention of the law.

27. L. V. 1786, c. 68. Edi. 1794, c. 29. Accordant. A,verbal acceptance will bind the person upon whom the bill is drawn. 2 Strange, 1000.

But, in case such bill be accepted by the drawee, and after acceptance he fails or refuses to pay it within three days after it becomes due, (which three days are called days of grace) the payee or indorsee is then to get it protested for non-payment, in the same manner, and by the same persons who' are to protest it in case of non-acceptance, and such protest must also be notified, within fourteen days after, to the drawer. And he, on producing such protest, either of non-acceptance or non-payment, is bound to make good to the payee, or indorsee, not only the amount of the said bills, (which he is bound to do within a reasonable time after non-payment, without any protest, by the rules of the common law x) but also interest and all charges, to be computed from the time of making such protest. But if no protest be made or notified to the drawer, and any damage accrues by such neglect, it shall fall on the holder of the bill. The bill, when refused, must be demanded of the drawer as soon as conveniently may be: for though, when one draws a bill of exchange, he subjects himself to the payment, if the person on whom it is drawn refuses either to accept or pay, yet dial is with this limitation, that if the bill be not paid, when due, the person to whom it is payable shall in convenient time give the drawer notice thereof; for otherwise the law will imply it paid: since it would be prejudicial to commerce, if a bill might rise up to charge the drawer at any distance of time; when in the mean time all reckonings and accounts may be adjusted between the drawer and the drawee 7 (27).

If the bill be an indorsed bill, and the indorsee cannot 'get the drawee to discharge it, he may call upon either die drawer or the indorser, or if the bill has been ncgociated through many

f Lord Rajm. 993.

y Salk. 127.

(27).'If notice of the protest of a foreign bill of exchange be given within eighteen months from the date of the bill, it will suffice under the act of assembly, unless there be particular circumstances to warrant an exception from the general rule, 1. Wash. rep. 335.

And note, in the same case a bill drawn in Philadelphia but indorsed in Virginia, was held to be within the 'act, so as to give an action of debt, against such indorser. Ibid.

hands, upon any of the indorsers3a; for cash indovser is a warrantor for the payment of the bill, which is frequently taken in payment as much (or more) upon the credit of the indorser, as of the drawer. And if such indorser, so called upon, has the names of one or more indorsers prior to his own, to each of whom he is properly an indorsee, he is also at liberty to call upon any of them to make him satisfaction: and so upwards. But the first indorser has nobody to resort to, but the drawer only »».

What has been said of bills of exchange is applicable also to promissory notes, that are indorsed over, and negociated from one hand to another; only that, in this case, as there is no drawee, there can be no protest for non-acceptance ; or rather the law considers a promissory note in the light of a bill drawn by a man upon himself, and accepted at the time of drawing. And, in case of non-payment by the drawer, the several indorsees of a promissory note have the same remedy, as upon bills of exchange, against the prior indorsers30.

28. In the case of a foreign bill of exchange, he may have a joint action of debt against the drawer, and indorsers, or against either of them separately. V. L. 1748, c. 27. Edi. 1794, c. 77. -

29. The laws of Virginia agree, in general, with what is said in this, and the foregoing paragraph. See Edi. 1794, c. 29, sessions act of 1795, c. ^4. But in case of protest, there is a difference between the remedy given upon foreign bills of exchange, which is by action of debt, against the drawer and endorsers, jointly, or either of them separately ; 1748. c. 27, and Edi. 1794, c. 77, and that'upon inland bills, which seem to be left upon the same footing as foreign bills were by the custom of merchants.

30. Not only promissory notes, but bonds, and bills of debt, for payment of money or tobacco, are assignable by the laws of Virginia, and the assignee may maintain an action of debt thereupon, in his own name, but he is obliged to allow all discounts which the defendant can prove against the person to whom the note was given, before notice of the assignment; which seems to distinguish them widely from bills of exchange. Yet it has been decided, that indorsing a bond to another person, without any express agreement to that effect, raises an assumpsit from the assignor to the assignee, for the amount of the money due thereupon, in case the assignee uses due diliger.ce for the

recovery, and the obligor should prove insolvent. But, the assignee of a bond, or promisor}' note must first bring his action against the obligor, or maker of the note, before he can resort to the assignor. Mackies executors vs. Davis. 2 Wash. rep. 219. Lee v. Love and co. 1 Call. 497, Sec also, no. 4. p. 442.

The acts of 5 Cong. c. 11 and 37, since repealed by the act of 7 Cong. c. 19, required that all bonds, notes, and bills of exchange should be stamped in the manner therein directed ; and declared that they should not be admitted in evidence in any court, unless so stamp«d. See Note 4. p. 297.

CHAPTER THE THIHTY-F1RST,

OF TITLE BY BANKRUPTCY 1.

THE preceding chapter having treated pretty largely of the acquisition of personal property by several commercial methods, we from thence shall be easily led to take into our present consideration a tenth method of transferring property, which is that of

X. Bankruptcy; a title which we before lightly touched upon », so far as it related to the transfer of the real estate of the bankrupt. At present \ve are to treat of it more'minutely, as it principally relates to the disposition of chattels, in which the property of persons concerned in trade more usually consists, than in lands or tenements. Let us therefore first of all consider, 1. Who may become a bankrupt: 2. What art* make a bankrupt: 3. The proceedings on a commission of bankrupt: and, 4. In what manner an estate in goods and chattels may be transferred by bankruptcy.

1. Who may become a bankrupt. A bank/rupt was before b defined to be " a trader, who secrets himself, or does certain a See page 285. b Ibid.

1. It has been more than once remarked,that the statutes concerning bankruptcy appear never to have been considered as in force in Virginia, even before the revolution, and that they are now all repealed by the act of 1794, c. 147. The constitution cf the United States authorises congress to establish uniform laws on the subject of bankruptcies throughout the United States; the subject hath been repeatedly taken up, but the difficulties which occurred in the discussion prevented thepassing of any law, until the first session cf the sixth congress Ch. 19, which will be noticed in the course of our remarks en this chapter.

other acts, tending to defraud his creditors." He was formerly considered merely in the light of a criminal or offender'; and in this spirit we are told by sir Edward Coked, that we have fetched, as well the name, as the wickedness, of bankrupts from foreign nations'. But at present the laws of bankruptcy are considered as laws calculated for the benefit of trade, and founded on the principles of humanity as well as justice; and to that end they confer some privileges, not only on the creditors, but also on the bankrupt or debtor himself. On the creditors ; by compelling the bankrupt to give up all his effects to their use, without any fraudulent concealment: on the debtor; by'exempting him from the rigor of the general law, whereby his person might be confined at the discretion of his creditor, though in reality he has nothing to satisfy the debt: whereas the law of bankrupts, taking into consideration the sudden and unavoidable accidents to which men in trade are liable, has given them the liberty of their persons, and some pecuniary emoluments, upon condition they surrender up their whole estate to be divided among their creditors.

In this respect our legislature seems to have attended to the example of the Roman law. I mean not the terrible law of the twelve tables: whereby the creditors might cut the debtor's body into pieces, and each of them take his proportionable share: if indeed that law, de debitore in fortes secando, is to be understood in so very butcherly a light j which many learned men have with reason doubtedf. Nor do I mean those less inhuman laws (if they may be called so, as their meaning is indisputably certain) of impi isoning the debtor's person in chains; subjecting him to

c Stat. 1 Jac. I, c. 15. Sec. 17. d 4 Inst, 277.

e The word itself is derived from the wordluzncui or banque, which signifies the table or counter of a tradesman (Dufresne. I, 969.) and ruptus, broken ; denoting thereby one whose shop or place of trade is broken and gone; though others rather choose to adopt the word route, which in French signifies a luce or tract, and tells us that a bankrupt is one who hath removed his banque, leaV.ingbut a trace behind. (4 Inst.277.) And it's observable that the title of the first English statute concerning this offence, 34 Hen. VIII. c. 4. " against such persons as do make bankrupt," is a literal translation of the French idiom, qui font baiujue route,

f Taylor. comment. i:\ 1. deceimilral. Bynkersh. observ.jur. I. 1. Heinecc Ant'itf. III. 30. 4.

stripes and hard labour, at the mercy of his rigid creditor ; and .sometimes selling him, his wife, and children, to perpetual foreign slavery tram Tiberim*: an oppression, w hich produced so many popular insurrections, and secessions to the mons sacer. But I mean the law of cession, introduced by the Christian emperors ; whereby, if a debtor ceded, or yielded up all his fortune to his creditors, he was secured from being dragged to a gaol,'»omni quoque corporali cruciatu semoto V For, as the emperor justly observes ', " inhumanum erat spoliatum fortunis " suit in solidum damnari," Thus far was just and reasonable: but, as the departing from one extreme is apt to produce it's opposite, we find it afterwards enacted k, that if the debtor by any unforeseen accident was reduced to low circumstances, and would swear that he had not sufficient left to pay his debts, he should not be compelled to cede or give up even that which he had jn his possession: a law, which under a false notion of humanity, seems to be fertile of perjury, injustice, and absurdity.

The laws of England, more wisely, have steered in the middle between both extremes : providing at once against the inhumanity of the creditor, who is not suffered to confine an honest bankrupt after his effects are delivered up; and at the same time taking care that all his just debts shall be paid, so far as the effects will extend. But still they are cautious of encouraging prodigality and extravagance by this indulgence 19 debtors; and therefore, they allow the benefit of the laws of bankruptcy to none but actual traders; since that set of men are, generally speaking, the only persons liable to accidental losses, and to an inability of paying their debts, without any fault of their own. If persons in other situations of life run in debt without the power of payment, they must take the consequences of their own indiscretion, even though they meet with sudden accidents that nay reduce their fortunes : for the law holds it to be an unjustilable practice, for any person but a trader to encumber himself

g In Prgti, aml4he adjacent countriesin East India, the creditor is entitled to dispose of the debtor himself, and likewise of wife and children ; insomuch that he may even violate with impunity the chastity of the debtor's \v ife: but then b) so doing the debt is understood to be discharged. (Mod. Uu Hist. vii. 128.)

h Cod. 7. n. fer tot. i Inst. 4. 6. 43.

J> Nov. 135. c. 1.

with debts of any considerable value. If a gentleman, or one in in a liberal profession, at the time of contracting his debts, has a sufficient fund to pay them, the delay of payment is a species of dishonesty, and a temporary injustice to his creditor: and if, at such time, he has no sufficient fund, the dishonesty and injustice is the greater. He cannot therefore murmur, if he suffers the punishment which he has voluntarily drawn upon himself. But in mercantile transactions the case is far otherwise. Trade cannot be carried on without mutual credit on both sides : the contracting of debts is therefore here not only justifiable, butnecessarv. And if by accidental calamities, as by the loss of a ship in a tempest, the failure of brother traders, or by the nonpayment of persons out of trade, a merchant or trader becomes incapable of discharging his o\vn debts, it is his misfortune and not his fault. To the misfortunes therefore of debtors, the law has given a compassionate remedy, but denied it to their faults: since, at the same time that it provides for the security of commerce, by enacting that every considerable trader may be declared a bankrupt, for the benefit of his creditors as well as himself, it has also (to discourage extravagance) declared, that no one shall be capable of being made a bankrupt, but only a trader; nor capable of receiving the full benefit of the statutes, but only an industrious trader.

The first statute made concerning any English bankrupts, was 34 Hen. VIII. c. 4, when trade began first to be properly cultivated in England: which has been almost totally altered by statute 13 Eliz. c. 7, whereby bankruptcy is confined to such persons only as have used the trade of merchandize, in gross or by retail, by way of bargaining, exchange, bartering, chevisance1, or otherwise ; or have sought their living by buying and selling. And by statute 21 Jac. I. c. 19, persons using the trade or profession of a scrivener, receiving other men's monies and estates into their trust and custody, are also made liable to the statutes of bankruptcy : and the benefits, as well as the penal parts of the law, are extended as well to aliens and denizens as to natural born subjects ; being intended entirely for the protection of trade, in which aliens are often as deeply concerned as natives. By many

1 That is, making contracts. (Dufresne, II, 569).

subsequent statutes, but lastly by statute 5 Geo. II. c. 30m, banters, brokers, and factors, are declared liable to the statutes of bankruptcy ; and this upon the same, reason that scriveners are included by the statute of James I. viz. for the relief of their creditors ; whom they have otherwise more opportunities of defrauding than any other set of dealers: and they are properly to be looked upon as traders, since they make merchandize of money, in the same manner as other merchants do of goods and other moveable chattels'. But by the same act", no farmer, grazier, or drover, shall (as such) be liable to be deemed a bankrupt : for, though they buy and sell corn, and hay, and beasts, in the course of husbandry, yet trade is not their principal, but only collateral, object; their chief concern being to manure and till the ground, and make the best advantage of it's produce. 3 And, besides, the subjecting them to the laws of bankruptcy might be a means of defeating their landlord of the security which the law has given them above all others, for the payment of their reserved rents j wherefore also, upon a similar reason, a receiver of the king's taxes is not capable », as such, of being a bankrupt j lest the king should be defeated of those extensive remedies against his debtors, which are put into his hands by the prerogative. By the same statute p, no person shall have a commission of bankrupt awarded against him, unless at the petition of some

m Section 39. o Section coil.

n Ibid 40. p Ibid. 23.

2. Thus far the positive description of a bankrupt according to the English statutes. The act of congress declares, that any merchant, or other person, residing within the United States, actually using the trade of merchandise, by buying and selling in gross, or by retail, or dealing in exchange, or as a banker, broker, factor, underwriter, or marine insurer, who shall, after the first day'of June 1799, with intent unlawfully to delay, or defraud his, or her creditors, commit any of the fraudulent acts therein enumerated, be deemed and adjudged a bankrupt. Provided that no person shall be liable to a commission of bankruptcy, if the petition be not preferred, within six months, after the act of bankruptcy committed. L. U. S. 6 Cong. 1 Sess. c. 19.

3. There are no negative words, whereby any particular description of traders are exempted from the operaticn of the act of Congress.

one creditor, to whom he owes 1OOJ; or of two, to whom he is indebted 150/; or of more, to whom all together he is indebted 200/. For the law does not look upon persons, u hose debts amount to less, to be traders considerable enough, either to enjoy the benefit of the statute themselves, or to entitle the creditors, for the benefit of public commerce, to demand the distribution of their effects 4.

In the interpretation of these several statutes, it hath been held, that buying only, or selling only, will not qualify a man to be a bankrupt; but it must be both buying and selling, and also getting a livelyhood by it. As, by exercising the calling of a merchant, a grocer, a mercer, or, in one general word, ^.chapman, who is one that buys and sells any thing. But no handicraft occupation (where nothing is bought and sold, and where therefore an extensive credit, for the stock in trade, is not necessary to be had) will make a man a regular bankrupt; as that of a hus. bandman, a gardener, and the like, who are paid for their work and labour 1. Also an inn-keeper cannot, as such, be a bankrupt1: for his gain or liveleyhood does not arise from buying and selling in the way of merchandize, but greatly from the use of his rooms and furniture, his attendance and the like: and though he may buy corn and victuals, to sell again at a profit, yet that no more makes him a trader, than a schoolmaster or other person is, that keeps a boarding-house, and makes considerable gains by buying and selling what he spends in the house; and such a one is clearly not within the statutes*. But where persons buy goods, and make them up into saleable commodities, as shoe-makers,'smiths, and the like; here, though part of the gain is by bodily labour, and not by buying and selling, yet they

q Cro, Car. 31.

s Skinner, 292. 3 Mod.-330-

i Ibid. 549, Skinn. 291.

4. The act of Congress contains a similar provision: requiring that the petition for a commission of bankruptcy shall be exhibited by one creditor, or more, being partners, whose single debt shall amount to one thousand dollars; or by two creditors, whose debts shall amount to one thousand five hundred dollars; or by more than two, whose debts shall amount to two thousand dollars. Ibid. $. 2. and Cl.

are within the statutes of bankruptsl: for the labour is only in melioration of the commodity, and rendering it more fit for sale.

One single act of buying and selling will not make a man a trader ; but a repeated practice, and profit by it. Buying and selling bank-stock, or other government securities, will not make a man a bankrupt; they not being goods, wares, or merchandize, within the intent of the statute by which a profit may be fairly made u. Neither will buying and selling under particular purposes j as if a commissioner of the navy uses to buy victuals for the fleet, and dispose of the surplus and refuse, he is not thereby made a trader within the statutes w. An infant, though a trader, cannot be made a bankrupt: for an infant can owe nothing but for necessaries ; and the statutes of bankruptcy create no new debts, but only give a speedier and more effectual remedy for recovering such as were before due : and no person can be made a bankrupt for debts, which he is not liable at law to payx. But a feme covert in London, being a sole trader according to the* custom, is liable to a commission of bankrupt f.

2. Having thus considered, who may, and who may not be made a bankrupt, we are to inquire, secondly, by what acts a man may become a bankrupt. A bankrupt is a " trader, who " secretes himself, or does certain other acts, tending to defraud " his creditoi s." We have hitherto been employed in explaining the former part of this description,'' a trader;" let us now attend to the latter, " who secretes himself, or does certain other acts, " tending to defraud his creditors." And, in general, whenever such a trader, as is before described, hath endeavoured to avoid his creditors, or evade their just demands, this hath been declared by the legislature to be an act of bankruptcy, upon which a commission may be sued out. For in this extrajudicial method of proceeding, which is allowed merely for the benefit of commerce, the law is extremely watchful to detect a man, whose circumstances are declining, in the first instance, or at least as

t Cro. Car. 31, Skinn. 2D2. u 2 P. Wins. 308. w 1 Salk. 110, Skinn. 292. x Lord Rayin, 443. y La Vie vs. Philips, M. 6 Geo. III, B. U.

early as possible: that the creditors may receive as large a proportion of their debts as may be; and that a man may not go on wantonly wasting his substance, and then claim the benefit of the statutes, when he has nothing left to distribute.

To learn what the particular acts of bankruptcy are, which render a man a bankrupt, we must consult the several statutes, and the resolutions formed by the courts thereon. Among these may therefore be reckoned, I. Departing from the realm, whereby a man withdraws himself from the jurisdiction and coercion of the law, with intent to defraud his creditors1 *. 2. Departing from his own house, with intent to secrete himself, and avoid his creditors a 6. 3. Keeping in his own house, privately, so as not to be seen or spoken with by his creditors, except for just and necessary cause; which is likewise construed to be an intention to defraud his creditors, by avoiding the process of the lawb 7. 4. Procuring or suffering himself willingly to be arrested, or outlawed, or imprisoned, without just and lawful cause; which is likewise deemed an attempt to defraud his creditorsc 8. 5 Procuring his money, goods, chattels, and effects to be attached or sequestered by any legal process; which is another plain and direct endeavour to disappoint his creditors of their security d 9. 6. Making any fraudulent conveyance to a friend, or secret trustee, of his lands, tenements, goods, or chattels; which is an act

zStat.lSEHz. c. 7. b Stat. 13 Eliz. c. 7. d Stat. 1 Jac. I. c. 15.

a Ibid. 1 Jac. I.e. 15. c Ibid. 1 Jac. I. c. 15.

5. L. U. S. 6 Cong. 1 Sess. c. 19, $. 1. Accordant.

6. The concealing himself within the state, constitutes the act of bankruptcy, in the United States: departing from his own house may be evidence of such a concealment j but the-act of departing does not come within the words of the act.

7. Keeping his own house so that he cannot be taken, or served with process. Ibid.

8. L. U. S. Ibidem. Accordant.

~9. L. U. S. Ibidem, Accordant: to which is added, the secret conveyance of his goods out of his house, or concealing them to prevent their being taken in execution: to which case, according to Holt Ch. Jus. Ld. Ray. 725, the British statutes do not extend.

of the same suspicious nature with the laste". jr. Procuring any protection, not being himself privileged by parliament, in order to screen his person from arrests, which is also an endeavour to elude the justice of the lawf. 8. Endeavouring or desiring, by any petition to the king, or bill exhibited in any of the king's courts aga'nst any creditors, to compel them to take less than their just debts; or to procrastinate the time of payment, originally contracted for11 ; which are an acknowlegement of either his poverty or his knavery *. 9. Lying in prison for two months or more, upon arrest or other detention for debt, without finding bail, in order to obtain his liberty h 12. For the inability to procure bail, argues a strong deficiency in his credit, owing either to his suspected poverty, or ill character; and his neglect to do it, if able, can arise only from a fraudulent intention: in either of which cases it is high time for his creditors to look to themselves, and compel a distribution of his effects. 10. Escaping from prison after an arrest for a just debt13 of 100/. or upwards1. For no man would break prison that was able and desirous to procure bail; which brings it within the reason of the last case. 11. Neglecting to make satisfaction for any just debt to the amount of 100/. within two months after service of legal process, for such debt, upon any trader having privilege of parliament11 (1S.)

These are the several acts of bankruptcy, expressly defined by the statutes relating to this title : which being so numerous, and the whole law of bankrupts being an innovation on the common law, o.ur courts of justice have been tender of extending or multiplying acts of bankruptcy by any construction, or implica-

eStat. IJac.l. c. IS.

g-tttf,

iStat.21Jac. I.e. 19.

f Stat. 21 Jac. I. c.19. h Ibid. kStat.4Geo. III.c. 33.

10. L. U. S. Ibid. Accordant, to which is added, the making, or admitting any false or fraudulent security, or evidence of debt.

11. There are no provisions similar to this, and the preceding, in the act of congress.

12. L. U. S. Ibid. Accordant.

13. L. U. S. Ibid, nearly accordant.

(13.) There is no such provision in the act of congress.

tion M. And therefore sir John Holt held >, that a man's removing his goods privately to prevent their being seised in execution, was no act of bankruptcy ". For the statutes mention only fraudulent gifts to third persons, and procuring them to be seised by sham process, in order to defraud creditors: but this, though a palpable fraud, yet falling within neither of those cases, cannot be adjudged an act of bankruptcy. So also it has been determined expressly, that a banker's stopping or refusing payment is no act of bankruptcy; for it is not within the description 1 Loid Raym. 725.

14. Having noted the analogy between several of the provisions of the British statute, and the act of congress,! shall now give the latter, so far as relates to this subject, -verbatim,

Any person who may be a bankrupt under that act, " who shall, with intent to delay or defraud his or her creditors, depart from the state in which such person usually resides ; or remain absent therefrom ; or conceal himself, or herself therein ; or keep his or her house so that he or she can not be taken, or served with process ; or willingly, or fraudulently procure him or herself to be arrested ; or his or her lands, goods, money, or chattels, to be attached, sequestered, or taken in execution; or shall secretly convey his or her goods out of his or her house ; or conceal them to prevent their being taken in execution ; or make, or cause to be made, any fraudulent conveyance of his or her lands, or chattels; or make, or admit any false, or fraudulent security, or evidence of debt; or being arrested for debt, or having surrendered him or herself in discharge of bail, shall remain in prison two months, or more ; or escape therefrom ; or whose lands or effects being attached, by process issuing out of, or returnable to any court of common law, shall not, within two months after written notice thereof, dissolve the same ; or in districts in which attachments are not dissolved by the entry of special bail, being arrested for debt, after his or her lands and effects, or any part thereof, have been attached for a debt or debts amounting1 to one thousand dollars or upwards, shall not, upon notice of such attachment, give sufficient security for the payment of what may be recovered in the suit in which he or she shall be arrested, at or before the return day of the same, to be approved by the judge of the district, or some judge of the court out of which the process issued, upon which he is arrested, or to which the same shall be returnable ; every such person shall be deemed and adjudged a bankrupt." L. U. S- Idid. $. 1.

15. But this case is expressly within the words of the act of congress. See the last note.

of any of the statutes, and there may be good reasons for his so doing, as suspicion of forgery, and the like: and if, in consequence of such refusal, he is arrested, and puts in bail, still it is no act of bankruptcy m: but if he goes to prison, and lies there two months, then, and not before, he is become a bankrupt.

We have seen who may be a bankrupt, and what acts will make him so: let us next consider,

S. The proceedings on a commission of bankrupt; so far as they affect the bankrupt himself. And these depend entirely on the several statutes of bankruptcy; all which I shall endeavour to blend together, and digest into a concise methodical order.

And, first, there must be a petition to the lord chancellor by one creditor to the amount of 100/. or by two to the amount of ISO/, or by three or more to the amount of 200/.; which debts must be proved by affidavitn: upon which he grants a commission to such discreet persons as to him shall seem good, who are then stiled commissioners of bankrupt °16. The petitioners, to pre-

m 7 Mod. 139. ' n Stat. 5 Geo. II. c. 30.

o 3 Stat. 13Eliz. c. 7-,

16. The petition must be preferred to the judge of the district^ court (or, to one of the judges of the circuit courts, as established by the act of 6 Cong. 2 Sess. c. 4. (whilst that act was in force) to whom concurrent jurisdiction was given) of the United States, where the debtor resides, or usually resided at the time of committing the act of bankrupt-, cy; and within six months from the time of committing the same; by one creditor or copartnership, whose single debt amounts to one thousand dollars; or by two whose debts amount to fifteen hundred dollars ; or by more than two, whose debts amount to two thousand dollars; which debts must be proved by affidavit, or solemn affirmation; the persons appointed commissioners must be citizens of the United States, not exceeding three, and residents within the district. L. U. S. 6 Cong. 1 Sess.c. 19. J. 1. 2. But by the act of 7 Cong. c. 31. J. 11. The jurisdiction of the circuit judges appointed under the act of 6 Cong. 2 Sess. c. 4, is altogether transferred to,and vested in the district judges again; and by the same act (c. 31. $. 14.) the president of the United States is authorised from time to time, to appoint as many general commissioners of bankruptcy, in each district of the United States as he may deem necessary; and upon petition to the judge of a district court for a commission of bankruptcy, he may appoint not exceeding three of such general commissioners, as commissioners of the particular

vent malicious applications, must be bound in a security of 200/. to make the party amends in case they do not prove him a bankrupt"'. And if on the other hand they receive any money or effects from the bankrupt, as a recompense for suing out the commission, so as to receive more than their ratable dividends of the bankrupt's estate, they forfeit not only what they shall have so, received, but their whole debt (17.) These provisions are made, as well to secure persons in good credit from being damnified by malicious petitions, as to prevent knavish combinations between the creditors and bankrupt, .in order to obtain the benefit of a commission, When the commission is awarded and issued,, the commissioners are to meet, at their own expense, and to take an oath for the due execution of their commission, and to be allowed a sum not exceeding 20*. per diem each, at every sitting >*. And no commission of bankrupt shall abate, or be void, upon any demise of the crown p.

__________pStat. 5 Geo. II. c. 30.

bankrupt petitioned against; and they with the clerk shall each be allowed six dollars per day for every day they may be employed as commissioners of bankruptcy, to be apportioned among the several causes in which they may act on the same day, and to be paid out of the respective bankrupt's estates. L. U. S. 7 Cong. c. 31. Sec. 11. and 14.

17. The bond is to.be taken in such penalty, and with such security as the judge shall think proper; with condition for the petitioners proving his debt, .and also.proving the party a bankrupt; and to proceed upon the commission in the manner prescribed by the act .... And in case of failure herein, the judge, on petition of the party shall deliver the bond to him, and he may thereupon sue and recover such damages, under the penalty, as he qan prove that he has sustained. L.U. S. 6 Cong. 2Sess. c. 19. $. 2.

(17.) L. U. S. Ibid. &. 28. Accordant.

' 18. The district judges respectively are to fix the compensation to the commissioners; who, before they take the oath of qualification, may demand of the creditors prosecuting the commission, bond with security in the penalty of 1000 dollars, fof the payment .of all costs, charges and expences. Ibid, §. 3. 46,47. But by the act of 7 Cong. c. 31. $. 14.' The compensation of the commissioners is now fixed at six dollars per day, as a full compensation for their services, when sitting and acting under their commissions, to be apportioned among the several causes on which they may act on the same day, and paid out of the respective bankrupt's estates. See note 16.

When the commissioners have received their commission, they are first to receive proof of the person's being a trader, and having committed some act of bankruptcy; and then to declare him a bankrupt, if proved so ; and to give notice thereof in the gazette, and at the same time to appoint three meetings ". At one of these meetings an election must be made of assignees, or persons to whom the bankrupt's estate shall be assigned, and in whom it shall be vested for the benefit of the creditors; and assignees are to be chosen by the major part, in value, of the creditors who shall then have proved their debts ; but may be originally appointed by the commisioners, and afterwards approved or rejected by the creditors20 : but no creditor shall be admitted to vote in the choice of assignees, whose debt on the balance of accounts does not amount to 10/.21. And at the third meeting, at farthest, which must be on the forty-second day after the advertisement in the gazette, (unless the time be enlarged by the

19. L.U. S. Ibid. $. 3. Accordant. But before examination of the charge of bankruptcy, reasonable notice in writing must be given either in person, or in case of absence, to some .person of the family, above the age of twelve years; or if no such person appears, must be fixed up at the front door of the house: and the person charged is entitled to a jury to enquire into the facts alleged in the petition : and, in that case, the person shall not be declared a bankrupt, unless by the verdict of the jury, he shall be found to be within the description of the act, and be convicted of some one of the acts described in the first section. And any commission which shall not be proceeded in within thirty days from the time of taking it out, may be superceded, unless the delay shall have been unavoidable, or upon a just occasion. L. U. S. Ibid. $. 3.

As soon as the commissioners have declared the person a bankrupt, they are to take his estate, real and personal into their possession, and have the same inventoried and appraised (necessary beds and wearing apparel excepted) as also all his books and papers, and cause the same to be safely kept until assignees be chosen. .Ibid. )• 5, and assign the same to the assignees chosen by the creditors, which assignment shall vest the prqperty. Sec. 6, 10,13.

20. L. U. S. Ibid. $. 6, 7. Accordant. The creditors may moreover at any time before closing the accounts of the assignees, remove them, and chuse others. Sec. 8. But no suit shall abate by the removal of assignees. §. 9.

21. No creditor shall be admitted to vote in the choice of assignees, whose debt docs not amount to 200 dollars. Ibid. $. 6.

lord chancellor,) the bankrupt, upon notice also personally served upon him, or left at his usual place of abode, must surrender himself personally to the commissionersaz; which surrender (if voluntary) protects him from all arrests till his final examination is past: and he must thenceforth in all respects conform, to the directions of the statutes of bankruptcy; or, in default of either surrenderor confirmity, shall be guilty of felony without benefit of clergy, and shall suffer death, and his goods and estate shall be distributed among his creditors * ".

In case the bankrupt absconds, or is likely to run away, between the time of the commission issued, and the last day of surrender, he may by warrant from any judge or justice of the peace be apprehended and committed to the county gaol, in order to be forthcoming to the commissioners ; who are also empowered immediately to grant a warrant for seising his goods and papersr»«.

q Stat. S Geo. II c. 30. . r Ibid.

22. L. U. S. Sec. 18,19, and 22, nearly accordant.

23. He shall suffer imprisonment for a term not less than twelve months nor exceeding ten years, and shall not at any time afterwards be entitled to the benefit of the act. L. U. S. Ibid. 18. And if he shall • refuse to be examined, or to answer fully, or to subscribe his examination, the commissioners may commit him to close imprisonment until he shall conform. Ib. (. 21. It is not easy to distinguish the cases meant to be provided for in this latter section, from such as were provided Tor by Sec. 18, although both the measure, and manner of punishment appear to be very different; unless we suppose the latter intended merely to coerce, and the former to punish .... If the bankrupt on his examination be guilty of perjury, he shall on conviction suffer imprisonment for a term not less than two years, nor more than ten years. Ibid. $. 21. If the bankrupt be in prison at the time of issuing the commission, and cannot be brought before the commissioners to be examined, he shall be examined there. Ibid. J. 18.

24. The commissioners by their warrant may cause the bankrupt to be arrested, Ib. $. 4. The houses, doors, trunks, &c. of a bankrupt may be broken open in the day time, by warrant under the hands and seals of the commissioners, in order to obtain possession of his estate, books and papers. Ib. fy. 20. And any person knowingly concealing a bankrupt, shall upon conviction be imprisoned nut exceeding twelve months, and fined not exceeding one thousand dollars. Ibid. Sec. 23.

When the bankrupt appears, the commissioners are to examine him touching all matters relating to his trade and effects. They may also summon before them, and examine, the bankrupt's wife • and any other person whatsoever, as to all matters relating to the bankrupt's affairs 25. And in case any of them refuse to answer, or shall not answer fully, to any lawful question, or shall refuse to subscribe such their examination, the commissioners may commit them to prison without bail, till they submit themselves and make and sign a full answer ; the commissioners specifying in their warrant of commitment the question so refused to be answered28. And any gaoler, permitting such person to escape, or go out of prison, shall forfeit 500/. to the creditors'27.

The bankrupt, upon this examination, is bound upon pain of death to make a full discovery of all his estate and effects, as well in expectancy as possession, and how he has disposed of the same; together with all books and writings relating thereto: and is to deliver up all in his own power to the commissioners ; (except the necessary apparel of himself, his wife, and his children) or, in case he conceals or embezzles any effects to the amount of 2O/. or withholds any books or writings, with intent to defraud his creditors, he shall be guilty of felony without benefit of clergy: and his goods and estate shall be divided among his creditors1138. And unless it shall appear, that his

s Stat. 21 Jac. I, c. 19. t Stat. 5 Geo. 11, c. SO. , u Stat. 5 Geo, //, c. 30. By the laws of Naples -all fraudulent bankrupts, particularly such as do not surrender themselves within four days, are punished . with death j also all who conceal the effects of a bankrupt, or set up a pretended debt to defraud his creditors. (Mod. Un. Hist, xxviii. 320.)

25. L. U. S. Ib.,$. 24, Accordant.

26. Sec..25, Accordant.

27. The goaler in this case shall forfeit a sum not exceeding three thousand dollars, for the use of the creditors. Ibid. §. 40.

28. And herewith the act of congress seems to agree ; except in the punishment, which, as has been already mentioned in the last page, is limited to imprisonment, for a term not less than twelve months, nor more than ten years. Ibid. J. 18. and 33. The act of congress moreover allows » bankrupt, not being in prison, three dollars a day, for his attendance on the assignees, or on any court of -record, &c. by their direction. Ibid. J. 33.

inability to pay his debts arose from some casual loss, he may, upon conviction by indictment of such gross misconduct and negligence, be set upon the pillory for two hours, and have one of his ears nailed to the same and cut offy 29.

After the time allowed to the bankrupt for such discovery is expired, any other person voluntarily discovering any part of his. estate, before unknown to the assignees, shall be entitled to Jive per cent, out of the effects so discovered, and such further reward as the assignees and commissioners shall think proper. And any trustee wilfully concealing the estate of any bankrupt, after the expiration of the two and forty days, shall forfeit 100/. and double the value of the estate concealed, to the creditors w 30.

vStat. 21 Jac./,c. 19.

w Stat. 5 Geo. //, c. 30.

29. There is no such provision in the act of congress.

30. The act of congress contains the like provisions ; except that ten days, (after the bankrupt has finished his final examination) must elapse, before the forfeiture, (which is limited to double the value of the estate concealed) is incurred by the person concealing the same. Ibid. \. 26.

The commissioners may summon any persons who may with good reason be suspected of having any of the bankrupt's property in his possession, or to be indebted to the bankrupt, before them or the judge of the district, and may examine them on oath ; and in case of refusal, commit them to prison until they submit themselves to be examined : and any delinquent shall forfeit double the value of the property concealed. Ibid. Sec. 14. They may likewise compel: the attendance of witnesses, who shall be paid for the same. And in case of perjury (by any other person than the bankrupt) or subornation of perjury by any person, the delinquent on conviction shall be fined, not exceeding four thousand dollars, and imprisonment not exceeding two years, and incapacitated as a witness. Sec. 15. And any person making any fraudulent claim against the bankrupt or his estate, shall forfeit double the value to the use of the creditors. Sec. 16. And the commissioners may assign any property fraudulently conveyed by a bankrupt to his children, or other persons, in as effectual a manner as if the bankrupt had been actually possessed of it. Sec. 17. Nay more ; the commissioners may assign any goods of another person which by consent of the owner may be in the possession and disposition of the

Hitherto every thing is in favour of the creditors ; and the law seems to be pretty rigid and severe against the bankrupt; but, in case he proves honest, it makes him full amends for all this rigor and severity. For if the bankrupt hath made an ingenuous discovery, (of the truth and sufficiency of which there remains no reason to doubt) and hath conformed in all points to the directions of the law ; and if, in consequence thereof, the creditors, or four parts in five of them in number and value, (but none of them creditors for less than 20/.) will sign a certificate to that purport: the commissioners are then to authenticate such certificate under their hands and seals, anil to transmit it to the lord chancellor : and he, or two of the judges whom he shall appoint, on oath made by the bankrupt that such certificate was obtained without fraud, may allow the same; or disallow it, upon cause shewn by any of the creditors of the bankruptx 3l.

If no cause be shewn to the contrary, the certificate is allowed of course ; and then the bankrupt is entitled to a decent and reasonable allowance out of his effects, for his future support and maintenance, and to put him in a way of honest industry. This allowance is also in proportion to his former good behaviour, in the early discovery of the decline of his affairs, and thereby giving his creditors a larger dividend. For, if his effects will not pay one half of his debts, or ten shillings in the pound, he is left to the discretion of the commissioners and assignees, to have a competent sum allowed him, not exceeding three per cent, but if they pay ten shillings in the pound, he is allowed Jive per cent. .If twelve shillings and six-pence, then seven and a half per cent, and, if fifteen shillings in the pound, then the bankrupt shall be allowed tenper-cent. provided that such allowance do not, in the

xStat. 5Geo. II, c. 30.

bankrupt, or of which he may be reputed owner, for the benefit of the creditors as fully as any other part of the bankrupt's estate. J. 27.

31. The provisions of the act of congress are nearly similar; the concurrence of two thirds of the creditors in number and value, none of whose debts must be under fifty dollars, is necessary for the allow • ance of the certificate ; which must be made by the judge of the district, within which the commission issues. Ibid. J. 36.

first case, exceed 200/. in the second 250/. and in the third 300/ y3J.

Besides this allowance, he has also an indemnity granted him, of being free and discharged for ever from all debts owing by him at the time he became a bankrupt; even though judgment shall have been obtained against him, and he lies in prison upon execution for such debts 33; and, for that among other purposes, all proceedings on commissions of bankrupt are, on petition, to be entered of record, as a perpetual bar against actions to be commenced on this account34: though, in general, the production of the certificate properly allowed, shall be sufficient evidence of all previous proceedings2 3{. Thus the bankrupt becomes a clear

y Ibid. By the Roman law of cession, if the deb'or acquired any considerable property subsequent to the giving up of his all, it was liable to the demands of his creditors. (Ff. 42, 3, 4.) But this did not extend to such allowance as was left to him on the score of compassion for the maintenance of himself and family. Si quid miscricorJiae causa eifuerit relictum, futa menstruum, vet annum, alimentorum nomine, nan oportet propter hoc Itona ejus iterate veiiundari: nee enimfrawlnndus est alimcntis cottii/ianis. ^flbid. I. 6.J

z Stat. 5 Geo. II, c. SO.

32. The act of congress contains similar provisions; limiting the allowance to be made the bankrupt out of his estate, to eight hundred dollars, or ten per cent, on the amount of his estate, when he pays fifteen shillings in the pound ; five hundred dollars, or five per cent, •when he pays ten shillings only, in the pound; and to three hundred dollars, or three per cent, on the net proceeds of his estate, where he pays less. Ibid. $. 34, 35.

33. And herewith the act of congress, §. 34 and 38, agrees : but no partner of a bankrupt shall thereby be released from his debt as a partner ; nor any other person who may be jointly bound with the bankrupt. Sect. 34.

34. All the proceedings are to be filed in the office of the clerk of the district court, and are there to remain of record; and there the final certificate of the bankrupt may also be recorded. Ibid. §.51, and certified copies thereof shall be admitted as evidence. Ibid.

35. The act of congress, Sect. 34, agrees herewith. And, in all cases where the assignees sue a debtor of the bankrupt for any debt or demand, the commission, or a certified copy, and the assignment^shall be conclusive evidence of the person therein named being a trader, and a bankrupt. Ibid. J. 56.

man again; and, by the assistance of his allowance and his own industry, may become a useful member of the commonwealth : which is the rather to be expected, as he cannot be entitled to these benefits, unless his failures have been owing to misfortunes, rather than to misconduct and extravagance.

For no allowance or indemnity shall be given to a bankrupt, unless his certificate be signed and allowed, as before-mentioned ; and also, if any creditor produces a fictitious debt, and the bankrupt does not make discovery of it, but suffers the fair creditors to be imposed upon, he loses all title to these advantages * 36. Neither can he claim them, if he has given with any of his children above 100/. for a marriage portion, unless he had at that time sufficient left to pay all his debts " ; or if he has lost at any one time 5l. or in the whole 100/. within a twelvemonth before he became bankrupt, by any manner of gaming or wagering whatsoever; or, within the same time, has lost to the value of 100/. by stock-jobbing38. Also, to prevent the too common practice of frequent and fraudulent, or careless breaking, a mark is set upon such as have been once cleared by a commission of bankrupt, or have compounded with their creditors, or have been delivered by an act of insolvency : which is an occasional act, frequently passed by the legislature : whereby all persons whatsoever, who are either in too low a way of dealing to become bankrupts, ornot being in a mercantile state of life, are not included within the laws of bankruptcy, are discharged from all suits and imprisonment, upon delivering up all their estate and effects to their creditors upon oath, at the sessions or assizes39; in which

aStat.24Geo. II, c. 57.

36. Herewith the act of congress, Sect. 36 and 37, agrees.

37. There is no such provision contained in the act of congress.

38. No bankrupt shall be entitled to any allowance, or to a certificate, if lie has lost at any one time fifty dollars, or in the whole three hundred dollars, after the passing of the act, and within twelve months before he became a bankrupt, by any manner of gaming, or wagering whatever. Ibid. $. 37.

39. The act of congress shall not repeal or annul the laws of the states, already made, or which may hereafter be made for the relief of insolvent debtors, except in respect to persons clearly within the

case their perjurvor fraud is usually, as in case of bankrupts, punished with death40. Persons who have been once cleared by any of these methods, and afterwards become bankrupts again, unless they pay full fifteen shillings in the pound, are only thereby indemnified as to the confinement of their bodies41 ; but, any future estate, they shall acquire remains liable to their creditors, excepting their necessary apparel, household goods, and the tools and implements of their trades b 42.

Thus much for the proceedings on a commission of bankrupt, so far as they affect the bankrupt himself personall}43. Let us next consider,

a Stat. 24Geo. II. c. 57.

bStat. 5Geo. II.c.30.

purview of that act, and whose debts shall amount, in the cases specified in the second section, (vide ante, p. 480, in notis) to the sums therein mentioned. Ibid. J. 61. As to the insolvent law of the state of Virginia, see Edi. 1794, c. 151, $. 38.

40. There is no similar provision in our law.

41. Herewith the act of congress, sect. 57, agrees.

42. The act of congress is silent as to this point. But the law of the state subjects the property which may be afterwards acquired by an insolvent debtor, to be taken in execution for debts contracted prior to his discharge. L. V. Edi. 1794, c. 151, J. 39.

43. The act of congress further provides, that the bankrupt whilst his examination is depending, shall at all seasonable times have access to his books and papers; and have the assistance of clerks, not exceeding two at a time, to make copies and extracts. Sect. 22. That he shall have the benefit of the trial by a jury for the determination of any material facts, either in relation to his becoming a bankrupt; or relative to the commencement, or progress of the proceedings under the commission, or the allowance of his certificate. Sec. 3,52. That he may during the pendency of the proceedings have an allowance out of his estate, for the necessary support of himself and family. Sec. 53. And if in prison when he becomes a bankrupt, he may be discharged by his creditors, or obtain an order for it from the commissioners, if his conduct has in their opinion been fair, so as to entitle him to a certificate : but such discharge shall be no bar to another execution, if a certificate be refused him; nor to a subsequent imprisonment by the commissioners. Sec. 60. And if any person within the purview of the act shall be three months in prison for any debt, unless the creditors shall proceed to prosecute a commission of bankruptcy against

4. How such proceedings affect or transfer the estate and frofierty of the bankrupt. The method whereby a real estate, in lands, tenements, and hereditaments, may be transferred by bankruptcy, was shewn under it's proper head in a former chapter0. At present therefore we are only to consider the transfer of things personal by this operation of law.

By virtue of the statutes before-mentioned"1 all the personal estate and effects of the bankrupt are considered as vested, by th^ act of bankruptcy, in the future assignees of his commissioners, whether they be goods in actual possession, or debts, contracts, and other choses in action44; and the commissioners by their warrant may cause any house or tenement of the bankrupt to be broke open, in order to enter upon and seise the same45 .... And when the assignees are chosen or approved by the creditors, the commissioners are to assign every thing over to them; and the property of every part of the estate is thereby as fully vested in them, as it was in the bankrupt himself, and they have the same remedies to recover ite 46.

The property vested in the assignees is the whole that the bankrupt had in himself, at the time he committed the first act of bankruptcy, or that has been vested in him since, before his debts are satisfied or agreed for47. Therefore, it is usually

c page 285. c 12 Mod. 324.

d Stat. 1 Jac. I. c. IS. 21 Jac. I. c. 19.

him, the debtor shall be entitled to relief under the insolvent laws of the state- $. 61.

44. And herewith the^ct of congress agrees, Sec. 10, 13,17,27.

45. Sec. 20, Accordant.

46. Sec. 6, 7,8, 9,10,12, 13,14, 15,17, 27, all relate to this subject : the most material parts of which have been occasionally noticed in the preceding notes on this chapter.

47. The assignment of the commissioners of the bankrupt's estate and effects, shall be good at law, or in equity, against the bankrupt; and all persons claiming by, from or under him by any act done at the time, or after he shall have committed the act of bankruptcy, upon •which the commission issued: provided always, that in case of a bona fide purchase made, before the issuing the commission, from or under

said, that once a bankrupt, and always a bankrupt: by which is meant, that a plain direct act of bankruptcy once committed cannot be purged, or explained away, by any subsequent conduct, as a dubious equivocal act may bef; but that, if a commission is afterwards awarded, the commission and the property of the assignees shall have a relation, or reference, back to the first and original act of bankruptcy*. Insomuch that all transactions of the bankrupt are from that time absolutely null and void, either with regard to the alienation of his property, or the receipt of his debts from such as are privy to his bankruptcy; for they are no lenger his property, or his debts, but those of the future assignees48. And, if an execution be sued out, but not served and executed on the bankrupt's effects till after the act of bankruptcy, it is void as against the assignees49. But the king is not bound by this fictitious relation, nor is within the statutes of bankrupts'1; for if, 'after the act of bankruptcy committed and before the assignment of his effects, an extent issues for the debt of the crown, the goods are bound thereby15o. In France this doct-

f Salk. 110. h 1 Atfc. 262.

g 4 Burr. 32.

i Viner. Abr. t. creditor and bankr. 104.

such bankrupt, for a valuable consideration, by any person having no knowlege, information or notice of any act of bankruptcy committed, such purchase shall not be invalidated or impeached. Ibid. \. 10.

48. And herewith the act of congress seems to agree, so far as to avoid all the transactions of the bankrupt after committing the act of bankruptcy upon which the commission issued, except bonajide purchases, made of the bankrupt for a valuable consideration by any person having- no notice of the act of bankruptcy committed, as mentioned in the preceding note, and except the receipt of debts, bonajide paid to the bankrupt, by a debtor, without notice of the act of bankruptcy; both which are protected by the act J. 10 and 13.

And inasmuch as no person is liable to a commission of bankruptcy, if the petition be not preferred within six months after the act of bankruptcy committed ; it follows, that the relationship here spoken of by the commentator can not extend in the United States, to any act done by the bankrupt above six months, before the time of preferring the petition, upon which he may be declared a bankrupt. L. U. S. Ibid. $. 1.

49. Herewith also the act of congress, Sec. 31, seems to agree.

50. The act of congress, in like manner, saves the right of preference to prior satisfaction of debts due to the United States, as secured

trine of relation is carried to a very great length; for there every act of a merchant, for ten days precedent to the act of bankruptcy, is presumed to be fraudulent, and is therefore voidk. But with us the law stands upon a more reasonable footing: for, as these acts of bankruptcy may sometimes be secret to all but a few, and it would be prejudicial to trade to carry this notion to it's utmost length, it is provided by statute 19 Geo. II. c. 32, that no money paid by a bankrupt to a bonajide or real creditor, in a course of trade, even after an act of bankruptcy done, shall be liable to be refunded". Nor by statute 1 Jac. I. c. 15, shall any debtor of a bankrupt, that pays him his debt, without knowing of his bankruptcy, be liable to account for it again52. The intention of this relative power being only to reach fraudulent transactions, and not to distress the fair trader.

The assignees may pursue any legal method of recovering this property so vested in them, by their own authority; but cannot commence a suit in equity, nor compound any debts owing to the bankrupt, nor refer any matters to arbitration, without the consent of the creditors, or the major part of them in value, at a meeting to be held in pursuance of notice in the gazette1".

k Sp. L. b. 29. c. 16.

1 Stat. S Geo. II. c. 30.

orprovided by any law, theretofore passed; nor shall the act be construed to lessen or impair any right to, or security for money due to the United States, or any of them. Ibid. J. 62.

51. I can not discover any similar provision in the act of congress, unless Sec. 13, of the act will admit of this construction in favor of a bonajide creditor who may have received his debt after the act of bankruptcy may be committed.

52. After the assignment of a bankrupt's effects, neither he nor any person acting as trustee for him shall have power to recover, or discharge any debt due to him, or to any other person for his use, or benefit. Ibid. Sec. 13. A debtor paying without notice is protected. Sec. 13.

53. The assignees shall have the same remedy to recover a debt due to a bankrupt, as he would have had if no commission had been issued. And if any action be already commenced in the name of the bankrupt, the assignees shall be admitted to prosecute the suit. A

When they have got in all the effects they can reasonably hope for, and reduced them to ready money, the assignees must, after four and within twelve months after the commission issued, give onfc and twenty days notice to the creditors of a meeting for a dividend or distribution ; at which time they must produce their accounts, and verify them upon oath, if required. And then the commissioners shall direct a dividend to be made, at so much in the pound, to all the creditors who have before proved, or shall then prove, their debts '4. This dividend must be made equally, and in a ratable proportion, to all the creditors, according to the quantity of their debts ; no regard being had to the quality of them55. Mortgages indeed, for which the creditor has a real security in his own hands, are entirely safe56; for the commission of bankrupt reaches only the equity of redemption m. So are also personal debts, where the creditor'has a chattel in his hands, as a pledge or pawn for the payment, or has taken the debtor's lands or goods in execution47. And, upon the equity of the statute 8 Ann. c. 14, (which directs, that, upon all execu-

m Finch. Rep. 466.

debtor who shall bonajide have paid his debt to the bankrupt, without notice of his bankruptcy, shall not be again liable for it. Ibid. $. 13.

The act is silent as to suits in equity ; but it authorises the commissioners to tender the performance of the conditions upon which the property of the bankrupt may be pledged, J. 12, and authorises a reference, or compromise under the direction of the commissioners, with the consent of the major part, in value, of the creditors. Ibid. $. 43.

54. Herewith the act of congress agrees. Sec. 29.

55. Sec. 31. Accordant.

56. Nothing in the act of congress contained shall be construed to invalidate or impair any lien existing at the date of that act, upon the lands or chattels of any person who may become a bankrupt. §. 63.

57. See the last note. The act also declares, that if any bankrupt should have conveyed or assured any lands or chattels to any person, •with a power to redeem, the commissioners or any person duly authorised by them may tender the money, or other performance, according to the nature of the case, as fully as the bankrupt might have done ; and after such tender, or performance, may assign the pledge for the benefit of the creditors, as fully and effectually as any part of the bankrupt's estate. Ibid. }. 12.

tions of goods being on any premises demised to a tenant, one year's rent and no more shall, if due, be paid to the landlord) it hath also been held, that under a commission of bankrupt, which is in the nature of a statute-execution, the landlord shall be allowed his arrears of rent to the same amount, in preference to other creditors, even though he hath neglected to dislrtin *, while the goods remained on the premises; which he is otherwise entitled to do for his entire rent, be the quantum what it may n ". But, otherwise, judgments and recognizances, (both which are debts of record, and therefore at other times have a priority) and also bonds and obligations by deed or special instrument, (which are called debts by specialty, and are usually the next in order) these are all put on a level with debts by mere simple contract, and all paid part fasstt ° w. Nay, so far is this matter carried, that, by the express provision of the statutes r, debts not due at the time of the dividend made, as bouds or notes of hand, pay* able at a future day certain, shall be proved and paid equally with the rest", allowing a discount or drawback in proportion.

n 1 Atk. 103,104. p Stat. 7 Geo. I. c. 31.

oStat. 21Jac. c.19.

q Lord Kaym. 1549. Stra. 1211.

* But this was held to be a mistake by lord chancellor Bathurst, in ex fiarte Devisme, 13 January. 1776, where the general question was, whether a landlord is intitled to have a year's rent paid him out of the effects of a bankrupt tenant^such effects having been seized under the commission and removed by the commissioner's messenger from the demised premises, in respect whereof the rent was in arrear. The lord chancellor was clearly of opinion, upon the authority of two cases in Atkyn's Reports, viz. ex parte Butler, assignee of Richardson, and ex parts Plummer, that the landlord could only come in as a common creditor. That the passage in Mr. Justice Blackstone's Commentaries (2 Black. 487.) was a mistake. He said, if the legislature had intended to prefer the landlord, they would have done so, as they do in the insolvent debtors acts. (Vid. also Bradyl v. Ball, 1 Brown Cas. in Chanc. 427.)

Goods, or lands, actually taken in execution before the time that the person becomes a bankrupt, seems also to be saved from the operation of the commission of bankruptcy. Ibid. $. 31.

58. The act of congress makes no distinction in favour of landlords. This case must therefore remain upon the ground of precedent, or of general principles. See the note by Doctor Burns, above.

59. L. U. S. J. 31. Accordant.

And insurances, and obligations upon bottomry or respondent!^ bonafde made by the bankrupt, though forfeited after the commission is awarded, shall be looked upon in the same light as debts contracted before any act of bankruptcyr 60.

Within eighteen months after the commission issued, a second and final dividend shall be made, unless all the effects were exhausted by the first8 «>. And if any surplus remains, after selling his estates and paying every creditor his full debt, it shall be restored to the bankrupte. This is a case which sometimes happens to men in trade, who involuntarily, or at least unwarily commit acts of bankruptcy, by absconding and the like, while their effects are more than sufficient to pay their creditors. And, if any suspicious or malevolent creditor will take the advantage of such acts, and sue out a commission, the bankrupt has no remedy, but must quietly submit to the effects of his own imprudence; except that, upon satisfaction made to all the creditors, the commission may be superceded". This case may also happen, when a knave is desirous of defrauding his creditors, r Stat. 19 Geo. II. c. 32. s Stat. 5 Geo. II. c. 30. t Stat. 13 Eliz. c. 7. u 2 Ch. Cas. 144.

60. L. U. S. Sec. 39, contains the same provisions, in all these

cases.

61. L. U. S. Sec. 30. Accordant. This second division is to be final: unless any suit at law or equity be depending, or any part of the estate standing out, undisposed of; or unless some other or future estate or effects of the bankrupt shall afterwards come to the hands of the assignees: in which case they shall, as soon as may be, convert the same into money, and make a division thereof, within two months thereafter. Ibid. Sec. 30.

Such is the general outline of the act of congress; the principal points in which it agrees with, or departs from the British statutes, have been occasionally noticed in the course of the notes on this chapter : there are, however, a number of more minute variances, and provisions, which could not conveniently be introduced into the notes, and for which I must refer the student to the act itself: as also to Mr. Cooper's Digest of the Bankrupt Laws, as a commentary thereon.

The act is limited to five years from the commencement thereof, and from thence to the end of the next session of congress. But its expiration shall not prevent the complete execution of any commission which may have been previously issued. L. U. S. 6 Cong. c. 19. Sec. 64.

and is compelled by a commission to do them that justice, which otherwise he wanted to evade. And therefore, though the usual rule is, that all interest on debts carrying interest shall cease from the time of issuing the commission, yet, in case of a surplus left after payment of every debt, such interest shall again revive, and be chargeable on the bankrupt", or his representatives.

w 1 Atk. 544.

CHAPTER THE THIRTY-SECOND.

OF TITLE BY TESTAMENT AND ADMINISTRATION.

THERE yet remain to be examined, in the present chapter, two other methods of acquiring personal estates, viz. by testament and administration. And these I propose to consider in one, and the same view; they being in their nature so connected and blended together, as makes it imposible to treat

• of them distinctly, without manifest tautology and repetition.

XI, XII. In the pursuit then of this joint subject, I shall,

•first, inquire into the original and antiquity of testaments and administrations; shall, secondly, shew who is capable of making a last will and testament; shall, thirdly, consider the nature of a testament and its incidents j shall, fourthly, shew what an executor and administrator are, and how they are to be appointed ; and, lastly, shall select some few of the general heads of the office and duty of executors and administrators.

First, as to the original of testaments and administrations. We have, more than once observed, that when property came to be vested in individuals, by the right of occupancy, it became necessary, for the peace of society, that this occupancy should be continued, not only in the present possessor, but in those persons to whom he should think proper to transfer it; which introduced the doctrine and practice of alienations, gifts, and contracts. But these precautions would be very short and imperfect, if they were confined to the life only, of the occupier; for then, upon his death, all his goods would

again become common, and create an infinite variety of strife and confusion. The law of very many societies has, therefore, given to the proprietor a right of continuing his property, after his death, in such persons as he shall name ; and, in defect of such appointment or nomination, or where no nomination is permitted, the law of every society has directed the goods to be vested in certain particular individuals, exclusive of all other persons a. The former method of acquiring personal property, according to the express directions of the deceased, we call a testament: the latter, which is also according to the will of the deceased, not expressed in deed but presumed by the law b, we call in England, an administration ; being the same which the civil lawyers term a succession ab intestato, and which answers to the descent or inheritance of real estates.

Testaments are of very high antiquity. We find them in use among the antient Hebrews ; though I hardly think the example usually given c, of Abraham's complaining d, that, unless he had some children of his body, his steward Eliezer of Damascus, would be his heir, is quite conclusive to shew that he had made him so, by will. And indeed, a learned writer % has adduced this very passage to prove, that in the patriarchal age, on failure of children or kindred, the servants born under their master's roof, succeeded to the inheritance as heirs at law f.. ....

But, (to omit what Eusebius and others have related of Noah's testament, made in writing, and witnessed under his seal, whereby he disposed of the whole world f) 1 apprehend that a much more authentic instance of the early use of testaments may be found in the sacred writings h, wherein Jacob bequeaths to his son Joseph a portion of his inheritance double to that of his brethren: which will, we find, carried into execution many hundred years afterwards, when the posterity of Joseph were divided into two distinct tribes, those of Ephraim and Manasseh

a Puff. L. of N b.4,c. 10.

b Ibid. b. 4, c. 11.

c Barbeyr. Puff. 4, 10, 4, Godolph. Orph. Leg. 1, 1.

d Gen. c. 15.

e Taylor's Elem. Civ. Law. 517. f See page 12.

g Selden, de succ. Ebr. c. 24. h Gen. c. 48.

and Had two several inheritances assigned them; whereas the descendants of each of the other patriarchs formed only one single tribe, and had only one lot of inheritance. Solon, was the first legislator that introduced wills into Athens'; but, in many other parts of Greece, they were totally discountenanced k. In Rome they were unknown, till the laws of the twelve tables were compiled, which first gave the right of bequeathingl: and, among the northern nations, particularly among the Germans m, testaments were not received into use. And this variety may serve to evince, that the right of making wills, and disposing of property after death, is merely a creature of the civil state n j which has permitted it in some countries, and denied it in Others : and, even where it is permitted by law, it is subjected to different formalities and restrictions in almost every nation under heaven *•

With us in England this power of bequeathing is co-eval with the first rudiments of the law : for we have no traces or memorials of any time when it did not exist. Mention is made of intestacy, in the old law before the conquest, as being merely accidental ; and the distribution of the intestate's estate, after payment of the lord's heriot, is then directed to go according to the established law. " Sive quis incuria, she morte repentina, fuerit intestatus mortuux, dominus tamen nullam rerun suarum fartem (praeter earn quae jure debetur hereoti nomine} sibi assumtto. Verum possessiones uxori, liberis, et cognatione proximis, pro suo cuique jure, distribuantuff^1 But we are not to imagine, that this power of bequeathing extended originally to all a man's personal estate. On the contrary, Glanvil will inform us ^, that by the common law, as it stood in the reign of Henry the second, 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

i Plutarch, in vita Solon. I Inst 2, 22, 1.

k Pott Antiq 1. 4, c. 15. m Tacit, fie mar. Germ. 21.

n See page 13.

o Sp L. b. 2r, c. 1, Vinnius in Inst. I. 2, tit. 10.

p LL. Canut. c. 68. q /. 2. c. 5.

e converse/, 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 disposalr. The shares of the wife and children were called their reasonable parts; and the writ de rationabili farte bonorum was given to recover them'.

This continued to be the law of the land at the time of magna carta, which provides, that the king's debts shall first of all be levied, and then the residue of the goods shall go to the executor to perform the will of the deceased: and, if nothing be owing to the crown, " omnia catalla cedant defuncto; salvis uxori " ipsiw et-pueris suis rationabilibus partibus swsV In the reign of king Edward the third this right of the wife and children was still held to be the universal or common law u; though frequently pleaded as the local custom of Berks, Devon, and other counties* : and sir Henry Finch lays it down expressly", in the reign of Charles the first, to be the general law of the land. But this law it at present altered by imperceptible degrees, and the deceased may now by will bequeath the whole of his goods and chattels ; though we cannot trace out when first this, alteration began. Indeed sir Edward Coke ? is of opinion, that this never was the general law, but only obtained in particular places by special custom: and to establish that doctrine, he relies on a passage in Bracton, which in truth, when compared with the context, makes directly against his opinion. For Bractonz lays down the doctrine of the reasonable part to be the common law; but mentions that as a particular exception,

r Bracton. /. 2. c. 26. Flet. /. 2. c. ST. ' s F. N. B. 122. t 9 Hen. III. c. 18.

u A widow brought an action of detinue against her husband's executor* ipioil cum per consuetudinemtotius regni Angliae hactemis usitatam el approbation, vxores debent et solent a tempore, &c. babere main rationabitem portent bonortan maritorum suorum .• ita videlicet, quod si nullot babuerint libtros, tune mcdietatem t et, si habuerint, • tune tertiam partem, &c ; and that her luibband died worth 2JO.OOO marks, without issue had between them; and thereupon she claimed the moiety. Some exceptions were taken to the pleadings, and the fact of the husband's dying without issue was cienjcd; but the rule of law, as stated in the writ, seems to have been universally allowed, (M. 30 £dw. 111. 2,3.) And a similar case occurb m H. 17 Edw. III, 9

w Jieg. Brev. 142. Co. Litt. l?t>. x Law. 175.

y 2 Inst, jj. z 1.2. c. 26._Sec. 2.

which sir Edward Coke has hastily cited for the general rule. And Glanvil, magna carta, Fleta, the year-books, Fitzherbert, and Finch, do all agree with Bractoti, that this right to the pars rationabilis was by the common law: which also continues to this day to be the general law of our sister kingdom of Scotland a. To which we may add, that, whatever may have been the custom of later years in many parts of the kingdom, or however it was introduced in derogation of the old common law, the antient method continued in use in the province of York, the principality of Wales, and in the city of London, till very modern times : when, in order to favour the power of bequeathing, and to reduce the whole kingdom to the same standard, three statutes have been provided; the one 4 and 5 W. and M. c. 2. explained by 2 and 3 Ann. c. 5. for the province of York ; another 7 and 8 W. III, c. 38, for Wales; and a third, 11 Geo. I, c. 18, for London: whereby it is enacted, that persons within those districts, and liable to those customs, may (if they think proper) dispose of all their personal estates by will; and the claims of the widow, children, and other relations, to the contrary, are totally barred *. Thus is the old common law now utterly abolished throughout all the kingdom of England, and a' man may devise the whole of his chattels as freely, as he formerly could his third part or moiety. In disposing of which, he was bound by the custom of many places (as was stated in a former chapter b) to remember his lord and the church, by leaving them his two best chattels, which was the original of heriots and mortuaries j and afterwards he was left at his own liberty, to bequeath the remainder as he pleased2.

a Dalrymp. of feud, property. 145. b Page 426.

1. The student will observe that these statutes are merely local, and could never be construed to extend to Virginia.

2. The act of 1705, c. 7. declares that when any person dies testate, if he leaves one or two children, and no more, he shall not have power to dispose of more than two thirds of-his estate by will to any other person or persons than his wife, and one third part thereof at least shall be given to her. And if he leaves more than two children he shall not leave his wife less than a childs part, according to the number of his children ; and if he leaves no children, the wife shall have at least an equal moiety of his estate. And if any person should

In case a person made no disposition of such of his goods as were testable, whether that were only part or the whole of them, he was, and is, said to die intestate ; and in such cases it is said, that by the old law the king was entitled to seise upon his goods, as the parens patriot, and general trustee of the kingdom0. This prerogative the king continued to exercise for some time by his own ministers of justice j and probably in the county court, where matters of all kinds were determined: and it was granted as a franchise to many lords of manors, and others, who have to this day a prescriptive right to grant administration to their intestate tenants and suitors, in their own courts baron and other courts, or to have their wills there proved, in case they made any disposition d. Afterwards the crown, in favour of the church, invested the prelates with this branch of the prerogative ; which was done, saith Perkins % because it was intended by the law, that spiritual men are of better conscience than laymen, and that they had more knowledge what

c 9 Rep. 38. d Ibid. 37. e Sec. 486.

leave a will wherein a lesser part of his estate was given to the wife than is by that act directed, such will, as to^ so much thereof as might relate to the wife, upon her petition to the court where the same should be proved, should be declared null and void ; and thereupon she should be empowered to sue for and recover such part of the husbands estate, as in that act is directed to be given her. The act of 1727, c. 4, required this application to be made within nine months after the husbands death; and now by the act of 1785, c. 61, when any widow shall not be satisfied with the provision made for her by the will of her husband, she may within one year from the time of his death, before the general court, or court having jurisdiction of the probat of his will, or by deed executed in the presence of two, or more credible witnesses, declare that she will not accept the provision made for her by such will, or any part thereof, and renounce all benefit which she might claim by the same ; and thereupon she shall be entitled to one third part of the slaves whereof her husband died possessed, which she shall hold during her life, and to such share of his other personal estate, as if he had died, intestate ; that is, one moiety if there be no child, or if there be a child or children, one third of the surplus, after funeral debts, and just expences paid, to hold to her as her absolute property ; but every widow not making such declaration within twelvemonths, is thereafter bound by the husbands will. Edi. 1794, c. 92. J. 25. 27. See also the Notes 46 and 47, upon this chapter...post. 515, 516.

things would conduce to the benefit of the soul of the deceased. The goods therefore of intestates were given to the ordinary by the crown; and he might seise them, and keep them without wasting, and also might give, aliene, or sell them at his will, and dispose of the money in pios urns: and, if he did otherwise, he broke the confidence which the law reposed in himf. So that properly the whole interest and, power, which were granted to the ordinary, were only those of being the king's almoner within his diocese ; in trust to distribute the intestate's goods in charity to the poor, or in such superstitious uses as the mistaken seal of the times had denominated pious s. And, as he had thus the disposition of intestates' effects, the probate of wills of course followed: for it was thought just and natural, that the will of the deceased should be proved to the satisfaction of the prelate, whose right of distributing his chattels for the good of his sovil was effectually superseded thereby.

The goods of the intestate being thus vested in the ordinary upon the most solemn and conscientious trust, the reverend prelates were therefore not accountable to any, but to God and themselves, for their conduct11. But even in Fleta's time it was complained', " quod ordinarii, hujusmodi bona nomine ecdesiae " occupantes,nullam velsaltern indebitamfaclunt distributionem" And to what a length of iniquity this abuse was carried, most evidently appears from a gloss of pope Innocent IVk, written about the year 1250; wherein he lays it down for established canon law, that" in Britannia tertia pars bonorum decendentium " ab intestato in opus ecdesiae et pauperum dispensanda est" Thus the popish clergy took to themselves' (under the name of the church and poor) the whole residue of the deceased's estate, after the partes rationabiks, or two thirds, of the wife and children were deducted ; without paying even his lawful debts, or other charges thereon. For which reason it was enacted, by

f Finch. Law. 173, 174. g Plowd. 277.

h Plowd. 277. i /. 2. e. 57- Sec. 10.

k in Decretal. I. 5. t. 3. c. 42.

1 The proportion given to the priest, and to otlier pious uses, was diflevent in different countries. In the archdeaconry of Richmond, in Yorkshire, lliis proportion was settled by a papal bulle, A. D. 12J4. (fiegist. honvris <lc £icbm. 101,) and was observed till abolished by the statute 26 Hen. VIII. c. 15.

the statute of Westm. 2 m, that the ordinary shall be bound to 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. This was the first check given to that exorbitant power, which the law had entrusted with ordinaries. But, though they were now made liable to the creditors of the intestate for their just and lawful demands; yet the residuum, after payment of debts, remained still in their hands, to be applied to whatever purposes the conscience of the ordinary should approve. The flagrant abuses of which power occasioned the legislature again to interpose, in order to prevent the ordinaries from keeping any longer the administration in their own hands, or those of their immediate dependents : and, therefore, the statute 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. This is the original of administrators, as they at present stand ; who are only the officers of the ordinary, appointed by him in pursuance of this statute, which singles out the next and most lawful friend of the intestate ; who is interpreted n to be the next of blood thatis under no legal disabilities. The statute 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 to both of them, at his own discretion; and where two or more persons are in the same degree of kindred, gives the ordinary his election to accept which ever he pleases 3.

m 13 Edw. I.e. 19.

n 9 Kep. 39.

3. By the act of 1748, c. 3, administration is directed to be granted ; first, to the husband, or wife ; secondly, to the child or children, ov their legal representatives; thirdly, to the father or mother ; fourthly, to the brothers or sisters, and after them to the next of kindred. The act of 1 785, c. 61, after giving the preference first to the hiibband, or wife, declares that administration shall afterwards be granted to such others as are next entitled to distribution, or one or more of them, as the court shall thi;ik proper. But if no such person applies, for administration within thirty days from the death of the in-

Uponthis footing stands the general law of administrations at this day. I shall, in the farther progress of this chapter, mention a few more particulars, with regard to who may, and who may not, be administrator; and what he is bound to do when he has taken this charge upon him: what has been hitherto remarked only serving to shew the original and gradual progress of testaments and administrations ; in what manner the latter was first of all vested in the bishops by the royal indulgence; and how it was afterwards, by authority of parliament, taken from them in effect, by obliging them to commit all their power to particular persons nominated expressly by the law.

I proceed now, secondly, to inquire who may, or may not, make a testament; or what persons are absolutely obliged by law to die intestate. And this law ° is entirely prohibitory ; for, regularly, every person hath full power and liberty to make a trill, that is not under some special prohibition by law or custom: which prohibitions are principally upon three accounts; for want of sufficient discretion; for want of sufficient liberty and free will; and on account of their criminal conduct.

1. In the first species are to be reckoned infants, under the age of fourteen, if males, and twelve, if females ; which is the rule of the civil law p 4. For, though some of our common lawyers have held, that an infant of any age (even four years old) might make a testament 1, and others have denied that under eighteen he is capabler,yet as the ecclesiastical court is thejudge

o Godolph. Orph. Leg.'jd. 1. c. 7-

p Godolph. p. 1. c. 8. Wentw. 212. 2 V«rn. 104, 469. Gilb. Rep. 74.

q Perkins, Sec. 503, r Co. Litt. 89.

testate, or at the next succeeding court, after the expiration thei'cof, the court may grant administration to any creditor, or other person, that the court may think fit; and this was also the law under the former act. V. L. 1794, c. 92. $. 28 and 29.

4. By the act of 1727, c. 4, an infant, above the age of eighteen years, might bequeath his slaves, by will in writing, though slaves were then declared to be real estate. And now, by the act of 1785, c. 61, no person under the age of eighteen years, since the first day cf January, 1787, is capable of disposing of his chattels by will. V. L. 1794, c. 92. I). 4.

of every testator's capacity, this case must be governed by the rules of the ecclesiastical law. So that no objection can be admitted to the will of an infant of fourteen, merely for want of age : but, if the testator was not of sufficient discretion, whether at the age of fourteen or four and twenty, that will overthrow his testament. Madmen, or otherwise non compotes, idiots or natural fools, persons grown childish by reason of old age or distemper, such as have their senses besotted with drunkenness .... all these are incapable, by reason of mental disability, to make any will so long as such disability lasts. I'o this class also may be referred such persons as are born deaf, blind, and dumb; who, as they have always wanted the common inlets of understanding, are incapable of having (minium testandi, and their testaments are therefore void.

2. Such persons, as are intestable for want of liberty or freedom of will, are by the civil law of various kinds; as prisoners, captives, and the like '. But the law of England does not make such persons absolutely intestable ; but only leaves it to the discretion of the court to judge, upon the consideration of their particular circumstances of duress, whether or no such persons could be supposed to have liberum animum testandi. And, with regard to feme-coverts, our law differs still more materially from the civil. Among the Romans there was no distinction; a married woman was as capable of bequeathing as a feme-sole *. But with us a married woman is not only utterly incapable of devising lands, being excepted out of the statute of wills, 34 and 35 Hen. VIII. c. 5 J, but also she is incapable of making a testament of chattels, without the licence of her husband. For all her personal chattels are absolutely his; and he may dispose of her • chattels real, or shall have them to himself if he surv i ves her: it would be, therefore, extremely inconsistent, to give her a power of defeating that provision of the law, by bequeathing those chattels to another v. Yet, by her husband's licence, she may make a testament u; and the husband, upon marriage, frequently cover

s Godolph. p. 1. c. 9. v 4 Kep. 51.

t ff. 51,1, 77,

u Dr. and St. d. 1. c. 7.

5. L. V.1785,c. 61. Kdi. 1794, c. 92. Accordant.

nants with her friends to allow her that licence : but such licence is more properly his assent *; for, unless it be given to the particular will in question, it will not be a complete testament, even though the husband beforehand hath given her permission to make a willw. Yet it shall be sufficient to repel the husband from his general right of administering his wife's effects; and administration shall be granted to her appointee, with such testamentary paper annexed x. So that, in reality, the woman makes no will at all, but only something like a will? ; operating in the nature of an appointment, the execution of which the husband, by his bond, agreement, or covenant, is bound to allow. A distinction similar to which we meet with in the civil law. For, though a son who was in potestate parentis could not by any means make a formal and legal testament, even though his father permitted it1, yet he might, with the like permission of his father, make what was called a donatio mortis causa a. The queen consort is an exception to this general rule, for she may dispose of her chattels by will, without the consent of her lord b : and any feme-covert may make her will of goods, which are in her possession in outer droit, as executrix or administratrix; for these can never be the property of the husband c : and, if she has any pinmoney or separate maintenance, it is said she may dispose of her savings thereout by testament, without the control of her husband d. But, if a feme-sole makes her will, and afterwards marries, such subsequent marriage is esteemed a revocation in law, and entirely vacates the will *\S

3. Persons incapable of making testaments, on account of their criminal conduct, are in the first place all traitors and felons, from the time of conviction; for then their goods and chattels

w Bro. Alir. tit, devise. 34 Stra. 891.

x The ting v. Bettcsworth. T. 13 Geo. II. B. R.

y Cro. Car. 376. 1 Mod. 211. z Ff. 28,1, 6.

a Ff. 39, 6, 25. b Co. Litt. 133.

c Godolph. 1,10. d Fret. Chan. 44.

e 4 Rep. 60. 2P.Wms. 624.

* Where personal property is given to a married woman for her sole and separate use, she may dispose of ii by will without the assent of her husband. 3 Bro. H .... Christian.

t And it cannot be revived by the subsequent death of her husband, 2 f.

R. 695 .... Cbri»tian.

are no longer at their own disposal, but forfeited to the king «. Neither can afelo de sc make a will of goods and chattels, for they are forfeited by the act and manner of his death: but he may make a devise of his lands, for they are not subjected to any forfeiture f. Outlaws also, though it be but for debt, are incapable of making a will, so long as the outlawry subsists, for their goods and chattels are forfeited during that time *, As for persons guilty of other crimes, short of felony, who are by the civil law precluded from making testaments, (as usurers, libellers, and others of a worse stamp) by the common law their testaments may be good h. And in general the rule is, and has been so at least ever since Glanvil's time J, quod libera sit cujuscunque ultima voluntas.

Let us next, thirdly, consider what this last will and testament is, which almost every one is thus at liberty to make ; or, what are the nature and incidents of a testament. Testaments both Justinian* and sir Edward Coke k agree to be so called, because they are testatio mentis: an etymon, which seems to savour too much of the conceit; it being plainly a substantive derived fromthe verb testari, in like manner v&juramentum, incrementum, and others, from other verbs. The definition of the old Roman 'lawyers is much better than their etymology; "voluntatis nostrae "justa sententia de eo, quod quis font mortem suamferi velitl:" which may be thus rendered into English, " the legal declaration " of a man's intentions, which he wills to be performed after his " death." It is called sententia to denote the circumspection and prudence with which it is supposed to be made: it is voluntatis nostrae sententia, because it's efficacy depends on it's declaring the testator's intention, whence in England it is emphatically stiled his will: it \sjusta sententia; that is, drawn, attested, and published with all due solemnities and forms of law : it is de eo,

f Plowd. 261. g Fitz. Abr. t. descent. 16.

h Godolph. p. 1. c. 12. j /. 7. c. 5.

i Inst. 2, 30. kl Inst. 111,322.

1 Ff. 28, 1,1.

6. See page 254, Note 15, and page 421, Note 4, and the doubts there expressed, as to the operation of the act of 1789, c. 30. Edi. 1794, c. 74. §. 31.

quod quis post mortem suamferi velit, because a testament is of no force till after the death of the testator.

These testaments are divided into two sorts; written, and verbal or nuncupative; of which the former is commuted to writing, the latter depends merely upon oral evidence, being declared by the testator in extremis before a sufficient number of witnesses, and afterwards reduced to writing. A codicil, codidllus, a little book or writing, is a supplement to a will; or an addition made by .the testator, and annexed to, and to be taken as part of, a testament: being for it's explanation, or alteration, or to make some addition to, or else some subtraction from, the former dispositions of the testator m. This may also be either written or nuncupative.

But, as nuncupative wills and^odicils, (which were formerly more in use than at present, when the art of writing is become more universal) are liable to great impositions and may occasion many perjuries, the statute of frauds, 29 'Car. II. c. 3, hath-laid them under many restrictions} except when made by mariners at sea, and soldiers in actual service ?. As to all other persons, it enacts; 1, That no written will shall be revoked or altered by a subsequent nuncupative one, except the same be in the lifetime of the testatorfeduced to writing, and read over to him, and approved ; ana unless the same be proved to have been so done by the daths of three witnesses at the least; who, by statute 4 and 5 Ann. c. 16, must be such as are admissible upon trials at common law". 2. That no nuncupative will shall in any wise be

m Godqjph. p. 1. c. 1, Sec. 3.

7. Any soldier in actual military' service, or any mariner or seaman being at sea, may dispose of his chattels as he might have dune before the making the several acts of 1748, c. 3, and 1785, c. 61. Edi. 1794, c. 92..$. 8. •."••!•

8. No will in writing,-or any devise therein of chattels, shall be revoked by a subsequent will, codicil, or declaration, unless the same be in writing. Ibid, the Act 6f 1748,-required two, or more witnesses to such revocation ; but the act of 1785, is silent as to them. Vide Edi. 1794, c. 92. &, 7.

good, where the estate bequeathed exceeds 30/; unless proved by three such witnesses, present at the making thereof, (the 'Roman law requiring seven") and unless they or some of them were specially required to bear witness thereto by the testator himself; and unless it was made in his last sickness, in his own habitation or dwelling-house, or where he had been previously resident ten days at the least, except he be surprized with sickness on a journey, or from home, and dies without returning to his dwelling9. 3. That no nuncupative will shall be proved by the witnesses after six months from the making, unless it were put in writing within six days10. Nor shall it be proved till fourteen days after the death of the testator, nor till process hath first issued to call in the widow,or next of kin, to contest it, if they think proper11. Thus hath the legislature provided against any frauds in setting up nuncupative wills, by so numerous a train of requisites, that the thing itself has fallen into disuse ; and is hardly ever heard of, but in the only instance where favour ought to be shewn to it, when the testator is surprised by sudden and violent sickness. The testamentary words must be spoken with an intent to bequeath, not any loose idle discourse in his illness ; for he must require the bystanders to bear witness of such his intention: the will must be made at home, or among his family or friends, unless by unavoidable accident; to prevent impositions from strangers: it must be in his last sickness; for, if he recovers, he may alter his dispositions, and has time to make a written will: it must not be proved at too long a distance from the testator's death, lest the words should escape the memory of the witnesses; nor yet too hastily and without notice, lest the family of the testator should be put to inconvenience, or surprized.

n/nrt,2, 10,4.

9. No nuncupative will shall be established, unless it be made in the last sickness of the deceased, at his habitation, or where he hath resided for ten days next preceding, unless he be taken sick from home and die before he returns to such habitation ; nor where the value exceeds thirty dollars, unless it be proved by two witnesses, that the testator called on some person present to take notice, or bear testimony that such is his will, or words to the like import. V. L, 1748, c. 3. 1785, c. 61. Edi. 1794, c. 92. $.5.

10. V. L. 1794, c. 92. J. 6. Accordant:

11. V. L. 1794, c. 92. J. 16. Accordant.

As to written wills, they need not any witness of their publication. I speak not here of devises of lands, which are quite of a different nature; being conveyances by statute, unknown to the feodal or common law, and not under the same jurisdiction as personal testaments. But a testament of chattels, written in the testator's own hand, though it has neither his name nor seal to it, nor witnesses present at it's publication, is good; provided sufficient proof can be had that it is his hand-writing0 IZ. And though written in another man's hand, and never signed by the testator, yet if proved to be according to his instructions, and approved by him, it hath been held a good testament of the personal estate P. Yet it is the safer and more prudent way, and leaves less in the breast of the ecclesiastical judge, if it be signed or sealed by the testator, and published in the presence of witnesses :• which last was always required in the time of Bracton'; or, rather, he in this respect, has implicitly copied the rule of the civil law.

No testament is of any eflect till after the death of the testator. " Nam omne testamentum morte consiimmatum est: et voltmtas

o Godolph. p. 1. c. 21. Gilb. Rep. 260.

p Comyns, 452, 3, 4. q /. 2. c. 26.

12. A will of lands, if written wholly by the testator, and signed by him, is good, lincethe first of January, 1787, in Virginia. V. L. 1785, c. 61. Edi. 1794, c. 92. J. 1.

And note ; all wills and testaments must be proved in the general court, or in the court of the district county or corporation, where the mansion-house, or known place of residence of the testator may be; and if he have no such place of residence, and lands be devised by the will, it shall be proved in the court of the district, county, or corporation wherein the lands lie, or in one of them, where there shall be lands in several districts or counties ; and if he have no such known place of residence, and there be no lands devised, then the will may be proved in the court of the district, county, or corporation .where the testator shall die, or that wherein his estate, or the greater part thereof, shall be. Ibid. J. 10. And the said courts, respectively, shall have the like jurisdiction, to hear and determine the right of administration, as they may have to the proof of wills, in respect to the intestate's place of residence, or death, or where the estate shall lie; and have power to hear and determine all causes, matters, suits, and controversies testamentary, arising within their respective jurisdictions, accordingly. Ibid. §. 10 and 28.

" testatoris est ambulatoria usque ad mortem r." And, therefore, if there be many testaments, the last overthrows all the former': but the republication of a former will revokes one of a later date, and establishes the first again *.

Hence it follows,that testaments may be avoided three ways: 1. If made by a person labouring under any of the incapacities before-mentioned : 2. By making another testament of a later date: and, 3. By cancelling or revoking it. For, though 1 make a Jast will and testament irrevocable in the strongest words, yet I am at liberty to revoke it: because my own act or words cannot alter the disposition of law, so as to make that irrevocable, which is in it's own nature revocable u. For this, saith lord Bacon w, would be for a man to deprive himself of that, which of all other things is most incident to human condition ; and that is, alteration or repentance. It hath also been held that, without an express revocation, if a man, who hath made his will, afterwards marries and hath a child, this is a presumptive or implied revocation of his former will, which he made in his state of celibacy * l3. The Romans were also wont to set aside testaments as being inofficiosa^ deficient in natural duty, if they disinherited or totally passed by (without assigning a true and sufficient reason *) any of the children of the testator x. But if the child had any legacy, though ever so small, it was a proof that the testator had not lost his memory or his reason, which otherwise

rCo. Litt. 112. t Perk. 479. w Elem. c. 19. y See book 1. ch. 16.

s Litt. §.168. Perk. 478.

u 8 Hep. 82.

x Lord Raym.441. 1 P, Wms. 204

z Inst. 2,18,1.

13. By- the act of 1785, c. 61, any child born after a -will made by the father, when he had no child living ; and now, by the act of 1794, c. 170, any child born after a will made by the father at any time, •whether such child be born in the life-time of the father, or after his death, if it be unprovided for by settlement, and neither provided for, nor disinherited, but only pretermitted by the will, shall succeed to the same portion of the father's estate, as if he had died intestate. But, in the former case, if the child die without having been married, and under the age of twenty-one years, it would seem that the will would not be void. See V. L. 1794, c. 92. Sec. 3, andc. 170. Sec. 1. See p. 376, note 6, and the case of Wilcox vs. Rootes, 1 Wash. Rep. 140.

the law presumed; but was then supposed to have acted thus for some substantial cause ; and in such case no querela inojficiosi testamenti was allowed. Hence probably has arisen that groundless vulgar error, of the necessity of leaving the heir a shilling or some other express legacy, in order to disinherit him effectually: whereas the law of England makes no such constrained suppositions of forgetfulness or insanity; and therefore, though the heir or next of kin be totally omitted, it admits no querela inofflciosiy to set aside such a testament14.

We are next to consider, fourthly, what is an executor, and what an administrator; and how they are both to be appointed.

*.

An executor is he to whom another man commits by will the execution of that his last will and testament. And all persons are capable of being executors, that are capable of making wills, and many others besides; as feme-coverts, and infants: nay, even infants unborn, or in ventre swnere, may be made executors9. But no infant can act as such till the age of seventeen years1'; till which time administration must be granted to some other, durante mindre aetateb l8. In like manner as it may be granted durante absentia, or pendents lite; when the executor is

a West. Symb. p. 1. §. 635. b Went. Off. Ex. c. 18.

14. Herein the law appears to remain unaltered in Virginia, the cases of pretermission before noticed extending only to a child or children born'after the will made, and not to such as may have been born before making it.

15. As the laws of Virginia require that an executor shall give bond before he obtains a probat of a will, and as such bond given by an infant would be voidable, it seems questionable whether an infant, under the age of twenty one years, can act as an executor in Virginia ; unless in such cases, perhaps, as an executor may act before probat. Sed quaere.

16. The laws of Virginia require the appointment of a person to collect and preserve the estate of a person deceased, durante minore octate of the executor, but leave it a question whether that period will expire at seventeen, or twenty-one years, as was remarked above.

out of the realm0, or when a suit is commenced in the ecclesiastical court touching the validity of the willd ir. This appointment of an executor is essential to the making of a will*: and it may be performed either by express words, or such as strongly imply the same. But if the testator makes an. incomplete will, without naming any executors, or if he names incapable persons, or if the executors named refuse to act; in any of these cases, the ordinary must grant administration cum testamento annexe* to some other person18; and then the duty of the administrator, as also when he is constituted only durante minore aetate, fc?c. of another, is very little different from that of an executor. And this was law so early as the reign of Henry II; when GlanviU informs us, thatu testament! exectitores esse debent ii, quos testator ad hoc elegerit, et quibus cur am ipse commiserit: si vero testator nullos ad hoc nominaverit,possunt propinqui et consanguinet ipsius defuncti ad id faciendum se ingerere."

But if the deceased died wholly intestate, without making either will or executors, then general letters of administration must be granted by the ordinary to such administrator as the statutes of Edward the third and Henry the eighth, before mentioned, direct. In consequence of which we may observe; 1. That the ordinary is compellable to grant administration of the , goods and chattels of the wife, to the husband, or his represen-

c 1 Lutw. 342.

e Went. c. 1. Plowd. 281.

g/.7.c.6.

d 2 P. Wins. 589,590.

f 1 Roll. Abr. 907. Comb. 20:

17. In all the cases here enumerated, or whenever from any other cause the court shall judge it convenient, they may appoint any person to collectand preserve the estate, taking bond and security for so doing, and making an inventory thereof, and delivering the same when required to the executors, or administrators. L. V. 1794, c. 92. $. 23.

18. If all the executors named in any will refuse the executorship, or being required to give security, refuse or fail to give the same, which shall amount to a refusal of the executorship, the court may grant administration of the estate with the will annexed. V. L. 1794, c. 92. J. 18.

tativesb '*: and of the husband's effects, to the widow, or next of kin ; but he may grant it to either, or (both, at his discretion1 **. 2. That, among the kindred, those are to be preferred that are the nearest in degree to the intestate ; but, of persons in equal degree, the ordinary may take which he pleasesk ". 3. That this nearness or propinquity of degree shall be reckoned according to the computation of the civilians1" ; and not of the

h Cro. Car. 106. Stat. 29 Car. II. .c. 3. 1 P. Wms. 381.

i Salk. 36. Stra. 532. k See page 496. 1 Prcc. Chanc. 593.

.19. It seems presumable that .this is, still within the equity of the act concerning wills, 8cc. in Virginia ; for section 28. expressly declares that the husband shall have administration of the wife's estate; and although the following section provides, that if no person applies for the administration within thirty days, the administration may be •granted to any other person, yet inasmuch as section 27. expressly declares, that nothing in the act contained shall be understood to compel the husband to make distribution of the personal estate of his wife dying intestate, it would seem, that in case of his death, his right would devolve upon his representative. And this seems agreeable to the opinion of lord chancellor Cowper, who said, " that the husband is within the statute of distribution, 29 Car. 2. c. 3. (in which there is a clause similar to the last above mentioned) as to his benefit, so as to take the wife's chases in action, but should not be within the same, as to his prejudice. 1. p. Wms. 382. and he cited the case -of Cart, w* Rees, where a wife died possessed of chases in action, and the husband survived, -and died- without taking out letters of administration to his wife, after which the next of kin to his Wife administered, and lord chancellor Parker held, that the administrator of the wife was but a trustee for the executor of the husband, the right to the wife's chottt in action being by the statute vested in the husband as next of kin to his wife. And in a late case the court of appeals, have decided, that the executor or next of kin to the wife, to whom the estate of her husband mediately devolved, shall be administrator de bones non of the husband, in preference to his brother. Call's rep. 2. Cutchin vs. Wilkinson.

20. The widow shall be preferred to the next of kin. V. L. 1794r c. 92. J. 28.

21. After the husband, or wife, those who are next entitled to distribution, or one, or some of them shall be appointed, as the court shall think fit. Ibid. j. 28.

22. The computation must be made according to the course prescribed for the descent of real estates, between which and' personal estates there is no longer any distinction in Virginia, as to the persons entitled thereto. Ibid. J. 27...and c. 93. Edi. 1794.

canonists, which the law of England adopts in the descent of real estates™: because in the civil computation the intestate himself is the terminus, a quo the several degrees are numbered; and not the common ancestor, according to the rule of the canonists. And therefore in the first place the children, or (on failure of children) the parents of the deceased, are entitled to the administration: both which are indeed in the first degree; but with us" the childrenare allowed the preference0. Then follow brothers?, grandfathers*, uncles or nephewsr, (and the females of each class respectively) and lastly cousins. 4. The half blood is admitted to the administration as well as the whole: for they are of the kindred of the intestate, and only excluded from inheritances of land upon feodal reasons. Therefore the brother of the half blood shall exclude the uncle of the whole blood'; and the ordinary may grant administration to the sister of the half, or the brother of the whole blood, at his own discretion*M. 5. If none of the kindred will take out administration, a creditor

m See page 203,207, 224. ~"

n Godolph. p. 2. c. 34. Sec. 1. 2 Vern. 125.

o In Germany there was a long dispute whether a man's children should inherit his eflects during the life of their grandfather; which depends (as we ahall see hereafter) on the same principles as the granting of administrations. At last it tvas agreed at the diet of Arensburg, about the middle of the tenth century, that the point should be decided by combat. Accordingly an equal number of champions being chosen on both sides, those of the children obtained the victory; and so the law was established in their favour, that the issue of a person deceased shall be entitled to his goods and chattels in preference to big parents. (Mod. Un. Hist.xxbe. 28.)

p Harris in Nov. 118. c. 2. q Free. Chanc. 527.1 P. Wms. 41. rAtk.455. slVentr.425. tAleyn. 36. Styl. 74.

23. The act of 1792, Edi. 1794, c. 93. }. 5. and 6, directing the course of descents has been declared, (Sess. Acts. 1801, c. 13.) to operate only upon real estates of inheritance, in the cases therein mentioned ; the act concerning wills &c. c. 92. declares that the surplus of the personal estate shall be distributed to the same persons, and in the same proportions, as lands are directed to descend in, by the first mentioned act. The right of the father, or mother to the administration of the estate of their infant child; as also the right ot the brother* and iisters of the half blood, seem now to be restored by this last act.

may, by custom, do it084. 6. If the executor refuses, or dies intestate, the administration may be granted to the residuary legatee, in exclusion of the next of kinwz». 7, And, lastly, the ordinary may, in defect of all these, commit administration (as he might have done" before the statute of Edward III) to such discreet person as he approves of86: or may grant him letters ad colligendum bona defuncti, which neither makes him executor nor administrator; his only business being to keep the goods in his safe custody*, and to do other acts for the benefit of such as are entitled to the property of the deceased*S7. If a bastard, u Salk. 38. w 1 Sid. 281. 1 Ventr. 219. x Plowd. 278. y Went. ch. 14. z 2 Inst. 398.

24. If no person entitled to the administration applies within thirty days from the death of the intestate, or at the next succeeding court after the expiration thereof, the court may grant administration to a creditor or any other person .... But if the wife, or other distributee, who shall not have before refused, shall apply for the administration, afterwards, the same shall be granted, as if the former had not been attained. V. L. 1794, c. 92. J. 29, 30.

25. The reasons for this are very strong: in such a case our law declares that the administration with the will annexed may be granted to the person to whom administration would have been granted, if there had been no will. But as it does not absolutely require the administration to be so granted, it seems but right to interpret the law so that the reason of the case should prevail Ibid. $.18.

26. If all the executors named in a will refuse, and no person will apply for the administration with the will annexed ; or if no person will apply1 for administration on the estate of a person dying intestate, the general court, or the court having jurisdiction, [See Note 12.] after the expiration of three months, may order the sheriff, or other officer of the county or corporation, to take the estate into his possession, and make sale of so much thereof, as the payment of debts shall make necessary, or as shall be perishable, or be directed by will to be sold, upon such credit as the court shall direct, at public auction, taking bond and security from the purchasers; which bonds under the direction of the court he shall assign to the creditors in discharge of their debts in proportion to the assets, if there be a deficiency of them, without regard to the dignity of debts, which an executor or administrator is bound to pay regard to. In other respects he differs not materially from any other administrator. V. L. 1785, c. 61. Edi. 1794, c. 92. $. 61, and this, except as to disregarding the dignity of debts, was the law formerly, 1705, c. 7.

27. L. V. 1794, c. 92. $. 23. Accordant. See Note 17. p. 503.

who has no kindred, being nuHisfliuS, or any one else that has no kindred, dies intestate, and without wife or child, it hath formerly been held* that the ordinary might seise his goods, and dispose of them inpios usm2*. But the usual course now is, for some one to procure letters patent, or other authority from the king ; and then the ordinary of course grants administration to such appointee of the crownb*.

The interest, vested in the executor by the will of the deceased, may be continued and kept alive by the will of the siime executor: so that the executor of A's executor is to all intents and purposes the executor and representative of A himself0 a9; but the executor of A's administrator, or the administrator of A's executor, is not the representative of Ad. For the power of an executor is founded upon the special confidence and actual appointment of the deceased; and such executor is therefore allowed to transmit that power to another, in whom he has equal confidence: but the administrator of A is merely the officer of

a Salk. 37- b 3 P. Wms. 33. c Stat. 25. Edw. HI. st. 5. c. 5. 1 Leon. 275. d Bro. Abr. tit. admihislrator. 7.

* Where a bastard dies intestate without wife or issue, the king is entitled to his personal property as administrator; but it is usual for the crown to grant the administration of it to some relation of the bastard's father or mother, reserving one tenth or other small proportion of it. 1 Woodd. 389.

28. But bastards being now capable of inheriting, or transmitting an inheritance on the part of their mother, equally as if they were legitimate, the reason of the law is herein altered ; for they ai e now entitled to distribution in such cases, and consequently to the administration ; and on the other hand, the mother, or other iclaticns on the part of the mother, are in like manner entitled to disti ib.Ui. n and administration of the bastards estate. Edi. 1794, c. 93. bee. It. and ch. 92.

29. L. V. J785, c. 61. Edi. 1794, c. 92. ?.ec. 59. accordant .... But it is said by Holt Ch. Jus. that the executor of »n extcutrr may ren' i nc? eir.g executor to the first testatrr ; but th..i i; I.e d< th n< t rent unce he is executor cf course...for which he cites 1 Crc.-f 14. vi. 1 Saik. p. 3C9. It may be doubted whether our iuw dovh not U.ke away tliis power of making a partial renunciation.

the ordinary, prescribed to him by act of parliament, in whom the dcceas-.-d has reposed no trust at all ; and therefore, on the death of that officer, it results back to the ordinary lo appoint another. And, with regard to the administrator of A's executor, he has clearly no privity or relation to A ; being only commissioned to administer the effects of the intestate executor, and not of the original testator. Wherefore in both these cases, and whenever the course of representation from executor to executor is interrupted by any one administration, it is necessary for the ordinary to commit administration afresh, of the goods of the deceased not administered by the former executor or administrator. And this adminstrator, de bonin non, is the only legal representative of the deceased in matters of personal property* .... But he may, as well as an original administrator, have only a limited or special administration committed to his care, viz. of certain specific effects, such as a term of years and the like; the rest being committed to othersf.

Having thus shewn what is, and who may be, an executor or administrator, I proceed now, fifthly and lastly, to inquire into some few of the principal points of their office and duty .... These in general are very much the same in both executors and administrators; excepting, first, that the executor is bound to perform a will, which an administrator is not, unless where a testament is annexed to his administration, and then he differs still less from an executor: and, secondly, that an executor may do many acts before he proves the will « *, but an administrator may do nothing till letters of administration are issued: for the former derives his power from the will, afld not from the probate h, the latter owes his, entirely to the appointment of the ordinary. If a stranger takes upon him to act as executor, with-

e St)l. 205.

f 1 (toll Abr. 908. GodolpTi. p2. c. 30. Salk. 36.

g Weutw.ch. 3. h Comyns. 151.

* He may commence an action, bu: he cannot declare in the action, before probate ; for when he declares, he must produce in court the letters testamentary. And he may release or pay a debt; may assent to a legacy, and be sued bet'ore probate; and do oilier acts, which seem to be fully enumerated in 1 Salt. 29'J, ar.d Ccnn. D:g. Admin. B. 9.

out any just authority, (as by intermeddling with the goods of the deceased', and many other transactions'1) he is called in law an executor of his own wrong, de son tort, and is liable to all the trouble of an execulorship, without any of the profits or advantages : but merely doing acts of necessity or humanity, as locking up the goods, or burying the corpse of the deceased, will not amount to such an intermeddling, as will charge a man as executor of his own wrong1. Such a one cannot bring an action, himself, in right of the deceased1", but actions may be brought against him. And, in all actions by creditors, against such an officious intruder, he shall be named an executor, generally "; for the most obvious conclusion, which strangers can form from his conduct, is that he hath a will of the deceased, wherein he is named executor, but hath not yet taken probate thereof0- He is chargeable with the debts of the deceased, so far as assets come to his hands ': and, as against creditqrs in general, shall be allowed all payments made to any other creditor in the same or a superior degree 1, himself only exceptedr. And though, as against the rightful executor or administrator, he cannot plead such payment, yet it shall be allowed him, in mitigation of damages'; unless, perhaps, upon a deficiency of assets, whereby the rightful executor may be prevented from satisfying his own debt130. But let us now see what are the power and duty of a rightful executor or administrator.

1. He must bury the deceased in a manner suitable to the estate which he leaves behind him. Necessary funeral expences are allowed, previous to all other debts and charges; but if the executor or administrator be extravagant, it is a species of

i 5 Rep. 33,34.

1 Dyer, 166.

n 5 Hep. 31.

p Dyer, 166.

r 5 Rep. 30, Moor, 527.

t Wentw. c. 14.

k Wentw. c. 14, Stat. 43 Eliz. c. 8. m Bro. Abr. t. administrator, 8. o 12 Mod. 471. q 1 Chart. Cas. 33. s 12 Mod. 441, 471.

30. The executor or administrator of an executor in his own wrong, by whom any waste shall have been committed, shall be chargeable in the same manner as his testator, or intestate might have been. V. L. 1748, c. 3. Edi. 1794, c. 92. J. 60.

devastation or waste of the substance of the deceased, and shall only be prejudicial to himself, and not to the creditors or legatees of the deceased u.

2. The executor,or the administraton/wrante minore aetatepr durantevbsentia, or cum testamento annexo, must prove the will of the deceased: which is done either in common form, which is only upon his own oath before the ordinary, or his surrogate ; or per testes, in more solemn form of law, in case the validity of the will be disputedw 31. When the will is so proved, the original must be deposited in the registry of the ordinary M j and a copy thereof in parchment, is made out under the seal of the ' ordinary, and delivered to the executor or administrator, together with a certificate, of it's having been proved before him: all which together is usually stiled the probate. In defect of any will, the person entitled to be administrator, must also, at this period, take out letters of administration under the seal of the ordinary; whereby an executorial power to collect and administer, that is, dispose of the goods of the deceased, is vested in him: and he must, by statute 22 and 23 Car. II, c. 10, enter into a bond with sureties, faithfully to execute his trust 33. If all the

« Salk. 196, Godolph. p. 2, c. 26, Sec. 2. w Godolph, p. 1, c. 20, Sec. 4.

31. The executor must swear to the will an far as he knows, or believes: but it seems to be generally understood in Virginia, that if there be subscribing witnesses to a will, though it be merely a will of chattels, the will ought moreover to be proved by them. But if there be no subscribing witnesses, the oath of the executor is probably sufficient to prove a will of chattels, unless the validity thereof be disputed. V. L. 1794. c. 92. J. 19.

32. All original wills shall be recorded, and remain in the clerk's office of the court wherein they are respectively proved. Ibid. ^. 26. See p. 501..Note 12.

33. Both executors and administrators must give bond in Virginia. But where the testator leaves a visible estate more than sufficient to pay all his debts, and by will directs that his executors shall not be obliged to give security, no security shall be required, unless the court shall see cause, from their own knowledge, or the suggestions of creditors, or legatees, to suspect the executors of fraud, or that the testator's personal estate will not be sufficient to discharge all his debts. Ibid. J. 19, 20, 21.

goods of the deceased, lie within the same jurisdiction, a probate before the ordinary, or an administration granted by him, are the only proper ones: but if the deceased had bona notabilia, or chattels to the value of a hundred shillings, in two distinct dioceses or jurisdictions, then the wi'.l must be proved, or administration taken out, before the metropolitan of the province, by way of special prerogative*; whence the courts, where the validity of such wills is tried, and the offices where they are registered, are called the prerogative courts, and the prerogative offices, of the provinces of Canterbury and York34- Lyndewode, who flourished in the beginning ot the fifteenth century, and was official to arch-bishop Chichele, interprets these hundred shillings to signify soltdos legales; of which he tells us seventy-two amounted to a pound of gold, which in his time was valued at fifty nobles or 16/. 13.*. 4(3?. He, therefore, computes 5", that the hundred shillings, which constituted bona n-Aabilia, were then equal in current money to 23/. 3*. OW. This will account for what is said in our antient books, th.it bona notabilia in the diocese of London z, and indeed, every where else a, were of the value of ten pounds by composition: for, if we pursue the calculations of Lyndewode to their full extent, and consider that a pound of gold is now almost equal in value to an hundred and fifty nobles, we shall extend the present amount of bona notabilia to nearly 7O/. But the makers of the canons of 1603, understood this antient rule to be meant of the shillings current, in the reign of James the first, and have, therefore, directed1", that^W pounds shall, for the future, be the standard of bona notabilia, so as to make the probate fall within the archiepiscopal prerogative. Which prerogative (properly understood) is grounded upon this reasonable foundation: that, as the bishops were, themselves, originally .the administrators to all intes-

x 4 Inst. 335.

y Prowi c. 1. 3, t. 13, c. item v. centum &c. statutum v. laicii.

z 4 Inst. 335, Godolnh. p 2, c. 22. a Plowd. 281.

b Can. 92.

34. All wills must be proved in the general court; or in a district county, or corporation court, according to the circumstances of the case. V. L. 1794, c. 92. J. 10. See page 501, note 12.

tales in their own diocese, and as the present administrators are in effect no other than their officers or substitutes, it was impossible for the bishops, or those who acted under them, to collect any goods of the deceased, other than such as lay within their own diocesses, beyond which their episcopal authority extends not. But it would be extremely troublesome, if as m;my administrations were to be granted, as there are dioceses, within which the deceased had bona notabilia ; besides the uncertainty which creditors and legatees would be at, in case different administrators were appointed, to ascertain the fund, out of which their demands are to be paid. A prerogative is, therefore, very prudently vested in the metropolitan of each province, to make in such cases one administration serve for all. This accounts very satisfactorily for the reason of taking out administration to intestates, that have large and diffusive property, in the prerogative court: and the probate of wills naturally follows, as was before observed, the power of granting administrations; in order to satisfy the ordinary that the deceased has, in a legal manner, by appointing his own executor, excluded him and his officers from the privilege of administringthe efLcts. '

3. The executor or administrator is to make an inventory c of all the goods and chattels, whether in possession or action, of the deceased; which he is to deliver in to the ordinary upon oath, if thereunto lawfully required35.

c Stat. 21 Hen. VIII, c. 5.

35. And herewith the laws of Virginia agree, 1794, c. 92, §. 19 and 32. And the court must appoint three appraisers, to appraise the personal estate to them produced upon oath, which appraisement must be returned to the court; and if signed by the executor or administrator may be considered as an inventory of such part of the estate as had theretofore come to his hands. And inventories and appraisements may be given in evidence in any suit, by or against the executor or administrator, but shnll not be C3nclusive, for or against him, if other testimony be given, that the estate was really worth, or was bona fide sold for more, or less than the appraisement. Ibidem, \. 38. 39. See also 1748, c. 3. But if the testator direct his estate not 10 be appraised, it shall be sufficient to return an inventory only. 1794, c. 92, J. 43.

4. He is to collect all the goods and chattels so inventoried; and to that end he has very large powers and interests conferred on him by law; being the representative of the deceased d, and having the same property in his goods as the principal had when living, and the same remedies to recover them. And if there be two or more executors, a sale or release by one of them shall be good against all the rest* ; but in case of administrators it is otherwisef. Whatever is so recovered, that is of a saleable nature and may be converted into ready money, is called assets in the hands of the executor or administrator b ; that is, sufficient or enough (from the French assez) to make him chargeable to a creditor or legatee, so far as such goods and chattels extend. Whatever assets so come to his hands he may convert into ready money, to answer the demands that may be made upon him36: which is the next thing to be considered ; for,

d Co. Litt. 209. f 1 Atk. 460.

e Dyer, 23. g See page 244.

36. To this there are some exceptions in Virginia. l.Whereatestator shall direct, that his estate shall be preserved in specie, and not sold, and shall leave personal estate more than sufficient to pay all his debts, it shall be preserved in specie, accordingly. V. L. 1748. c. 3. 1794, c. 92. 2d. Slaves cannot be sold but for the payment of debts, nor for that purpose, unless there be a deficiency of other personal estate, regard being had to specific legacies. 1748. c. 3. $. 29 .... 1794, c. 170. 3d. By the act of 1748, c. 3. $. 34 and 35. Where any person dying intestate shall leave sufficient to pay his debts, besides slaves and neat cattle, the heir at law being under age, such cattle, if they become not too numerous, shall be kept upon the lands of the heir, until he come of age, and he shall have the benefit of their increase, and bear all loss, but be accountable to other distributees for the value of their proportions. 4th. The dead victuals and liquors which shall have been laid in for the consumption of the family, shall not be sold by the executor or administrator, but shall remain for the use of the family, without any account to be made thereof; and any live stock, •which may be necessary for the food of the family, may also-be killed for that use, at any time before sale, division, or distribution of the estate. 1785. c. 61. Edi. 1794, c.. 92. §. 44. But, with these exceptions, the executors or administrators, whether it be necessary for the payment of debts or not, shall, as soon as convenient after they are qualified, sell at public sale all such goods, specific legacies excepted, as are liable to perish, be consumed, or rendered worse by keeping .... Ibid. §. 41.

5. The executor or administrator must pay the debts of the deceased. In payment of debts, he must observe the rules of priority ; otherwise, on deficiency of assets, if he pays those of a lower degree first, he must answer those of a higher out of his own estate. And, first, he may pay all funeral charges, and the expense of proving the will, and the like ". Secondly, debts due to the king on record or specialty h 3s. Thirdly, such debts as are by particular statutes to be preferred to all others; as the forfeitures for not burying in woollen !, money due upon poors rates k, for letters to the post-office1, and some others39. Fourthly, debts of record; as judgments (docquetted according to the

h 1 And. 129. i Stat. 30 Car. II. c. 3. k Stat. 17 Geo. II. c. 38. 1 Stat. 9 Ann. c. 10.

37. In strictness no funeral expences are allowable against a creditor, except the coffin, ringing the bell, parson, clerk, and bearer's fees. Per Holt Ch. Jus. Salk. 296. But they shall be allowed all reasonable charges for funeral. L. V. 1794, c. 92. Sec. 52.

38. In all eases of insolvency, or where any estate in the hands of executors or administrators shall be insufficient to pay all the debts due from the deceased, the debt due to the United States upon any bond for the payment of duties shall be first satisfied., L. U. S. 1 Cong. 2 'Sess. c. 35, Sec. 44. 5 Cong. c. 88, 92.

There seems to be no positive act of the legislature of Virginia upon this subject, as it relates to debts due to the commonwealth.

39. The executors or administrators, of, an executor, administrator, guardian or committee of a lunatic or ideot, or of any other person who shall have been chargeable with, or accountable for the estate of a ward, an ideot, or a lunatic, or of a person deceased, committed to their testator or intestate by a court of record, shall pay the debts due from their testator or intestate, to the ward, ideot, or lunatic, or to the legatees, or persons entitled to distribution before any proper debt of their testator, or intestate. L. V. Edi. 1769,1705, c. 7. Sec. 13.1743, c. 2. Sec. 13. 1785, c. 61. Edi. 1794, c. 92, Sec. 53. And by the act of 1748, c. 27, protested bills of exchange, after the death of the drawer or endorser, shall be accounted of equal dignity with a judgment; and the executors or administrators of every such drawer or endorser shall be compelled to suffer judgment to pass against them for all such debts, before any bond, or other debt of equal or inferior dignity, under penalty of being liable for the same out of their own proper goods. Edi. 1769. But this clause was stricken out of the act concerning foreign bills of exchange passed in 1792. Edi. 1794, c. 77 .... W. ante page 467. Note 22.

statute 4 and 5 W. and M. c. 20,) statutes, and recognizances m 40. Fifthly, debts due on special contracts; as for m 4 Rep. 60. Cro. Car. 363.

40. Debts of record, are not confined to judgments, statutes and recognizances ; for to this class also belong decrees of a court of equity. 3 P. Wms. 401. There are also a number of debts quasi of record, which by the laws of Virginia are declared to have the force of judgments. See page 465, note 19, as also the last note.

It has been held that an executor is bound to take notice of a judgment obtained against his testator. Cro. Eliz. 793. Hard indeed is the case of an executor if he is bound to take notice of all debts having the force of judgments, against his testator in Virginia ; since many of them may be incurred in such a manner as to preclude the remotest chance of a discovery. 1. Where a person hath entered himself bail for the appearance of another to answer to an action wherein bail is required; in which case if the defendant shall fail to appear and put in special bail, being ruled so to do by the court, the judgment shall go against the principal and appearance bail, at the same time. ir94, c. 66, Sec. 26. This is strictly a debt of record, of which the executor of the appearance bail can scarcely be presumed to have notice. 2. In case of a foreign bill of exchange protested : in this case it would seem that actual notice to the executors is necessary, since they are compellable to suffer judgment to pass against them upon such, debts, before any bond, 8cc. 1748, c. 27. 3. Replevin and forthcoming bonds, entered into for the forthcoming, or replevying of goods taken in execution, or upon a distress for rent, have the force of judgments, as well against the securities, as the principals. 4. Bonds given by persons who purchase goods sold on execution, on credit, have also the force of judgments as well against the security, as against the principal. In these three last mentioned cases, the law formerly required that the bonds should be returned to the office of the clerk of the court, from whence the execution issued; see acts of 1748, c. 8, Sec. 14, and c. 10. But the act of 1787, c. 7, and the acts subsequent thereto, authorise the delivery of bonds taken by the sheriff for the replevying of goods taken, or sold, under execution, to the creditor or his attorney; who may assign them over to any other person, without ever returnirig them to the office, unless he wants to take out an execution thereon against the obligor, or obligors, their executors or administrators, vide 1794, c. 151, §. 24, and this, it seems, he may do against any of them without notice. Ibid. 5. Any person to whom the last mentioned bonds shall have been assigned, if he assign them over, is liable to an execution against him, without notice. Ibid. §. 28. And the executors or administrators of such assignor are further liable to have execution awarded against them, on ten days previous notice. V. L. 1795, c. 2. J. 4. If it be remembered that there arc upwards of one hun-

rent41 (for which the lessor has often a better remedy in his own hands, by distraining) or upon bonds, covenants, and the like, under seal"*. Lastly, debts on simple contracts, viz. upon notes unsealed, and verbal promises. Among these simple contracts, servants wages are by some °, with reason, preferred to any other: and so stood the antient law, according to Bracton i" and Fleta «, who reckon, among the first debts to be paid, servitia servientium et stipendia famulorum. Among debts of equal degree, the executor or administrator is allowed to pay himself first; by retaining in his hands so much as his debt amounts tor. But an executor of his own wrong is not allowed to retain: for that would tend to encourage creditors to strive who should first take possession of the goods of the deceased ;

n Wemw. ch. 12. o 1 Roll. Abr. 927.

p/. 2. c.26. , q/. 2. c. 56. Sec. 10. . r 10 Mod. 496. See vol. III. p. 18.

-- • -- -- -- -- -- - -- -- -- -- -- -- ^ -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- . -- -- -- * A court of equity will order voluntary bonds or other special contracts, without consideration, to be postponed to simple contract debts. 3 P. Wins. 222 .... Cimf»'an.

dred courts of record, in Virginia, in all which a man may have been sued; or may have entered himself bail for another ; or may have become security for a debtor whose goods were distreined for rent; or whose goods were taken in execution, and restored to the debtor upon his giving security to have them forthcoming at the day and place of sale; or, whose goods were replevied, upon condition of paying the debt at the end of three, or twelve months; or who had purchased, or . become security for the purchaser of, goods distreined for rent; or taken, and sold under an execution ; or who may have been the creditor of some insolvent debtor whose replevin bond he had assigned over; or who may have received, and assigned over such a replevin bond ; and that in all these cases the debt is declared to have the force of a judgment; and that execution may in many of them be sued out against the executors without notice ; and in others upon ten days previous notice, it will appear difficult for an executor to avoid rendering himself liable, if he be bound to take notice of all these debts having the force of judgments. See the several acts of 1748, c. 8, I'O, 27. .... 1787, c. 7. 1788, c. 77. 1794, c. 66, J. 26. c. 67, $. 20. c. 151, J. 13, 22, 23, 24, 25, 26. c. 176, J. 5, 7. 1795, c. 2.

41. But though rent be reserved by parol, and the lease determined, yet it shall rank as a debt by specialty, and a bond outstanding cannot be pleaded in bar of it, for the contract still remains in the reality. Cases in K. B. Wm. 3. p. 7. Comb. 183. 1 Vern. 490.

and would besides be taking advantage of his own wrong, which is contrary to the rule of law'. If a creditor constitutes his debtor his executor, this is a release or discharge of the debt", whether the executor acts or no *; provided there be assets sufficient to pay the testator's debts: for, though this discharge of the debt shall take place of all legacies, yet it were unfair to defraud the testator's creditors of their just debts by a release which is absolutely voluntary tt. Also, if no suit is commenced against him, the executor may pay any one creditor in. equal degree his whole debt, though he has nothing left for the rest: for, without a suit commenced, the executor has no legal notice of the debtw #.

s 5 Rep. 30.

uSalk. 303. 1 Roll. Abr. 921.

t Plowd. 184. Salk. 399. w Dyer. 32. 2 Leon. 60.

* After a suit is commenced, the executor or administrator may still give a preference to other creditors of the same degree, by confessing a judgment to 'them for the real amount of their debts. 1 P. Wmt. 295. But after a bill is filed by a creditor for a discovery of assets andpaymept of his debt, the executor or administrator may pay another creditor of equal degree without confessing a judgment. 3 P Wins. 401.

The course of administration, or payment of the debts according to their priority applies only to legal assets; but as natural equit) requires that all the creditors of the testator should be paid equally when therefore the tes'ator leaves his'real estates to trustees or to executors, who thus become trustees for the payment of his debts, these are called equitable assets, because a court of equity will order all the creditors to be paid paripatsu, or an equal share out of this fund. 1 tiro. 133. 2 All. 50.

And even where specialty creditors have received part of their debts out of the personal esta-e, a court of equity will restrain them from receiving any part of the equitable fund, till all the other creditors are paid an equal proportion of their debts. 3 P. Wms. 322.

The personal estate is said to Be the natural fund for the payment of debti, yet it will be exonerated if the testator leaves by his will sufficient rei! property for the payment of his deb's, provided it is the .manifest intention that the> personal estate shall be exonerated, and that the real estate shall be alone applied to that purpose. 1 Bro. 462. 2 Bro. 60.

If lands descend to the heir charged by the testator with his debts, there it shall be liable to all his debts, although it shall be considered as legal assets,

42. The appointment of a debtor executor shall in no case be deem* ed an extinguishment of the debt, unless it be so directed in the will. L. V. 1785, c. 61. Edi. 1794, c. 92, $. 50.

6. When the debts are all discharged, the legacies claim the next regard 43 j which are to be paid by the executor so far as his assets will extend ; but he may not give himself the preference herein, as in the case of debts *.

A legacy is a bequest, or gift, of goods and chattels by testament ;.and the person to whom it was given is stiled the legatee : which every person is capable of being, unless particularly disabled by the common law or statutes, as traitors, papists, x2 Vern.434. 2 P. V/ms. 25.

and ihey shall be paid according to their priority. 2 Att. 2SO. 1 P. Wins. 430. The equity of redemption of lands, mortgaged in fee, is equitable assets; for the creditors can have no relief from it, but in a court of equity. 2 Att. 290.

All specialty creditors, where the testator has bound him&elf and his heiri, have their election, whether they will resort to the heir, who has lands by descent, or to the executor, for payment of their debts; and although a court ot equity will not interpose it's authority, and compel the specialty creditors to apply to the heir, yet if they exhaust the personal fund, or leave insufficient for the discharge of the simple contract.creditors and legatees, it will enable these to stand in the place of the specialty creditors, and to recover from the heir at law the amount of what they have drawn out of the personal fund. 1 Ves. 312. This is called marshalling the assets. If a person mortgages an estate and dies the heir at law shall have the estate exonerated, or the mortgage discharged by the personal'representative our of the personal estate, provided it does not interfere with other debts and legacies, for the personal estate has been augmented to that extent in consequence of the mortgage; and therefore the heir at law shall not have the benefit of the personal estate to discharge a mortgage, which was not brought upon the estate by the testator or intestate. "2 Cox's P, Wins. «64. 2 Bro. 101. Christian.

If a testator having mortgaged an estate devises it by will, and permits other lands to descend to his heir, the devisee shall have the estate devised to him exonerated out of the personal estate, and if that ib insufficient by the heir at law* 2 Atk. 430 ..Christian. __________

43. By the stat. 29 Car. II. c. 3, no distribution shall be made until twelve months (by our law nine months) after the intestate's death. Under this statute it has been held in England, that where an executor or administrator hath paid all debts of which he had notice within the year, and also paid the legacies or made a distribution pursuant to the statute, he may plead flleneadministravit to a suit brought upon a bond, of which he had not before received notice. Per Lord Kenyan, Mil. 35 Gei. III. Chelsea Water-works Company vs. Cowper. Espinasse's Reports of Cases at nisiftrius. See V. L. 1705, c. 7. Edi. 1769, and Edi. 1794,' c. 92, §. 51. But the case Burnley v. Lambert seeqa to establish a different principle in Virginia. 1 Wash, rep, 212.

and some others. This bequest transfers an inchoate property to the legatee; but the legacy is not perfect without the assent of the executor: for if I have a general or pecuniary legacy of 100/. or a specific one of a piece of plate, I cannot, in either case, take it without the consent of the executor 1 #. For in him all the chattels are vested; and it is his business first of all to see whether there is a sufficient fund left to pay the debts of the testator: the rule of equity being, that a man must be just, before he is permitted to be generous j or, as Bracton expresses the sense of our antient law % " de bonis defuncti primo deducenda sunt ea quae sunt necessitatis etpostea quae sunt utilitatis, et ultimo quae sunt voluntatis." And in case of a deficiency of assets, all the general legacies must abate proportionably, in, order to pay the debts; but a specific legacy (of a piece of plate, a horse, or the like) is not to abate at all, or allow any thing by way of abatement, unless there be not sufficient without it*. Upon the same principle, if the legatees had been paid their legacies, they are afterwards bound to refund a ratable part, in case debts come in, more than sufficient to exhaust the residuum after the legacies paid b. And this law is as old as Bracton and Fleta, who tell us c, " siplura sint debita, velplus legatum fuerit, ad quae catalla defuncti non sufficiant, fiat ubique defalcatio, excepts regispri'

vilegio «."

yCo.Litt.lll. Aleyn.39. zl. 2. c. 26. a2Vern.lll. b Ibid. 205. c Bract. /.2. c. 26. Flct./. 2. c. 57. Sec. 11.

* In Decks v Strutt, S f. R. 690, it was determined that no action can be maintained in a court of law to recover a legacy, though it had before been decided that an action of assumpsit might have been brought against an executor in his own right, if in consideration of assets in his possession he had promised to pay the legatee the legacy. Cow/). 284, 289. Christian.

44. No administrator can be compelled to make distribution until nine months after his intestate's death; nor then, until bond and security be given to refund a ratable part of any debt or demand which may afterwards appear against the intestate. V. L. Edi. 1769,1705, c. 7. Edi. 1794, c. 92, $. 51.

If an administrator pay to one of the persons entitled to distribution of his intestate's estate, (even though the intestate be a foreigner, and his relations utterly unknown to the administrator,) more than his proportionable part, he does it at his own peril, and must answer foe it to the other distributees, out of his own property. 2. CalJ. 100.

If the legatee dies before the testator, the legacy is a lost or lapsed legacy, and shall sink into the residuum. And if a contingent legacy be left to any one ; as -when he attains, or if he attains the age of twenty-one ; and he dies before that time ; it is a lapsed legacy*. But a legacy to one, to be paid when he attains the age of twenty-one years, is a vested legacy ; an interest which commences inpraesenti, although it be solvendum in futuro*: and, if the legatee dies before that age, his representatives shall receive it out of the testator's personal estate, at the same time that it would have become payable, in case the legatee had livedf. .... This distinction is borrowed from the civil lawe; and it's adoption in our courts is not so much owing to it's intrinsic equity, as to it's having been before adopted by the ecclesiastical courts .... For, since the chancery has a concurrent jurisdiction with them, in regard to the recovery of legacies, it was reasonable that there should be a conformity in their determinations: and that the subject should have the same measure of justice ih whatever court he suedf. But if such legacies be charged upon a real

d Dyer. 59. 1 Equ. Cas. Abr.295. e Ff. 35. 1, 1 tr" 2. f 1 Equ. Cas. Abr. 295.

• If the legac> is given when, or if the legatee attains a certain age, or to him at that age, the-time is said to be annexed to the substance of the legacy, and it is not vested or transmissible to his representatives if the legatee dies before that age; but if it is payable at that age, or when, or if he attains it, the time is said to be annexed to the payment only, and the legacy is vested and transmissible though he should die without ever arriving at that age. 2 Att. 128. This is a trifling distinction, and understood or attended to by few testators, who make their own wills. If the testator gives a legacy without referring the time to the payment, it will notwithstanding be vested, if hegives the interest until that time. 2 Bra. 3. But this rule will not extend to a maintenance less than the interest. 3 Bro. 416. But if lands are devised, Vihen the devisee attains a certain age, the interest in the estate will be vested, and upon the death of the devisee before that age, will descend to his heir. 3 T. B. 41.

f Bin where a legacy is given to another, incase the firs>t legatee dies under twenty-one or a certain age, the legacy must be paid upon the death of the infant. And where it is not given over to anothei, if it bears interest, his representative shall be entitled to it immediately; but if the interest allowed bv the testator is less than the interest allowed by a court of equity, the execu'or of the testator shall be entitled to the difference until the first legatee would have arrived at the age prescribed by the testator. 2 P, Wms. 4,"8. 1 Bra. 105.

A bequest of a residue or fund to all the children of A, to be paid when they shall attain the age of twenty-one, must be divided among those only who are in existence, when the eldest attains that age. 3 Bro. 404.

estate, in both cases they shall lapse for the benefit of the heirs ; for, with regard to devises affecting lands, the ecclesiastical court hath no concurrent jurisdiction*. And, in case of a vested legacy, due immediately, and charged on land or money in the funds, which yield an immediate profit, interest shall be payable thereon from the testator's death ; but if dharged only on the personal estate, which cannot be immediately got in, it shall carry interest cnly from the end of the year after the death of the testatorht-

Besides these formal legacies, contained in a man's will and testament, there is also permitted another death-bed disposition of property; which is called a donation causa, mortis. And that is, when a person in his last sickness, apprehending his dissolution near, delivers or causes to be delivered to another the the possession of any personal goods (under which have been included bonds, and bills drawn by the deceased upon.his banker) to keep in case of his decease^. This gift, if the donor dies, needs not the assent of his executor: yet it shall not prevail against creditors: and is accompanied with this implied trust, that, if the donor lives, the property thereof shall revert to himself, being only given in contemplation of death, or mortis causa1.

g 2 P, Wms 601. h 2 P. Wms. 26. 27.

i Free. Chanc. 269. 1 P. Wms. 406, 441. 3 P. Wms. 357.

* It is generally true, that both portions created by deed or will, and legacies which are to be raised out of real property, and to be paid upon a future day, shall never be raised if the person to whom they are given dies before the day of payment. But legacies and portions in a will shall be raised, if the time of payment is postponed on account of the circumstances of the testator's estate, and not on account of the circumstances of the legatee; or where it is the apparent intention of the testator, notwithstanding the death of the legatee prior to the time specified. If the portions are to be raised out of land, and no time is limited, although the cases upon the subject are contradictory, it seems they shall sink into the estate, if the children die before they are wanted. See the cases upon this subject fully collected in 2 Cox's P. Wms. 612, and ffarg. Ge. Litt. 237. Christian.

t A pecuniary legacy, given b) a parent to a legitimate child, shall carry interest from the death of the testator; otherwise the child might perish withiu the year for want of maintenance. 1 Ves. 310. Christian.

\ There may be a donatio causa mortis of bonds, bank-notes, and bills, payable to bearer, but not of other promissory notes or bills of exchange, these being choses in action which cannot pass by a delivery; 3 P- Wms. 357, and 2 Fei.431, where this subject is largely discusssed by lord Hardwicke. Christian.

This method of donation might have subisted in a state of nature, being always accompanied with delivery of actual possession k; and so far differs from a testamentary disposition: but seems to have been handed to us from the civil lawyers', who themselves borrowed it from the Greeks m.

7. 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"(«). But whatever ground there might have been formerly for this opinion, it seems now to be understood0 with this restriction; that although where the exe-

k Law of forfeit. 16. 1 Inst- 2.7.1. Ff. /.39. t. 6.

m There is a very complete donatio mortis causa, in the Odyssey, b. 17. v. 78. made by Telemachus to his friend Piraeus ; and another by Hercules, in the Alcestes of Euripides, v. 1020.

n Perkins.525.

o Free. Chanc. 323. 1 P, Wms. 7. 544. 2 P. Wms. 538. 3 P. Wms. 43. 194. Stra. 559. Lawson v. Lawson. Dom. Proc. 28 Apr. 1777.

(44.) In the case of Shelton, vs. Shelton, the question as to the right of the executor to any undisposed residuum of his testator's personal estate is very fully discussed, and the cases thereon brought into review, and commented upon by Pendleton, president of the court of appeals. And in that case it seems to have been settled that such undisposed residuum, where no intention of the testator to the contrary appeared, did belong to the executors. That neither a devise of Jands or other real estate to an executor, nor a legacy to a brother, as such, without referring to his official character as executor, of money, or other personal property, (although the brother be likewise constituted an executor) was a sufficient manifestation of such an intention, to the contrary, as to preclude him from taking the residuum, as exeecutor. 1 Wash. Rep. 64, to 69.

But, in that case, the president hinted (but without giving an absolute opinion upon the subject, though the case seems sufficiently clear) that since the act of 1785, c. 61. (Edi. 1794, c. 92, J. 27.) which took effect January 1, 1787, and declares, that where any person dies intestate as to his personal estate, or any part thereof, the surplus shall be distributed to the wife, if any, and next of kin to the intestate, as therein directed, the executor is no longer entitled to any surplus not disposed of by the testator in his will, since the law now disposes of it for him. 1 Wash. Rep. 64.

cutor has no legacy at all, the residuum shall in general be his own, yet wherever there is sufficient on the face of a will, (by means bf a competent legacy or otherwise) to imply that the testator intended his executor should not have the residue, the undevised surplus of the estate shall go to the next of kin, the executor then standing upon exactly the same footing as an administrator*: concerning whom indeed there formerly was so much debate!", whether or no he could be compelled to make any distribution of the intestate's estate. For though (after the administration was taken in effect from the ordinary, and transferred to the relations of the deceased) the spiritual court endeavoured to compel a distribution, and took bonds of the administrator for that purpose, they were prohibited by the temporal courts, and the bonds declared void at law'. And the right of p Gfldolpft. ,p. 2. c. 32. q 1 Lev. 233. Cart. 125.2 P. Wms. 447.

* Courts of equity now construe executors to be trustees for the next of kin in all cases, where a fair inference can be collected from the expressions and circumstances of the will, that such was the testator's intention. Where a legacy is given to a sole executor, it affords a reasonable conclusion, that the testator intended to give him this alone as satisfaction and recompense for his trouble ; for it would be absurd to give him expressly a part, if it were intended that he should have the whole, or according to a quaint phrase, he cannot take all and some. And this inference is not repelled where a wife is the executrix, or the next of kin has also a legacy. But an exception out of a legacy in favour of an executor, does not raise such an implication as to exclude him from the benefit of the residue; as where the use of a service of plate is given to the executor for his life, and after his death it is bequeathed to another, for luch an exception is perfectly consistent with the bequest of the residue, and the executor could not have had the benefit of the exception without a special description of it. So also wheie a legacy is given to one of two or more co-executors, or where unequal legacies are given to co-executors, they shall take the residue, for this might be done by the testator not in favour of his next of kin, but with an intent to shew a preference to one above the others. See these distinctions, and the authorities, fully and clearly collected and stated in 1 Cox's P. Wms. 550.

If the testator gives the residuum to a person who diet in his lifetime, in consequence of which this bequest is lapsed, the executor, though he has no legacy, shall be a trustee for the next of kin, because the testator has expressed a manifest intention not to give it to his executor. 3 Bio. 28.

And it is probable that now the same would be held of every lapsed legacy and interest.

Where an executor has a specific legacy given him, still parol evidence may be admitted, to shew that it was the testator's intention at the time of making his will to give him the lesidue. ClenneU v. Levithviaite, 2 Ves. jun. 465.

Christian,

the husband not only to administer, but also to enjoy exclusively, the'effects of his deceased wife, depends still on this doctrine of the common law: the statute of frauds declaring only, that the statute of distributions did not extend to this case45. But now these controversies are quite at an end; for by the statute 22 and 23 Car. II. c. 10, explained by 29 Car. II. c. 30, it is enacted, that the surplusage of intestate's estates (except of femes-covert, which are left as at common lawr) shall, after the expiration of one full year from the death of the intestate, be distributed in the following manner: One third shall go to the widow of the intestate, and the residue in equal proportions to his children, or if dead, to their representatives; that is, their lineal descendants : if there are no children or legal representatives subsisting, then a moiety shall go to the widow, and a moiety to the next of kindred in equal degree and their representatives: if no widow, the whole shall go to the children: if neither widow nor children, the whole shall be distributed among the next of kin, in equal degree and their representatives: but no representatives are admitted, among collaterals, farther than the children of the intestates brothers and sisters*46. The next of kindred, here re-r Stat. 29. Car. II. c. 3. Sec. 25. s Raym. 496. Lord Raym. 571.

45. L. V. 1785, c. 61. Edi. 1794, c. 92. §. 27. Accordant.

46. Thus far the act of 1705, c. 7, and the statute 29 Car. 2. c. 3, agree ; but by the former, if there were no children, nor any legal representative of them, nor any kindred entitled to distribution, 'the whole surplus went to the widow. On the other hand, if the wife died before distribution of her deceased husband's estate were made, her executors could only recover what was given her by will: and if the widow of an intestate died before the estate of her husband were appraised, her right wasen*ire y determined, and her executors could not recover any part of the husband's estate.

As to that clause of the statute,Avhich declares that " no representations shall be admitted among collaterals after brothers' and sisters' children," it is said that lord Chancellor Cowper had inclined to think that "brothers' and sisters' children" should refer to the word [collaterals] so that the child of any collateral brother, should take by representation, with the uncle or aunt of such child. 1 Peere Wms. 594 : and this opinion chancellor Wythe advocates with great force of reasoning, in a small tract, entitled, " Case upon the Statute of " Distribution," published by him in the year 1796, and printed by T. Kicholson, Richmond.

ferred to, are to be investigated by the same rules of consanguinity, as those who are entitled to letters of administration; of whom we have sufficiently spoken1. And, therefore, by this statute the mother, as well as the father, succeeded to all the personal effects of their children, who died intestate and without wife or issue : in exclusion of the other sons and daughters, the brothers and sisters of the deceased. And so the law still remains with respect to the father; but by statute 1 Jac. II. c. 17, if the father be dead, and any of the children die intestate without wife or issue, in the lifetime of the mother, she and each of the remaining children, or their representatives, shall divide his effects in equal portions47.

It is obvious to observe, how near a resemblance this statute of distribution bears to our antient English law, de rationabili parts bonorum, spoken of at the beginning of this chapter"; and which sir Edward Cokew himself, though he doubted the generality of it's restraint on the power of devising by will, held to be

t pa.504. u pa. 492. w 2 Inst. 33. Seel P. Wms. 8:

47. And herewith the act of 1705, c. 7, agrees; but that act further declared, " that if all the children should die intestate, without wife or " children, in the lifetime of the mother, then the portion of the child " so dying last, should be equally divided, one moiety to the mother, and " the other moiety to the next of kindred by the father; and if there « were no such kindred by the father, then the whole should go to the "mother." In,the construction of this clause it has been decided, that where an infant to whom personal estate was derived from the father, died without issue, the brothers and sisters of the half blood, on the part of the mother, are excluded from any share of the infant's estate. Between Bailey and ux. and Teakle, Exor. of Drummond. Wythe's Reports in Chancery, p.12.

But the law seems now to be materially changed. For by the act of 1785, c. 61. amended and confirmed by the act of 1794, c. 92; Sec. 27, the personal estate of persons dying intestate after funeral, debts, and just expences paid, shall be divided as follow* ; one third'to the wife, or if there be no child, one moiety ; but she shall have no more than the use for life of the slaves in her share; and the residue of the surplus, and after the wife's death, the slaves in hei- share, or if there be no wife, then the whole surplus shall be distributed in the same proportions, and to Hie same persons as lands are directed to descend by the act reducing into one the several acts directing the course of descents : for which, and the difficulties which occur in the construction of it. See Appendix, note B. See also 1801, c. 13. i

universally binding (in point of conscience at least) upon the administrator or executor, in the case of either a total or partial intestacy. It also bears some resemblance to the Roman law of succession ab intestato*-: which, and because the act was also penned by an eminent civilian'', has occasioned a notion that the parliament of England copied it from the Roman praetor: though indeed it is little more than a restoration, with some refinements and regulations, of our old constitutional law ; which prevailed as an established right and custom from the time of king Canute downwards^, many centuries before Justinian's laws were known or heard of in the western parts of Europe. So likewise there is another part of the statute of distributions, where directions are given that no child of the intestate (except his heir at law) on whom he settled in his lifetime any estate in lands, or pecuniary portion, equal to the distributive shares of the other children, shall have any part of the surplusage with their brothers and sisters j but if the estates so given them, by way of advarkement, are not quite equivalent to the other shares, the children so advanced shall now have so much as will make them equal. This just and equitable provision hath been also said to be derived from the collatio bonorum of the imperial law1: which it certainly resembles in some points, though it differs widely in others. But it may not be amiss to observe, that, with regard to goods and chattels, this is part of the antient custom of London, of the province of York, and of our sister kingdom of Scotland : and, with regard to lands descending in coparcenary, that it hath always been, and still is, the common law of England, under the name of hotchpot*4*.

x The general rule of such successions was this: 1. The children or lineal descendants in equal portions. 2. On failure of these, the parents or lineal ascendants, and with them the brethren or sisters of the whole blood: or, if the parents were dead, all the brethren and sisters, together with the representatives of a brother or sister deceased. 3. The next collateral iclations in equal degree. 4. The husband or wife of the deceased. (Ff. 38.15.1. Nov. 118. fc 1. 2, 3.127. c.l.)

y Sir Walter Walker. Lord Haym. 574. z Ff. 37-' 6.' 1.' a See ch. 12. p. 191.

48. Where any child hath received from the intestate any per* sonal estate by way of advancement, and shall choose to come into the distribution with the other persons entitled, such advancement shall be brought into hotchpot, with the distributable surplus. V. L. 1705, c. 7. Edi. 1769. 1794, c. 92. (>. 27.

sir

THE RIGHTS

BOOK II.

Before I quit this subject, I must however acknowlege, that the doctrine and limits of representation, laid down in the statute of distribution, seem to have been principally borrowed from the civil law: whereby it will sometimes happen, that personal estates are divided per capita, and sometimes per stirpes ; whereas the common law knows no other rule of succession but that per stirpes onlyb. They are divided per capita, to every man an equal share, when all the claimants claim in their own rights, as in equal degree of kindred, and not jure- representationis, in the right of another person. As if the next of kin be the intestate's three brothers, A, B, and C; here his effects are divided into three equal portions, and distributed per capita, one to each: but if one of these brothers, A, had been dead leaving three children, and another, B, leaving two ; then the distribution must have been per slit-pea, viz. one third to A's three children, another third to B's two children ; and the remaining third to C the surviving brother: yet if C had also been dead, without issue, then A's and B's five children, being all in equal degree to the intestate, would take in their own rights per capita, viz. each of them one fifth part0 <9.

The statute of distributions expressly excepts and reserves, the customs of the city of London, of the province of York, and of all other places having peculiar customs of distributing intestates' effects. So that, though in those places the restraint of devising is removed by the statutes formerly mentionedd, their antient customs remain in full force, with respect to the .estates of the intestates. I shall therefore conclude this chapter, and with it the present book, with a few remarks on those customs.

• In the first place, we may observe, that in the city of London6, and province of York f, as well as in the kingdom of Scotland b, and probably also in Wales, (concerning which there is •

b Seech. 14, p. 217.

d page 493.

f C Bum. Eccl. Law, 746.

c Free. Chan. 54. e Lord Raym. 1329. g Ibid. 782.

49. Herewith the act of 1785, c. 60. 1794, c. 93. $. 16, seems to accord perfectly. See note 7, p. 218.

CHAP. XXXII*

OF THINGS.

518

little to be gathered, but from the statute 7 and 8 W. III. c. 38,) the effects of the intestate, after payment of his debts, are in general divided according to the antient universal doctrine of the pars rationabilis. If the deceased leaves a widow and children, his substance (deducting for the widow's her apparel and the furniture of her bed-chamber, which in London is called the •widorrfs chamber} is divided into three parts ; one of which belongs to the widow, another to the children, and the third to the administrator: if only a widow, or only children, they shall respectively, in either case, take one moiety, and the administrator the otherh; if neither widow nor child, the administrator shall have the whole *. And this portion, or dead watt's part, the administrator was wont to apply to his own use k, till the statute 1 Jac. II. c. 17, declared that the same should be subject to the statute of distribution. So that if a man dies worth 1800/. personal estate, leaving a widow and two children, this estate shall be divided into eighteen parts; whereof the widow shall have eight, six by the custom and two by the statute ; and each of the children five, three by the custom and two by the statute : if he leaves a widow and one child, she shall still have eight parts, as before; and the child shall have ten, six by the custom, and four by the statute: if he leaves a widow and no child, the widow shall have three fourths of the whole, two by the custom, and one by the statute ; and the remaining fourth shall go by the statute to the next of kin. It is also to be observed, that if the wife be provided for by a jointure before marriage, in bar of her customary part, it puts her in a state of non-entity, with regard to the custom only l; but she shall be entitled to her share of the dead man's part under the statute of distributions, unless barred by special agreementm. And, if any of the children are advanced by the father in his life-time with any sum of money (not amounting to their full proportionable part) they shall bring that portion into hotchpot with the rest of the brothers and sisters, but not with the widow, before they are entitled to any benefit under the

h 1 P. Wms. 341. Salk. 246. i 2 Show. 175.

k 2 Freem. 85. 1 Vern. 133. 12 Vern. 665. 3 P. Wins. 16.

m 1 Vern. 15. 2 Chan • Rep. 252.

custom ": but, if they are fully advanced, the custom entitles them to no farther dividend °.

Thus far in the main the customs of London and of York agree : but, besides certain other less material variations, there are two principal points in which they considerably differ. One is, that in London the share of the children (or orphanage part) is not fully vested in them till the age of twenty-one, before which they cannot dispose of it by testament11: and, if they die under that age, whether sole or married, their share shall survive to the other children; but, after the age of twenty-one, it is free from any orphanage custom, and in case of intestacy, shall fall under ths statute of distributions p. The other, that in the province of York, the heir at common law, who inherits any land either in fee or in tail, is excluded from any filial portion or reasonable parf. But, notwithstanding these provincial variations, the customs appear to be substantially one and the same. And, as a similar policy formerly prevailed in every part of the island, we may fairly conclude the whole to be of British original; or, if derived from the Roman law of successions, to have been drawn from that fountain much earlier than the time of Justinian, from whose constitutions in many points (particularly in the advantages given to the widow) it very considerably differs: though it is not improbable that the resemblances which yet remain may be owing to the Roman usages; introduced in the time of Claudius Caesar, who established a colony in Britain to instruct the natives in legal knowlege •; inculcated and diffusedby Papinian, who presided at York as praefectus praetoria under the emperors Severus and Caracalla'; and continued by his successors till the final departure of the Romans in the beginning of the fifth century after Christ.

n 2 Freem 279 I Equ. Cas. Abr. 155. 2 P. Wms. 526.

o 2 P. Wms. 527.

p 2 Vern. 558. q Free. Chanc. 537.

r 2 Burn. 754. s Tacit. Anna!. 1.12. c. 32.

t Selden./n Fletam. cap. 4. Sec 3.

THE END OF THE SECOND BOOK.

APPENDIX.

No. I.

Vetus Carta feoffamenti.

C3I#J|21Z£ presenter et futuri, quod ego Willielmus, filius Willielmi de Segenho, dedi, concessi, et hac present! carta mea confirmavi, Johanni quondam filio Johannis de Saleford, pro quadam summa pecunie quam michi dedit pre manibus, unam acram terre mee arabilis, jacentem in campo de Saleford, juxta terram quondam Richardi de la Mere: fyafttnDatn et 'EtnenDam totam predictam acram terre, cum omnibus ejus pertinentiis, prefato Johanni, et heredibus suis, et suis assignatis, de capitalibus dominis feodi: SfcDDentlO et faciendo annuatim eisdem dominis capitalibus servitia inde debita et consueta: <Kt ego predictus Willielmus, et heredes mei, et mei assignati, totam predictam acram terre, cum omnibus suis pertinentiis, predicto Johanni de Saleford, et heredibus suis, et suis assignatis, contra omnes gentes warrantizabimus in perpetuum. Jn CttftW rei testimonium huic present! earte sigillum meum apposui : $)U0 testibus, Nigello de Saleford, Johanne de Seybroke, Radulpho clerico de Saleford, Johanne molendario de eadem villa, & aliis. Data apud Saleford die Veneris proximo ante festum sancte Margarete virginis, anno regni regis edwardi filiiRegis Edwardi sexto.

(L. S.)

SlSemoranDlim, quod die et anno infrascriptis plena et pacilica seisina acre infraspecificate, cum pe'rtinentiis, data et deliberata fuit per infranominatum Willielmum de Segenho infranominato Johanni de Saleford, in propriis personis suis, secundum^ tenorern et effectum carte infrascripte, in presentia Nigelli de Saleford, Johannis de Seybroke, et aliorum.

Premises,

Habendum,

andTenen-

dum.

Reddtndum, Warranty.

Conclusion.

Livery o£ seisin endorsed

No. II.

A modern Conveyance by lease and release.

$. 1. lkase, or bargain and sale, for a year.

CJW1® JllBentUtt, made the third day of September, inthetwentj'-first year of the reign of our sovereign lord george the second by the grace of God king of Great Britain, France, and Ireland, defender of the faith, and so forth, and in the year of our Lord one thousand, seven hundred, and forty-seven, between Abraham Barker of Dale Hall in the county of Norfolk, esquire, and Cecilia his wife, of the one part, and David Edwards of Lincoln's Inn, in the county of Middlesex, esquire, and Francis Golding of the city of Norwich, clerk, of the other part, witnesseth ; that the said Abraham Barker and Cecilia his wife, in consideration of five shillings of lawful money of Great Britain, to them in hand paid by the said David Edwards and Francis Golding at or before the ensealing and delivery of these presents, (the receipt whereof is hereby acknowledged,) and for other good causes and considerations them the said Abraham Barker and Cecilia. his wife hereunto specially moving, fyata bargained and sold, and by these presents do, and each of them doth, bargain and sell, unto the said David Edwards and Francis Golding, their executors, administrators, and assigns, 9.H that the capital messuage, called Dale Hall in the parish of Dale in the said county of Norfolk, wherein the said Abraham Barker and Cecilia his wife now dwell, and all those their lands in the said parish of Dale called or known by-the name of Wilson's farm, containing by estimation five hundred and forty acres, be the same more or less, together with all and singular houses, dove-houses, barns, buildings, stables, yards, gardens, orchards, lands, tenements, meadows, pastures, feedings, commons, woods, under-woods, ways, waters, watercourses, fishings, privileges, profits, easements, commodities, advantages, emoluments, hereditaments, and appurtenances whatsoever to the said capital messuage and farm belonging or appertaining, or with the same used or enjoyed, or accepted, reputed, taken, or known as part, parcel, or member thereof, or as belonging to the same or any part thereof ;• and the reversion and reversions, remainder and remainders, yearly and other rents, issues, and profits therof, and of every part and parcel thereof : t£o IjalJt anU to ^oln the said capital messuage, lands, tenements, hereditaments, and all and singular other the premises herein before-mentioned or intended to be bargained and sold, and every part and parcel thereof, with their and every of their rights, members, and appurtenances, unto the said David Edwards land Francis Golding, their executors, administrators, and assigns, from the day next before the day of the date of these presents, for and during, and unto the full end and term of, one whole year from thence next ensuing and fully to be completed and ended : ftElDfng and paying therefore unto the said Abraham Barker, and Cecilia his wife, and their heirs and assigns, the yearly rent of one pepper-corn at the expiration of the

Premises. (

Parties.

Consideration.

Bargain and sale.

Parcels.

Ifabendum. Jtcihlendum.

said term, if the same shall be lawfully demanded: Hlo tlje Intent and purpose, that by_ virtue of these presents, and of the statute for transferring uses into possession, the said David Edwards and Francis Golding may be in the actual possession of the premises, and be thereby enabled to take and accept a grant and release of the freehold, reversion, and inheritance of the same premises, and of every part and parcel thereof, to them, their heirs, and assigns ; to the uses and upon the trusts, thereof to be declared by another indenture, intended to bear date the next day after the day of the date hereof. 3Itt foitntjjg whereof the parties to these presents their hands and seals have subscribed and set, the day and year first abovewritten.

Sealed, and delivered, being first duly stamped, in the presence of

George Carter.

William Brown.

Abraham Barker. L.S.)

Cecilia Barker. L.S.)

David Edwards. L.S.)

Francis Golding. L.S.)

J. 2. Deed of RELEASE.

W)lg SlnBenturt of five parts, made the fourth day of September, in the twenty-first year of the reign of our sovereign lord george the second by the grace of God king of Great Britain, France, and Ireland, defender of the faith, and so forth, and in the yea'r of our Lord one thousand, seven hundred, and forty-seven, between Abraham Barker, of Dale Hall in the county of Norfolk, esquire, and Cecilia his wife, of the first part; David Edwards of Lincoln's Inn in the county of Middlesex, esquire, executor of the last will and testament of Lewis Edwards of Cowbridge in the county of Glamorgan, gentleman, his late father, deceased, and Francis Golding of the city of Norwich, clerk, of the second part; Charles Browne of Enstone in the county of Oxford, gentleman, and Richard More of the city of Bristol, merchant, of the third part; John Barker, esquire, son and heir apparent of the said Abraham Barker, of the fourth part; and Katherine Edwards, spinster, one of the sisters of the said David Edwards, of the fifth part. 23H$ttta£ a marriage is intended, by the permission of God, to be shortly had and solemnized between the said John Barker and Katherine Edwards : j|2ofo thijS 3llrtieilture toltntwetj), that in consideration of the said intended marriage, and of the sum of five thousand pounds, of good and lawful money of Great Britain, to the said Abraham Barker, (by and with the consent and agreement of the said John Barker, and Katherine Edwards, testified by their being parties to, and their sealing and delivery of, these presents,) by the said David Edwards in hand paid at or before the ensealing and delivery hereof, being the marriage portion of the said Katherine Edwards, bequeathed to her by the last will and testament of the said Lewis Edwards, her late father, deceased ; the receipt and payment whereof the said Abraham Barker doth hereby acknowledge, and thereof, and of every part and parcel thereof, they the said Abraham Barker, John Barker, and Katherine Edwards, do, and each of them doth, release, acquit, and discharge the said David Edwards, his executors, and adtninistra-

Intent. Conclusion.-

Premises Parties.

Recital. Consideration.

tors, forever by these presents : -and for providing a competent jointure and provision of maintenance for the said Katherine Edwards, in case she shall, after the said intended marriage had, survive and overlive the said John Barker her intended husband : and for settling and assuring the capital messuage, lands, tenements, and hereditaments, hereinafter mentioned, unto such uses, and upon such trusts, as are hereinafter expressed and declared : and for and in consideration of the sum of five shillings of lawful money of Great Britain to the said Abraham Barker and Cecilia his wife in hand paid by the said David Edwards and Francis Golding, and of ten shillings of like lawful money to them also in hand paid by the said Charles Browne and Richard More, .at or before the ensealing and delivery hereof, (the several receipts whereof are hereby respectively acknowledged,) they the said Abraham Barker and Cecilia his wife, tyflto, and each of them hath, granted, bargained, sold, released, and confirmed, and by these presents do, and each of them doth, grant, bargain, sell,' release, and confirm unto the said David Edwards and Francis Golding, their heirs and assigns, Sill that the capital messuage called Dale Hall, in the parish of Dale in the said county of Norfolk, wherein the said 'Abraham Barker and Cecilia his wife now dwell, and all those their lands in the said parish of Dale called or known by the name of Wilson's farm, containing by estimation five hundred and forty acres, be the same more or less, together with all and singular houses, dove-houses, barns, buildings, stables, yards, gardens, orchards, lands, tenements, meadows, pastures, feedings, commons, woods, underwoods, ways, waters, watercourses, fishings, privileges, profits, easements, commodities, advantages, emoluments, hereditaments, and appurtenances whatsoever, to the said capital messuage and farm belonging or appertaining, or with the same used or enjoyed, or accepted, reputed, taken, or known, as part, parcel, or member thereof, or as belong, ing to the same or any part thereof; (all which said premises are now in the actual possession of the said David Edwards and Francis Golding, by virtue of a bargain and sale to them thereof made te'the said Abraham Barker and Cecilia his wife for one whole year, in consideration of five shillings to them paid by the said David Edwards and Francis Golding, in and by one indenture bearing date the day next before the day of the date hereof, and by force of the statute for transfering uses into possession ;) and the reversion and reversions, remainder and remainders, yearly and other rents, issues and profits thereof, and every part and parcel thereof, and also all the estate, right, title, interest, trust, property, claim, and demand whatsoever, both at law and in equity, of them the said Abraham Barker, and Cecilia his'wife, in, to, or out of the said capital messuage, lands, tenements, hereditaments, and premises: 18,0 hattt ant) to bolD the said capital messuage, lands, tenements, hereditaments, and all and singular other the premises herein before mentioned to be hereby granted and released, with their and every of their appurtenances, unto the said David Edwards and Francis Golding, their heirs and assigns, to such .uses, upon such trusts, and to and for such intents and purposes as are hereinafter mentioned, expressed, and declared, of and concerning the same; that is to say, to the use f and behoof of the said Abraham Barker, and Cecilia his wife, according to their several and respective estates and interests there-

Release Parcels.

Mention of bargain and sale.

Habendum,

To the use ol the grantors

in, at the time of, or immediately before, the execution of these presents, until the solemnization of the said intended marriage: and from and after the solemnization thereof, to the use and behoof of the said John Barker, for and during the term of his natural life j without impeachment of or for any manner of waste : and from and after the determination of that estate, then to the use ot the said David Edwards and Francis Golding, and their heirs, during the life of the said John Barker, upon trust to support and preserve the contingent uses and estates hereinafter limited from being defeated and destroyed, and for that purpose to make entries,' or bring actions, as the case shall require ; but ne\ ertheless to permit and suffer the said John Barker, and his assigns, during his life, to receive and take the rents and profits thereof, and of every part thereof, to and for his and their own use and benefit: and from and after the decease of the said John Barker, then to the use and behoof of the said Katherine Edwards, his intended wife, for and during the term of her natural life, for her jointure, and in lieu, bar, and satisfaction of her dower and thirds at common law, which she can or may have or.claim, of, in, to, or out of, all, and every, or any, of the lands, tenements, and hereditaments, whereof or wherein the said John Barker now is, or at any time or times hereafter during the coverture between them shall be, seised of any estate of freehold or inheritance: and from and after the decease of the said Katherine Edwards, or other sooner determination of the said estate, then to the use and behoof of the said Charles.Browne and Richard More, their executors, administrators, and assigns, for and during, and unto the full end and term of, five hundred years from thence next ensuing and fully to be complete and ended, without impeachment of waste : upon such trusts nevertheless, and to and for such intents and purposes, and under and subject to such provisoes and agreements, as arc hereinafter mentioned, expressed, and declared of and concerning the same: and from and after the end, expiration, or other sooner determination of the said term of five hundred years, and subject thereunto, to the use and behoof of the first son of the said John Barker on the body of the said Katherine Edwards his intended wife to be begotten, and of the heirs of the body of such first son lawfully issuing; and for default of such issue, then to the use and behoof of the second, third, fourth, fifth, sixth, seventh, eighth, ninth, tenth, and of all and every other the son and sons of the said John Barker on the body of the said Katherine Edwards his intended wife to be begotten, severally, successively, and in remainder, one after another, as they and every of them shall be in seniority of age and priority of birth, and of the several and respective heirs of the body and bodies of all and every such son and sons lawfully issuing; the elder of such sons, and the heirs of his body issuing, being always to be preferred and to take before the younger of such sons, and the heirs of his or their body or bodies issuing : and for default of such issue, then to the use and behoof of all and every the daughter and daughters of the said John Barker on the body of the said Katherine Edwards his intended wife to be begotten, to be equally divided between them, (if more than one,) share and share alike, as tenants in common and not as joint-tenants, and of the several and respective heirs of the body and bodies of all and every such daughter and daughters lawfully issuing: and for default of such issue, then to the use

till marriage:

Then of the husband for life, sans waste : Remainder to trustees to preserve contingent remaniders:

Remainder to the wife for life, for her jointure, in bar ot dower:

Remainder to other trustees fora term, upon trusts alter mentioned;

Remainder to the first and other sons, ot the maniagein, tail;

Remainder to the daugh** tcrs,

as tenants in common, in tail;

Remainder

and behoof of the heirs of the body of him the said John Barker lawfully issuing and for default of such heirs, then to the use and behoof of the said Cecilia, the wife of the said Abraham Barker, and of her heirs and assigns for ever. SinD as to, for, and concerning the term of five hundred years herein before limited to the said Charles Browne and Richard More, their executors, administrators and assigns, as aforesaid, it is hereby declared and agreed by and between all the said parties to these presents, that the same is so limited to them upon the trusts, and to and for the intents and purposes, and under and subject to the provisoes and agreements, hereinafter mentioned, expressed, and declared, of and concerning the same : that is to say, in case there shall be an eldest or only son and one or more other child or children of the said John Barker, on the body of the said Katherine his intended wife to be begotten, then upon trust that they the said Charles Browne and Richard More, their executors, administrators, and assigns, by sale or mortgage of the said term of five hundred years, or by such other ways and means as they or the survivor of them, or the executors or administrators of such survivor, shall think fit, shall and do raise and levy, or borrow and take up at interest, the sum of four thousand pounds of lawful money of Great Britain, for the portion or portions of such other child and children (besides the eldest or only son) as aforesaid to be equally divided between them (if more than one) share and share alike; the portion or portions of such of them as shall be a son or sons to be paid at his or their respective age or ages of twenty-one years ; and the portion or portions of such of them as shall be a daughter or daughters to be paid at her or their respective age or ages of twenty-one years, or day or days of marriage, which shall first happen. And upon this further trust, that in the mean time and until the same portions shall become payable as aforesaid, the said Charles Browne and Richard More, their executors, administrators, and assigns, shall and do, by and out of the rents, issues, and profits of the premises aforesaid, raise and levy such competent yearly sum and sums of money for the maintenance and education of such child or children, as shall not exceed in the whole the interest of their respective portions after the rate of four pounds in the hundred yearly. PfObtDJD always, that in case any of the same children shall happen to die before his, her, or. their portions shall become payable as aforesaid, then the portion or portions of such of them so dying shall go and be paid unto and be equally divided among the survivor or survivors of them, when and at such time as the original portion or portions of such surviving child or children shall become payable as aforesaid. probfDtD also, that in case there shall be no such child or children of the said John Barker on the body of the said Katherine his intended wife begotten, besides an eldest or only son ; or in case all and every such child or • children shall happen to die before all or any of their said portions shall become due and payable as aforesaid; or in.casethe said portions, and also such maintenance as aforesaid, shall by the said Charles Browne and Richard More, their executors, administrators, or assigns, be raised and levied by any of the ways and means in that behalf afcre-menticned; or in case of the same by such person or persons as shall for the time being be next in reversion or remainder of the same premises expectant upon the said term of

to the husband in tail; Remainder to the husband's mother in fee. The trust of the term declared;

to raise portions for younger children,

payable at

certain

times.

with maintenance at the rate of 4 per cent.

and benefit of survivorsnip.

If no such child,

or if all die,

or if the portions be raised,

or paid,

five hundred years, shall be paid, or well and duly secured to be paid, according to the true intent and meaning of these presents; then and in any ef the said cases, and at all times thenceforth, the said term of five hundred years, or so much thereof as shall remain unsold or undisposed of for the purposes aforesaid, shall cease, determine, and be utterly void to all intents and purposes, any thing herein contained to the contrary thereof in any wise notwithstanding. prouiJHD also, and it is hereby further declared and agreed by and between all the said parties to these presents, that in case the said Abraham Barker or Cecilia his wife, at any time during their lives, or the life of the survivor of them, with the approbation of the said David Edwards and Francis Golding, or the survivor of them, or the executors and administrators of such survivor, shall settle, convey, and assure other lands and tenements of an estate of inheritance in fee-simple, in possession, in some convenient place or places within the realm of England, of equal or better value than the said capital messuage, lands, tenements, hereditaments and premises; hereby granted and released, and in lieu and recompense thereof unto and for such and the like uses, intents, and purposes, and upon such and the like trusts, as the said capital messuage, lands, tenements, hereditaments, and premises are hereby settled and assured unto and upon, then and in such case, and at all times from thenceforth, all and every the use_ and) uses, trust and trusts, estate and estates herein before limited, expressed, and declared of or concerning the same, shall cease, determine, and be utterly void to all intents and purposes; and the same capital messuage, lands, tenements,' hereditaments, and premises, shall from thenceforth remain and be to and for the only proper use and behoof of the said Abraham Barker or Cecilia his wife, or the survivor of them, so settling, conveying, and assuring such other lands and tenements as aforesaid, and of his or her heirs and assigns for ever : and to and for no other use, intent, or purpose whatsoever; any thing herein contained to the contrary thereof in any wise notwithstanding. &nB> for the considerations aforesaid, and for barring all estates tail, and all remainders or reversions thereupon expectant or depending, if any be now subsisting and unbarred or otherwise undetermined, of and in the said capital messuage, lands, tenements, hereditaments, and premises, hereby granted and released, or mentioned to be hereby granted and released, or any of them, or any part thereof, the said Abraham Barker for himself and the said Cecilia his wife, his and her heirs, executors, and administrators, and the said John Barker for himself, his heirs, executors, and administrators, do and each of them doth, respectively covenant, promise, and grant, to and with the said David Edwards and Francis Golding, their heirs, executors, and administrators, by these presents, that they the said Abraham Barker and Cecilia his wife, and John Barker, shall and will, at the costs and charges of the said Abraham Barker, before the end of Michaelmas term next ensuing the date hereof, acknowledge and levy, before his majesty's justices of the court of comnlon pleas at Westminster, one or more fine or fines, *ur cognizance de droit, come cco, t^c. with proclamations according to the form of the statutes in that case made and provided, and the usual course of fines in such cases accustomed, unto the said David Edwards, and his heirs, of the said capital messuage, lands, tenements, hereditaments, and premises, by such apt and convenient names, quantities, qualities, number' of acres, and

or secured by the person next in remainder ; the residue of the term to cease.

Condition, that the uses and estates hereby granted shall be void, on settling other lands ofequal value, in recompense.

Covenant to levy a fine.

other descriptions to ascertain the same, as shall be thought meet; which said hne or fines, so as aforesaid, or in any other manner levied and acknowledged, or to be levied and acknowleged, shall be and enure, and shall be adjudged, deemed, construed, and taken, and so are and were meant and intended, to be and enure, and arc hereby declared by all the said parties to these presents to be and enure, to the use and behoof of the said David Edwards, and his heirs and assigns ; to the intent and purpose that the said Du\ id Edwards may, by virtue of the said fine or fines so covenanted and agreed to be levied as aforesaid, be and become perfect tenant of the freehold of the.said capital messuage, lands, tenements, hereditaments, and all other the premises, to the end that one or more good and perfect common recovery or recoveries may be thereof had and suffered, in such manner as is hereinafter for that purpose mentioned. And it is hereby declared and agreed by and between all the said parties to these presents, that it shall and may be lawful to and for the said Francis Golding, at the costs and charges of the said Abraham Barker, before the end of Michaelmas term next"ensuing the date hereof, to sue forth and prosecute out of his majesty's high court of chancery one more writ or writs of entry sur disseisin en le float, returnable before his majesty's justices of the court of common pleas at Westminster, thereby demanding by apt and convenient names, quantities, qualities, number of acres, and other descriptions, the said capital messuage, lands, tenements, hereditaments, and premises, against the said David Edwards; to which said writ, or writs, of entry he the said David Edwards shall appear gratis, either in his own proper per. son, or- by his attorney thereto lawfully authorized, and vouch over to warranty the said Abraham Barker, and Cecilia his wife, and John Barker ; who shall also gratis appear in their proper per> sons, or by their attorney orvattorneys, thereto lawfully authorized, and enter into the warranty, and vouch over to warranty the common vouchee of the same court; who shall also appear, and after imparlance shall make default: so as judgment shall and may be thereupon had and given for the said Francis Golding, to recover the said capital messuage, lands, tenements, hereditaments, and premises, against the said David Edwards, and for him to recover in value against the said Abraham Barker, and Cecilia his wife, and John Barker, and for them to recover in value against the said common vouchee, and that execution shall and may be thereupon awarded and had accordingly, and all and every other act and thing be done and executed, needful and requisite for the suffering and perfecting of such common recovery or recoveries, with vouchers as aforesaid. And it is hereby further declared and agreed by and between all the said parties to these presents, that immediately from and after the suffering and perfecting of the said recovery or recoveries, so as aforesaid, or in any other manner, or at any other time or times, suffered or to be suffered, as well these presents and the assurance hereby made, and the said fine or fines so covenanted to be levied as aforesaid, as also the said recovery or recoveries, and also all and every other fine or fines, recovery and recoveries, conveyances and assurances in the law whatsoever heretofore had, made, levied, suffered, or executed, or hereafter to be had, made, le\ ied, suffered, or executed, of the said capital messuage, lands, tenements, hereditaments, and premises, or any of them, or any part thereof by and between the said parties to these presents or

in order to n'dke a tenant to the fraecijx, tha a recovery may be tutlcicdi

to enure

any of them, or whereunto they or any of them are or shall be parties or privies, shall be and enure, and shall be adjudged, deemed, construed, and taken, and so are and were meant and intended, to be and enure, and the recovcrer or recoverers in the said recovery or recoveries named or to be named, and his or their heirs, shall stand and be seised of the said capital messuage, lands, tenements, hereditaments, and premises, and of every part and parcel thereof, to the uses, upon the trusts, and to and for the intents and purposes, and under and subject to the provisoes, limitations, and agreements, herein before-mentioned, expressed, and declared, of and concerning the same. &nB the said Abraham Barker, party hereunto, doth hereby for himself, his heirs, executors, and administrators, further covenant, promise, grant, and agree, to-and with the said David Edwards and Francis Golding, their heirs, executors, and administrators, in manner and form following; that is to say, that the said capital messuage, lands, tenements, hereditaments, and premises, shall and may at all times hereafter remain, continue, and be, to and for the uses and purposes, upon the trusts, and under and subject to the provisoes, limitations, and agreements, herein before-mentioned, expressed, • and declared, of and concerning the same; and shall and may be peaceably and quietly had, held, and enjoyed accordingly, without any lawful let or interruption of or by the said Abraham Barker or Cecilia his wife, parties hereunto, his or her heirs or assigns, of or by any other person or persons lawfully claiming or to claim from, by, or under, or in trust for him, 'her, them, or any of them; or from, by, or under his or her ancestors, or any of them; and shall so remain, continue and be, free and clear, and freely and clearly acquitted, exonerated, and discharged,'or otherwise, by the said Abraham Barker, or Cecilia his wife, parties hereunto, his or her heirs, executors, or administrators, well and sufficiently saved, defended, kept harmless, and indemnified of, from, and against all former and other gifts, grants, bargains, sales, leases, mortgages, estates, titles, troubles, charges, and incumbrances whatsoever, had, made, done, committed, occasioned, or suffered, or to be had, made, done, committed, occasioned, or suffered, by the said Abraham Barker, or Cecilia his wife, or by his or her ancestors, or any of them, or by his, her, their, or any of their act, means, assent, consent, or procurement: ilnt) moreottfC that the said Abraham Barker, and Cecilia his wife, parties hereunto, and his or her heirs, and all other persons having or lawfully claiming, or which shall or may have or lawfully claim, any estate, right, title, trust, or'interest, at law or in equity, of, in, to, or out of, the said capital messuage, lands, tenements, hereditaments, and premises, or any of them, or any part thereof, by or under or in trust for him, her, them, or any of them, or by or under his or her ancestors or any of them, shall and will from time to time, and at all times hereafter, upon every reasonable request, and at the costs and charges, of the said Da-' vid Edwards and Francis Golding, or either of them, their or ei-. •ther of their heirs or executors, or administrators, make, do, and execute, or cause to be made, done, and executed, all such further and other lawful and reasonable acts, deeds, conveyances, and assurances in the law whatsoever, for the further, better, more perfect, and absolute granting, conveying, settling, and assuring of the same capi-

to the preceding uses in this deed.

Other covenants ;

for quiet enjoyment,

free from incumbrances ;

and for fur* ther assurance.

tal messuage, lands, tenements, hereditaments, and premises, to and tor the uses and purposes, upon the trusts, and under and subject to the provisoes, limitations, and agreementsherein before mentioned, expressed, and declared, of and concerning the same, as by the said David Edwards and Francis Golding, or eitherof them, their or either of their heirs, executors, or administrators, or their or any of their counsel learned in the law shall be reasonably advised, devised, or required: so as such further assurances contain in them no further or other warranty or covenants than against the person or persons, his, her, or their heirs, who shall make or do the same; and so as the party or parties, who shall be requested to make such further assurances, be not compelled or compellable, for making or doing thereof, to go and travel above five miles from his, her, or their then respective dwellings, or places of abode. JProUIDtD lajrtty, and it is hereby further declared and agreed by and between all the parties to these presents, that it shall and may be lawful to and for the said Abraham Barker and Cecilia his wife, John Barker and Katherine his intended wife, and David Edwards, at any time or times hereafter, during their joint lives, by any writing or writings under their respective hands and seals, and attested by two or more credible witnesses, to revoke, make void, alter, or change all and every or any the use and uses, estate and estates, herein and hereby before limited and declared, or mentioned or intended to be limited and declared, of and in the capital messuage, lands, tenements, hereditaments, and premises aforesaid, or of and in any part or parcel thereof, and to declare new and other uses of the same, or of any part or parcel thereof, any thing herein contained to the contrary thereof in any wise notwithstanding. Jtt JWBItnesW w hereof the parties to these presents their hands and seals have subscribed and set, the day and year Rrst above written.

Powe r of rertn.4 ion.

Conclusion.

Sealed, and delivered, being first duly stamped, in the presence of George Carter. William Browne.

Abraham Barker. (L. S.)

Cecilia Barker. (L. S.)

David Edwards. (L. S.)

Francis Golding. (L. S.)

Charles Browne. (L. S.)

Richard More. (L. S.)

John Barker. (L. S.)

Katherine Edwards. (L. S.)

No. III.

An obligation, of bond, with condition for the Payment of Money.

3& J0fl>J)ffll all tntn by these presents, that I David Edwards, -**• of Lincoln's Inn in the county of Middlesex, esquire, am held and firmly bound to Abraham Barker of Dale Hall in the county of Norfolk, esquire, in ten thousand pounds of lawful money of Great Britain, to be paid to the said Abraham Barker, or his certain attorney, executors, administrators, or assigns ; for which payment well and truly to be made, I bind myself, my heirs, executors, and administrators, firmly by these presents, sealed with my seal. Dated the fourth day of September in the twenty-first year of the reign of our sovereign lord george the second, by the grace of God king of Great Britain, France, and Ireland, defender of the faith, and so forth, and in the year of our Lord one thousand, seven hundred, and forty-seven.

$ll)e ConOltlon of this obligation is such, that if the above, bounden David Edwards, his heirs, executors, or administrators, do and shall well and truly pay, or cause to be paid, unto the above named Abraham Barker, his executors, administrators, or assigns, the full sum of five thousand pounds of lawful British money, with lawful interest for the name, on the fourth day of March next ensuing the date of the above written obligation, then this obligation shall be void and of none effect, or else shall be and remain in full force and virtue.

Sealed, and delivered, being first duly stamped, in the presence of George Carter. William Browoc.

David Edwards. (L.S.)

' 1

No. IV.

A fine of Lands sur Cognizance de Droit, come ceo, ifcfc.

$. I. Writ of Covenant; or pkaecipe.

xJkQKWWWC the second, by the grace of God of Great Britain, Vfc/France, and Ireland king, defender of-the faith, andso'forth,-to the sheriff of Norfolk, greeting. ^TommiulD Abraham Barker, esquire, and Cecilia his wife, and John Barker, esquire, that justly and without delay they perform to David Edwards, esquire, the covenant made between them of two messuages,'two gardens, three hundred acres of land, one hundred acres of meadow, two hundred acres of pasture, and fifty acres of wood, with the appurtenances, in Dale ; and unless they shall so do, and if the said 'David shall give you security of prosecuting 'his claim, then 'Summon by-goo'd summoners the said Abraham, Cecilia, and John, that-they appear before our justices, at Westminster, from the day of St. Michael in one month, to shew wherefore they have not done it: and have you there the summoners, and this writ. BSZttlfntftK ourself at Westminster the ninth day of October, in 'fhe twenty-first year of our-reign.

Summoners of the ~|

Pledges of 7 John Doe. within named A- (John Den. prosecution. 3 Richard Hoe. 'braham, 'Cecilia, jRichai-d Fen.

and John. J

'Sheriff's return.

1 §.2. The JLicence ,to agree.

Norfolk. 7 D3toin <Zfljfoatf«, esquire, gives*o the lord «the king to wit. 5 ten marks, for licence to 'agree with Abraham Barker, esquire, of a plea of ^covenant of two messuages, two gardens, three hundred acres of land, one hundred acres of meadow, two hundred acres of pasture, and fifty acres of wood, with the appurtenances, in Dale.

$ 3. The Concord.

&UD ttjt agreement is glicfj, to wit, that the aforesaid Abraham, Cecilia, and John, have acknowledged the aforesaid tenements, with the appurtenances, to be the right of him the said David, as those which the said David hath of the gift of the aforesaid Abraham, Cecilia, and John ; and those they have remised and quitted claim, from them and their heirs, to the aforesaid David and his heirs for ever. And further, the same Abraham, Cecilia, and John, have granted, for themselves and their heirs, that they will warrant to the aforesaid David, and his heirs, the aforesaid tenements, with the appurtenances, against all men for ever. And for this vecog, nition, remise, quit-claim, warranty, fine, and agreement, the said David hath given to the said Abraham, Cecilia, and John, two hundred pounds sterling.

$. 4. The JYote, or Abstract.

Norfolk, 7 19etfo«lt, David Edwards, esquire, complainant, to wit. 3 and Abraham Barker, esquire, anil Cecilia bis wife, and John Barker, esquire, deforciants, of two messuages, two gardens, three hundred acres of land, One hundred acres of meadow,, two hundred acres of pasture, and fifty acres of wood, with tjie appurtenances, in Pale, whereupon a plea of covenant was summoned between them: to wit, that the said Abraham, Cecilia, and John, have acknowledged the aforesaid tenements, with the appurtenances, to be the right of him the said David, as those which the said David hath of the gift of the aforesaid Abraham.decilia, and John: and those they have reraised and quitted clairn, from them and their heirs, to the aforesaid Oavid and "his heirs for ever. And further, the said Abraham, Cecilia, and John, have granted for themselves, and their heirs, that they will warrant tothe aforesaid David and his heirs, the aforesaid tenements, with the appurtenances, against all men forever. And for this recognition, remise, quit-claim, warranty, fine, and agreement, the said David hath given to the said Abraham, Cecilia, and John, two hundred pound* sterling.

$. 5. The Foat, Chirogro/ih, or Indentures of the fine.

Norfolk, 7 dfoljJf it tf)t final agmment, made in the court of to wit. 5 the lord the king at Westminster, from the day of saint Michael in one month, in the twenty-first year of the reign of the lord george the second, by the grace of God of Great Britain, France, and Ireland, king, defender of the faith, and so forth, before John Willis, Thomas Abney, Thomas Burnct, and Thomas Birch, justices, and other faithful subjects of the lord the king then there present, between David Ed\yards, esquire, complainant, and Abraham Barker, esquire, and Cecilia his wife, and John Barker, esquire, deforciants, of two messuages, two gardens, three hundred acres of land, one hundred acres of meadow, two hundred acres of pasture, and fifty acres of wood, with the appurtenances, in Dale, whereupon a plea of covenant was summoned between them in the said court; to wit, that the aforesaid Abraham, Cecilia, and John, have acknowledged the aforesaid tenements, with the appurtenances, to be the right of him the said David, as those which the said David hath of the gift of the aforesaid Abraham, Cecilia, and John ; and those they have remised and quitted claim, from them and their heirs, to the aforesaid David and his heirs forever. And further, the same Abraham, Cecilia, and John, have granted for themlelves and their heirs, that they will warrant to the aforesaid Da^ vid and his heirs, the aforesaid tenements, with the appurtenances, against all men for ever. And for this recognition, remise,/quitclaim, warranty, fine, and agreement, the said David hath given to the said Abraham, Cecilia, and John, two hundred pounds sterling;.

§. 6. Proclamations, endorsed ujion the fine, according to the Statutes.

C&t fitft proclamation was made the sixteenth day'of November, in the term of St. Michael, in the twenty-first year of the king

WV&T«eonn pr°clamation was made the fourth day of Februat

in the term of saint Hilary, in the twenty-first year of the king withinwritten. ,... .

«•*. jMflj proclamation was made the thirteenth day of May, in the term of Easter, in the twenty-first year of the king within-

^-ZOttfourft proclamation was made the twenty-eighth day of Junef in the term of the holy Trinity, in the twenty-second year of the king withinwritten.

No. V.

A common recoveky of Lands with * double Voucher.

§. 1. Writ of Entry sur Disseisin in the Post ; or praecipe.

ASMKDKdffi the second, by the grace of God of Great Britain, '•^ France, and Ireland king, defender of the faith, and so forth, to the sheriff of Norfolk, greeting. CtommattD David Edwards, esquire, that justly and without delay he render to Francis Golding, clerk, two messuages, two gardens, three, hundred acres of land, one hundred acres of meadow, two hundred acres of pasture, and fifty acres of wood, with the appurtenances, in Dale, which he claims to be his right and inheritance, and into which the said David hath not entry, unless after the disseisin, which Hugh Hunt thereof unjustly, and without judgment, hath made to the aforesaid Francis, within thirty years now last past, as he saith, and whereupon he complains that the aforesaid David deforceth him. And unless he shall so do, and if the said Francis shall give you security of prosecuting his claim, then summon by good summoners the said David, that he appear before our Justices at Westminster on the octave of saint Martin, to shew wherefore he hath not done it: and have you there the summoners, and this writ. 22H(tnW# ourself at Westminster, the twenty-ninth day of October, in the twenty-first year of our reign.

Pledges of ~) John Doe. Summoners of the 7 John Den. prosecution, 3 Richard Roe.- withinnamed David. 5 Richard Fen.

J. 2. Exemplification of the recovery Roll.

tfWKDKtfffi the second, by the grace of God of Great Britain, France, and Ireland king, defender of the faith, and so forth ; to all to whom these our present letters shall come, greeting: ftttoto gt that among the pleas of land enrolled at Westminster, before sir John Willes, knight, and his fellows, our justices of the bench, of the term of saint Michael, in the twenty-first year of our reign, upon the fifty-second roll it is thus contained. "ZEntrg returnable on the octave of saint Martin, jftorfolft, to wit: Francis Golding, clerk, in his proper person demandeth against David Edwards, esquire, two messuages, two gardens, three hundred acres of land, one hundred acres of meadow, two hundred acres of pasture, and fifty acres of wood, with the appurtenances, in Dale, as his right and inheritance, and into which the said David hath not entry, unless after the disseisin, which Hugh Hunt thereof unjustly, and without judgment, hatli made to the afore-

* Note, that if the recovery be hntl with a single voucher the parts marked hus " in §. 2. arc omitted.

Sheriff's return.

Return.

Demand against the tenant.

said Francis, within thirty years now last past. And whereupon he saith, that he himself was seised of the tenements aforesaid, with the appurtenances, in his demesne as of fee and right, in time of peace, in the time of the lord the king that now is, by taking the profits thereof to the value [*of six shillings and eight pence, and more, in rents, corn, and grass :] and into- which [the said David hath not entry, unless as aforesaid: and thereupon he bringeth suit, [and good proof.] StitD the said David in his proper person comes and defendeth his right, when [and where it shall behove him,] and thereupon voucheth to warranty " John Barker, esquire ; who is present here in court in his proper person, and the tenements aforesaid with the appurtenances, to him freely warranteth, [and prays that the said Francis may count against him.] SttiJ hereupon the said Francis detnandeth against the said John, tenant by his own warranty, the tenements aforesaid with the appurtenances, in form aforesaid, We. And whereupon he saith, that he himself was seised of the tenements aforesaid with the appurtenances, in his demesne as of fee and right, in time of peace,-in the time of the lord the king that now is, by taking the profits thereof to the value, tsfc. And into which, EJ*c. And thereupon he bringeth suit, &c. SlnO the aforesaid John, tenant by his own warranty, defends his right, when Vc» and thereupon he further voucheth to warranty" Jacob Mortand ; who is present here in court in his proper person, and the tenements aforesaid, with the appurtenances, to him freely warranteth, We. 3nD hereupon the said Francis demandeth against the -said Jacob, tenant by his own warranty, the tenements aforesaid, with the appurtenances in form aforesaid, &c. SntL, whereupon he saith, that he himself was seised of the tenements aforesaid, with the appurtenances, in his demesne of fee and right, in time of peace, in the time of the lord the king that now is, by taking the profitsthereof to the value, &c. And into which, &c. And thereupon he bringeth suit, ifc. 9nD the aforesaid Jacob, tenant by his own warranty, defends his right when, tffc. And saith that the aforesaid Hugh did not disseise the aforesaid Francis of the tenements aforesaid, as the aforesaid Francis by his writ and count aforesaid above doth suppose: and of this he puts himself upon the country. 9nH the aforesaid Francis thereupon craveth leave to imparl; and he hath it. And afterwards the aforesaid Francis cometh again here into court in this same term in his proper person, and the aforesaid Jacob, though solemnly called, cometh not again, but hath departed in contempt of court, and maketh default. Cjirofott it U CQtUftiurtB, that the aforesaid Francis do recover his seisin against the aforesaid David of the tenements aforesaid, with the appurtenances; and that the said David have of the land of the aforesaid " John, to the value [of the tenements aforesaid;] " and further, that the said John, have of the land of the said" Jacob to the value [of the tenements aforesaid.] And the said Jacob in mercy. 8nn hereupon the said Francis prays a writ of the lord the king, to be directed to the sheriff of the county aforesaid, to cause him to have full seisin of the tenements aforesaid with the

* The clauses, between hooks, are no otherwise expressed in the record xlian by an ls"c.

Count.

Espies

Defence of the tenant,

Voucher. Warranty.

Demand against the vouchee. Count.

Defence of tlie vouchee. Second voucher. Warranty,

Demand against the common vouchee. Count.

Defence of the common vouchee.

Flea, ml .ditseisin.

Imparlance. Default of the common vouchee.

Judgment for the demandant. Recovery in value. Amerce-, incut.

Ameictimcnt.

appurtenances: and it is granted unto him, returnable without delay. Afterwards, that is to say, the twenty-eighth day of November in this same term, here cometh the said Francis in his proper person; and the sheriff, namely sir Charles Thompson, knight, now sendeth, that he by virtue of the writ aforesaid to him directed, on the twenty-fourth day of the same month, did cause the said t rancis to have full seisin of the tenements aforesaid with the appurtenances as he was commanded. «H atlU etn&Ultt which pre mises, at the request of the said Francis, by the tenor of these presents we have held good to be exemplified. In testimony whereot we have caused our seal, appointed for sealing writs in the bench aforesaid, to be affixed to these presents. fflBUtnM* sir John Willes, knight, at Westminster, the twenty-eighth day of November, in the twenty-first year of our reign.

Cooke.

Award of the writ of beisin, and return.

Exemplification continued. Te,te.

APPENDIX

TO

VOLUME SECOND. PART SECOND.

OF THE EDITION OF BLACKSTONE'S COMMENTARIES.

BY ST. GEORGE TUCKER.

APPENDIX

TO

VOLUME THIRD. BOOK SECOND.

OF

BLACKSTONE'S COMMENTARIES. NOTE A. '

CONCERNING THE TENURE OF LANDS IN VIRGINIA, AND THE MODE OF ACQUIRING THEM UNDER THE FORMER, AND PRESENT GOVERNMENT.

QUEEN ELIZABETH, by letters patent bearing date March 25, 1584, licensed sir Walter Raleigh to search for remote heathen lands, not inhabited by Christian people, and granted to him in fee simple, all the soil within two hundred leagues of the places where his people should within six years make their dwellings, or abidings, reserving only to herself, and her successors, their allegiance and one fifth part of all the gold and silver ore they should obtain .... After some unsuccessful attempts to settle a colony on Chesapeak bay:, sir Walter granted to Thomas Smith and others, in consideration of their adventuring certain sums of money, liberty of trade to his new country, free frpm all customs or taxes for seven years, except the fifth part of gold or silver ore to be obtained, and stipulated that he would confirm the deed of incorporation which he had given in 1587. Sir Walter at different times sent five other adventurers to Virginia. In 1603, he was attainted. Some gentlemen and merchants supposing that by his attainder, the grant to him was forfeited, petitioned James the first for a new grant of Virginia to them. He accordingly executed a grant to sir Thomas

Gates and others, under which a settlement was effected at James-' town the same year. This grant was superceded by letters patent dated May 1609, from the same king to the earl of Salisbury and others, granting to them and their successors by the name of the treasurer and company of adventurers &c. for the first Virginia colony, all the lands in Virginia, to be held of the king and his successors, in "free common socage and not in capite" yielding one fifth part of the gold and silver ore to be therein found, for all manner of services. Afterwards on the 12th of March 1612, the king granted another charter, confirming all former grants. In 1624, the king suspended the company's powers by proclamation, and his son Charles the first took the government of the colony into his own hands. The northern parts of the colony were granted away to the lords Baltimore and Fairfax ; the former obtaining the rights of separate jurisdiction and government, settled the colony of Maryland. In 1650, the parliament having deposed the king, and succeeded to all his powers, assumed a right over the colonies ; the colony of Virginia which had maintained an opposition to the powers of Cromwell and the parliament, in 1651, agreed to lay down their arms, having previously secured their most essential rights by a solemn convention, which Mr. Jefferson has given us at large in his notes on Virginia. Among these it is agreed, " that all patents of land granted under the colony seal by any of the precedent governors, shall be and remain in their full force and strength,'and that the privilege of having fifty acres of land for every person transported into that colony shall continue as formerly granted." King Charles the second, by his charter, dated October 10,' 1676, declares and grants, that for the encouragement of such of his subjects as shall go to dwell in Virginia, there shall be assigned out of the lands not already appropriated, fifty acres for every person so going thither to dwell, as hath been used and allowed since the first plantation. How the lands thus granted by the authority of the government of England were acquired, no authentic documents, that the editor has had access to, ascertain. But Mr. Jefferson assures us, " that the lands in this country were taken from the Indians by conquest, is not so general a truth as is supposed. I find in our historians and records, repeated proofs of purchase, which cover a considerable part of the lower country ; and many more would doubtless be found, on further search. The upper country we know has been acquired altogether by purchases made in the most unexceptionable form." Notes on Virginia, articles aborigines, and constitution.

The mode of acquiring lands in the earliest times of our settlement was by petition to the general assembly. If the lands prayed for were already cleared of the Indian title and the assembly thought the prayer reasonable, they passed the property by their vote to the petitioner, &c. The company also, sometimes, though very rarely, granted lands, independently of the general assembly. As the colony increased, it was thought better to establish general rules by which all grants should be made, and to leave the execution of them to the governor, for which purpose, what are usually called the land-laws were passed, and from time to time amended. According to these, lands were to be located and surveyed by a public officer: the breadth of the plat was to bear a certain proportion to its length; the grant was to be executed by the governor, and the lands were to be improved' in a certain manner, within a given time *. Hence, according to Mr. Jefferson, the state claimed an exclusive power to take conveyances of the Indian right of soil, since according to these regulations an Indian conveyances alone, could give no right to an individual. Such conveyances have accordingly been declared void by law t; and the law has in this respect been confirmed by the constitution \ of the commonwealth. By the act of 1662, c. 78, the bounds of lands were to be renewed every fourth year, by the view of the neighbours. This admirable provision hath by several subsequent acts || been continued to the present day, and where it hath been complied with, very few disputes about boundaries arise; but there is reason to apprehend that the execution of it hath been very much neglected of late years, especially in those counties which have been settled, and the lands therein granted, since the commencement of the revolution. The several acts of 1680, c. 21...1710, c. 13. and 1748, c. I. confirm all patents antecedent to the first day of June 1710. The act of 1736, c. 3. confirms the titles of the grantees of land held under lord Fairfax in the northern neck of Virginia ; and the act of 1748, c. 41, confirms the grants of the crown within the same limits, antecedent thereto $. By the act of May 1779,c. 13**,the reservation of royal mines,of quitrents, and all other

* V. L. 1710, c. 13. Edi. 1733...1748, c. 1. Edi. 1769. t V. L. 1662. c. 136. Purvis 97.

Ibid. 1705, c. 14. Edi. 1769, p. 52. May 1779, c. 25. Edi. 1785. J Constitution of Virginia Art. 21. V. L. 1794, c. 122. || V. L. 1710, c. 13. 1748, c. 1.1785, c. 4. Edi. 1794, c. 86. Sec. 56.1795, & 9. 1796, c. 24.

§ V. L. Edi. 1784, c. 3,4. " V. L. Edi. 1785.

reservations and conditions in the grants of land under the former government, are declared null and void ; and that all lands thereby granted shall be held in absolute and unconditional property, to all intents and purposes whatsoever; in the same manner with the lands thereafter to be granted by virtue of that act; and that ap petition for lapsed lands be admitted or received on account of any failure, or forfeiture whatever, incurred after the 29th day of September 1775.

By the last mentioned act the land office of the commonwealth was established, and the terms and manner of granting waste and unappropriated lands were ascertained. The legislature at the same time passed an act * for adjusting and settling the titles of claimers to unpatented lands previous thereto. This act declared,

I. That grants might issue for lands founded upon any of the following rights or claims, viz. 1. Upon all surveys of waste and unappropriated lands upon any of the western waters, made before the first day of January 1778. And 2. upon all surveys made upon any of the eastern waters, at any time before the end of that session of the general assembly, by any county surveyor commissioned by the masters of William and Mary College, acting according to the laws and rules of government then hi force, and founded either upon,

1. Charter rights:

2. Importation rights; duly proved, and certified according to the ancient usage, as far as relates to indebted servants, and other persons, not being convicts. The ancient usage in this case seems to have been for the party to prove his title, or right, before tjhe governor and council, or to produce a certificate from the couiity cpurt, to the secretary's office t«

3. Upon treasury rights ; for money paid the Receiver General, duly authenticated ; upon entries on the western waters., regularly made before the 26th day of October 1763.

4. Or, on the eastern waters, at any time before the end of that session of assembly, for tracts of land not exceeding 400 .acres, according to act of assembly, upon any order of council; or entry in the council books, and made during the time in which it shall appear that such order or entry remained in force, the terms of which have been complied with, or the time- for performing which, is unexpired.

* V. L. Edi 1785, c. 12. May 1779. f V L. 16C2, c. 68. Purvis. page 52.

«. Or upon any warrant from the governor for the time being for military service, in virtue of any proclamation, either, 1. from the'king of Great-Britain, or 2. from any former govern r of Virginia; all which rights are by that act declared good and valid: but all surveys of waste and unpatented lands, made by any other person, or upon any other pretence whatsoever are declared null and void. Provided that all officers or soldiers, their heirs or assigns claiming under the late governor Dumviddie's proclamation of a bounty in lands to the First Virginia Regiment, and haying returned to the secretary's office surveys made by virtue of a special commission from the president and masters of William and Mary College, shall be entitled to grants thereupon; and all officers and soldiers, their heirs and assigns under proclamation wan-ants for military service, having located lands by actual surveys, made under such special commission, shall have the benefit of such locations. Every person, his heirs and assigns, claiming lands under any of the before recited rights, and under surveys made as before mentioned, against which no caveat was theretofore legally entered, should upon the plots and .certificates of such survey being returned to the land office, together with the rights, entry, order, warrant, or authentic copy thereof upon which they were respectively founded, within twelve months after the end of that session of assembly (which period hath been from time to time extended by a multiplicity of acts) be entitled to a grant for the same, in the manner prescribed by that act.

II. Grants might be issued upon settlement rights accruing, 1. To all persons who before the first day of January 1778, have really and bonaf.de settled themselves or their families j 2. Or, at his, her, or their charge have settled others, upon any waste and unappropriated lands on the western waters, to which no person hath any legal right or claim, allowing for every family so settled four hundred acres of land, or any smaller quantity. 3. Such as have settled in villages or townships, are allowed six hundred and forty Acres, whereon such villages are situate, and to which no person hath a legal previous claim, with the like quantity of four hundred acres for every family : but no family was entitled to the allowance granted by that act, unless they had made a crop of corn, or had resided one year, at the least from the time of the settlement *.

HI. Grants for lands might be obtained under the act of the same session, c. 13. By the officers and soldiers on the continental,

• V. L. May 1779, c. 13. Edi. 1785.

or state establishment, to whom a bounty in lands had been engaged, either by ordinance of convention, or any laws of the common* wealth ; the proportions of which by an act passed in October, 1779, c. 31, were fixed as follows ; to a colonel 5000 acres; a lieutenant colonel 4500 acres ; a major 4000 acres ; a captain 3000 acres ; a subaltern officer 2000 acres; a non-commissioned officer who having enlisted for the war, should serve to the end thereof 400 acres; a • soldier or sailor under the like circumstances 200 acres; a noncommissioned officer enlisted and serving for three years, 200 acres; and a soldier or sailor under the like circumstances, 100 acres; with the like provisions for the officers in the navy in proportion to their rank : and where any officer, soldier or sailor shall have fallen, or died in the service, his heirs, or legal representatives, should be entitled to his proportion of land. To satisfy these claims all the lands lying between the Green River and the Tenessee River from the Alleghany mountains to the Ohio River except the tract granted to Richard Henderson and Company were especially reserved, to give them the choice of good lands not only for the public bounty due to them for military service, but also in their private adventures as citizens.

IV. Any person might acquire title to so much waste and unappropriated lands as he might desire to purchase on paying the consideration of 40/. * (paper money, and since fixed at two dollarsf) into the treasury of the commonwealth, in any part thereof, except within the limits of the Cherokee Indians, or on the northwest side of the Ohio, or on the lands reserved by law for any particular tribe of Indians, or on the lands granted by law to Richard Henderson and Company, or those reserved for the army, as before mentioned. By,another act passed in May 1780, c. 2. a further reservation of all lands on the sea shores, the Chesapeake bay., or on any river or creek, theretofore used as common, was likewise made f.

* V. L. May 1779, c. 13. Edi. 1785. t v!L. Edi. 1794, c. 86.

J It appears by the act of 1785, c. 36, that the issuing of land warrants had been before that time prohibited by resolution of the general assembly, which prohibition was by that act removed for a limited time, and hath never since been repeated, that I can discover. In the same session two other acts c. 42, and 47, were pabsed; the first, for disposing of waste and unappropriated lands on the eastern waters; the price of which was fixed to 35/. the hundred acres: the second related to the lauds within the'Northcrn Neck, which the assembly appear to have supprsed vested in the commonwealth on the death of loid Fairfax, and authorised grants of accordingly j the purchasers from lord Fairfax's devisee appear to have relinquished their title to the lands so gianted by the commonwealth. Sessions acts, 1796, c. 14.

V. Grants or patents for lands escheated to the commonwealth, might be obtained by any person purchasing the same, under an act passed in May 1779, c. 14, entitled "an act concerning escheats and forfeitures from British subjects," whereby the purchaser should be entitled to the same fully and freely exonerated from the right, title, claim, and interest legal and equitable of any British subject whatsoever ; and also of all and every person whatsoever ,under any mortgage, the equity of redemption whereof had not been foreclosed, at the time of such sale. These 'titles were further confirmed by the act of October 1779, c. 39. And although by the treaty of peace, congress undertook to recommend to the several states that such estates might be restored, upon thj purchasers being reimbursed, the price given for the same, yet the titles of the purchasers have not hitherto been shaken, or questioned.

VI. Lands forfeited to the commonwealth for non payment of taxes for the space of three years, might be granted to any person desiring to purchase the same, on payment of '151. specie for every hundred acre's, under the. act of 1790, c. 5, and 1785, c. 42, therein referred to. The act of 1792. (Edi. 1794, c. 86,) raised the price to one hundred dollars 5 but now by the act of 1795,c. 9, any person desiring to locate such lands shall procure from the commissioners of the land tax, a certificate of the price at which the same stands charged, which being paid, and other requisites of the act complied with, the party shall be entitled to the commonwealth's right therein.

This sketch of the land laws of the commonwealth may suffice in this place ; the manner in which the grants of the commonwealth must be perfected, will be more properly considered hereafter. I shall conclude this note with referring to the laws, in general, which respect grants, or titles-of lands from the commonwealth : they are so numerous that I may possibly have omitted several, there being no index to help such researches, and the titles being very frequently an insufficient guide. By the act of 17-!8, c. 1, Edi. 1769, all patents granted before the first day of June 1710, being confirmed, I shall only refer to that, and subsequent acts. Acts of 1769, c. 33 .... C. V. Art.20,21 .... Acts of May 1779, c. 12, IS, 14 .... Oct. 1779, c. 2, 18, 21, 27 .... May 1780, c. 2, 7, 9 .... Oct.

1780. c. 11, 12, 27 .... March 1781, c. 10 .... May 1781, c. 22 .... Nov.

1781. c. 5, 13, 19,29, 40, $. 4. 17 .... May 1782, c. 7, 18,34,39.$. 9, c. 47, 49 .... Oct. 1782, c. 1,8. §. 4, 24. c. 13, 24, 30, 33, 34. 45 .... May 178?, c. 31,36, 38, S9 .... Oct. 1783, c. 4, 18, 21, 29, 32, Edi. !785 .... Sessionsactsof 1784, c. 10, 14,30,34, 38, 39,48, 71,79..-

Sessions acts of 1785, c.31,36,39, 41,42,47, 67 .... Sessions acts of 1786, c. 3, 4, 11, 104 .... Sessions acts of 1787, c. 15, 40, 42, 46 .... June 1788, c. 4, authorising'inclusive patents .... Oct. 1788, c. 4,20, 21 .... 1789,c. 34,39, 49 .... 1790, c. 1, 5,10, 13, 14 .... 1791, c. 4, 5,6, I4 .... 1792,c. 5, 7,8, 16, 20. Sessions acts .... l793, c. 38. Sessions acts .... 1794; c. 11,47. Sessions-acts .... Edi. 1794, c. 86 .... Sessions acts 1795,c. 9, 22 .... Sessions acts, 1796, c. 24, 47, 51, 52 .... See also the resolutions of the federal congress, August 14, and 27, 1776. Ordinance of congress, May 20, 1785, and July 13,1787, and L. U. S.4 Cong. c. 30, 46. 5 Cong. 3. Sess.c. 135, 140^ 6 Cong. I Sess. c. 8, 13,45, 55, 59. 2 Sess. c. 5, 2S .... 7 Cong. 1 Sess. c. 30. 44. ,...L. V. 1796, c. 14,24,47,51,52,60, 63.;..1797, c. 10,13, 17,44, .... 1798, c. 20, 27 .... 1799, c. 50 .... 1800, c. *6,52 .... 1801, c. 5, 7.

NOTE B.

DISCOURSE CONCERNING THE SEVERAL ACTS DIRECTING THE COURSE OF DESCENTS, IN VIRGINIA.

BY' the several -charters granted to the first settlers in the colony of Virginia, all the lands therein were held of th'e crown in free and common socage : and as the common law of England and all statutes made in aid thereof prior to the fourth year of James the first were recognized in our courts, as the law of the land, in all cases to which they were applicable, the rules respecting landed property in Virginia were conformable to the laws of England, in respect to tocage lands ; at least so far as respected the course of inheritanctes, either by the common law, or as regulated by the statute de donis conditionalibus, by virtue of which it was held that lands might be entailed in Virginia, as well, as in England : a doctrine much favoured by the legislature of Virginia before the revolution, and even extended to slaves as well as lands ; insomuch that the ordinary methods of docking entails in England were absolutely prohibited here ; nor could any estate tail be unfettered, without a special act of assembly passed for that purpose*, until the act of 1734, c. 6, paved the way for doing it by writ of ad gucd damnum, where the estate was under the value of two hundred pounds sterling!. .... But immediately after the commencement of the revolution, the legislature passed an act, declaring tenants of lands, or slaves, in tail to hold the same in fee 'simple: and from that period, till the commencement of the act of 1785, c. 60, entitled an act directing the

. « L. V. 1710, c. 13, §. 4 .... 1727, c. 4, §. 11, &c- 1748, c. 1, Sec. 14.

| A copy of this act may be found bound up with some of the editions of J733. It is also abridged by Mercer, p. 202. The act of 1748, c. 1, Sec. 15 ' and 16, contains some further provisions, than that of 1734, c. 6.

course of descents, all lands in Virginia descended in the same course of inheritance, as lands in fee simple in England by the rules of the common law. That important act wholly changed the course of descents; introducing and establishing principles in direct opposition to those of the common law, and scarcely agreeing with it in any one principle. For the better understanding of it, I shall first transcribe the act at large, and then endeavour to collect such general rules, as I conceive are deducible from it; after which, I shall, as far as my abilities will enable me to do so, attempt to point out the difficulties which have been created by two subsequent acts passed upon the same subject.

I. First then ; the act declares,

sect. 1. That henceforth, when any person having title to any real estate of inheritance, shall die intestate as to such estate, it shall descend and pass in parcenary to his kindred male and female in the following course, that is to say j

sect. 2. To his children or their descendants, if any there be :

sect*3. If there be no children nor their descendants, then to his father:

sect. 4. If there be no father, then to his mother, brothers and sisters, and their descendants, or such of them as there be.

sect. 5. If there be no mother, nor brother, nor sister, nor their descendants, then the inheritance shall be divided into two moieties, one of which shall go to the paternal, the other to the maternal kindred, in the following course, that is to say ;

sect. 6. First to the grandfather ;

sect. 7. If there be no grandfather, then to the grandmother, uncles and aunts on the same side, and their descendants, or such of them as there be;

sect. 8. If there be no grandmother, uncle nor aunt, nor their descendants, then to the great grandfathers, or great grandfather, if there be but one ;

sect. 9. If there be no great grandfather, then to the great grandmothers or great grandmother if there be but one, and the brothers and sisters of the grandfathers and grandmothers and their descendants, or such of them as there be ; N

sect. 10. And so on in other cases without end ; passing to the nearest lineal male ancestors, and for want of them to the lineal female ancestors, in the same degree, and the descendants of such male and female lineal ancestors, or such of them as there be.

sect. 11. But no right in the inheritance shall accrue to any persons whatever, other than to children of the intestate, unless they

be in being and capable in law to take as heirs at the time of the intestate's death.

sect. 12. And where for want of issue of the intestate, and of father, mother, brothers and sisters, and their descendants, the inheritance is before directed to go by moieties to life paternal and maternal kindred, if there should be no such kindred on the one part, the whole shall go to the other part: And if there be no kindred either on the one part or the other, the whole shall go to the wife or husband of the intestate. And if the wife or husband be dead,.it shall go to her or his kindred, in the like course as if such wife or husband had survived Ihe intestate and then died entitled to the estate.

slot. 13. 'And in the cases before mentioned, where the inheritance is directed to pass to the ascending and collateral kindred of the intestate, if part of such collaterals be of the whole blood to the intestate, and other part of the half blood only, those of the half blood shall inherit only half so much as those of the whole blood : But if all be of the half blood they shall have whole portions, only giving to the ascendants (if there be any) double portions. , StCT. 14. And where the children of the intestate, or his mother, brothers, and sisters, or his grandmother, uncles, and aunts, .or any of his female lineal ancestors living, with the children of his deceased lineal ancestors male and female in the same degree, come into the partition, they shall take fier ca/iita, that is to say, by persons ; and where a part of them being dead, apd a part living, the issue of those dead have right to partition, such issue shall take tier atir/iea, or by stocks, that is to say, the share of their deceased parent. '

sect. 15. And where any of the children of the intestate or their issue, shall have received from the intestate in his life time any real estate by way of advancement, and shall choose to come into partition, with the other parceners, such advancement shall be brought into hotchpot, with the estate descended.

sect. 16. In making title by descent, it shall be no bar to a demandant, that any ancestor through whom he derives his descent from the intestate, is or hath' been an alien. Bastards also, shall be capable of inheriting or of transmitting inheritance on the part of their mother, in like manner as if they had been lawfully begotten of such mother.

sect. 17. Where a man having by a woman one or more children, shall afterwards intermarry with such woman, such child or children, if recognized by him, shall be thereby legitimated .... The issue also in marriages deemed null in law, shall nuvcrthiku be legitimate.

sect. 18. This ret shall commence and be in force from and after the first day of January, one thousand seven hundred and eighty seven.

I shall now proceed to collect such general rules, as I conceive •are deducibletfron'. this act, with a view to compare them with the correlative rules of the common law.

1. The first general rule to be drawn from this important act, and which may serve as a guide and clue to the whole, will be best expressed in the very words of the act, itself: viz :

" When any person having title to any real estate of inheritance, shall die intestate as to such estate, it shall descend and pass in parcenary to his kindred male and female ; in the course thereinafter prescribed."

The correlative rule of the common law may be thus expressed. .... " When any person having title to an estate of inheritance in fee simple, shall die actually seised of such estate, intestate, it shall descend and pass to his eldest son or his issue ; or other most worthy heir of the whole blood of the intestate, or of the first purchasers ; in exclusion of his younger children, and their issue, and of all other lineal, or collateral kindred of the intestate."

The essential and irreconcilable difference between those two., primary general rules, or canons, will be better understood by comparing their several parts together.

1» First ^hen; by our law when any person having title to any teal estate of inheritance, shall die intestate as to such estate, it shall descend in the course therein prescribed. Whereas the common law superadds the necessity of an actual seisin of the estate, in order to constitute the person having title thereto, such an ancestor, as that an estate of lands or tenements can be derived from him ; it being a maxim in that law that seisinafacit stijiitem : and, therefore, he shall not be accounted an ancestor who hath only a bare right or title to enter or be otherwise seised *. .... And, therefore, if a man purchase lands in fee-simple, and die leaving issue two daughters by one venter, and his wife enseint with a child of the half blood, to the daughters, and! the daughters enter into his estate, and then the son is b6rn, this son may enter upon the possession of his sisters, as heir to his father; but if he dies without entry into the estate, or perception of the rents, by himself or his guardian, in this case, by the common law, the heirs of the whole blood to the son, shall not inherit from him, and divest the estate

• 2B'. C. 209.

of the daughters, as the .son himself, might have clone ; for he, having never had actual seisin of the lands, is not such an ancestor, as that an estate in lands could be derived from him. Whereas, now, I apprehend, that in the same case, the heirs of the son shall succeed to his portion of the inheritance, which descended from his father, equally, as if he had been actually seised of the land .... For all the children being parceners, and all the parceners making but one heir, the entry of one shall enure, as the act and entry of the whole *; and the heirs of him, who was never actually in possession, shall, nevertheless, be entitled to partition with the rest, in the same manner, as if he had actually entered into the lands, in his life-time : and this rule of the common law, in respect to parceners, is not confined to such as are parceners by the common law, but extends also to parceners by custom t; and being founded in reason, seems equally applicable to parceners by the statute at this day.

But the reason upon which I principally rely in this case, is this; that it was the intent and meaning of the framers of this law, to Change and annul the former rule of the common law, which required actual seisin of lands, in order to transmit the inheritance thereof, to the heirs of the person having title to enter therein: and I ground this conclusion upon several reasons.

1. The framers of the act, were all persons profoundly skilled in the law, and if they had not intended to introduce a new rule of law, would certainly have adhered to the usual, and obvious, technical phrase of dying seised.

2. The situation and local usages in this country, from the first settlement: whereby lands which have never been cultivated, have been transmitted for a series of years, by inheritance, without any actual entry, or seisin, in any person, whatsoever, other than such a legal seisin, as the first patentee, derived from his patent.

It may be objected, that all lands were liable to forfeiture by law, before the late revolution, if not seated within three years after the date of the patent.

To this we may answer, that the seating, required by law, was partial and temporary ; and often colorable t; and that the lands were frequently devised to different persons, from whom they afterwards descended, without cultivation, or any actual entry therein.

* Co. Litt. 163, 188, 243, Litt. Sec. 398.

t Co. Litt. 243.

J 1748, c. 1, Sec. 28, 4", fcc.

3. That the policy of the present law, was to prevent disputes, in all such cases, as might have otherwise happened for want of actual seisin ; and to preserve to the heirs of minors and absentees, the rights which such minors and absentees derived from their deceased ancestors.

4. That inasmuch as by an act of 1792, c. 76, actual possession need not be proved to maintain a writ of right, it is evident that the legislature thereby, intended to shew that it was their intention, that in future, actual possession should not be necessary to transmit an inheritance: for if the demandant in a writ of right, bring his suit for the recovery of a tract of land, granted to his grandfather deceased, by whom the land was devised to the demandant's father, being a younger son, and the elder brother, or a stranger, enters by abatement, -within fifty years, and holds the lands during his life, and during the life of his younger brother, to whom they were devised ; and then dies, and his son enters and holds the lands, against whom the writ is now brought; yet, as the law now stands, I apprehend, the demandant shall recover, although the grandfather be dead more than fifty years, and yet, in this case the demandant claims as heir to his father, who was never actually seised. For inasmuch as he claims under the devise from his grandfather, who has been dead more than fifty years, he must be barred unless he be admitted to claim as heir to his father, who never was actually seised of the lands ; but had merely a right to enter upon the possession of his elder brother, or other abater, by virtue of the devise. And, if, in this case, the demandant shall not be barred by virtue of the act of 1794, c. 76, but permitted to claim as heir to his father, without shewing any actual seisin in his father, I can see no reason why he shall be barred in any parallel case.

5. The whole policy of our law being in every other respect diametrically opposite to that of the common law, I conclude that the framers of the act meant to render it uniform, and conformable throughout.

6. Because the law of the same session* directs, that personal property shall be distributed to the same persons, and in the same proportions, as lands are directed to descend by this law. And, if a right to personal property cannot be transmitted to representatives without actual possession thereof, by the person having the right, the intention of that law would be altogether defeated. And, if the rule in the case of lands be, seixina facit stifiitem, the correlative rule, in respect to personal estates, must be, that possession doth

* 1785, c. 63

the like : it rule which, it is presumed, the legislature never intended to introduce. For, if that be made the rule of personal property, the children of a son entitled to distribution of his father's personal estate, would, in many instances, be deprived thereof, because the executorship was not closed .... and yet they might be entitled to their father's portion of the real estate, because he might have made an actual entry therein, though no part of the personal estate had come to his hands. So that under this construction of the law, the personal estate would not be distributed in the same proportions, and to the same persons, as the real estate. On the other hand, if the rule with respect to personals be dispensed with, but insisted on as to real estate, it might happen that the children of the son might have their proportion of the personal estate, but not of the real estate, for want of entry therein by the father ; which would be contrary to the act, for in this case they would not have the same proportions. Therefore, it must be construed alike, as to both kinds of estates; and inasmuch as real estates are now put upon the same footing in general, that personal estates were formerly, if the rule with respect to personals cannot be made to conform to the common law rules, respecting real estates, the interpretation ought to be made so as to reconcile both together, and establish one uniform rule which may apply, without inconvenience, to either. And since real property is neither susceptible of motion, nor liable to alienation, but by certain and notorious acts, which is not the case of personal property, there seems to be less reason for adhering to the feudal maxim of seisin facit stipitem,'m real estates, than for requiring the actual possession of personals, in order to transmit to the representatives of a person having title, a right to a share thereof.

For these reasons I conclude, that actual seisin of lands and ter nements, is not necessary at this day to transmit an inheritance; but that any estate of inheritance, into which the intestate at the time of his death hath the right to enter, may be transmitted to his heirs, by descent, in the same manner as if he had been thereof actually seised.

2. By our law, any estate of inheritance to which the intestate hath a title, shall descend according to the course prescribed by the act: whereas, by the common law, and the statute " de donis conditionalibus," heirs may be either general or special, according to the course in which the land hath descended to the intestate, or been acquired by him. Thus the lands which might have descended on the part of the father, shall go to the heirs on the part of the father only, and not to those on the part of the mother ; and, vice versa,

whilst those purchased by the intestate might go to the heirs on either part, preferring those first on the part of the father ; and if the inheritance were in tail general or special, the descent in that case was regulated by the deed or will of him by whom the estate tail was created. Whereas by our law, it matters not how, or from whom, the estate may have descended, or been acquired; nor in what manner the original donor may have marked out the course in which he wished the succession to take place*. The estate being once vested in the intestate, must follow the rutes of the law, without inquiring into the mode by which it was acquired, or the will of him who gave it.

3. A third and most important distinction between these two general rules, or canons is, that by our law, all lands shall descend in parcenary, whereas, by the common law, sole seisin in lands is more favoured than several seisin : and, therefore, the heir male shall always be preferred to the heirs female in the same degree; because the heir male shall take the entirety of the lands to himself, whereas the heirs female take several portions, and may compel a partition of the lands to be made between them. And upon the same principle it is that the common law favours joint-tenancy more than tenancy in common, not only because the seignoral rights are better preserved where the services incident to the feud are indivisible, as in the former case ; but, because if the jointure be not severed during the life of the joint-tenants, the survivor shall be sole seised of the whole, by the jus accrescendi, instead of the moiety of him who dies first descending to his heirs. But this jus accrescendi, we may remember, is now abolished in Virginia, our law favouring a tenancy in common, wherein the portion of each tenant descends to his heirs, more than joint-tenancy by which the impartibility of estates is favoured. And, upon the same principle it is, that incur law, descents in parcenary are more favoured than descents in severally. For thereby all the children or collateral kinsmen of the intestate, in the same degree of consanguinity to him, shall share his estate, as being all, probably, equally entitled to share his affection and bounty. The law in this case making that will for him, which it presumes he would have made had he died testate.

4. But although our law declares that inheritances shall descend in parcenary, yet is there an essential difference between parceners by the common law, or parceners by particular custom, in different parts of England, and that course of descents in parcenary, which is

« 1785, c. 62.

established by our law. For, by the common law, females only shall be parceners; and, by the custom, males only; but, by our law, both males and females shall be parceners together, without any distinction between them. And not only may males be coparceners with females, or females with males, by our law; but lineal ancestors may be parceners with their own descendants, and other collateral kindred of the intestate ; and kinsmen of the half blood with kinsmen of the whole blood; and bastards with legitimate kindred, as will be more fully shewn hereafter.

5. A further distinction between the rules of the common law and our law, under this head of parceners, arises from the different methods in which the portion of such of the kindred of the intestate as may be deceased, shall be divided among their descendants; our law preferring, in certain cases, the succession per capita, according to the course of the Roman law, to that per stirfies, which the common law uniformly adopts in the same cases, as will be more fully explained hereafter; being mentioned here, only for the sake of method.

Thus, these two primary rules, or canons, which may be considered as the ground-work and foundation of the two systems of law, established in England, by immemorial usage on the one hand; ond in this country, by the mature consideration of the most eminent sages of the law, and confirmed by the deliberate voice of the legislature on the other, are found in no one instance whatsoever agreeing, but, on the contrary, in continual and diametrical opposition to each other. The former being the offspring of feudal barbarism and prejudice, the latter the dictates of enlightened reason, following the course which nature herself seems to have marked in the human breast, and endeavouring to obliterate the traces and memorials of the former, wheresoever they could be discerned. We shall now proceed to examine the application of this primary canon, or fundamental general rule, to .particular cases, according to the course prescribed by the act, comparing each subordinate rule, with the correlative rules of the common law.

2. Secondly, then; " the inheritance of any person dying intestate, shall descend and pass to his children, or their descendants, if any there be*."

The correlative rule of the common law, is," that inheritances shall lineally descend to the issue of the person who last died actually, seised, in infinitum."

• Sec. 2.

Nearly as these two rules may appear to conform to each other, their interpretation is essentially different, and even opposite; for by the common law, the word issue is limited to certain particular descendants, in exclusion of all the rest, as to the eldest son, in exclusion of his brothers and sisters; or to the eldest son of such eldest son, in exclusion of his uncles and aunts, as well as of his own brothers and sisters; whereas the rule of our law, comprehends the whole of a man's children, or other descendants without regard to sex or primogeniture ; all of whom, of whatever age or sex, or however remote, (if in ease at the time of the death of the intestate) shall have a portion of the inheritance. Thus if I. S. die leaving a son, a daughter, and two grandchildren, the issue of a son or daughter, deceased ; the grand children shall take a portion of the inheritance, as well as the son and daughter; whereas by the common law, the eldest son only, or if he were dead leaving issue a son or a daughter that son or daughter should have succeeded to the whole inheritance, in exclusion of all the rest.

Another essential distinction between the common law rule and the rule in our law, is this : that by the'common law, any descendant of I. S. the person last actually seised, to whom the inheritance should have descended (if in esae, at the time of the death of I. S.) although born at any remote period after that event takes place, may succeed to the inheritance, unless barred by the statute of limitations; whereas by the act of 1785, no right to the inheritance shall acrue to any person whatever, other, than the children of the intestate, unless they be'in being and capable in law, to take as heirs, at the time of the intestates death. Thus, if I. S. have one son only, who dies'in the lifetime of his father; leaving two daughters, and his wife enseint or big with child of another daughter; and before the birth of such other daughter, L S. the grandfather dies i by the law of England, the inheritance should descend to the two daughters of the son of I. S. as parceners, until the birth of the third daughter happened; and then,'such third daughter should succeed to one third part of the inheritance as coparcener with her sisters. And if such after born child had be"en a 'Son, he should have had the whole inheritance in exclusion' of his sisters ; and this may be carried so far, by the common law, that-the Same estate may be frequently divested by the subsequent birth of nearer presumptive heirs, before it fixes on an heir apparent. As, if an estate is given to an only child, who dies, it may first descend to an aunt, who may be stripped of it by an after born uncle, on whom a subsequent sister may enter, and who again may be deprived of the estate

by tne birth of a brother*. Whereas, such after born children under the provisions of the act of 1785, would, I apprehend, be totally excluded from any participation in the inheritance. For I understand the words of the act viz. " unless they be in being and capable," according to the common lawf construction ; viz. such as are already born. And, that this is the true construction, may be inferred from the provisions in favour of posthumous children, contained in the statute 10 and 11 W. 3.c. 16, which enabled them to take the benefit of a remainder, as if born, and which have been likewise introduced into our own statute} book, but do not extend to the case here spoken of; posthumous children, other, than the children of the intestate himself, remaining in the same condition with respect to inheritances, as they were in respect to remainders, before thelast mentioned statutes.

3. " If there be no lineal descendant, the inheritance shall ascend to the father, or other nearest lineal male ancestor, or ancestors, in preference to the lineal female ancestor, or ancestors, and collateral kindred in the same degree ; but the mother or other nearest lineal female ancestor, or collateral kinsman, in the same de-. gree, or their descendants, shall be preferred to a more remote lineal male ancestor, or ancestors."

Thus the father shall succeed to the whole inheritance, in exclusion of the mother, brothers and sisters and their descendants; the grandfather in exclusion of the grandmother, uncles and aunts, and their descendants; and the great grandfathers or great grandfather, if there be but one, in exclusion of the great grandmothers, and all the collateral relations'of the deceased, or their descendants, in the same degree. But the mother, brothers and sisters, and their descendants, in infinitum, shall be preferred to the grandfather, and so of the rest. For, we may remember, that according to the rules! of consanguinity, the father, mother, brothers and sisters,are all re» lated to the intestate in the same degree: and the grandfathers, grandmothers, uncles and aunts, are in like manner related to him in the same degree with each other. And this preference to the lineal male ancestor, or ancestors, is the only preference which our law makes in favour of that sex : for in all cases of lineal descendants or collateral heirs, no regard is paid to sex or primogeniture.

* vi. Chris, notes on B. C. V. 2. 208.

t 2. B. C. 169. 1 Salk 228. 1 Inst. 29. 6. The rule in the ci\:i law is Qtti in utero flint, injure civih intciligttntitt, in rtmtn natut c esset [inn de eorusn camnuxlo agatur."

J V. L. 1~8j, c. f>2 Etli 1794. c <)0

The ascendible quality communicated to real estates by the act of 1785, is diametrically in opposition to one of the fundamental maxims of the common law, according to which, inheritances should rather escheat, than violate the laws of gravitation *.

And here it may be proper to notice another departure from the rules of the common law; for, by that law, 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* And these representatives shall take neither more nor less, but just so much as their principals would have-done: thus the child, grandchild, or great grandchild (either male or female) of an eldest son, or eldest brother, or eldest uncle, succeeds before the youngest son, and so in infinitum. According to which rule, whenever the father, if alive would be the next heir, his child, (or children if daughters) should represent him; that is to say, should take neither more nor less than he would have done. But in this case, by our law, the children of a deceased father, do not represent him; but come into the inheritance jure propinquita/i«, i. e. in their own rights, and not jure refiresentationis', or in right of their father. For the mother shall come in with them, and shall have an equal portion of the inheritance with them; and if there be children on the part of the mother, of the half-blood to those on the part ofthe father, they also shall be admitted into the inheritance ; So that the children on the part of the father do not take the same, or, neither more nor less, than their father if living would have taken ;• therefore they do not represent him in this case. And even in the case of succession among the lineal descendants, or collateral kinsmen of the intestate, we shall find that the children sometimes claim jure firo/itnguiiatis, as being all in equal degree; though in some cases, the right of representation is admitted: as where nephews or nieces come into partition with their uncles and aunts. Collateral kindred in the same degree of consanguinity with a female ancestor, shall be admitted to an equal portion of the inheritance with her; and the descendants of such of them as are dead, shall be admitted to their ancestor's portion thereof.

Thus the brothers and sisters shall share the inheritance with the mother; and if any of the brothers or sisters be dead, the descendants of such brother or sister shall inherit that portion of the estate, to which their ancestor, if living, would have been entitled, hi this latter case, the children of the deceased brother or sister are

* 2. B.C. 208,210,212. 1 Inst. 11.

said to take fier ttirjies, by stocks, but the mother, brothers, and sisters, who are living, take fier capita, or by heads. ,

4. " If there be neither child, father, mother, brother, sister, nor descendant from either of them, the inheritance shall be divided into moieties, one of which shall go to the paternal, the other to the maternal kindred, respectively, according to the foregoing mles ; but if there be no kindred on the one part, the whole shall go to the other part."

This also is diametrically opposite to the rule of the common law, which allows of no such participation between the paternal and

-maternel stocks in any case ; but would rather the land should escheat, than descend to any other, than the blood of the first purchaser, how remote soever he may be from the person last actually seised.

According to this rule of our law, the grandfathers, respectively, shall be preferred to the grandmothers, uncles and aunts, on the same side ; and these last and their descendants, shall succeed all together, in like manner as the mother, brothers, and sisters, and their

• descendants should have done.. And here it must be observed, that if there be two great grandfathers living, on the same side, each of them, (if there be no person nearer to whom the inheritance may descend) shall be entitled to an equafportion of the moiety: but if there be only ,one, he shall have the whole moiety, in exclusion of the other great-grandfather's descendants, or wife though living; which is one answer to the objections against the great number of heirs, who are admitted to share the inheritance : -which objection is further narrowed, by that clause, which declares that no person, other, than children of the intestate, shall have any portion of the inheritance, unless they- be in being at the time of the intestate's death, of which we have before taken notice and shall again have occasion to speak.

5. " Collateral heirs may be ofthe half-blood only j but they shall only inherit half portions; but if all be of the half blood they shall have whole portions, only giving to the ascendants (if there be any) double portions."

This rule is expressly contrary to the maxims of the common law; by which the half blood are wholly excluded from any portion of the inheritance, which shall rather escheat for want of heirs* If there lie two brothers and a sister of the whole blood, and a brother of the half blood, and one ofthe brothers of the whole blooi

•3 Blacks- Com. 227.

die, in this case the inheritance being divided into five parts, the brother and sister of the whole blood shall have two parts each, and the brother of the half blood one, only. And in this case, if the mother had also been living;, the inheritance should have been divided into seven parts, of which she should have two, and the remaining five parts be divided as before mentioned.

fl. " Bastards may inherit, or transmit an inheritance on the part of their mother ; and if the parents of the bastards marry, and the bastard be afterwards recognized by the father, he shall inherit or transmit an inheritance on the part of the father."

This rule is also diametrically opposed to the common law principle ; by which bastards are rendered incapable of inheriting even from their mothers*. And the rule above laid down, extends to all persons, who would have been bastards at the common law, as being the issue of marriages deemed null in law ; such issue, by the provisions of this act, as also of the act of 1788, c. 32, being declared legitimate.

7. « If there be no kindred either on the part of the father or of the mother, the husband or wife of the intestate shall succeed to the inheritance : and if the husband or wife be dead, the inheritance shall go to his or her kindred, as if he or she had survived the intestate, and the estate had descended from such wife or husband." This also is an express deviation from the maxims of the common law; by which the husband, or wife, as such, can never succeed to the inheritance of each other. It is still further removed from the principles thereof in this instance that a stranger to the blood of the intestate, may, by possibility, be his next immediate heir. Thus if I. S. be an alien and afterwards be naturalized and purchase lands, and marry, and his wife die, and I. S. afterwards die without issue, and without heirs, other than aliens, the next of kin to his wife deceased, although utter strangers to his blood, shall succeed to his estate.

8. " Where several persons succeed to the inheritance at the same time, if they be all related to the intestate in equal degree, they shall take per cajiita, i. e. by persons; but if part of them be more remote than the others, the more remote shall take fier stir/ies, that is to say the share of their deceased parent. But no right of representation shall be admitted, where the inheritance is directed to go to the lineal ancestor, or ancestors of the intestate, if living; but it shall descend to the surviving

" 1 Blacks. Com. 459.

lineal ancestor or ancestors, or such collateral kinsmen as shall be entitled to partition, according to the third rule."

In the former case we find that the jus refiresentationis or right of representation, which is one of the fundamental maxims of the common law, is entirely done away. For by the common law the representatives of any person deceased, shall stand in the same place precisely, that the ancestor himself, if living, would have done. Thus if John Stiles die leaving six grand-ddiighters, three, the children of one daughter deceased, two, the children of a second daughter deceased, and one of a third daughter deceased; in this case the inheritance, by the law of England, would have been divided into three portions only, os which, the three daughters of the eldest daughter, should have had one; the two daughters) of the second, another; and the daughter of the third daughter the third portion: but by our law, the inheritance shall be divided into six portions, of which, each of the grand daughters shall have one. And herewith the Roman law agrees. ..But where some of those entitled to partition are more remote front the intestate than the rest, in this case, the representatives of any person deceased, who if alive would have come into partition, shall take neither more nor iess, but just so much as their principals would have done, unless such principal be also the ancestor of the intestate. As if there be two sisters, Margaret and Charlotte, and Margaret dies leaving six daughters, and then John Stiles the father of the two sisters dies without other issue, these six daughters shall take among them exactly the same as their mother Margaret would .have done, had she been living: that is, a moiety of the lands of John Stiles, in coparcenary: and this, also, by the common law, with which ours still agrees in this respect .... So if John Stiles had had two sons, only, and one had died in his lifetime, the issue of such son should have succeeded to his father's portion of the inheritance by virtue of the act of 1785, c. 60. J U. But if John Stiles had died without any descendants, or lineal ancestor living, his brothers, and sisters, uncles, and aunts, should not take as re-, presenting their deceased father, or mother, but in their own rights, as next of kin to the intestate, Therefore if It S. die leaving a brother of the half blood on the part of his father, deceased, and two of the half blood on the part of his mother deceased, these bhall take equal portions of the inheritance, instead of the whole going to the brother on the part of the father jure \refirescntatimis ; or the portion of the mother being divided between her two sons,

ns representing her. And this doctrine of the right of representation is still further narrowed by the next rule.

9. " No right to the inheritance shall accrue to any person whatsoever, other than the children of the intestate, unless they be in being, and capable in law to take as heirs, at the time of the intestate's death."

This rule was sufficiently explained under the second, here laid down. But although this rule excludes posthumous heirs ia general, from the succession, yet we must be careful to remember, that it does not extend to the children of the intestate, who are still further favored by the act of 1785, c. 61. which declares, 'that every last will and testament, made when the testator had no child living, wherein any child he might have is not provided for, or not mentioned, if at the time of his death he leave a child, or leave his wife cnseint of a child which shall be born, shall have no effect during the life of such after born child, and shall be void unless the child die without having been married, or before he shall have attained the age of twenty-one years .... Also, posthumous children, if unprovided for by settlement, and neither provided for, nor disinherited, but only pretermitted by the testator, shall succeed to the same portion of the father's estate, as if such father had died intestate*.

10. « Where more than one person succeed to the inheritance, they shall take as parceners, and not as joint-tenants or tenants in common."

A consequence of this rule, is I presume, that as all the parceners make but one heir, the act and entry of one, shall enure as the i\ct and entry of the whole ; and the heirs of him, who was never actually in possession, shall, nevertheless,.be entitled to partition with the rest, in the same manner as if he had actually entered into the lands in his lifetime, as was before observed.

A second consequence of this rule is, that the heirs may sue and be sued jointly, for any matter respecting their joint inheritance ; which tenants in common cannotf.

A further consequence is, that they may have an action of waste, against each otherj, which, in the case of joint-tenants, may be questionable. Moreover, the jus accrcscendi, or right of survivorship between joint-tenants, doth hot talce place among coparce-

* Children pretermitted in their father's will, further provided for. 1794. c. 170.

t 2. B C. 188. 194... Co. Litt. 1G4. 200 .... 2. Wils. 232. $ I/MO. c. IS. V. L.

ners. And although this right of survivorship to be now abolished*, yet the act by which that rule was established, was posterior in it's commencement to the law of descents!.

11." Lastly, the person having title to any estate of inheritance, is considered as the first purchaser; that is to say any relation, either in the paternal or maternal line ascending or collateral, may succeed to the inheritance, subject to the preceding rules, without regard to the blood of that ancestor from whom the estate was derived."

The correlative rule of the common law is, that upon failure of issue of the last proprietor, the estate -shall descend to the blood of the first purchaser; or, that it shall result back to the heirs of the body of that ancestor, from whom it either really has, or is supposed, by fiction of law to have originally descended^. A consequence of which was, that if the lands descended from the father's side, no relation of the mother, as such, could ever inherit: because he could not possibly be of the blood of the first purchaser; and vice versa; but the lands shall rather escheat to the lord of the feud, than violate this fundamental principle of the feudal system)). And even where lands descended from the first •purchaser himself, the common law still preferred a remote collateral relation, on the part of the father, how far soever removed, to the brother of the half blood, or other nearest collateral relation on the- part of the mother; which absurd preference, as it has no foundation in reason or in nature, our law has carefully abolished, not only in the last case here spoken of, but in all cases whatsoever. And this, upon the soundest reason and principle, I conceive; for the right of disposing of property after' one's death, being once admitted, it is most reasonable that the law should prefer those relations of the deceased, which he himself would most probably have preferred, if he had made a will. Now the inheritance being once indefeasibly vested in any person, it would seem that the disposition of the law ought to conform to what may be presumed to be his will; and not to the will of any other person who may formerly have possessed it, and either actually hath, or may be presumed to have exercised his will over it already.

Thus having collected all the fundamental rules of our law, and compared them with those which formerly governed inheritances in this country, in lieu of which they have been substituted;

• V. L. 1786, c. 60. f ll took effect, July 1,17ST. $ 2. B.C. 223. || 2. B. C. 23C.

and finding an irreconcilable opposition in every one of the latter, to those of the former, we may I apprehend be justified in concluding, that by the act of 1785, c. 60, the common law rules of inheritance were wholly and entirely abolished, and an entire new system of jurisprudence substituted for them in Virginia j the grounds and foundations of which, are wholly incompatible with those rules and maxims, which were generated by, and interwoven with the feudal system j of which, it appears to have been the policy and intention of the framers of our law, to eradicate every germ, and obliterate every former trace.

II. But this act has since undergone a very material alteration, in the case of the death of an infant, having title to an estate of inheritance, by two several acts: the first of which passed in 1790, e. 9, $. 34, and which I shall first consider, provides, that,

1. " Where an infant shall die without issue, having title to any real estate of inheritance, derived by purchase or descent from the father, the mother of such infant shall not succeed to, or enjoy the same, or any part thereof by virtue of the act directing the course of descents, if there be living any brother or sister of such infant, or any brother or sister of the father, or any lineal descendant of either of them."

2. " Where an infant shall die without issue, having title to any real estate of inheritance, derived by purchase or descent frorti the mother, the father of such infant shall not succeed to, or enjoy the same, or any part thereof, by virtue of the said recited act, if there be living any brother-or <sister of such infant, or any brother or sister of the mother, or any lineal descendant of either of them."

Here let us ask, does this act revive the common Jaw rules of inheritance, in the case of an infant dying Without issue, having title to lands of inheritance? To this we may answer,

1. First, that if the lands be derived to the infant in any other manner, whatsoever, except by descent, or purchase, from one or the other of his parents, the lands in any such case shall descend in the same manner as if he had been of full age.

2. The parent from whom the lands are derived, is not excluded from the inheritance, although the other parent be so excluded. .... And therefore if a man gives lands to his son, and the son dies under a^e, and without issue, the father is clearly not within the act: and consequently shall be heir to his son, in preference to a brother, or uncle, who might have been the next heir at common law. And if

lands be given to an infant by his mother, and the infant die without issue, the mother is not within the act.

3. The parent, from whom the lands are not derived, may still inherit them, if the infant lives to attain his age of twenty-one years: for the law takes no notice of the case of an adult-person.

4. The brothers and sisters of the infant, are clearly not excluded by the act; for if lands descend from a father to his son, and then the son dies under age, and without issue, his brothers and sisters of the whole blood may undoubtedly inherit his estate in parcenary, by virtue of the act of 1785 ; for they are not named, and consequently, are not excluded by the second act... ....

And if the father had other children of the half blood to the infant, still shall they also come into the mheritancc ; for clearly the law meant not to exclude any descendant of the father, from a portion thereof, as is incontestibly proved, by the further amendments afterwards introduced into the law, as it now stands. Neither would the brothers and sisters of the half blood, on the part of the mother be excluded ; for they were not named in the act, any more than the others. And, therefore,'there is no more reason for excluding them, than for excluding the brothers or sisters, (other than the heir at common law) on the part of the father. For the disability of the younger brothers and sisters, of the whole blood, to take during the life of the elder brother, or his issue, was equally as great at c6mmon law, as the disability of the half blood.

5. That the general system of inheritances, being changed, by the act of 1785, the rules of that act cannot be changed but by a subsequent legislative act*: it being a rule of construction, that no statute can be repealed by implication t; now the act of 1785, having substituted the father as next heir general to a son dying without issue, in the room of the former heir at the common law, thfe preference which this general law has once given him, shall never be taken away by mere implication, but his disability to take shall be confined to the single case in which the law expressly incapacitates him to be heir: nor can the heir at common law avail himself of the father's disability, so as to exclude his brothers, and sisters, and their descendants, who are of equal capacity with himself, under the act of 1785 to take the inheritance. And, therefore, unless that act be repealed and the common law revived by implication, the heir at common law, as such, can never be the person, in \\hom the estate shall exclusively vest.

• 4 Bac. Abr. 638. 2 Wash. 296, 209. t GUb. Hist C. P. 212.

But whatever doubts might have been entertained, as to the revival of the common law, by implication, under the former rules of construction, viz: that the repeal of a repealing law revived the former law ; yet the legislature by the act of 1789, c. 9, which was too recent not to have been remembered by them in 1790, prescribed a positive rule of construction, viz : " That whenever one law which shall have repealed another law, shall be itself repealed, the former law shall not be revived without express words to that effect." Consequently, although it should be conceded, that a former statute may be repealed by implication ; the doctrine that a former law may be revived by implication, is now totally exploded in our courts, by thatact. Now nothing can be more certain, than that the common law rules of inheritance were totally repealed by the act of 1785, and there are no express words in the act of 1790, whereby any one rule of the common law, can in any manner be supposed to be revived. Those rules being once expunged from our code of jurisprudence, are as foreign from it at present, as those which appertained to military tenures, or other ancient branches of the feudal system. And we could with as much propriety adopt the ancient feudal doctrine, that none but the issue of the feudatory, or grantee of lands could inherit them, and that in defect of such issue, they should revert to the grantor, as to substitute the heir at common law, at this day, in the room of those whom the act of 1785, has marked out as general heirs of a person dying intestate.

The positive disability of the father or mother, to take as heir to the son, in a particular case, must not therefore be construed any otherwise, than as the act itself prescribes; viz. as merely personal •to the father, or the mother, in the particular cases mentioned in the act, and not as extending that disability, by implication, to any other case, or to any other person, not named in the act: nor as reviving by implication, the right of the heir at common law, which had been totally extinguished and abolished, by the former act; nor yet as creating by implication, any new right; or directing by implication any other course in which an inheritance shall descend, except that which the act of 1785, expressly prescribes. Now from the cases before put, it is manifest that the father is still intended to be the general heir to his son, in every case, but this of an infant dying without issue, having title to lands derived from his mother: for if the infant attain his full age, and die the same day, the father shall be heir to all his lands without distinction. It is also manifest that the act of 1790, had no intention to. extend the disability of the father, to the children of the mother, all of whom may certainly be regarded as equally favoured by that act, as by the act of

1785. Neither can we be authorised to extend the disability of the Father, to the grandfathers on either part; for they are not named in the act. And although it should be contended, that the father's father, was disabled by implication, yet it would be difficult to distinguish his case from that of the mother's father, against whose inheritable .blood, no reason, even by implication, can be suggested. The same remark applies to the uncles and other collateral relations -on the part of the father, for these come into partition at the same time with those of the same degree on the part of the mother, by the act of 1785, and the former are no more excluded by the act of 1790, than the latter. The disability created by, the act of 1790, ib, therefore, merely personal to the father, or mother ; and temporary, being removed the instant the infant arrives at full age ; and moreover, contingent, as depending upon the circumstance that the infant may have collateral relations, in the degree of a brother, or uncle, or their descendants, on the part of the mother, or father, from whom the lands were derived, living at the time of his death .... For if the mother gives lands to her son, who dies an infant, having no such collateral kinsman as is mentioned in the act, and then the mother hath another son or daughter, this son or daughter, not being in esse at the time of the infant's death, shall not divest the father's title which vested the moment of the infant's death; but the father shall retain the lands, because at the death of the infant, he was under no disability to inherit as next heir to his son. And these circumstances all tend to shew the difference between the disability of the father, by our law, and the disability of an alien, or of a person attainted by the common law: for an alien never had any inheritable blood in him ; and the blood of the person attainted is forever corrupted : and the corruption extends to his issue as well as to himself*. And if in a similar case to that last above mentioned, the father had died leaving lands to his son, being an infant, and leaving his wife ensient with child, and before the birth of the child, the infant die ; in this case the mother shall succeed as next heir to her infant son: for her posthumous child was not in esse, and capable in law to take as heir to his brother, at the time of his death; and, therefore, the mother shall have the whole of his portion of his father's estate. And yet this posthumous child would succeed to one half of the lands which descended from his father to his brother: not, indeed, as heir to his brother, but as heir to his father, under the express provisions in • 2 B. C- 249, 254. t v- L. 1785. c. 60, Sec. 11.

the act in favour of posthumous children of persons having title to lands at the time of their death t«

From what has been said, I presume, it may be evident, that in the case of an infant dying without issue, entitled to lands by descent or purchase from either parent, the common law, in respect to inheritances, was not revived by the act of 1790, but remains for ever dead in such cases, until the legislature shall think fit, by an express declaration to that effect, to give it a new existence in this country. And consequently, that inheritances must be governed ' by the rules contained in the act of 1785, in all cases where those rules are not expressly altered and repealed by some subsequent act. And where any difficulties arise under any such subsequent act, the solution of them must first be sought for there ; where the legislature has thought fit to collect all those general rules, by which it intended all cases of inheritance should henceforward be governed in Virginia.

We may now proceed one step further and observe ; 6. Sixthly ; that the act of 1790, while it prohibits the father or mother, under certain circumstances, to succeed to the inheritance of a son, does not proceed to declare to whom the lands under such circumstances shall descend : an omission to which all the difficulties and perplexities which may arise in the construction of our law of descents, are to be attributed. That omission may be ascribed to the solicitude which the penner of that act probably felt, to prevent the operation of the former law, in some particular case, without considering or regarding the general principles upon which that law was framed. And having found a remedy for that case, it seems to have been supposed, that it's efficacy, like some famous specifics in medicine, would be equally as great in all others. To demonstrate the fallacy of such a conclusion, let us put the following case. « John Stiles, the propositus, being an infant, dies without issue, having title to lands derived to him from his mother, Lucy Baker, deceased; his father Geoffry Stiles, his paternal grandfather George Stiles, his maternal grandfather Andrew Baker ; and several maternal uncles and aunts being living ; but having neither brother nor sister of his own living." How will the inheritance descend ?

I. By the act of 1785, Geoffry Stiles, his father, should have had the inheritance, not only in preference to all the relations above mentioned, but even to the brothers and sisters, and mother of the infant, if there had been such living. But, by the act of 1790, the father shall not succeed to or enjoy the inheritance, if there be liv-

ing any brother or sister of the infant, or any brother or s'ster of his mother, or any of their descendants ; and here are brothers and sisters of his mother; therefore, the father in this case cannot inherit. But can the brothers and sisters of the mother take the lands ? I should apprehend they cannot.

1. Because, by the general rule prescribed in the act of 17S5, both the grandfathers shall succeed, each to a moiety of the estate, before the uncles and aunts shall be admitted to any portion of it. Now the grandfathers are not mentioned in the act of 1790: of course I should conclude, that the order of succession, as to them, remains unaltered ; for in the case now put, if the father had died in the life-time of the infant, the inheritance should have gone immediately to the two grandfathers by moieties.

2. Because here is no declaration contained in the law, that the brother or sister, uncle or aunt, shall succeed to the inheritance, notwithstanding the priority established in favour of the father and grandfathers by the act of 1785 ; but merely a declaration, that the father shall not succeed to, or enjoy the inheritance, if there be such persons living as this case supposes. This disability is merely personal, and may be temporary, perhaps* : for, if the maternal uncles and aunts should die, there seems no longer any reason for excluding the father from the inheritance: a reason which certainly had it's commencement in that unnatural principle, mentioned by Sir Edward Coke, that to commit the guardianship of a child to his next heir, was " quasi agnum committere lufio ad devorandwn."

3. A third reason why the maternal uncles and aunts should not succeed to the inheritance in this case is, because, under the act of 1785, the paternal uncles and aunts shall come into the inheritance with them, taking one moiety thereof; whereas, if the maternal uncles and aunts were to succeed alone, they would take the whole inheritance. And, according to that act, where the first degree of consanguinity is passed, without heirs either lineal or ascending, the inheritance shall go by moieties to the most remote relation on either side, before the whole shall unite in either the paternal or maternal

* By the statute 1 James I. c. 4. Sec. 6, any child sent l>eyoncl seas for a popish education, was disabled from inheriting, having, or enjoying; any lands within the realms of England i but the statute contained no declaration who should have the lands. And thereupon, a subsequent statu'e, 3 Jas. 1, c. 5. Sec. 17, was ma-Je, declaring, that his next of kin, not being a popish recusant, shall have and enjoy the land, until such time as the person he; ond seas shall conform himself to the injunctions of the statute.

stock. And here is nothing in the act of 1790, which abolishes that rule.

4. A fourth reason is, that there is no ground upon which we can possibly suppose, that the law meant to prefer the maternal uncles and aunts, in this case, to the maternal grandfather, whose priority is established by the act of 1785, and not taken away by this act; for although it should be alleged, that the law, for good reasons, meant to exclude the paternal grandfather, yet those reasons could never be applied to the maternal grandfather in this case. No implication, therefore, necessarily arises in favour of the maternal uncles and aunts ; and, without an absolute necessity, no implication is ever to be admitted.

II. If the maternal uncles and aunts cannot take the inheritance, can the grandfathers inherit it ?

I apprehend not. The words of the act of 1785, are, " if there " be no father, then to the mother," &c. If there be no mother, &c. then « to the grandfathers;" which seems to be equivalent to this ; " if there be neither father, nor mother," &c. for the word " then," most clearly postpones the course which the law directs, to the event which it contemplates, viz. the death of the father. But here the father is alive : it is true he cannot take the estate during the life of'his wife's brothers, or sisters, or any of their descendants then in being: but, as we have before observed, here is no provision in the law, that the inheritance shall vest in the next heir; and without such a provision the grandfathers must, I presume, be excluded. To this it may be answered, that the father being pretermitted by the law, and there being neither mother, nor brother, nor sister, it is the same as if they were neither father nor mother, &.c. and, therefore, the grandfathers should take presently, by implication, notwithstanding the life of the father. But such an implication is altogether inadmissible, for even in wills, no implication is ever allowed which is not absolutely and indispensibly necessary. Now the implication in favour of the uncles and aunts succeeding in preference to the grandfathers, is full as strong, as that the grandfathers shall succeed notwithstanding the life of the father. And, that the law did not intend to prefer the grandfathers to the father, is evident from this j that if there be neither children nor brethren of the mother, nor any descendant from them, living at the death of the infant, the father shall be heir to the infant, in preference to the mother's father, although he may still be in life ; and we must be wholly at a loss for any principle, upon which the father's father shall be preferred to the father himself.

'III. But let us put the case, that the infant's mother, from whom the land was derived by purchase, were still in life, and that there were also brothers and sisters, of the infant living, the father being also living, should the mother, brothers and sisters, have succeeded in that case, jointly ?

Here too, I should presume they could not, the father being still living, until whose death, by the act of 1785, the title of the mother, brothers and sisters, could not accrue. Now by the act of 1790, the parent, from whom the land is derived by purchase, if he or she survive the infant, is not excluded from the succession, although the other parent be. From hence I infer, that the act does not give the estate by implication, to those relations, during whose life, the parent from whom the land was not derived, is incapable of inheriting. As if John Stiles the father, give lands to his son, an infant, in fee, and the infant die without issue, under age, during the life-time of his mother, here the father should presently succeed to the inheritance, notwithstanding the life of the mother, in exclusion of the brothers and sisters of the infant. And in this case, if the lands had been given to the infant by his mother, and the father should die in the life-time of the infant, and then the infant die, the mother should enjoy the inheritance, in preference to her brothers and sisters; yet if the father had survived the infant, the succession of the mother, according to the act of 1785, must have been suspended, until the death of the father .... The same reasoning will apply to the grandfathers and grandmothers, under the act of 1785. Hence I conclude, that no estate by implication, is raised in favor of the uncles and aunts, by the act of 1790 .... but that they are incapable of succeeding to the inheritance, during the life of the grandfathers, and shall not take it exclusively of, but in common with, the grandmothers. In all these cases the obstruction to the descent, occasioned by the life of the father, who is general heir to his son, seems to resemble those cases at the common law, where the succession of a special heir may be obstructed, by the life of a general heir. Thus the succession of an after-born son of a person attainted and pardoned; is impeded by a brother, born before the attainder. For, although the elder brother cannot inherit any lands, to which his father, if living, might have been heir, because his blood is corrupt, yet the younger son is not benefited thereby : but the lands shall rather escheat, for want of heirs, than descend to the younger son, whilst his elder brother or any of his issue, are in life ; and yet, if the elder brother had died without issue, the younger might well have inher-

ited *. Thus new perplexities, seem to spring out of erery new case ; nor can we resort to any one rule, which presents itself to my mind, " unless we suppose the inheritance to be in abeyance during the joint lives of the pretermitted parent, and of the person or persons during whose life or lives, that parent is excluded from the inheritance."

" The fee-simple or inheritance of lands, and tenements," says Blackstone t, " is generally vested and resides in some person or other." Yet sometimes, the fee may be in abeyance, that is, in expectation, remembrance, and contemplation of the law. Thus, in a grant to John, for life, and afterwards to the heirs of Richard, the inheritance is in abeyance, during the joint lives of Richard and John.

When a parson dies, the freehold of his glebe, is in abeyance, until a successor be named, and then it vests in the sviccessor {.. ....

And, according to Littleton, the fee-simple of all glebe-lands, which are granted to a parson and his successors, remains always in abeyance. For by a grant to a sole corporation and his successors, the fee passeth out of the grantor ||, yet the parson or incumbent himself, hath only a freehold, and not the fee-simple in him ....

nor is it in any other; but the right of the fee-simple is in 'abeyance §.

If an earl, whose dignity is limited to him and his heirs, dieth, having issue one daughter, the dignity shall descend to that daughter **. But if he have two, the dignity shall be in abeyance, till the king declare his pleasure, for he may confer it on which of them he pleases ft- But if he do nothing with it, and one of them then die, the survivor, I apprehend, should succeed to the dignity, for here is no longer any uncertainty who is entitled to it \$.

Where a feoflment was made to the use of a man, and such •wife as he should afterwards marry, for term of their lives, and he afterwards married, it was held that the husband and wife had a

* 2 Blacks. Comm. p. 255. f Ibid. P- WT.

J Litt. Sec. 647. || 1 Inst. 8, 6.

§ Litt. Sec. 646. •• Co. Litt. 165.

ff Ibid. 165. & 2 B. C. 217.

ft The king, in the case of parceners of a title of honour, may direct which one of them, and her issue shall bear it; and if the issue of that one, become extinct, it will again be in abeyance, if there are descendants of more than one sister remaining. But upon the failure of the issue of all, except one, the descendant of that one, being the sole heir, will have a right to claim, and to assume the dignity .... Cbrittian.

There are instances of a title, on account of a descent to females, being dormant, or in abeyance, for many centuries. Harg. Co. Litt. 165.

joint estate, though vested at different times: because the use of the wife's estate was in abeyance, and dormant, till the intermarriage, and then had relation back, and took effect from the original time of the creation *.

So if a devise be made to A in fee, and if A die within age or without issue at. the time of his death, then to the right heirs of B in fee t' this limitation, I presume, would be good, by way of executory devise, and if B should survive A, the inheritance would remain in abeyance, during the life of B, for it could not be known to whom the inheritance should descend, by virtue of that devise, until the death of B, " nam non est hares viventis:" for it is not necessary that an executory devise should vest immediately upon the determination of the precedent estate, and being limited to take effect upon an event, which depends upon a life in being, it is good ; as was adjudged in the case of Taylor, vs. Biddal J.

In this case, the testator having parted with the whole fee, bj the first devise to A in fee, nothing remained to his heirs, who, therefore, upon the death of A, living B, could have no right to enter. It may be alleged indeed, that the heir of A might enter and hold the land until the death of B, for inasmuch, as the fee •was granted to A and his heirs, his heirs after his death should have the lands, until it could be known who should succeed thereto, as the right heir of B. But what, if the devise had been to A in fee: but if A die without issue under the age of twenty-one years, then to B for life, and after the death of B, to the right heirs of C .... Now if A dies without issue, under the age of twenty-one years, living B, the whole fee will pass from A and his heirs, at once, and B's estate for life, immediately commence. Then, if B die in the life-time of C, there is no person in whom the estate can possibly vest. For the testator had parted with the whole fee, as in the former case, and the estate of A and his heirs was spent, upon the commencement of B's life estate ; and B's life estate .being also, spent, before it can be known who is entitled to the inheritance, on the death of C, it must remain in abeyance until that event takes place .... Yet this is a good executory devise, for it is a rule " That whenever one limitation of a devise is taken to be executory, all subsequent limitations must, likewise, be so taken J|/*

* Dyer, 340. 1 Rep. 101. 2 Blacks. Com. p. 182. t Fearne 307, 315.

| Cited Fearne 318. 1 Eq. Ca. 188, Case 11. || Fearne 593, 394. Carth. 310.

In all the cases, under this act, which we have before put, there is no person to whom the inheritance can descend, during the life of the pretermitted ancestor. Yet there is one case, in which, I presume, the inheritance would not be in abeyance ; and that is, where an infant having lands by descent or purchase from his father deceased, shall die without issue, having a mother, brothers and sisters living. Here, I should apprehend, the brothers and sisters, or their descendants would be presently entitled to the whole estate : for the mother, brothers and sisters succeed altogether, at the same time, and on the same event, and not successively, to each other, as to the father: now inasmuch as the act of 1790, totally excludes the mother from any part of the inheritance, the brothers and sisters, who come into partition with her by the act of 1785, shall take the whole. But it would have been otherwise, had there been no brother or sister of the infant, nor descendants from either of them, but only brothers and sisters of the father, from whom the inheritance descended; for these being postponed by the act of 1785, not only to the mother, but also to the grandfather; and being also wholly excluded by that act, from one moiety of the estate, if there be any kindred on the part of the mother ; the inheritance for the reasons above assigned, would, during the joint lives of the mother and the paternal uncles and aunts, or such of them as were in esse at the time of the infant's death, have remained in abeyance.

Here we must remember, that the utmost limit for which the inheritance, under this construction, can remain in abeyance, is for a life or lives in being, at the time of the infant's death. For if there be no brother nor sister, nor uncle nor aunt of the infant, nor any of their descendants in being, at the time of the infant's death, the parent shall immediately succeed to the inheritance. And when the parent dies, the inheritance shall go to the person, next in the order of succession, according to the act of 1785. If on the contrary the brother 'or sister &c. die without descendants, here, also, the obstacle to the parents succession seems to be removed.

These points, however, remain to be settled by our courts of judicature. It will now be proper to notice one or two particular circumstances (not yet touched upon) arising under this act.

l.By this act one of the rules of the common law, by which all purchased lands were considered in the same light as "feudum novum" to be held " tit antiyuum," and therefore that any heir, whether " ex jiarte palerna," or materna, may succeed to the inheritance, is abrogated, in the case of an infant, so far as relates to his next heir in the ascending line ; whereas before the act of 1790, all estates de-

rived by descent were assimilated to estates taken by purchase ; •which rule is in this instance reversed ; lands purchased of the father or mother, being put upon the same footing with such as are derived by descent.

3. Although the father or mother be excluded from the inheritance, the brothers or sisters of the half blood are not, nor are the grandfathers and grandmothers, or the more remote collaterals of the half blood, not even those of the pretermitted parent excluded. Hence we may conclude, that the legislature considered only the danger which might arise to an infant from his guardian being his next heir, without recurring to the principle of the common law, that the inheritance should be confined to the blood of that parent from whom it was derived.

Let us now consider the operation and effect of the act passed in 1792*, the four first sections of which, are, word for word, the same as the act of 1785. See the edition of 1794, c. 93.

Sec. 5. " Declares that where an infant shall die without issue, having title to any real estate of inheritance, derived by purchase or descent from the father, neither the mother of such infant, nor any issue which she may have by any person, other than the Jather of such infant, shall succeed to or enjoy the same or any part thereof, if there be living any brother or sister of such infant on the part of the father, or any brother or sister of the father or any lineal descendant of either of them. Saving however to such mother any right of dower, which she may claim in the said real estate of inheritance."

Sec. 6." Where an infant shall die without issue, having title to any real estate of inheritance, derived by purchase or descent from the mother, neither the father of such infant, nor any issue which he may have by any fierson other than the mother of such infant, shall succeed to, or enjoy, the same or any part thereof, if there be living any brother or sister of such infant on the part of the mother, or any brother or sister, of the mother, or any lineal descendant of either of them. Saving however, to such father, the right which he may have as tenant by the curtesy in the said estate of inheritance."

Sec. 7. " If there be no mother, nor brother, nor sister, nor their1 descendants, and the estate shall not have been derived either by purchase or descent from either the father or the mother, then the inheritance shall be divided into two moieties, one of which shall go to

• JL. V. Edi. 1794, c. 93.

the paternal, the other to the maternal kindred, in the following course ; that is to say ;" as in the act of 1785.

The words in Italics in these sections were added at that period; the rest of the act is an exact transcript from the act of 1785.

Upon this act we may remark ;

1. First; that by the fifth and sixth sections, the brothers and sisters of the half blood to the infant, on the part of the pretermitted parent, are excluded in the same manner as the pretermitted parent is, if there be living any brother or sister of such infant on the part of the parent, from whom the estate was derived; or any brother or sister of such last mentioned parent, or any descendant of either of them. The same rules and conclusions, therefore, which apply to the case of a pretermitted parent under the act of 1790, seem also to apply to the case of a brother and sister of the half blood, under the fifth and sixth sections of this act, if there be brothers and sisters only, on the part of the parent from whom the lands were derived.

2. That by the seventh section as it now stands, the partibility of the'infant's estate into moieties, in any case where there may be brothers and sisters of the parent from whom the land was derived, or any of their descendants, in being, at the time of- the infant's death is altogether impeded : but does this give the inheritance by implication to those collateral relations ? As for example .... " If an infant die without issue, having neither father, mother, brother, nor sister living, nor any descendant from either of them, both his grandfathers and grandmothers being living; having also uncles and aunts on the part of both parents living;" who shall take the inheritance ?

1. By the common law, the eldest uncle, or his issue, on the part of the parent from whom the land descended; or (if the land were acquired by purchase instead of descent) the eldest uncle on the part of the father should have succeeded to the inheritance; but we have shewn that the act of 1785, has totally repealed those rules of succession, nor is there any reason to believe the legislature meant to revive it again by this act, for the reasons mentioned in the former part of this tract.

2. By the act of 1785, the grandfather is preferred to his own children, who may be collateral to the infant, and the grandmother comes in simnl et semel, and in like proportion with them. Now there is as much reason to suppose, that the legislature intended

to give the whole inheritance to the grandfather, on the side of the parent from whom the lands were derived, as to suppose the law meant to exclude him from the moiety, which the act of 1785, gave him. Of course, no implication can be supposed to be raised in favor of his children (who are the uncles and aunts of the infant) to his own prejudice. For being neither named in the law, nor within the reason of it, upon any possible grounds: no such implication can be supported under this act, any more than under the former. It might seem, therefore, that in this case, he would take the whole inheritance; for the same reason that the brothels, and sisters of an infant, dying entitled to lands deiived from the father, would have taken it under the act of 1790, in exclusion of the mother ; and as those of the whole blood will now take it, ia exclusion both of the mother and the brothers and sisters of the half blood also. For both the grandfathers coming into the inheritance together, under the act of 1785, these cases may, perhaps, be considered as perfectly parallel to each other.; But they are by no means parallel. The act of 1785, declares that the mother shall inherit simul et semel with her children. The act of 1790, declares she shall not have any part or share of the inheritance. The act of 1785, likewise directs that in the case therein mentioned, the inheritance shall be divided into moieties; the act of 1792, says, it shall be so divided, if it were neither derived from the father, nor the mother. But to whom the whole inheritance (when not thus divisible) shall go, the law has not declared. The two grandfathers were equally incapable of inheriting by the common law; the act of 1792, gives no preference to either. The collateral relations on both sides, (expect the next heir at common law) stand likewise in the same predicament. The act of 1792, neither prefers the one to the other, nor makes any provibion for the course, which the inheritance must follow in this case. Thus new difficulties crowd upon us in every new case. Nor can I devise any other possible mode by which they can be solved, and one uniform interpretation of the law established, than that before mentioned, viz. considering " the inheritance to be in abeyance, during the joint lives of the pretermitted heirs, and of the per* sons during whose lives those heirs are excluded from the in>heritance."

On the other hand, perhaps, this unlucky section may be interpreted as a general rule, not confined to the case of infants only, but extending to the case of every person, whether infants or adults, dying without issue, and without father, mother, bro-

ther, or sister, or their issue living ; and, consequently, as repealing all the subsequent sections of the act of 1785. A construction, nevertheless, utterly unavoidable, if the act of 1792, had been an entire new law. But being, in its present form, altogether a piece of patch work, the same construction cannot be made upon it, as if it had been originally what it now is. For in the latter case, all omitted cases must have been supplied by reference to the common law, the rules of which, in eveiy case not within the purview of the act, must still have prevailed. But the act of 1785, having abolished and annihilated all those rules, and established a complete system, in which, there is perhaps, not a single casus omissu», and the act of 1789, c. 9. prohibiting us from resorting again to the common law, to supply omitted cases: we are driven, in construing the act to the necessity of confining them to such as the legislature certainly contemplated, viz: to the case of infants only, and not of <zdu/tt*. .... Nor even to the case of infants, always; for if the estate be derived from any other person than a parent, this case is not within the act: yet if the descent were mediately from the parent, but immediately from a brother or sister, perhaps, in that case, a doubt might arise upon the construction of the words " derived by descent," &c ; but it would seem advisable to construe these deviations from the general system established by the act of 1785, as strictly as possible, so as to exclude as many cases of difficulty, as a due respect for the intention of the legislature, (where it can be understood, and enforced, without manifest contradiction, and absurdity,) will permit.

Some doubts were entertained with respect to the period when this last act came into operation, occasioned by the passing of an act of the same session, which suspended this act, among a number of

* Since this tract was transcribed for the press, the author of it has been gratified in finding his ideas upon this subject confirmed by the decision of the court of appeals in the case of Drown et al. vt. Turberville et als. 2. Call's Reports 390. just published. The case was shortly this j George Waugh of full age, died intestate without issue, and unmarried, seised and possessed of an estate partly derived by devise from his fatherGoury Waugh, and partly by descent from his brother Robert Waugh, leaving an uncle, and three cousins, children of a deceased uncle of the whole blood, on the mother's side, and an uncle of the half blood, likewise on the mother's side, and two relations on the father's side. The estates were ordered to be divided into two moieties, of which one was tobe divided between the two relations on the father's side; and the other to be allotted to those on'the part of tile mother, as fellows: two fifths to the uncle of the whoteWood; two fifths to the three cousins; and one fifth to the uncle of the half blood .... 2. Call's Rep, 390.

others, until the first of October, 1793 ; although a clause in this act declares it shall commence from the passing thereof. The question was discussed in the case of Harrison et al. t>*. Allen. Wythe1* Reports, 33. And the chancellor decided it, upon principles which were not deemed convincing by the judges of the general court, in the case of one Ephraim Potter, adjourned thither from the district court of Prince Edward ; this, however, was a criminal case, and the question was, whether upon the repeal of all British statutes, as also of the former laws of Virginia, which took away the benefit of clergy from horse-stealers, the suspension of the new law, made the same session, entitled the criminal to the benefit of clergy ; which was decided in his favour. But a third case having arisen, in which the same question occurred, as to the commencement of the new act concerning foreign bills of exchange, the court of appeals removed the difficulty, by deciding, that all the laws of the session of 1792, whose operation was suspended by an act passed at the close of the session (Edi. 1794, c. 150,) although they contained a clause of commencement from the passage of each, respectively, must be considered as commencing from the first day of October, 1793*.

In the annexed table, I have endeavoured to explain the rourse of descents, as established by the act of 1785, of which I shall now proceed to give the student some idea; comparing it, as we proceed, with the English rules of inheritance.

1. Lettis suppose John Stiles, the firofiositue, in the tatte, to have died intestate, having title to an estate of inheritance, and leaving two sons, Mathew and Gilbert ? and two daughters, Margaret and Charlotte ; these shall all share the inheritance equally, without regard to sex or primogeniture : whereas we may remember, that, according to the common law ruks of inheritance, Mathew Stiles, the eldest son, or his issue, if he were dead, leaving any, should have succeeded in preference to the younger son Gilbert; and that Gilbert and his issue would also have been preferred to the daughters. But no preference whatever is given by our law ; and if either of the sons or daughters were dead, leaving issue, that issue should succeed in the same manner to the portion of his or her deceased parent. This class is distinguished in the table by number I.

2. If there be no child, or other descendant of John Stiles, 'his father (number II,) shall next succeed to the inheritance ; whereas, by the law of England, the father can never inherit to the son, in a lineal course : but the uncle, or other collateral kindred in the moat

* Call's Hep. 1 vol 394.

remote degree, shall be preferred to him ; and, in default of these the land shall escheat to the,lord of the fee.

3. If there be no father, the pother, if living, together with the brothers and sisters of John Stiles (number III,) shall divide the inheritance between them in equal portions, if of the whole blood, or, in half portions, if of the half blood, either on the part of the father, or the mother ; and if any of them be dead leaving issue, such issue shall inherit the share of his deceased parent; even though it were a bastard, if the mother were one of those entitled to a portion of the inheritance. Whereas, by the common law, neither the mother, nor the brothers or sisters of the half blood, nor the bastard, could have any portion of the inheritance, by any means whatever. And the younger brother, and sisters of the whole blood, would have been all postponed to the elder brother, Francis Stiles, and his issue, in infinitum. '

4. If there be none of these relations, the inheritance shall be divided into two equal moieties ; one of which shall go to the pater- ' nal, and the other to the maternal kindred, in the following course ; that is to say, first to the grandfather ; (number IV,) whereas by the common law no partition between paternal and maternal kindred, as such, can ever take place ; nor could the grandfather inherit lineally from his grandson, but the land should rather escheat, for want of heirs. And, in the case here supposed, should descend to the issue of the paternal grandfather, if any, or, if none, to his nearest collateral kindred of the whole blood.'

5. If the grandfather be deafl, then the moiety to which, if living, he would have been entitled, shall be equally divided between the grandmother of the same side, if living, and the descendants of such grandfather and grandmother, or such of them as there be ; (number V,) and this likewise, without regard to sex, or primogeniture, or half blood, or bastardy, where the mother of the bastard may have been one of those entitled -to the inheritance: but the half blood take half portions only. And here we may remark, that even those of this class, who might by possibility come into the inheritance by the rules of the common law, if they happen to be of the 'maternal kindred, (as for example, the issue of Andrew and Esther Baker) come in only in the fourteenth place, instead of the fifth, as may be seen by referring to judge Blackstone's table of descents.

6. In default of kindred in any of these degrees, the inheritance of each moiety shall go to the great grandfathers of the same side, (number VI,) or great-grandfather, if there be but one. That is,

the paternal moiety shall go to Walter Stiles and Luke Kempe, or to whichever of them may be living, if the other be dead ; and the maternal moiety shall in like manner go to Herbert Baker and James Thorpe, or the survivor of them, if either be living, in exclusion of the great grandmothers and collateral kindred in the same, or a more remote degree. But, if both the male ancestors in the same degree, and of the same side, be dead, then the female ancestor or ancestors of the same side, together with the descendants of such deceased male or female ancestors, or ancestor, (number VII,) shall come into the inheritance, according to the foregoing course. Whereas, in this case, the issue of Walter and Christian Stiles, (number VIII in Blackstone's table, and number VII in this) according to their sex and seniority, would, by the rules of the common law, have succeeded to the whole inheritance, instead of a moiety only ; in exclusion of all others, either in an equal or more remote degree.

7. In the same manner, the male ancestors in the next degree, of whom we may observe that there are four in each line, (number VIII,) or the survivors, or survivor of those on the same side, shall succeed to the inheritance of each moiety respectively, in exclusion of female ancestors and collaterals, in the same degree ; but, if all the male ancestors in that degree, be dead, then the female ancestors, or ancestor, and collateral kindred in the same degree (number IX,) and the descendants of such of them as may be dead, shall take each moiety respectively. And, if there be no such kindred of the one part, 'the whole shall gogto the other part; and if there be no kindred on either part, then the inheritance shall go to the •wife or husband of the intestate, (number X,) and if the wife or husband be dead, it shall go to his or her kindred, (number XI,) in the like course as if such wife or husband had survived the intestate, and then died entitled to the estate. So that, in such a case, the wife or husband is to be considered as the jirofiositua, or stock from whom the estate descends ; and his or her kindred are to be sought out according to the preceding course.

The second table is intended to explain to the student the manner in which partition is to be made, pursuant to the act of 1T92, e. 93. Sect. 16, which declares, that where the children of the intestate or his mother, brothers and sisters, or his grandmother, uncles and aunts, or any of his female lineal ancestors living, with the children of his deceased lineal ancestors, male and female in the same degree, come into the partition, they shall take per cajiita,

that is to say, by persons; and where a part of them being dead, and a part living, the issue of those dead -have right to partition, such issue shall take fter stirpes, or by stocks, that is to say, the share of their deceased parent.

1. The order of succession to the intestate's estate is, in this second table, denoted by the Roman numerals I, II, &c. pursuant to the course directed in the second, third, fourth, seventh, eighth, ninth, and tenth sections of the law, and shew that all the persons thus distinguished alike, shall succeed at the same time to the inheritance in the order of those numbers. Thus the class marked (I,) or the descendants, in infinitwn, of such of them as are dead, if'such descendants be in es»e at the time of the intestate's death, shall succeed altogether, before any of the other classes, (marked II, III, &cc.) are admitted to any part of the inheritance. And here, let it be remembered, that these different classes can never come into the partition together : but the first must be totally extinct before the second can come in ; and the second 'must likewise be extinct before the third can be admitted to any portion of the inheritance ; and so on, with all the rest.

2. The succession per capita, or by persons, is marked in each class tiy the letters A, B, C. Thus, if all those marked A, be living, they shall come into the partition per capita, and exclude the others, who are more remote from the intestate, from any share of the inheritance ; if all those marked A be dead, those marked B, being now the next of kin to the intestate in equal degree, shall take the inheritance among them, jf they be all living, per capita : to the exclusion of those marked C. But if all those marked A and B»be dead, then the class marked C shall also'inherit per capita, they being now related to the intestate in equal degree, together. But if a part of those marked A be living, and a part of them be dead, the descendants of the latter, who are marked B5 shall not take per capita, with those marked A ; but they shall take the share of their deceased parents only, which shall-be divided among themselves ; and this is what the law calls taking per stirpes, or by stocks. And, in like manner, if all those marked A, were dead, and a part of those marked B, were also dead, leaving issue, or other descendants, in esse, (marked C,) such issue could not come into the partition, per capita, with the class marked B, but they come in/;er stirpea , taking the share of their deceased parent, only, which is to be divided among themselves, by persons. And this course is to be observed, as well in the collateral, as in the descending line, from the intestate.

Thus, if John Stiles, the fmpositiis in t'le Table, die, leaving issue Mathew, Gilbert, and Charlotte Stiles, all living at the lime of his death, (see the class marked A in the descending line) they shall take [ier capita, and inherit equal portions ; but if one of them, Charlotte, be dead, leaving two sons,, James and Benjamin, (marked B.) they shall not/take with Mathew and Gilbert, prr ca/iita, but only thoir deceased mother's part, which they shall divide equally between them. But, if Mathew and Gilbert were also dead at the time of the death of their father, the latter without issue, and the former leaving three children, Joseph, Esther, and Richard, still living here, these three children of Mathew, and the two sons of Charlotte, being now the nearest of kin to the intestate, and all of them in equal degree, (seetha class marked B.) they shall take/Jer capita, and not per stirjics, as they must have done, if either of the children of John Stiles, suppose Gilbert, (who belongs to the class marked A.) had then been living. So, if all the children of John Stiles were dead, leaving issue as above supposed, except James, the son of Charlotte, now dead, leaving issue Mary and Daniel, (class C.) these children of James should not share the inheritance, per capita, with the three children of Mathew, and Benjamin the other son of Charlotte, but should take the portion of their father James only ; • yet, if Benjamin, the other son of Charlotte, and all the children of Mathew, were also dead, so that Anne, Robert, Philip, Mary, Daniel and William-(class C.) would be .all the nearest of kin to the intestate, living at the time of his death, these being all related to him in equal degree, should take the inheritance among them, per capita, and not per stirpea, as they must have done, if Gilbert, or any other person in the class marked A, or if Joseph, the son of Mathew, or any other person in the class B, had then been living.

It now only remains to explain the principles upon which the proportions of those who come into the partition together, may be adjusted, where they are to take per stir/ies j for in such cases it may happen that two persons who are related to the intestate in an equal degree, may take such different proportions, that one may have a third, and the other not more than a twentieth or thirtieth part of the inheritance. Thus if John Stiles, the profiositus, should die intestate, his son Malhcw being dead leaving eight children, and Gilbert being also dead, leaving one child, and Charlotte being still living : here, inasmuch as the succession of Mathew's children, and Gilbert's child must be per stirpes, each taking the share of their respective parents, the- child of Gilbert will have one third of the

whole estate ; whilst the children of Mathew have only one eighth part of his proportion, each, or a twenty-fourth part of the whole estate .... But, if they had taken per capita, their portions must have been all equal.

And here I must premise one general rule, whenever the inheritance is to be divided per stir/ies; that is to say, the inheritance must first of all be divided into as many different parts, as the number of persons then living in the nearest degree of consanguinity to the intestate, together with those in the same degree of consanguinity, who may be dead, leaving issue still living, will amount to. Thus if John Stiles during his life had eight children, two of whom died in his lifetime, leaving issue, and two without issue, and the remaining four still living; here the primary division of his estate must be into six equal parts, or portions; because so many children, or their representatives, will be entitled to share the estate : but to be more particular.

If John Stiles, the firofiositus, in the Table, die leaving issue three children (class A.) these being in the nearest degree of consanguinity to him, his inheritance, if he die intestate, shall be divided into three equal parts, which they shall take between them per capita, or by persons; but if one or more of them be dead, leaving issue, and one still living, the inheritance shall still be divided into three parts, of which the survivor, or survivors shall each have one, and the issue, (or other descendants in infinittim) of such as be dead shall take the share of their deceased ancestor, or ancestors, re* spectively, per stir/tea,' which shares shall be divided among the immediate representatives of the deceased, in equal degree, per capita; or again subdivided among the descendants of such of them as may be dead, per stirpet. Therefore, if Mathew Stiles (class A.) he dead, leaving three children, Joseph, Esther and Richard (class B.) and Charlotte Stiles, (class A.) be likewise dead, leaving two children, James and Benjamin (class B.) and then John Stiles the father die, leaving his second son Gilbert, (class A.) living; in this case the inheritance shall be divided into three equal parts, of which Gilbert shall have one; the children of Mathew, a second; each of whom shall take one third part thereof, or, one ninth nart of the whole inheritance : and the remaining third part shall go to the children of Charlotte, each taking one moiety thereof, or one ' sixth part of the whole inheritance. Again ; if Mathew be dead, leaving his son Joseph, (class B.) and two grand-children, Anne and Robert, (class C.) children of his daughter Esther, deceased ; and Philip, (class C.) son of his son Richard, deceased : and James

and Benjamin, the sons of Charlotte, be likewise dead, together with their mother, leaving Mary and Daniel, (class C.) children of James; and William the son of Benjamin; and then John Stiles die intestate, leaving his ..son Gilbert (class A.) still living ; in this case the inheritance shall first be divided into three equal parts, of which, Gilbert shall have one, as before; the second shall go to the descendants of Mathew, per stirpea ; that is to say, Joseph, his son, shall take one third part thereof, or one ninth of the whole inheritance, as before ; Anne and Robert, the children of his daughter Esther, shall take one other third part, as her representatives, between them; or, one eighteenth part of the whole inheritance, each: and Philip shall take the remaining third part of Mathew's portion, as the sole representative of his father Richard, deceased: and the remaining third part of the whole inheritance shall go to the descendants of Charlotte Stiles deceased, in like manner, per stirjies; that is to say, Mary and Daniel shall take the portion which their father James, if living, would have been entitled to, in equal proportions ; or, one twelfth of the whole inheritance each ; and William the son of Benjamin shall take his entire portion, or one sixth part of the whole inheritance, as the sole representative of his father, deceased.

But if Gilbert Stiles, the second son of John, were also dead, leaving no issue living at the death of his father; Mathew and Charlotte, being dead, leaving issue, as above supposed .... In this case, the inheritance must be divided according to the number of stocks, in the second class; (marked B.) for these are now in the nearest degree of consanguinity to John Stiles: that is to say, into five equal parts, one of which must go to each of the living grandchildren of John Stiles, and one to the descendants of each of those who are dead. Joseph, therefore, (class B.) will have one entire fifth part, the number of stocks being five ; Anne and Robert, the children of Esther, (class C.) will have one other fifth part between them, as representing their mother ; Philip, the son of Richard, will take another entire fifth part, as representing his father : the children of James will take another fifth part between them-; and the remaining fifth part will go to William, the son of Benjamin, Here Anne and Robert the children of Esther, and Mary and Daniel the children of James, will each take one moiety of their respective parent's share; while Joseph the grandson of John Stiles Bind Philip the son of his grandson Tlichard, and William the son of his grandson Benjamin, will each take one equal fifth part of the whole inheritance.

But if there he neither child (class A.) nor grandchild, (class B.) living, then the great grandchildren (class C.) shall come in per ca/iita, and not per stir/ies. A consequence of which is, that they shall take the whole inheritance among them, in fwd portions ; or, one sixth part, each, of the whole inheritance: they being now the nearest of kin to the intestate who are entitled to shi:re his inheritance.

From what has been said, it will he evident; that whenever one cla«s, whether those marked A. B. or C. come into the partition together, without either of the other classes having a share with them, the individuals of such class take jier ca,'iica, and not per stir/ii-f; but if any two classes, or all three come into the partition together* the nearest relations of the deceased shall take per cafiita and the more -remote per stirfies ; yet liable to a further subdivision j^er cafiita, where there may be more than one child of the same parent, who, if alive, would have been entitled to partitior.

This differs from the rules of succession in parcenary, at the common-law, where the right of representation is uniformly preserved, agreeing with the civil law in those cases, where all the persons entitled to partition are equally remote from the intestate.

THE act of 1785, c. 63Tconfirmed by that of 1792, Edi. 1794, c. 9i. Sect. 27, declares, that the surplus of the personal estate, after payment of debts and funeral charges, and deducting the wife's third part, if there be a wife, shall be distributed in the same proportipns, and to the same persons, as lands are directed to descend in, by the acts of 1785, c. 60, and the act of 1792, entitled, An Act to reduce into one the several acts directing the course of descents * : provides, that nothing therein contained shall be understood so as to compel the husband to make distribution of the personal estate of his wife, dying intestate.

-But the act of 1801, c. 13, declares, « that when an infant « having title to personal-estate, shall die before the attainment of " the a--;e, v'len one may legally bequeath that kind of property, or " after attaining such age, shall die without bequeathing it, those

* L. V. Edi. 1794, c. 93.

" of his or her kindred shall succeed to the said infant, who would « have succeeded, if he or she had been at the time of his or her " death, of the ap;e of twenty-one years."

This act was probably occasioned by a decision in the court of appeals, in October term 1801, in the case of Tomlinson vs. Billiard, a report of which was published in some of the news-papers soon after, and was in substance, as follows :

Tomlinson, by his last will in February 1797, gave a moiety of a tract of land, in Greensville County and seven negroes, to his wife, and also the use, dining her life, of the plantation whereon he resided ; which devises included all the property he had received with her, and much more. He then dexiscd all the rest of his estate to the child of which he supposed his wife to be pregnant: she was accordingly delivered of a child, after his death, which lived till September, 1798, and then diod, in the life-time of the mother, who had married Dilliard, and died soon after her child ....

The question was, whether Dilliard, in right of his wife was entitled to the personal estate, or not. The chancellor decreed in his favor, and the Tomlinsons appealed from his decree to the court of appeals, where the same was reversed, for the following reasons:.. ....

That the act of assembly passed in the year 1792, for the distribution of intestates' estates, (Edition of 1794, c. 92, J. 27.) having enacted, that, if there be no wife or children, the surplus of the personal estate shall be distributed to the same persons, and in the same proportions as lands are directed to descend by the act of 1792, to reduce into one, the several acts directing the course of descents; hath adopted the exceptions in the fifth and sixth sections, of that act, which exclude the father and mother, and their children by another husband or wife from succession to the lands of an infant intestate, which came to him from the other parent, as well as the rule to which ,they are exceptions; and extends that exclusion equally to a distributive share of the personal estate coming to the infant in the same manner *.

It does not appear, from this statement, whether the Tomlinsons or Dilliard was the complainants in Chancery ; nor in what degree the former were related to the child of Mrs. Dilliard, born after the death of her fir.it husband: Circumstances which, in the apprehension of the author of this tract might have a very important influence upon the case, for reasons, which may be collected from what is therein contained.

* Extracted from the Examiner of November 20, 1801.

APPENDIX.

NOTE C.

OF THE RIGHT OF ALIENS TO PURCHASE AND HOLD LANDS; WITH A VIEW OF THE LAWS CONCERNING ESCHEATS AND FORFEITURES FROM BRITISH SUBJECTS PASSED IN VIRGINIA DURING THE REVOLUTIONARY WAR.

BY the common law of England all persons born out of the king's dominions, or allegiance, were, with very few exceptions •, held to be aliens. And this maxim proceeded upon the general principle, that every man owes allegiance where he is born, and can not owe two such allegiances, or serve two masters at once f. The Stat. 2s. Edw. 3. Stat. 2, enacted that all children born abroad, provided both their parents were at the time of their birth in allegiance to the king, and the mother had passed the .seas with her husband's consent, might inherit as if born in England. And-by some later statutes \, which perhaps were never in force here, all children born out of the king's liegance, whose fathers were natural bom subjects, were declared to be natural born subjects themselves, to all intents and purposes, without any exception.

-According to these principles all persons born within-the United States, whilst colonies of Great Britain were the natural born subjects of the crown of Great Britain. This was indeed stipulated on the part of the colonists emigrating to this country, and confirmed to them, expressly by the several charters granted by Queen Elizabeth to Sir Humphrey Gilbert'and Sir Walter Raleigh, and the subsequent charters of King James the first; by all which the colonists and their heirs, and every of them were declared to be entitled to all the privileges « of free denizens, or persons- native of

' * The children of the king's ambassadors born abroad were always held to be natural subjects. 7 Co. Calvin's Case, f 1 Blacks. Commentaries, 373. 4 7 Ann. c, 5. 4. Geo. 2. c. 21:

England.'%...Thus stood the law at the period of the American revolution. The natives of the colonies, and the natives of thu parent state were in consequence thereof of equal capacity to inherit or hold lands in the different parls of the British empire, as if they had been born and their lands situated in the ^ame country. And. in fact many native Americans did hold estates in England, and on the other hand great numbers of the natives of Great Britain, \\lio had never been in America, posbesscd estates in lands, in the colonies.

By the declaration of independence, the colonies became a separate nation from Great Britain. \et according to the principles of the laws of England *, which we still retained, the naw es of both countries, born before the separation, tetainedall the rights of birth ; or in other words, American natives were still capaule of inheriting lands in England, and the natives of England who remained subjects to the crown ot Great Biitain, were still capable of inheriting lands in America, or of holding those which they already possessed. .... This principle seems to have been laid down by Bracton, and is recognized in Calvin's case.

In May, 1777, an actf passed to oblige the free male inhabitants of this state above the age of sixteen years to give assurance of allegiance to this state}. This assurance consisted in an oath abjuring all allegiance to the king of Great Britain, his heirs and successors, and of fidelity to the commonwealth of Virginia as an in-> dependent state. All recusants were thereby directed to be disarmed, and further, were declared incapable of holding any office in the state; serving on juries, suing for debts ; electing or being electe'd; or buying lands, tenements, or hereditaments. By the act of October, 1777, c, 2, the delinquents were subjected to double taxes. In <he same session an act|| passed for sequestering British property, and enabling those indebted to British subjects to pay off such debts ; the preamble recites, that divers persons subjects of

* 7 Co. p. 28. Calvin's case. t Chap. 3.

^ A resolution of the general assembly, Dec. 18, 1T76, for enforcing the statute staple 27 Edw. 3. c. 17, against all the natives of Great Britain in thU country who were partners with, or agents, storekeepers or clerks for any merchant in Great Britain, except such as had uniformly manifested a friendly disposition to the American cause, or were attached to this country by having wives and children here, ordered thaf all such persons should be required to depart, within a limited time; and that such as might thereafter be found in the commonwealth should bs confined as enemies and piisoaers of war.

II Chap 9.

Great Britain had during our connection ^vith that kingdom acquired estates real and personal within this common-wealth ; and had also become entitled to debts to a considerable amount, and such estates having been acquired, and debts incurred, under the sanction of the laws, and of the connection then subsisting, and it not being known that their sovereign had as yet set the example of confiscating debts and estates under the like circumstances, the public faith and the law and usages of nations required that they should not be confiscated on our part; but the safety of the United States demanded, and the same law and usages of nations would justify, that we should not strengthen the hands of our enemies during the continuance of the war. Wherefore it was enacted that the lands, slaves, &c. of whatever nature within this commonwealth, the property of any British subject shall be sequestered into the hands of commissioners : and further, that any citizen owing money to a subject of Great Britain might pay the same or any part thereof into the loan-office, taking a certificate for the same in the name of the creditor, •with an endorsement under the hand of the commissioner, expressing the name of the payer, who shall deliver such certificate to the governor and council, whose receipt shall discharge him from so much of the debt. In the succeeding month* the congress of the United States, " Resolved, that it be earnestly recommended to the several states, as soon as may be, to confiscate and make sale of all the real and personal estate*herein of such of their inhabitants, and other persons, who have forfeited the same, and the right and protection of their respective states, and to invest the money arising from the sales in continental loan-office certificates, to be appropriated in such manner as the respective states shall thereafter direct."

It does not appear that any measures were taken in .this state, in pursuance of this recommendation, until the May session of 1779, when an actf passed declaring who should be deemed citizens of this commonwealth. Whereby it is declared, " that all white persons born within the territory of this commonwealth, and all who had resided therein two years next before the passing of that act; and all who should thereafter migrate into the same, other than alien enemies, and give assurance of fidelity, &c. to the commonwealth. And all infants wheresoever bom, whose father if living, or otherwise whose mother was a citizen at the time of their birth, or who should migrate hither, their father if living, or otherwise, their

* Nov. 27,1777.

t Chap. 55.

mother becoming a citizen, or who should migrate hither without father or mother, shall be deemed citizens of this commonwealth .... And all others, not being citizens of any of the United States of America shall be deemed aliens." In the same session an act* passed, entitled an Act concerning Escheats and Forfeitures from British subjects, the preamble of wliich declared, that, " Whereas during the connection which subsisted between the now United States of America and the other parts of the British empire, and their subjection to one common prince, the inhabitants of either part had all the rights of natural born subjects in the other, and so might lawfully take and hold real property, and transmit the same by descent to their heirs mfee simple, which could not be done by mere aliens; and the inhabitants on each part had accordingly acquired real property in the other, and in like manner had acquired personal property, which by their common laws might be possessed by any other than an alien enemy, and transmitted to excutors and administrators; but when by the tyrannies of that prince, and the open hostilities committed by his armies and subjects inhabitants of the other parts of his dominions, on the good people of the said United States, they were obliged to wage war in defence of their rights, and finally to separate themselves from the rest of the British empire, to renounce all subjection to their common prince, and to become sovereign and independent states; the said inhabitants of the other parts of the British empire, became aliens and enemies t to the said States, and, as such, incapable of holding the property, real or personal, so acquired therein; and so much thereof as was within this commonwealth became by the laws vested in the commonwealth. Nevertheless the general assembly, though provoked by the example of their enemies to a departure from that generosity which so honourably distinguishes the civilized nations of the present age. yet desirous to conduct themselves with moderation and temper, by an act passed at their session, in the year one thousand seven hundred and seventy-seven, took measures for preventing what had been the property of British subjects, within this commonwealth, from waste and destruction, by putting the same into the hands and under the management of commissioners appointed for that purpose, that so it might be in their power if

* Chap. 14

t Wars make aliens enemies. 7 Co. 25. But the act of the same session before mentioned, c. 55, expressly declares all others not excepted therein to be aliens.

reasonable, at a future day, to restore to the former proprietors the full value thereof."

" And whereas it is found that the said property is liable to be lost, wasted, and impaired without greater attention in the officers of civil government, than is consistent with the discharge of their public duties ; and that from the advanced price at which the same would new sell, it may be most for the benefit of the former owners, if the same should be restored to them hereafter, or to the public if not so restored, that the sale thereof should take place at this time, and the proceeds be lodged in the public treasury, subject to the future direction of the legislature :" it was therefore declared and enacted, " that all the property real and personal within this commonwealth, belonging at that time to any British aubjeet, or which did belong to any British subject at the time such escheat or forfeiture may have taken place, shall be deemed to be vested in the commonwealth, the real estate by way of escheat, and the personal estate by forfeiture." The sales were directed to be made for ready money, and the escheators certificate of the payment thereof entitled the purchaser to a grant for the same freely and fully exonerated from all the right, title, claim and interest legal and equitable of any British subject thereto, and also, from the right, title, claim and interest of every person, under any deed of mortgage the equity of redemption whereof had not been foreclosed, at the time of the sale.

The act of October, 17T9, c. 39, for confirming the titles of purchases of escheated and forfeited estates, declares, that in every case where any estate should have been found to belong to a British subject, in which the clerk of the general court hath certified or should certify, that no claim hath been filed to such estate ; or where any claim should have been filed and discussed for the commonwealth, the title of the purchaser or purchasers thereto should be thereby confirmed to him, his heirs and assigns upon due payment of the purchase money, notwithstanding any defect in the inquisition, or, that the requisitions of the act concerning escheats and forfeitures from British subjects may not have been complied with.

These acts taken together evince the intention of the legislature to have been to repeal the common law principle that the antenati of both countries might, notwithstanding the separation, continue to hold and inherit lands in any part of the dominions which were formerly united. For the act declaring who shall be deemed citizens of this commonwealth) in express terms declares that all persons

not comprehended within the description therein contained shall be deemed aliens. But this could not have been the case at the common law, according to the rule in Calvin's case) since they were natural born subjects with respect to the natives of this country, being born under the same allegiance with them ; nor could they by any ex fiost facto circumstance, except an express legislative ordinance be made aliens*. But the act concerning escheats and forfeitures goes still further and pronounces them not only to be aliens, but enemies. And this circumstance was made the foundation of the la w of confiscation and forfeiture.

And here it will be proper to consider these two acts separately, and independently of each other. And first, by the act declaring who shall be deemed citizens of this commonwealth, all persons (other than such as were by that act declared to be citizens) holding lands or tenements within the state were liable to lose the same by escheat; since by the common law, which in this respect was unaltered, no alien can purchase, or hold lands or tenements, but they shall escheat to the commonwealth; and this in the case of an alien friend, as well as of an alien enemy. But here a distinction occurs between alien friends and alien enemies ; for if they had been alien friends they might have hired an house for necessary habitation ; and their goods and chattels would not have been sub, ject to forfeiture, to which, as alien enemies they , were. They might also have resided here peaceably, and have earned on trade, maintained personal actions, &c .... But in order to vest the property in lands of an alien friend in the commonwealth, an inquest of office, called an office of entituling is absolutely necessary; for until such office found the commonwealth has no (£l/«t»..Nor can the commonwealth take or part with any thing but by matter of recordf. And the nature of the enquiry in this case is " whether I. S. be an alien, or died without lawful heirs," &c. There is another inquest of office called an office of instruction; and that was, where the estate of the land was lawfully in the king before, but the particularity of the land doth not appear of record, so that it might be put in charge. As if one were attainted of high treason, all his lands by stat, of 33. Hen. 8. were presently in the king ; but it doth not appear to the court of exchequer of, what lands the person attainted was seized, at the time of his attainder, and this inquest is necessary to instruct the king of the certainty of

* 7. Co. 27. f Page's case 5. Co. 52. \ 2 Blacks. Com. 258. 259, &c.

the land.* And herewith the act concerning escheats and forfeitures from British subjects, seems to agree. For that net declares that " all the property, real and personal within the commonwealth, belonging at that time to any British subject, or which did belong to any British subject at the time such escheat and forfeiture may have taken place, shall be deemed to be vested in the commonwealth; the lands, slaves and other real estate by way of escheat, and the personal estate by forfeiture." .... This act could operate only upon estates or property then or before that time vested ; the other actt might operate as well upon property thereafter acquired, as upon such as was already vested; the proceedings upon the act concerning estates were in the nature of an office of instruction; the commonwealth being already entitled under this legislative declaration, as fully as the kingwas under the Sta.33. Hen. 8, withoutoffice; but yet the office of instruction was necessary in order that the commonwealth might with certainty know the land. But as to lands thereafter acquired by aliens, there the commonwealth would have no title whatsoever until an office of entituling was found. Yet such lands were liable to be escheated ; but until office found the alien might h6ld the lands. And this distinction is clearly shewn in Plowden, where it is said that the v/ovA forfeit in the act of attainder of sir F. Lovel did not vest a reversion, whereof he was seised in the king, but is only effectual to vest a right or title in the king, and that it ought to appear by record what land or tenements he had; and therefore that it did not vest the possession, nor could the king enter without office first foundf* But if the king's tenant in ca/iite be in like manner attainted of treason, then after the death of the person attainted, the freehold in law shall be in the king until office found, in the -nature of a common escheat, and not in the nature of an escheat, for treason}. Now here the legislature passed a kind of general bill of attainder against all British subjects holding lands, op other property in this state, thereby confiscating the same to the use of the commonwealth, which is analogous to the word forfeit in sir F. Level's case. Yet until an office of instruction, the commonwealth could not enter or take possession. And the fact, whether a person were a British subject or not, could not be traversed by such person, or by any one in his behalf, but he was put to his mtnstrans de droit, by the act of Octo. 1779, c. 18, contrary to the common law practice ; whereby a party found an alien by inquest

"5 Co. 52. ' f Chap. 55. { Plow. 485, 486, || Ibid 8, 486.

of office might traverse it, and plead that he was indigena, or natural born*. The legislature aware of this circumstance, and also aware that antenati natives of Great Britain were according to the principles' of the common law quasi natural bom, in Virginia, •would not permit the party to contest the fact established by the inquest viz. that the lands were the property of a British subject, and to avail himself of this constructive nativity, but compelled him to shew that he was within some of those special provisions contained in the act, in favor of infants, feme covers, and others whose cases were deemed worthy of ^exceptions in their favor. This legislative confiscation and disfranchisement is not without precedent. In the reign of Philip and Mary, sir Thomas Wyatt was attainted of high treason by act of parliament, which declared that his estate should be vested and adjudged to be in the actual possession of'the crown without any other office or inquisition t««» By the Stat. 5. Geo. I, c. 27, any manufacturer &c. then or afterwards being in any foreign country, who shall not return after warning so to do, shall be deemed an alien .... a regular consequence of which is, that their lands should escheat to the crown.

By the definitive treaty of peace concluded between Great Britain and the Uni.ted States, it was agreed that Congress should earnestly recommend to the Legislatures of the respective States to provide for the restitution of all estates, Ecc. confiscated, belonging to real British subjects ; and that all persons having any interest in confiscated lands, should meet with no lawful impediment in the prosecution of their just rights. That Congress should earnestly recommend to the several States a reconsideration and revision of all acts or laws concerning the premises, and finally that no future confiscations should be made, and that no person should in future suffer any loss, or damage, either in his person, liberty, or property on account of the part which he might have taken during the war.

In the month of October following! the legislature of this state passddanaclfor the admission of Emigrants, and declaring the rights of citizenship, by which it was declared that all free persons born -within the commonwealth ; all persons not being natives who have obtained the rights of citizenship, under the act declaring who shall be deemed citizens ||; all children wheresoever born, whose fathers or mothers are, or were citizens at the time of the birth of such children, shall be deemed citizens ; and that all persons other than alien enemies, who shall migrate into the state, and give satisfactory proof before some court of record that they intend to reside therein,

* a Vez. 545. t Plow. 551.

\ Oct. 17&J, c. 16. I! 1773, c. 55, M.\y session.

and take the oath of fidelity to the commonwealth, shall be entitled to all the rights of citizenship, except electing or being elected to any office, until an actual residence for two years, after taking such oath; and further untill they shall have evinced a permanent attachment to the sate by intermarrying with a citizen of the commonwealth, or of the United States, or shall have purchased lands to the value of one hundred pounds therein. By this act, the former act* declaring who shall be deemed citizens, by which it was declared that all others should be deemed aliens, is expressly repealed : at the same session, another actf prohibiting the migration of certain persons into this commonwealth, was also passed, whereby such as had borne a commission under the United States, or any of them ; or being natives, or residents in the United States on the 19th of April 1775, had voluntarily borne arms against the United States, within their territories, or on their coasts, or were owners of privateers, or members of the refugee board of commissioners in New York, or had acted under their authority, were prohibited from migrating to, or becoming citizens of this State. The succeeding year an actf was passed declaring that no future confiscations should be made ; provided however that the act should not extend to any suit depending in any court, prior to the ratification of the treaty of peace. No steps were taken pursuant to the recommendations stipulated in the fifth article of the treaty. By the adoption of the constitution of the United States that treaty became a part of the supreme law of the land, and as such paramount to the acts of the state legislature. The operation of it remains to be considered. To do this, let us take a short review oFthe subject.

1. By the common law, upon the separation between America and Great Britain taking place, the natives of Great Britain were constructively natural borti in America, and notwithstanding that separation, might hold lands here, as if they had been residents in America.

2. By the act of May 1779, c. 55. declaring who shall be deemed citizens, they were expressly declared to be alien*} a consequence of which I presume was, that their lands were liable to be escheated to the commonwealth,upon the common law principle that,an alien, whether friend or enemy, is incapable of purchasing or holding lands : the proceedings in this case, as we have shewn, were by an inquest of office to entitle the commonwealth to the lands so held.

3. By the act of the same session concerning Escheats and Forfeitures, they were further declared to be enemies, as well as aliens : • May, 1779, c. 55. \ Oct. 1783, c. 17. \ 1784, c. 53.

and it was further declared that all their property, whether real or personal belonging to them then, or at any lime before, when such escheat or forfeiture may have taken place, should be deemed to be vested in the commonwealth, the real estate by way of escheat, and the personal estate by way of forfeiture. This act appears to have vested a title in the state to all such estates, &c. but an office of instruction was necessary to shew the lands, &c. with certainty, and to put the commonwealth in possession.

4. The operation of the treaty of peace upon the property declared to be escheated and forfeited by the last mentioned act might have been doubtful, had not the act of 1784, c. 55, authorised us to pronounce that the legislature thereby released the right of the commonwealth in all cases, where no inquest of office had been found, and a suit thereon depending, at the time of the ratification of the treaty : and it would seem that the treaty was an effectual bar to the subsequent confiscation or escheating of any property belonging to a British subject, which became vested at any time after the act of 1779, concerning escheats and forfeitures took effect. For that act, as we have already observed, could operate only on property then, or before vested, and not on any which might thereafter be acquired by British subjects.

5. By the treaty of peace the common law principle that the ante nati of both countries were natural born to both, and as such capable of holding or inheriting in both, seems to have been revived; in consequence of which they are now capable of holding, purchasing, or inheriting in the same manner as if they were citizens. And this, although they may be prohibited from migrating to, or becoming citizens of the state. For treaties are to receive a liberal construction, and most beneficial for those for whom any stipulation is made ; and it was evidently the intention of the framers to restore all individuals to the same condition they were in before the war, as far as existing circumstances would permit, notwithstanding any part which they may have taken, either actually or constructively, in the war. And this construction is further aided by the omission of the words, all others shall be deemed aliens, in the act of Oct. 1783, c. 16, declaring the rights of citizenship, kc. at which time the preliminary acticles of peace were generally known; and it was also probably known that the definitive treaty was precisely the same with them.

6. British subjects, born since the separation, are aliens; but such of them as were born before the definitive treaty took place, seem to be entitled to the benefits thereof, so far as they had, or might be presumed to have, any interest in lands in the United

States: all others appear to be aliens in the strictest sense *, except as their cases have been remedied by the late Treaty of Amity, Navigation, and commerce, with Great Britain, of which it now remains to say a few words.

7. By the treaty of London, 19th Nov. 1794, Art. 2, it is stipulated " That all settlers or traders within the precincts or jurisdiction of the British posts within the boundary lines of the United States, shall continue to enjoy unmolested all their property of every kind and shall be protected therein. They shall be at full liberty to remain there, or to remove with all, or any part of their effects ; and it shall also be free to them to sell their lands, houses, or effects, or to retain the property thereof at their discretion. Such of them as shall continue to reside within the said boundary lines, shall not be compelled to become citizens of the United States, or to take any oath of allegiance to the government thereof; but they shall be at full liberty to do so if they think proper, and they shall make and declare their election within one year after such evacuation. And all persons who shall continue there, after the expiration of the said year, without having declared their intention to remain British subjects, shall be considered as having made their election to become citizens of the United States." .... .... By the ninth article, it is further agreed,

That British subjects who now* hold lands in the territories of the United States, and American citizens who now hold lands in

* A regular consequence of this would seem to be, that upon the death of any ante-natus subject of Great Britain, holding lands in this part of the United States, before the separation, and continuing to hold such lands in virtue of the treaty of peace, such lands would escheat to the commonwealth, unless such ante-natus had some heir, who was either a citizen of the United States, or, if a British subject who was also born before the separation. For it has been contended, that under the equity of the treaty of peace, giving it the most liberal construction, all the rights of British subjects in the United States, which were before that time actually vested, and had not since the separation been divested, were protected; and that where such rights relate to lands, the persons having such right, if not already citizens, had their whole lives to become citizens j which if they neglected to do, their lands at their death would be equally subject to escheat, as those of any alien naturalized, and dying without any other heirs, except aliens.

f The British act of parliament for carrying this treaty into effect, fixes the 28th of October 1795, the day of the exchange of the ratifications as the period of it's commencement, vide Stat. 37 Geo. 3, c- 97, passed July 4, 1797 .... Shtere, if the same day is to be regarded as the period of commencement in the United States ?

the British dominions, shall continue to hold them, according to the nature and tenure of their respective estates and titles therein ; and may grant, sell, or devise the same to whom they please, i'm like manner as if they were natives, and that neither they nor their heirs or assigns shall, so far as may respect the said lands, and the legal remedies incident thereto, be regarded as aliens." Under the operation ol*this treaty it would seem, that British subjects within the precincts or jurisdictions of the western posts, who held land there at the time of their evacuation, and shall elect to remain such within one year thereafter, cannot be regarded as aliens in respect to those lands, and that all British subjects, who actually held lands in any part of the United States, on the 1'Jth day of Nov. 1794*, their heirs and assigns forever, although in all other respects aliens, shall not be considered as aliens in respect to such lands, and the legal remedies incident thereto. How far the words of this clause may revive the intails of such as were held by that tenure, or may authorise the transmission of them in that mode to latest posterity, malgre the acts of the state legislatures on the subject, may perhaps become an important subject of enquiry hereafter .... at present it would be altogether premature.

Thus much for the rights of British subjects, whether aneenati, or strictly aliens, according to the common law. The following legislative interpretation of the treaty of 1794, by the British parliament, may aid us in the construction which ought to be given to that treaty as it relates to British subjects in the United States.

The statute 37 Geo. 3, c. 97. Sec. 24 and 25, after reciting" that by the ninth article of the said treaty, it was agreed that British subjects who then held lands in the territories of the said United States, and American citizens who then held lands in the dominions of his majesty, should continue to hold them according to the nature and tenure of their respective states and titles therein, and might grant, sell, or devise the same to whom they should please, in like manner as if they were natives, and that neither they nor their assigns should, so far as might respect the said lands and the legal remedies incident thereto, be regarded as aliens ;" declares that " all lands, tenements, and hereditaments, in the kingdom of Great Britain, or the territories and dependencies thereto belonging, which on the the said twenty-eighth day of Oct. 1795, .(being the day of the exchange of the ratifications of the said treaty between his majesty and the said United States) were held

* See the preceding note.

by American citizens', shall be held and enjoyed, granted, sold, and devised, according to the stipulations and agreements contained in the said article ; any law, custom, or usage, to the cofttrary notwithstanding .... .... Provided always, that nothing therein

contained shall extend, or be construed to extend, to give any right, title or privilege, to any person,"not being a natural born subject of that realm, which such person would not have been entitled to, if that act had not been made, other than and except such rights, titles and privileges, as shall be necessary for the true and faithful performance of the stipulations in the said article contained, according to the true intent and meaning thereof, or to give to any person, not being either a natural born subject of that realm or a citizen of the said United States, any right, title, or privilege, to which such person would not have been entitled if that act had not been made." Upon this we may shortly remark,

1. That lands purchased by a British subject, within the United States after the 28th of October, 1795, are not within the provisions of the treaty.

2. That lands owned by British subjects on or before the said 28th day of October, 1705, can not be transferred, under the treaty to any person, other than a British subject, or a citizen of the United States.

3. That no right of suffrage, or other civil privilege whatsoever, is annexed to the possessor of such lands, being a British subject, in virtue of the said treaty .... from hence we may infer,

That no such right of suffrage, can be enjoyed by any lessee, or tenant of any British subject, in virtue of his estate in such lands, although the estate of such lessee or tenant, should in quantity of interest be such, as if derived from a citizen of the United States would be a sufficient qualification to vest the right of suffrage; and iftat, npon this principle, non dct qui nan habet.

NOTE D.

THE MANNER OF OBTAINING GRANTS OF LAND, UNDER THE COMMONWEALTH OF VIRGINIA ; AND FROM THE UNITED STATES.

HERE it may be proper to notice the mode of obtaining grants of land from the commonwealth of Virginia.

The rights upon which such grants might be obtained, at the time of opening the commonwealth's land office were noticed before. Appendix note A. It only remains to mention the mode of proceeding in order to complete such right, by obtaining a patent for the land.

By the act of May, 1779, c. 13, any person may acquire title to so much waste and unappropriated lands as he may desire to purchase on paying the consideration of forty pounds (paper money, but now fixed at two dollars in specie) for every hundred acres, and so in proportion; and obtaining a certificate thereof from the auditor of public accounts; which being lodged in the land office the register grants a printed warrant under his hand, and the seal of his office, specifying the quantity of land, and authorising any surveyor duly qualified to lay off and survey the same; which warrants shall be always good and valid until executed by an actual survey, or exchanged as the act directs. The person having the land warrant must lodge it with the chief surveyor of the county, wherein the lands, or the greater part of them lie ; and the party shall direct the location so specially and precisely, as that others may be able with certainty to locate other warrants on the adjacent residuum; the location must bear date the day on which it is made, and must be entered in the surveyor's book, in which no blank leaves or spaces must be left. If several persons apply to locate lands at the same time, they shall be preferred according to the priority of the dates of their warrants ; but if all are dated on the same day, the surveyor must settle the priority by lot. Every surveyor must at

the time of making entries for persons not inhabitants of the county, appoint a time for surveying their land, and give notice thereof in writing to the persons making the entry : .... the chain-carriers must be sworn by the surveyor, and the surveyor must see that his survey is bounded by marked trees, except where a water-course or antient marked line shall be the boundary ; and shall make the breadth of each survey at least one third of its length in every part, unless where it may be restrained on both sides, by mountains unfit for cultivation, by water courses, or the bounds of land before appropriated .... A fair plat and certificate of such survey must within three months be delivered to the party, with the quantity of land, and its boundaries, whether natural or artificial, and the name of the persons, whose former line is made a boundary, therein expressed. The plat and certificate of such survey, together with the warrant on which the lands were surveyed, are to be returned to the land-office, within twelve months, at farthest, (which time by a great variety of subsequent acts, has been enlarged from time to time,) and on failing so to do, or if the breadth of the plat be not one third of its length, except in the cases before mentioned, any other person may enter a caveat in the land office against issuing a grant, expressing therein for what cause the grant should not issue: or if any person obtains a survey of lands to which another hath by law a better right, the latter may in like manner enter a caveat, to prevent the former obtaining a grant till the title can be determined. The proceedings upon these caveats, will he noticed in the third volume. The defendant within three months, and the plaintiff, or person entering the caveat, within six months, after a judgment in his favour, must deliver a copy thereof into the land office, or the land may be caveatcd again by any other person, for that cause ; upon which subsequent caveat the same proceedings shall be had, as upon the original. Due returns in all these matters being made into the land-office, the register, within not less than six, nor more than nine months, shall make out a grant, in the form prescribed by the act, in which no reservation, or condition whatsoever is expressed. This grant is endorsed by the register, and then signed by the governor, and sealed with the seal of the commonwealth, and when recorded, is delivered to the grantee, or his order. Such, generally, are the requisites for obtaining a grant of land from the commonwealth of Virginia. It will readily occur to every reflecting mind, that they are neither calculated to promote population, nor to secure the proprietors of land in the peaceable possession of their purchases ; nor even to procure for the state an adequate compensa-

tion for the lands granted. The consideration of forty pounds per hundred acres, at the time it was fixed, was not more in value than two dollars ,the present price. This is exactly the hundredth part of the price at which the lands belonging to the United States are to he sold, at the lowest rate. So that on one side of the Ohio a man may take up lands from Virginia at two cents per acre, whilst lands of equal quality and situation on the opposite side of the river command the price of two dollars. Such a waste of the public treasure, uniformly persisted in for near twenty years, bespeaks infatuation in the advisers of such destructive measures. Population, also, must be greatly retarded by grants of principalities, and seignories, in extent, to persons who propose to .themselves no other object in obtaining them, than to dispose of them to some other speculator, who in his turn consigns the patent to another of the same fraternity.

•Patents for lands in Virginia, land-warrants, military rights to land, certificates of survey, nay, even bonds to procure, survey, and patent lands, have, for the space of the last ten or twelve years, become a species of mercantile paper, passing from hand to hand, sometimes in a depreciated, and sometimes in an opposite state, and contributed to swell the vast influx of paper money that has deluged the United States for some years past. The evil has not rested here; emissaries have been dispatched to every part of Eu-

-rope with bales of these patents; fictitious plats, and maps of the country, have been offered to the public eye ; rivers and streams have been made to flow where nature has denied water; mountains have been sunk into meadows, and rocks as barren as the sandy desarts .of Zaara, have been -represented as possessing the fertility of the banks of the Nile. Thousands of ignorant and innocent persons have been defrauded, and, with their families, plunged into irretrievable ruin by these nefarious practices. The facility of acquiring patents for such a vast extent of territory, was greatly promoted by an act passed in June, 1788, of which, as there is scarcely a copy of it remaining in print, I shall subjoin a copy.

" An acv to authorise the Governor to issue certain grants,

" PASSED THE THIUTIETH JUKE, 17B8.

" Whereas sundry surveys have been made in different parts of this commonwealth, which include in the general courses thereof, sundry smaller tracts of jirior claimants, and which, in the certificates granted by the surveyors of the respective counties are re-

served to such claimants ; and the governor or chief magistrate is not, authorised 'by 4aw to issue grants upon such certificates of surveys.

" For remedy whereof, Be it enacted by the general assembly, that it shall, and may be lawful for the governor to issue grants, with reservations of claims to lands, included within such surveys. Any thing in any law to the contrary notwithstanding."

The ostensible reason for making this act, was, that at. every person was at liberty to locate his warrants wherever he pleased, locations were not made adjacent to each other, so that considerable tracts of unlocated lands were sometimes interspersed with small parcels which had been taken up and patented, and those who entered for the intermediate unappropriated lands, were sometimes obliged to go quite round the others, so as to include them

• within the general courses of their patents. This could never have happened if the law had either required the locations to be

• made adjacent to each other, or had limited the quantity of land to be granted in any one patent, to any reasonable number of acres. But the secret reason for proposing the law, which was made in consequence of a petition from some individuals, appears to be this : Some rapacious land-mongers, not satisfied with getting their lands for almost nothing, but the expence of surveying, and wishing to grasp as much as possible at once, without even the expence of an actual survey, had made their entries by referring to some well known natural boundary, as from the mouth of one river to it's head, or where another river, or water course, united it's stream with the former, thence up the second river, to another well known point, from thence by a straight line of five, ten, or fifteen miles, to another water course, and down the same, to another well known point, and from thence by a straight line to the beginning, including all the lands within these limits, with a reservation of prior claims, of which there might be an hundred or five hundred, founded upon prior patents. In some entries the courses referred to a straight line to be drawn from the top of one mountain, to the top of another, and from thence to a third, and so on. As none of these entries were made according to law which required, that every location should 6e so especially ami /irecisely made, as {hat others might be enabled to locate other warrants on the adjacent rttiduum, it was necessary for the purposes of these speculators, to procure that act to be passed, for which a plausible reason might be assigned, whilst the true object was kept out of sight. By these means, patents were easily obtained for millions of acres, without

the trouble, in many instances, of an actual survey, or, with the trouble of surveying one or two lines at most. The patentees thus possessed an immense extent of territory to appearance, whilst perhaps in reality there was not a single acre of arable land within their bounds, which was not comprehended in the reservation of prior claims. And even if there should happen to be any good land remaining, innumerable other surveys, and endless law-suits, could alone determine the spot, which the inclusive patentee was entitled to ;. whereas every patent ought to carry upon the face of it all the evidence necessary to the complete knowledge of the thing thereby granted. But how can this be the case where there is an indeterminate exception of prior rights, which are not specifically described, and where, even the names of the persons whose rights are thus excepted do not appear ? These things, whenever the country comes to be settled (if that event, under such unfavourable circumstances, should ever take place) must produce endless contention, and controversies between those who may be unfortunate enough to derive their titles from such an impure source. In 1795, the legislature seems to have discovered the pernicious tendency of the last mentioned act, and enacted, " that the register of the land office be restrained from receiving into his office, any plat and certificate of survey, which evidently comprehended the rights of others, and shall bear date after the first day of January, 1796, notwithstanding any deductions or reservations; and that all such surveys thereafter shall be deemed illegal and void."

1795. c. 9. Unfortunately the remedy is too late to prevent the evils of which the former act was the fruitful parent. The act of

1796. c. 47, declares all entries for lands, whatsoever, absolutely null and void, unless the lands be surveyed within two years from the first day of November, 1796.

For a more intimate acquaintance with this subject, the student must consult the actsof May, 1779, c. 12, and 13. Oct. 1T83, c. 32, Edi. 1785, Edi. 1794, c. 86, and the numerous acts referred to in the appendix to this volume, Note A, the contents of which it is impossible to abridge.

Grants of land for the United States may be obtained for lands lying in the territory north-west of the river Ohio, and above the .mouth of Kentucky river, in the manner prescribed by L. U. S. 4 Cong. c. SO.

The act directs that the ungranted lands be laid out by north and south lines, and by others crossing them at right angles, so as to form townships of six miles square, except where the line of the

late Indian purchase, or of tracts before surveyed, or patented, or the course of navigable rivers may render it impracticable. The townships, alternately, are to be subdivided into sections, by parallel lines, containing 640 acres each, as near as may be, and the sections numbered ; all salt springs, and four sections at the centre of every township are to be reserved for the future disposal of congress. Whenever seven ranges of townships shall be surveyed pursuant to the directions of the act, the sections of 640 acres shall be offered for sale at public vendue, and the remaining townships in tracts of one quarter of a township lying in the corners thereof, and excluding the four central sections and other reservations, shall be sold in like manner, with a proviso that no part of the lands shall be sold for less than two dollars per acre*. The purchaser at the time of the sale must deposit a twentieth part of the price, which is to be forfeited if one half the price, including the deposit, be not paid in thirty days ; and upon such payment being made, he is to have one year's credit for the remainder ; but on failure of payment the sale is to be void, and the money paid, forfeited to the United States, and the lands again disposed of. But on complying with the terms of the sale, the purchaser is to receive a patent for the land, from the president of the United States, which patent is to be countersigned by the secretary of state, and recorded in his office. This act has been amended .... 6 Cong. c. 55.

It would be an insult to the meanest capacity to suppose it incapable of discriminating between this regular system, and that which we have just before noticed. The effects will be correspondent. The United States will obtain as much for one acre of their land, as Virginia gets for an hundred. Whoever wants to set down in peaceable possession of his lands; to improve them, and to transmit them to his posterity will turn his eyes to the northwest of the Ohio for an establishment. Those who wish only to deceive and defraud others, who buy, merely to sell; who regard not in what miseries or perplexities they may involve ignorant persons, and foreigners, will, until the bubble bursts, continue to traffic in parchment, without inquiring into, or regarding the consequences, further than they are likely to affect some future speculation.

Another mischief not yet mentioned is the probability that the same lands may be patented by a number of different persons, whose locations may interfere with each other, by being made in

* A map of the whole territory, as turveyed pursuant to this act, may be found in the Atlas to Carey's edition of Outline's Geography.

in a desart, where their several boundaries may cross each other an hundred times, without being noticed by the parties making the entries, or regarded by those employed to survey them. This in a country where there are no settlements, or but very few, and those remote from each other, is an inconvenience scarcely to have been avoided,-but by the most exact regulations.

By the act of 1797, c. 10. which recites, that many persons possessing lands in this commonwealth have been harrassed apd vexed by the location of warrants on the same, as if they were still waste and unappropriated, although the present possessors thereof, and those under whom they claim have held the same quietly and peaceably under the former government, and paid quit rents and taxes for more than thirty years; and it being unreasonable to presume, that persons who have been thus long possessed under those circumstances, should not have obtained patents for their lands, which may have been casually lost; it is therefore enacted, that no entry, or location on any lands in this commonwealth, which have been settled thirty years prior to the date of such entry or location, and upon which quitrents, or taxes can be proved to have been paid at any time within the said thirty years shall be deemed valid; and any title which the commonwealth may be supposed to have is thereby relinquished. But that act shall not extend to any case of an entry or location regularly made according to law, previous to the passing thereof, [viz. January 24, 1798,] nor be construed to affect the right of the commonwealth to lands, forfeited by non-payment of taxes: or to alter or change the construction of the act for limitation of real actions.

NOTE E.

SUMMARY VIEW OF THE LAWS CONCERNING SLAVES, AS PROPERTY IN VIRGINIA.

IN considering the various acts which relate to slaves as property, it may be of use to premise some few observations, on the nature, properties, qualities, and incidents, appertaining to the objects of real and personal estates, respectively, and as distinguishing the one from the other.

The primary object of real property is land ; whatever is permanently annexed to, or connected with it, or arises out of it, or issues from it, are considered as secondary objects of the same nature ; because whilst they remain in such a state of connexion with it, they are regarded as apart of the land itself; but when severed from it, they cease to be considered as the objects of real property.

The primary, and almost universal objects of personal property are all things of a moveable and transitory nature ; which may attend the person of the owner wherever he goes.

Hence there is in the nature of these primary objects, a permanent and irreconcileable difference, depending upon their se\eral properties and qualities. This difference consists in the immoveable and permanent, nature of land; and in the moveable and perishable properties and qualities, of such things as are neither annexed to, nor connected with it, or inseparable from it.

This difference being founded in the nature of the objects themselves, the one fixed, immoveable and perpetual, the other moveable and perishable, must ever remain unchanged, as the properties and qualities upon which the difference is founded. But the incidents to real and personal property, respectively, being merely creatures of the juris jiesiitvi, or civil institutions of different coun-

tries, there is no such irreconcileable difference between them, but that the same positive rules of law may be applied indifferently, to both, according to the will of the legislature, as good policy may require.

Thus an estate in lands, if limited for any number of years, even a thousand, is regarded as a chattel; whilst an estate in the precarious life of a villein might be an inheritance in fee simple, and as such, considered as a real estate. Co. Lilt. 307. These instances demonstrate that the incidents to real and personal property, respectively, are merely creatures of Ihe jurii floaitivi, or ordinary rales of law concerning them ; and may be altered and changed to suit the circumstances, convenience, interest and advantages of society...'.. Thus in England it might be for the benefit of commerce to consider a lease for a thousand years, in lands, as a 'mere chattel; and in Virginia it might have been equally for the advantage of agriculture to consider the slave who cultivated the land as real estate. And probably the rule of law might be applied with as little difficulty in the one case, as in the other.

This rule of positive law, whereby a slave whose breath is in his nostrils, or who may run away, and escape from his master forever, might "be regarded as real estate, was not unknown to the antient common law of England. For a man might have an estate in fee, or in tail, or for life, or for years in a- villein. Co. Litt. 307. And of an estate of inheritance in a villein, a woman might have been endowed, and a man tenant by the curtesy, Ibid. 307 and 124. And in this latter case the property in the villein should descend to the heir and not.go to the executor. Ibid. 183. But if he had only an estate for years, and not an inheritance in the villein, the executor and not the heir should have him. Ibid. 117, 124. A villein also might have been annexed to lands, so as to descend and pass with them,- by deed or devise, in which case he was called a villein regardant. Litt. $.181. Of these rules of the antient law the legislature cannot be presumed to have-been uninformed.

Having promised these few observations, I shall now proceed to consider the several acts which, relate to slaves, step by step; and thereby endeavour to discover their operation and effect from time to time.

1. First, as affecting t.re slaves themselves as objects of property generally.

2. Secondly, as affecting the rights of th,e heir at common law.

3. Thirdly, as affecting the right*'of widows.

4. Fourthly, as affecting the rights of husbands.

5. Fifthly, as affecting the rights of executors and administrators.

6. Sixthly, as affecting the rights of creditors.

1. The first acf which relates to this subject is that of 1705, c. 3, declaring slaves in Virginia to be real estate. The first and second sections of which are as follows :

" For the better settling and preservation of estates within this •' dominion." Be it enacted, &t. that from and after the passing of this act all nep;roe, mulattoe and Indian slaves in all courts of judicature, and other places, within this dominion shall be held, taken, and adjudged to be real estate, and nit chattily, and shall descend unto the heirs and widows of persons departing this life according to the manner and custom of lands of inheritance held in fee simple.

The effect of this declaration, if there had been no other clause in the act,' I apprehend must have been as follows.

1. That so far as might respect the slaves themselves, as objects of property, a man might have the same estate in them, as he might have had in a villein by the common law, viz. an estate of inheritance, or for life, or for years.

2. That the slaves would have vested, immediately, in the heir at common law, in the same manner as lands in fee simple ; that is to say, subject to the dower of the wife, or the curtesy of the husband ; and to the debt of the creditor by bond wherein the heir was bound*, I presume : and consequently that the sole right of action to recover such as might be out of possession at the death'of the ancestor vested exclusively in the heir.' .

3. That the wife would have been entitled to dower in all such slaves, wherein the husband had such an estate of inheritance, a»

* Villeins do not appear to have been liable to be taken in execution for the debt of their lords; nor would an heir at common law have been liable fur the debt of his ancestor, I apprehend, merely on account of his having a villein in gross by descent. Bui if the lands to which a villein was regardant had been taken in execution upon a suit brought against the heir, on the obligation of his ancestor, the villeir. must have gone with the land. It is not therefore from any analogy between slaves and villeins, that I have ventuied upon this conjectural construction, but from the former liability of slaves to be taken in execution, and sold as chattels; and the analogy which the act seems to create between them and landsdescending in fee simple ; whieh latter weie clearr/iiable in the hands of the heir to be taken in execution for the bond debt of his ancestor, unless b"y mispleading he made the debt his own personally, see Plowdeu, 439,440.

that she might have been endowed thereof, if the same had been lands.

4. That the husband might have been tenant by the curtesy, of such of the slaves of the wife, wherein she had an estate of inheritance, as were reduced into possession, at any time during the coverture.

5. That the executor or administrator had neither any interest in, or power over the slaves of his testator or intestate, unless the same were given by the express directions of his will.

6. That the slaves were not liable to the debt of a simple contract creditor; but that the heir might have been sued upon the bond of his ancestor, wherein the heir was bound, and that the slaves which descended to him should be deemed real assets, in his hands, for the payment of the debts of his ancestor.

Such is the construction which I apprehend must have been unavoidably adopted, had there been no other clause in this act. Let us now consider those clauses which follow, and see how far they; necessarily control, or change this construction.

sect. 3. Expressly, except slaves imported for sale, and remaining unsold in the hands of any merchant or factor, his executors, Sec. on these the act had no operation, and therefore this clause cannot affect the construction of it.

sect. 4. All such slaves shall be liable to the payment of debts, and may be taken by execution for that end, " as other chattels or personal estate may be."

sect. 5. No slave shall be liable to be escheated for want of lawful heirs, but all slaves shall, in that case, be accounted and go as chattels, and other personal estate.

sect. 6. That no sale or alienation of a slave is obliged to be recorded, as is by law required to be done upon other real estate; but the same may be made in the same manner as might have been done before thfc passing of that act.

sect. 7. Possession of a slave shall not give the owner a vote in elections. This clause cannot 'nfluence the constmction.

sect. 8 E5" 9. Slaves may be recovered by action personal, or where the nature of the case shall require it, by writ dc flartitianc facienda, or of dower, which are in their nature real actions : these two clauses therefore may be considered as balancing each other, and furnishing no rule to control the former construction made upon the act.

sect. 10. The slaves of a person dying intestate, leaving se\eral children, shall in that case, (except the widow's dower which i*.

to be first set apart) be inventoried and appraised, and the value thereof equally divided among all the children, and be paid by the heir to whom they shall descend, by virtue of that act,

sec.t. 11. A widow seised of slaves in right of dower, and transporting them, or any of them out of the colony without consent of the heir, forfeits all her dower in her husband's estate, to him.

On these several clauses we may observe,

1. That the analogy between slaves and villeins, is somewhat diminished by the fourth section, which makes them liable to the payment of debts, and to be taken in execution for them ; which villeins do not appear to be subject to, as mentioned in the preceding note.

2. The heir though entitled to have the slaves, is accountable under the tenth section, to the younger children for their proportions of the appraised value; hence as well as under the fourth sec-, tion, it becomes a doubt whether he is liable to an action as heir, in virtue of the descent of slaves, only.

3. The widow's right of dower remains unimpeached by any of these clauses, though a forfeiture thereof, both in slaves and lands,, might be incurred under the eleventh section, by sending, or permitting them to be sent, out of the colony.

4. That the right of the husband to the slaves of his wife is not affected by any thing contained in either of these clauses.

5. That the right of executors over the slaves of their testator, where there is no specific devise in the will relating thereto, is rendered doubtful, where there may be an heir, by the fourth section ; which doubt, bo'h in respect to executors and administrators, is still further encreased by the act of the same session, for distribution of intestate's estates, c. 7, and by a subsequent act of 1711, c. 2, (Edi. 1733.) directing the mannerof granting probats and administrations, and other subsequent acts, which will be noticed in the sequel.

6. That slaves are liable for the simple contract debts of persons deceased, as well as for their bond debts ; and might be taken in execution'for the same "as other chattels, or personal estate may be."

Here we may enquire, against whom must a creditor have brought a suit for a simple contract debt, so as to entitle him to levy an execution upon the slaves of his debtor deceased ?

The answer seems to be, the heir not being responsible for the simple contract debt 6f his ancestor, by the common law, even though lands mfght have descended to him, and this act not having given any action against him as heir, on account of slaves descend-

ing to him from his ancestor, and he being moreover chargeable to the younger children, whenever there were such, for their respective proportions of the appraised value, there seems to be no ground to conclude that the action could be maintained against him. On the other hand, the executor being the representative of his testator so far as relates to debts and contracts (except such wherein the heir is named, and bound by the obligation of his ancestor) and the right of action either for, or against executors in any case where they might have sued or been sued before this act, not being taken away, it might be presumed that the creditor (unless he meant to charge lands, in the hands of the heir) must still bring his action against the executor, as before the passing of this act.

But inasmuch as the law gives the slaves to the heir, by descent, (that is to say, immediately upon the death of his ancestor: for that seems to be the construction of the words, according to the manner and custom of lands of inheritance, held in fee simple,) and yet the common law gives an action against the executor, only, for the simple contract debt of his testator, this construction, if maintained, would probably introduce some irreconcileable contradictions between the second and fourth sections of the act; or, should the attempt to reconcile them be made, it might be productive of infinite inconvenience and perplexity.

1. For, first; if it be supposed that the creditor must pursue his action against the heir to whom slaves had descended, the nonage of the heir, by causing the parol to demur until he was of age, might, in addition to the inconvenience before stated, interpose a temporary bar against the creditor's claim, in three cases out of four that should happen; and on the other hand this circumstance, viz. the frequent nonage, (and even infancy of the heir, in its strictest sense) would, in all such cases, render the heir the most unfit person that could be found to contest the justice of any claim which might be offered against his ancestor's estate ; and for this reason probably, among others, the common law would not subject the heir to a suit for any unliquidated claim or demand against his ancestor, nor even for his solemn contracts under seal, unless they respected the. lands descended to him ; or he was therein particularly named, and real assets actually descended to him. And even then, the law allowed him to attain his full age, that he might be able to defend himself without the aid of a guardian.

2. Secondly', if it were supposed that the creditor must first establish his debt by a judgment against the executor, and that upon that judgment, in case nulla bow were returned upon an execution,

issued against the chattels of the testator in the hands of the executor, a scire facias might issue against the heir, to shew cause why the creditor might not have his execution levied upon the slaves descended to the heir, this would produce an inconvenient circuity of proceeding, and might also open a door for fraud upon the heir by collusion between the creditor and the executor; the latter of whom, not being responsible for the debt, might either make no defence, or only a colourable defence against any claim, however unrighteous.

3. Thirdly ; if it were supposed that the creditor upon any judgment obtained against any executor might, without any scire facias or other warning to the heir, levy his execution upon the slaves in his possession, this might not only be productive of the same inconveniences, last mentioned, but even greater, of the same nature j for the heir having no warning, nor any means of shewing cause why the executor alone should be charged, either on account of assets in his hands, or other ground of liability, might be exposed to still greater injury, and hardship: besides, that the levying an execution upon the property of him who was no party to the suit, might occasion frequent breaches of the peace.

4. Fourthly ; if it were supposed that the executor might possess himself of the slaves of his testator, and keep them in his possession until he had paid all his debts, and then deliver them over to the heir, this construction would admit of several answers, and .objections, as,

1. First; slaves, being altogether unknown to the common law, could riot be deemed personal assets under that law, any more than lands or villeins, in which the testator had an estate of inheritance ; both which were known to that law, and yet the executor had no right to either, nor could be made liable by reason of either: and the reason seems to be much stronger in the case of slaves, which are altogether unknown to-that law, as objects of property. Consequently, executors could be no more chargeable by the common law for the value of their testator's slaves, than they could for the value of dog's, or other animals, of no value at the common law : and not being chargeable by reason thereof, they could have no right, by the common law, to possess themselves thereof; for there being no liability, .nor any trust; (in respect to slaves) reposed in .them by the common law, so neither could they have any interest in, or authority over them, by that law.

2. Secondly ; there was not at the time of passing this act, any -act of the colonial legislature, (nor had there ever been such an act

as far as I can discover) by which executors or administrators were authorised to possess themselves of their testator's slaves, or to dispose thereof, or were made liable for the debts of their testator, for the value thereof. The first act, which I can find, that gives an executor any authority whatsoever over the slaves of his testator, and which will be particularly noticed hereafter, passed in the year 1711, about six years after this act.

3. Thirdly ; if it be contended that the usage of the colony gave to the executor such an authority, it may be answered, that such an usage, even were it of greater authority, could not prevail against the express words of an act of assembly, declaring that slaves " shall descend to the heirs and widows of persons departing this life, according to the manner and custom of land of inheritance held infee-simfile ;" which is altogether incompatible with such an interest and authority in the executor as this supposition seems to require.

4. If it be contended that an act of the same session (c. 7.) entitled an act for the distribution of intestates' estates, gives such an authority under the construction of the seventh section, which " that a due regard may be had to creditors, provides, that no distribution of the goods of any person dying intestated shall be made until nine months after the intestate's death j" it may be observed, that slaves are not within the purview of that act: that the distribution of the personal estate therein directed, is not reconcileable to the manner in which slaves must descend; and that the words of the act are, " no such distribution as aforesaid, of the goods of any person dying intestate shall be made, until nine months, &c." and, therefore, that part of the act which relates to giving security to the administrator to refund, hath no relation whatsoever to the heir, who might possess himself of the slaves descended to him, without the assent of the administrator, (executors not being mentioned in that clause) and without giving any security to refund, as those entitled to distribution must do, before they were entitled to receive any part of the personal estate of the deceased.

In what manner the difficulties and inconveniences which may have occurred in the construction of this act were explained, or obviated ; or, what was the ordinary practice in cases arising under it, it is impossible, at this distance of time, to say. I shall therefore desist from any attempt of that nature, and proceed to consider two intermediate acts which passed between the year 1705 and the year 1727.

II. Secondly, then ; we are to consider the operation and effect of the act of 1711, c. 2. (Edition of 1733) entitled "an actdirecting

the manner of granting probats of wills and administration of intestates estates."

The tenth and twelfth sections of that act prescribe the oaths to be taken, and the condition of the bonds to be given by executors and administrators, respectively; and these require that they shall respectively make " a true and perfect inventory of all and singular the goods, chattels, and credits of the deceased. And the fifteenth and sixteenth sections, require them, respectively, to exhibit upon oath, at the next court after qualifying," a true and perfect inventory of all and every part of the estates, whereof the executors/ii/i or administration hath been to them committed; and the court shall cause appraisements of all decedents' estates to be made in money, as soon as possible.

If the act had concluded here, I think, we might have ventured to pronounce, that it had no relation whatsoever to the act of 1705, declaring slaves to be real estate, and to descend to the heirs and widows of pel-sons departing this life, as lands of inheritance in fee simple, for the reasons already mentioned under the former head. But the seventeenth and eighteenth sections require more particular notice, being in the following words.

sect. 17. " And for preventing all disputes that may arise concerning the right to crops upon the ground, it is hereby enacted and declared, that where any person shall die intestate whilst his crop of Indian corn, wheat or other grain, or tobacco is on the ground, unfinished; or dying testate, shall not have otherwise directed, all and every servant and slave employed in the said crop, at the time of such decease, shall be continued on the plantations, and employed in the crop, or crops, respectively, until the five and twentieth day of December then next ensuing ; and that then the said crop shall be deemed and taken to be assets in the hands of the. executors or administrators, to be valued by appraisers, any law, custom, or usage to the contrary notwithstanding. And the slaves employed in the said crop, as aforesaid, shall, after the said five and twentieth day of December be delivered to such person or persons, to'whom the same is declared to belong, by an act, entitled an act, declaring slaves to be real estate."

skct. 18. "Provided always, and it is the true intent and meaning of this act, that no executor or administrator shall be answerable for the price of any negro or other servant, or slave, which shall happen to die before the said twenty-fifth day of De»

" cember, although such negro, or other servant or slave shall f>e fiat " in the inventory of the deceased person's estate."

No other clause in the act hath any mention of, or particular relation to slaves. In the construction of it, we may venture to say,

1. That nothing therein contained can be construed to repeal that declaration in the act of 1705, c. 3. that slaves, in all courts of judicature and elsewhere, shall be held, taken, and adjudged to be real estate and not chattels.

2. That the interest of the heir, is so far only affected, as to postpone his possession of slaves actually employed in a crop (tut no others') until they may be presumed to have finished it;/(viz. at Christmas,) when they shall be delivered up to him.

3. That the right of dower is affected, only in the same manner as the right of the heir.

4. That the possession of the tenant by the curtsey may be prolonged thereby, for the same period as the possession of the heir may be postponed, but his right is no otherwise affected.

5. That the executor (where the testator shall not have otherwise directed) hath thereby an authority to possess himself of the slaves employed in the crop, until the crops may be finished, that is, until the ensuing Christmas; without recompense for their labour, and without bejng answerable for such as may happen to die before that time ; but that he hath no further authority nor any interest in the slaves -themselves, although -the. law gives him .an interest in their labour during that period. . . ....

6. That 'the interest of creditors is no further affected by .this act, than as it removes all doubts concerning the crops growing, whether they should go to the executor, or to the heir. • •.

This act probably laid the foundation for the- practice which seems to have since prevailed, for the executor -to possess himself of all the slaves of his testator; in which his example was probably followed by the administrator; the executor, indeed, might be authorised by the will, in many cases;-but the administrator .could have-no such warrant, and the law does not authorise him, to retain the slaves for any other purpose, or in any other manner, or for any longer period .... We shall therefore proceed to the next act to be found in our code, that any way relates to this subject.

HI. The act of 1727, c. 4. declares that the act declaring slaves to be real estate had been found by experience very beneficial to the colony, yet, that mischiefs had arisen from the various constructions, and contrary judgments and opinions given upon it, whereby many people had been involved in lawsuits and controver-

sies, which were still like to increase; for remedy whereof, and that the said act may be fully and clearly explained, and amended.

sect. 2. Declares that the same shall thereafter be construed, and the true intent and meaning thereof is thereby declared to be, in the several cases therein after mentioned, as the same is therein after expressed, and declared, and not otherwise; that is to say,

sect. 3. Whenever any person shall, by bargain and sale, or gift, either with, or without deed, or by his last will and testament in writing or by any mincupative will, bargain, sell, give, dispose or bequeath any slave, the same shall transfer the absolute property of such slave to the person to whom the same shall be sold, given or bequeathed in the same manner as if such slave were a chattel; and no remainder of any slave shall or may be limited by any deed, or the last will and testament in writing of any person whatsoever, otherwise than the remainder of a chattel personal by the rules of the common law can or may be limited, except in the manner therein after mentioned .... The ninth section confirms all former judgments of the general court, or any county court. And the tenth section further provides,

That where any person had theretofore by deed executed in his lifetime; or by his last will and testament in writing, disposed of any slave for the life or lives of any person or persons whatsoever, and had thereupon limited any remainder, the same shall be good and effectual in-law, to transfer the absolute property of such slave to the person or-persons to whom such remainder had been limited, and no otherwise. - The three following sections providing for the manner in which slaves might be annexed to, and descend, pass and go with lands, as a part of the freehold, will be noticed below.

sect. 4. And where any slave hath been, or shall be conveyed, given, or bequeathed, or hath, or shall descend to any feme covert, the absolute right, property and interest of such slave is thereby vested, and shall accrue to, and be vested in, the husband of such feme-covert; and where any feme sole,-is or shall be-possessed of any slave, as of her own property, the same shall accrue to, and be absolutely vested in the husband of such feme, when she shall marry. . •

sect. 5. Infants above the age of eighteen years may bequeath any slave whereof they may be possessed, by will in writing.

sect. 6. Declares that -slaves shall not be liable to forfeiture except in such cases, where lands would be liable thereto.

sect. 7. And that no executor or administrator hath, or shall have, any powder to sell or dispose of any slave or slaves, of his

testator, or intestate, except for the payment of his just debts; and then only, where there is not sufficient of the personal estate to satisfy and pay such debts; and, in that case, it shall and may be lawful for the executor or administrator to sell and dispose of such slave or slaves, as shall be sufficient to raise so much money as the personal estate falls short of the payment of the debts.

sect. 8. A mother dying intestate and leaving slaves other than of her dower, the heir shall be accountable to the younger children for their proportion of the value. sect. 9 and 10. Have been noticed above. sect. 11. And whereas the true design of the said act, and the policy thereof was, and is to preserve slaves for the use and benefit of such persons to whom lands and tenements shall descend, be given, or devised for the better improvement of the same, which cannot be done according to the custom of the colony, without slaves, and therefore it may be very advantageous to estates to establish a method for settling slaves and their increase, so as they may go and descend with lands and tenements: to which endt sect. 12. It is further enacted that any person may by deed or will annex slaves and their increase to lands and tenements in fee tail, or for life or lives; and thereupon, the slaves so annexed shall descend, pa* and go, as a part of the freehold and inheritance, in possession, reversion, and remainder, with such lands and tenements ; And any slaves settled, conveyed or devised with the same limitations, and in the same deed or will with lands, shall be considered as annexed to, and shall descend, pass and go therewith, from time to time, as before mentioned.

sect. 13. Authorises any tenant in tail of lands to annex slaves to his estate therein, which shall descend under the like limitations, as if such settlement hud been made when the estate was first created.

sect. 14 and 15. Provide that any slaves so annexed as aforesaid, and their increase shall, notwithstanding, " be liable to be taken in execution, and sold, for the satisfying and paying the just debts oj the tenant in tail for the time being ; and such sale shall be good and effectual against him, or her, and his orher issue, and all other persons whatsoever, claiming under such settlement." •

sect. 16. "Provided, nevertheless; that if any person shall hereafter be possessed of any slave or slaves in right of his wife, which shall be so annexed to lands as aforesaid, such slave or slaves shall not be liable to be taken in execution, for the satisfying any

debt of such husband so as to bar the wife of any right which she may claim under any settlement made in pursuance of this act, after his death.

sect. 17, 18, and 19. Give to widows and younger children a remedy, by bill in equity, for their dower, or proportionable part of the value of slaves, against the heir, notwithstanding his nonage.

sect. 20 and 21. After reciting, that doubts had arisen whether slaves were comprehended under the provisions contained in the act of 1705, c. 7. for distribution of intestates' estates, provide, that any widow not satisfied with the provision made for her by her husband's will, may within nine months after his death renounce the same: And after such declaration, • may demand and recover her dower of all the slaves whereof her husband died possessed, which she shall enjoy during her natural life; and after her death, or other determination of her estate, they shall go to the person in whom the property thereof would have vested, in case the dower had not been demanded: And moreover, such widow shall have such share of the personal estate of her husband, as by the said act is directed; but if such declaration be not made within the time limited, she shall be forever barred to claim any other part of her husband's estate, than shall be given or bequeathed by such last will. _ In considering this act, I shall proceed, as before, to examine,

1. It's operation and effect as it relates to slaves themselves, as the objects of property. And here we may observe that an important distinction seems to have been established between such as are not annexed to lands and .tenements, held in fee, tail, or for life, and such as are so annexed, and held: of these in their respective order.

1. Slaves not annexed to lands and tenements in fee, tail, or for life, after the commencement of that act, seem to have been put upon the same footing with chattels, by the third, fourth and fifth clauses of the act, in the several cases therein mentioned.

2. By the seventh clause, they are rendered a kind of, special unsete, which may not be touched until all personal assets are completely exhausted; on this subject more will be said hereafter under the head of executors; observing by the way, that the strong negative expressions in the beginning of this^lausc, and the restrictive terms used in the latter part of it, amount to a legislative confirmation of the construction made of the acts of 1705, and 1711, that the executor had no interest in the slaves of his testator,

although the latter of these acts gave him a special authority over them, for a limited time, to wit, until the next Christmas.

3. The twenty-first section seems to prove that the legislature did not consider slaves as comprehended under the act of 1705, c. 7. for distribution of intestates' estates.

4. In all other cases, slaves not annexed to lands seem to have been left upon the same footing as before the making of that act.

5. Slaves annexed to lands seem to have been perfectly assimilated, (as property,) to villeins regardant; with one material distinction from them, that they were still liable to be taken in execution for the owner's debt, as before the making of that act: of this more will be said hereafter.

2. The interest of the heir, in slaves not annexed to lands, seems to be rendered somewhat doubtful, by the authority which the law gives to the executor or administrator, to sell such as may be sufficient to raise so much money as the personal estate falls short of the payment of just debts. It seems to be questionable, also, whether the slaves annexed to the lands of a tenant in tail, although clearly liable to be taken in execution for his debts, during hit lifetime, would be liable, after his decease, to be sold by his executors or administrators, by virtue of the fifteenth section; which declares, " that they shall be liable to be taken in execution and sold for the satisfying and paying the just debts of the tenant in tail for the time being:" -which latter words seem to restrain such liability to executions issued, and levied, during the life of such tenant in tail.

3. A distinction is clearly established by the twenty-first section, between the widow's right of dower in slaves, and her right to a distributive- share of the personal estate: The law being express, that she shall be endowed of all the slaves whereof her husband died possessed ; but she may be entitled to a greater or less proportion of his personal estate, according to his circumstances; for the whole may go, perhaps, to pay debts; or, according to the number of children, that he may leave. Whereas the law seems to be clear and express, that she shall be endowed of the whole of liis slaves whereof he died possessed.

And this I apprehend upon very good reason, for dower being both a legal and an equitable right, founded upqn a valuable consideration in law, namely, the marriage, and often upon a further valuable consideration, iri fact, namely, the portion of the wife, it seems impossible to assign any good reason, why the claim of a woman,

•whose -whole property hath probably vested in her husband', and

•which may constitute the whole of the property which he leaves,

should be postponed to the claims of other creditors, founded upon considerations neither more strictly legal, nor equitable. This construction which I have given to the law, has, I believe, been generally rejected; though I cannot but think that it has been rejected without reason. For, in addition to what I have just advanced, it may be urged, that the construction which I give to the act may be reconciled to the justice due to legal creditors, as well as with justice to the widow, who is in a moral light, a creditor of an higher grade, and certainly may be regarded as a creditor for a valuable consideration, both at law, and in equity. For, as the right of dower does not extend beyond the life of the widow, the slaves which survive her might, after her death, and after satisfying her just claims, be applied to the payment of ordinary creditors, for their just debts; whereas if the ordinary creditor's claim be preferred to that of the widow, the latter will be forever barred, and precluded from any satisfaction for her claims, however just and equitable.

4. The seventh section,- by a kind of negative, pregnant, or side' wind, gives to executors and administrators an authority (in case of a deficiency of assets') over the slaves of their testator, beyond what was either given, or could be implied, under any former act, for reasons already mentioned: whether this authority should have been exercised within the executor's year, as we may call it, is left to conjecture. And how far this authority was coupled with an interest in the executor or administrator, may merit further enquiry.

It may be also worthy of enquiry, whether the executor or administrator had power to retain the slaves in his hands, beyond the following christmas: or must then deliver them up; yet retaining a power over them, so far as to sell and dispose of such as might be necessary to supply any deficiency of the personal estate, for payment of debts.

5. The right of the husband to the slaves of his wife, not annexed to lands, is made absolute, if he reduces them into possession during the coverture: and if he survives her, he may recover them •as her administrator : but if they be not reduced into his possession, during the coverture, and the wife survives him, they shall belong to her, or her representatives, as other chases in action.

But if slaves annexed to lands in tail, held by his wife, he could only be tenant by the curtesy, although reduced into possession during the coverture : for the twelfth and thirteenth sections are

express, that they shall pass and go in possession, reversion, and remainder, with the lands, as part of the freehold ; and the seventeenth section will not permit them to be taken in execution for hit debts, even during the marriage.

6. The rights of ordinary creditors, as was before observed, seem to be postponed to the widow's right of dower, by the twenty-first section; and perhaps they may be narrowed, in the case of slaves annexed to lands, after the death of the tenant for life, for the time being j on the other hand, the authority given to executors and administrators to sell slaves, in case of a deficiency of the personal estate, may be regarded as an important provision in favour of creditors.

IV. About three years after the making of the preceding act, another act (1730, c. 8. Edition of 1733) entitled, an act to prevent losses to executors and administrators by the sale of negroes, goods, and chattels, &c. passed, reciting, that it frequently happens, either through the ignorance or partiality of appraisers, that estates of persons deceased have been valued at much less than the true worth; and yet by construction of the act of 1711, c. 3, directing the manner of granting probats and administrations, it is held that executors and administrators are only answerable and accountable for such appraised value, to the great injury of creditors and orphans ; yet, on the other hand, it had sometimes happened that tlavea, goods, and Chattels, being taken in execution, to satisfy the debts of a dead person, had been sold for less than the appraisement ; and the executor or administrator must, in that Case, abide the loss: for prevention whereof, it is enacted, that the estates of deceased persons shall be appraised by order of the court, upon oath ; and such appraisement may be given in evidence, in any action or suit, which may be brought against such executor or administrator, to prove the value of the estate ; but shall not be binding, either upon the executor, administrator, creditor, or other person whatsoever, where it shall appear by any other legal proof, that the goods and chattels were really worth, or were bonafide sold far more, or less, than the appraisement. It is observable that although slaves are mentioned in the preamble, they are not mentioned in the ein acting clause of this act, here recited.

Sections 10, and 11. To remove doubts concerning the act respecting slaves finishing the crops growing at the time of the owner's death, declare, that where any person shall die between the first day of March and the twenty-fifth of December, the servants and slaves of which he died possessed, shall be continued and

employed upon the several plantations held and occupied by the deceased person, until Christmas following ; and the crops made shall be deemed assets after the charge of cloathing and feeding the servants and slaves so employed therein being deducted.

This act is but of little importance, except as it shews the usage and practice which had been ordinarily observed by executors and administrators, and the frequent doubts and difficulties which occurred in the construction of the former acts.

The act of 1744, c. 6. (Sessions acts) directs the appointment of appraisers to value the slaves, and personal estate, by the court admitting any will to record.

V. We come now to the period of the general revisal of the laws made in the year 1748, at which session three very important acts, all connected with this subject, and in some measure framed upon similar principles, were passed by the general assembly ; but, two of them were disallowed by the crown, though the third received the sanction of the royal assent. To this circumstance may be ascribed the difficulties which have existed since that period in the construction of the several acts concerning slaves.

The act of 1748, c. 3, (edition of 1752) after reciting that the before mentioned acts of 1705, c. 3, and 1727, c. 4, declaring slaves to be real estate, and the act of 1705, c. 7, for distribution of intestates' estates, had been found inconvenient, repeals the two former entirely, and declares, that for the future, all slaves whatsoever, shall be held, deemed, and taken to be chattels personal.

The succeeding chapter, 1748, c. 3, for the distribution of intestates' estates, enacts, " that after debts, funeral and other just expences, first paid and allowed, the surplus of all and singular the goods, chattels, and personal estate, other than slaves of every person dying intestate shall be distributed, as therein after directed."

Sect. 5, declares, that when any person dies intestate, his widow shall have one full and equal third part of all his slaves, and that she shall hold them and their increase during her natural life, and after her death, the said slaves and their increase, which shall be then living, shall be appraised, and shall descend to, and be vested in, the heir at law of the intestate j but he shall be answerable to the other children, or their legal representatives, for their proportionable value thereof: and the other remaining slaves of the intestate shall be immediately vested in his heir, but he shall be answerable in the same manner to the younger children for their proportions.

Sec. 11, gives to any widow, dissatisfied with the provisio 1 made for her by the will of her husband, the same right of renuncia tion, and the same right to demand and recover the third part of all the slaves whereof her husband died/io«sesserf, to hold for her natural life, as was given by the act of 1727, c. 4.-Sec. 21, before-mentioned.

Sec. 13, enacts, that no distribution of fhe"goods of any intestate shall be made till nine months after his death ; and every person claiming any share or part therein, shall give bond with sufficient sureties, in the court where such distribution shall be made, that if any just debt owing by the intestate shall thereafter appear, be sued for, or recovered, he will refund to the administrator his proportionable part thereof, and of all costs and charges occasioned thereby, to enable the administrator to pay the same.

These two acts were refused the royal assent; but they may afford some clue to' the exposition of the third (1748, c. 5. Edi, 1752, but numbered c. 3, in the edition of 1769) directing the manner of granting probats of wills, and administration of intestates' estates. As this act may be considered as inseparably connected, in the opinion of the legislature, with that which declared slaves to be no 'longer real estate, but chattels personal, the general rules which it contains relative to chattels were probably intended to extend to slaves, in which the executors (by virtue of the declaration contained in the former act) would have acquired an interest, instead, perhaps, of a bare authority under the act of 1727, c. 4. Sec. 7, yet it is remarkable, that Sect. 29, of the act of 1748, is in the same words with that pf 1727, Sec. 7, except, that it requires that the sale of a slave, made by an executor, or administrator, in case the personal estate should fall short, shall be made at public auction. So that slaves, even by that act, are regarded as special assets, not to be resorted to, until the other personal assets are exhausted, nor to be sold or disposed of by the executor or administrator, in any other manner, than at public auction. And upon this ground it has been held (though perhaps erroneously) that an executor under the act qf 1727, had a bare authority only, and not an interest, in the slaves of the testator, and, as that authority was not absolute, but conditional, only, in case of a deficiency of personal assets, it must be strictly pursued; and, therefore, that the sale of a slave by an executor, by private contract, was voidable by the heir, according to the rule, caveat emfitar.

For the act of 1727, having authorised the sale by the executor, without directing the mode of settling, left him at liberty to sell in

any manner that he chose ; but, when the act of 1748, added, that the sale should be made at public auction, we must presume the legislature meant to prevent in future the frauds and mischiefs, which probably had ensued upon private sales. And this directory part of the law must be regarded as a general notice to all purchasers, not to purchase by private contract.

As the decision in this case was acquiesced in, without an appeal, I have ventured to mention it in this place.

And here I will venture to mention another point, which arose collaterally in the same case, though no decision was made upon it. That is, whether an executor, even in case of a deficiency of the personal assets of his testator to pay his debts, was authorised to sell any of his slaves " to raise so much money as the jiersonal estate fell short qf the payment of his just debts," without first making upthe accounts of his executorship, and settling the same with the court. For, if the construction be just, that the executor had a bare authority only, and not any interest in the slaves under these acts, it would seem reasonable that the heir should have had legal notice of the necessity of resorting to the slaves to make up the deficiency of personal assets ; and this legal notice, perhaps, could be given in no other .mode, equally satisfactory, and reconcileable to the principles of law. /

The refusal of the royal assent to the two former acts, imposes some restraint upon the construction of this act, to which it would not have been liable, if the act declaring slaves to be personal estate had passed. For the legislative will being one and entire, can only be collected from those acts which are perfect; the imperfect will of a part of the legislature, consequently, cannot be admitted to control the former perfect will of the whole. The act of 1727, therefore, remaining unrepealed, all cases within the purview of it, which are not provided for by this last act, but which would have been provided for if the act declaring slaves to be personal estate had received the royal assent, (without which it was no law, but merely the imperfect will of a part of the legislature,) must remain and receive the same construction, I apprehend, as if the general assembly had never passed the act.

The thirtieth and thirty-first sections, are nearly a repetition of the act of 1730, c. 8. $. 10 and 11, authorising the slaves of any person deceased to'be continued and employed upon the plantation, and declaring the crops made, after feeding and cloathing all above ten years of age, assets in the hands of the executor, or administrator, and that the slaves shall then be delivered up to the party or parties having a legal right to demand them.

The two former of these acts being frustrated, and the latter containing little more than what had been before enacted, it seems not to have made any considerable change in slaves, as a distinct species of property, though such change was evidently intended by the colonial assembly.

VI. We are now arrived at the period of the revolution when the act of October, 1776, c. 26, declaring tenants of lands or slaves, in tail, to hold the same in fee simple, may be considered as repealing, in effect, those clauses in the act of 1727, c. 4, which authorised the annexing slaves to lands in fee tail, though, perhaps, it had no effect to prevent such annexation to lands, granted or bequeathed for life only, with remainder over in fee, or without any remain* der over.

The principal effect of this act may be considered to relate to • the husbands of tenants in tail, of lands to which slaves were annexed, who would immediately have an absolute estate in such slaves, independent of the former right of the wife, by virtue of the settlement thereof in her favour, instead of the possibility of being tenant by the curtesy only, of such slaves as a part of the freehold. And this seems to have been further confirmed by the act of May 1783, c. 27. Edi. 1785.

VII. The last period that remains to be noticed, is that of the revisal in the year 1792, when all slaves were once more declared by the legislature to be personal estate. Edi. 1794, c. 103. Sec. 43, yet they are still considered as a kind of special assets, it being provided by an act of the succeeding session, (Edi. 1794, c. 170,) that executors and administrators shall not sell the slaves of their testators or intestates, unless the other part of the personal estate ; regard being had to the privilege of specific legacies, shall not be sufficient for paying the debts and expences ; and in that case, such part only of the slaves shall be sold, as shall be sufficient to satisfy the debts and expenses, and the residue of the slaves shall be reserved in kind for the legatees or distributees of their testators or intestates respectively.

The act concerning wills, &c. (Edi. 1794, c. 92. Sec. 29,) whilst it considers slaves as personal estates in other respects, gives to the widows of persons dying intestate, a life estate only in the third part of the surplus of the slaves of their husbands, after funeral debts and just expences paid. And c. 103. §. 44 and 45, still imposes the forfeiture of all her dower in her husband's estate, if any widow removes, or permits their removal, out of the commonwealth. It may be worthy of remark, however, that the twenty-fifth section of the act concerning wills, makes a distinction between the portion

of the husband's slaves, which are to be allotted to the widow of any person dying testate, who renounces all benefit under his will, and that which the succeeding section allows to the widows of persons dying intestate. For the words of the twenty-fifth section are, that upon such renunciation the widow shall be entitled to one third fiart of the slaves whereof her husband died possessed, which she shall hold during her life ; and, moreover, shall be entitled to such share of his personal property, as if he had died intestate, to hold as her absolute property. Whereas the widows of persons, dying intestate, are only entitled to the same portion of the slaves for life, after payment of debts, as of the personal estate in absolute property. No judicial interpretation of these clauses has yet been made, as far as I have been informed.

And, by the act concerning executions, (Ibid. c. 157. $. 17 and 18,) no slave can be taken in execution for a debt under ten pounds, or two thousand pounds of tobacco, if other sufficient goods be shewn. And the names of slaves taken in execution and sold, must be certified on the back of the execution. And the law is the same in regard to distresses made for any public tax, fine, or forfeiture, &c. Ibid. c. 80. J. 20.

The act of 1758, c. 1, declares, that all gifts of slaves must be made by will or deed, duly proved by two witnesses, or acknowleged by the donor and recorded: but the act of 1787, c. 22, confirmed by that of 1792, (Edi. 1794, c. 103, $. 48,) declares that this shall not extend to such gifts of slaves, as have at any time come into the donee's possession, and remained with him, or some person claiming under him; but this shall not affect any bona fide purchaser for a valuable consideration, or creditor of the donor, until after three years' possession under such gift.

Slaves may be emancipated by will or deed, but may nevertheless be taken in execution, to satisfy any debt contracted by the person emancipating them, before such emancipation is made. L. V. 1782, c. 21. Widows renouncing all benefit under their husbands' wills, shall also be endowed of any slaves which he may have emancipated by his will. L. V. 1795, c. ll.. .... Edi. 1794, c. 103,

\. 36 and 37.

Having given this abstract of the several acts relating to slaves, which have been passed in Virginia, during a period of near a century, and having endeavoured to interpret the same, from time to time, according to the best light which I have possessed on the subject, formerly, I shall now proceed to mention some decisions, which may serve to convict me of numberless errors in the interpretation which I had ventured to make.

1. And) first, as to the right of executors. In the case of Walden's executors against Payne, 2 Wash. 7. Judge Lyons delivered the opinion of the court of appeals, as follows:

The principal point, made in this cause, on the part of the appellants is, that slaves are real estate, and can only be considered as assets, in the hands of the executors, sub modo.

Slaves from their nature are chattels. They were originally so, and the law made them real estate only in particular cases, such as descents, &c. But in most other instances, and especially in the payment of debts, they were declared to be personal estate. It is true the law has protected slaves from distress, or sale, where there is a sufficiency of other personal assets to pay debts or levies, and in this respect they differ from other chattels; but this qualified exemption does not change their nature,,or give to them the qualities of real property. Slaves, therefore, being clearly assets, in tho hands of an executor, and liable to the payment of debts, the executor had a right to demand security of the legatees before'he delivered them up, and a court of equity would not have compelled him to part with the possession, without such security had been given, upon the principle of making him do equity who would have it. .... An executor who does not oppose an oider of court for a division, or disclose to the court the fact that there are debts subsisting against the estate, is considered as consenting to such order; which should be construed according to the reason and justice of the case, and that it was intended only to compel a division of the estate, which should remain, after satisfying all legal demands against it. If an executor having knowlege of such a demand chuses to deliver the slaves to the legatees without taking security to refund, it is at his peril; for being a trustee for creditors, he ought to take care to keep enough in his hands to satisfy them, and it is no answer to their demand against him to say that they may pursue the legatees. They are under no obligation to follow the estate, though they may do so, if they please.

In the case of Burnley vs. Lambert, 1 Wash, 308. The plaintiff who had married one of the legatees of John Jones, had received from the executors upon a division of the estate, certain slaves devised to her, which were afterwards taken in execution upon a judgment against the executors of Jones, and purchased by the defendant, nt a coroner's sale, made by virtue thereof. And from a judgment for the plaintiff in ,that case, the defendant appealed j and in that case Pendleton, president of the court of ap-

peals, delivered the opinion of the court: that after the assent of the executor, the legal property is completely vested in the legatee, and cannot at law be devested by the creditors. The creditors, however, have a double remedy, first, against the executors at law; in which case the executors have their remedy, in equity, against the legatees to compel them to refund ; or, secondly, the creditors may in equity pursue the estate in the hands of the legatees and in either case, all the legatees must be made parties, that the charge may not fall upon one, but may be equally borne by the whole. And the seisure by the coroner was accordingly adjudged to be unlawful, and the judgment of the district court was affirmed.

2. As to the rights of the husband to the slaves of his wife.

In the case of Sneed against Drummond, in the court of appeals, November, 1786, the presiding judge* delivered the opinion of the court to be, that slaves, in all cases where the right of the husband to the slaves of his wife was concerned, since the passing of the act of 1727, were to be considered as personal estate. That case has been lately reported in the second, volume of Mr. Call's Reports, 491.

The case of Dade, vs. Alexander, is the next in order of time ; and in that case it was decided, that if a feme sole be entitled to slaves in remainder or reversion, and afterwards marries, and dies before the determination of the particular estate, the right vests in the husband. 1 Wash. 30.

In the case of Wallace against Talliaferro, 2 Call, 490. The court decided, that where a man devised slaves to his daughter, then married, and made the husband one of his executors, who, qualified as such, and died before any distribution was made, and without doing any act, testifying his election to hold the slaves, in right of his wife, and not as executor, the right of the slaves survived to the wife (they not having been reduced into his possession as husbandj in the same manner as if they had been chattels.

These cases, I presume, relate to slaves not annexed to lands, and entailed therewith.

3. Thirdly : as to devises of slaves.

In the case of Dade against Alexander, heforementioned. 1. Wash. 30. The court of appeals decided, that money directed by will to be laid out in the purchase of slaves, and to be annexed to

* Mr. W)the, the presiding judge on that occasion, intimated his dissent from the opinion of the court, but did not give his reasons at large.

lands, devised in tail by the same will, was to be considered as slaves: and the slaves purchased therewith will pass with the land in tail*

Quere: If in this case the husband would not have been tenant by the curtesy, only, before the act declaring tenants in tail of lands, and slaves to hold the same in fee simple, instead of having the absolute right thereto, as at present ?

In the case of Shelton against Shelton, 1 Wash. 60, the court said that slaves purchased after the making of a will, would pass by a devise of all his slaves, in the same manner as chattels.

And in the case of Cole against Claiborne, it was decided, that the reversion in the dower slaves of the widow, will pass under the words of a general devise of all the rest and residue of the testator's negroes and personal estate. 1 Wash. 262.

In the case of Dunn and wife, against Bray, 1 Call. 343, the court held that a devise of a slave to the testator's spn, and his heirs forever, but if he die without issue, then to another son ; that this limitation was good, and the contingency not too remote.

And in Pleasants against Pleasants, where the testator in the year 1771, devised that his slaves should be free when they arrive at the age of thirty years, and the laws of the land will admit them to be free, the court held that those who were living when the act of 1782, authorising emancipations of slaves passed, and were of the age of thirty years, or had since attained that age, %vere entitled to the benefit of the devise, if still held by the testator's legatees, or in their families, without change, through the intervention of creditors, or purchasers, the contingency having actually happened.

4. As to gifts of slaves.

In the case of Turner against Turner, 1 Wash. 139, it was decided that a parol gift of slaves (though accompanied by actual delivery of possession, as I understand the case to have been) made antecedent to the act of 1787, c. 22, was void, under the act of 1758, c. 1, to prevent fraudulent gifts of slaves ; and that the act of 1787, was prospective, only, and not retrospective.

From the preceding abstract of the various laws relating to slaves as property, it is difficult to assign to them any determinate place, either under the head of real, or personal property. The exceptions contained in the acts declaring them to be real estate, sufficiently demonstrate that the legislature were aware of the difficulty of imparting to them all the properties of real estate : and the provisions still retained in the act which declares them to be, now,

personal estate, equally shew the aversion of the legislature to restore to them, completely, all the properties and incidents of personal chattels. Thus we see, that when declared to be real estate, they were subject to be taken in execution for debt, even when annexed to lands, and entailed; that they were not liable to escheat; might be transferred without deed, and be recovered by action personal; that the heir at law was made accountable to the younger children, for their proportions of the value ; that the estate of a feme covert therein vested, absolutely, in the husband : that an infant of eighteen years might dispose of them by his will; and that no remainder thereof could be created, other than of a chattel personal, by the rules of the common law.

Now, when they are declared to be personal estate ; the widow's right thereto is limited for her life, only, instead of being absolute, as in the case of chattels ; to remove them out of the state amounts to a forfeiture of her whole dower in lands, as well as slaves ; the executor cannot sell them, even now, until there is an actual deficiency of the personal estate; and a gift of them without deed unless accompanied with the possession, is void ; and they cannot be taken in execution or distreined if other sufficient property can be had. Some of these provisions do not seem to be founded in reciprocal justice. A man marries a woman possessed of slaves in her own right; they become his, absolutely, immediately upon the marriage, and the next moment may be taken in execution to satisfy his debts, previously contracted: if he dies in the lifetime of his wife, she shall have the use, only for her life, of one third part of her own slaves, if he die not indebted j but she may be deprived of the whole by a creditor, whose debt was perhaps desperate, until her marriage with the debtor. Nor must she presume to remove them out of the state, under penalty of forfeiting them, and her dower, if she have any. It seems difficult to reconcile these provisions to the principles of mutual and reciprocal justice,

NOTE F.

CONCERNING USURY.

INTEREST is the compensation which a borrower pays to the lender, for the profit which he has an opportunity oC making by the use of the lender's money*. Part of that profit naturally belongs to the borrower, who runs the risk and takes the trouble of employing it; and part to the lender who affords him the opportunity of making this profit. The proportion which the usual market rate of interest ought to bear to the ordinary clear profit necessarily varies as profit rises or fallsf. Double interest, is in Great-Britain reckoned what the merchants call a good moderate reasonable profit, by which is probably meant no more than a common, usual profit. In a country where the ordinary rate of profit is eight or ten per cent, it may be reasonable that one half of it should go to interest, wherever business is carried on with borrowed money. The stock is at the risk of the borrower, who as it were insures it to the lender; and four or five per cent may in the greater part of trades be both a sufficient profit upon the risk of this insurance and a sufficient recompense for the trouble of employing the stock. But the proportion between interest and clear profit might not be the same where the ordinary rate of profit was either a good deal lower, or a good deal higher; if it were a good deal lower, one half of it perhaps could not be afforded for interest ; and more might be afforded, if it be a good deal higher. For wherever a great deal can be made by use of money, a great deal will commonly be given for the use of it; and wherever little can be made by it, less will commonly be given for itf. The interest which the borrower can afford to pay, is in proportion to the clear

* Smith's Wealth of Nations, 52. f Ibid. 90.

| Ibid. 98.

profit only*. In countries where interest is permitted, the law, hi order to prevent the extortion of usury, generally fixes the highest rate which can be taken without incurring a penalty. This rate ought always to be somewhat above the lowest price commonly paid for the use of money upon undoubted security. If it be fixed lower, the creditor will not lend his money for less than the use of it, and the debtor must pay him for the risk he runs in accepting the full value. Neither ought it to be much above the lowest market ratef. If the legal interest of Great-Britain, where money is lent to government at three per cent, and to private people upon good security at four, and four and a half, were fixed so high as eight or ten per cent, the greater part of the money, which was to be lent, would be lent to prodigals and' projectors, who alone would be willing to give this high interest. Sober people would give for the use of money no more than a part of what they arc likely to make by the use of it, and consequently would not venture into the competition. A great part of the capital of the .country would thus be kept out of the hands which are most likely to make an advantageous use of it. Where the legal interest on the contrary is fixed a very little above the lowest market rate, sober people are universally preferred as borrowers, to prodigals .and projectors}.

The ordinary market price of land depends every where upon the ordinary market rate of interest. The superior security, .and some other advantages of land, will generally dispose a person to be content with a smaller revenue from land, than from lending out money at interest. But these advantages will compensate for a certain difference only; and if the rent of land, should fall short of the interest of money by a greater difference, nobody would buy land, which would soon reduce its ordinary price||.

New colonies must for some time be more under-stocked in proportion to the extent of territory, and more under-peopled in proportion to the extent of stock, than the greater part of other countries. They have more land, than they have stock to cultivate. Such land too is frequently purchased at a price below die value even of its natural produce. Stock employed in the purchase and improvement of such lands must yield a very large profit, and consequently afford to pay a very large interest. As the colony increases, the profits of stock gradually diminislu When the most

* Smith'3 Wealth of Nations, W. 4 Ibid 355.

•j- Ibid. 353 || Ibid. 35".

fertile and best situated lands have been all occupied, less profit can be made by the cultivation of what is inferior both in soil and situation, and less interest can be afforded *.

Such are the principles by which the rate of interest ought to be governed, according to the opinion of the author of the treatise on the wealth of nations. Let us see how far they have been regarded in Virginia.

To those who proposed to themselves the acquisition of large estates in lands, the use of money must have appeared extremely .valuable at the first settlement of the colony: but the immesne quantity of land, which might be procured, at a very trifling expence, would keep down the' value of all uncultivated lands, whatever advantages of soil or situation they might possess. It, therefore, became another object of importance to cultivate those, which were most likely to yield an immediate profit. For this, laborers were required ; but laborers who receive daily, or annual wages, could not be had. Instead of the farmers' paying a recompence at the end of the week, or year, for work already performed, and the product of which he had, perhaps, also already received, it was necessary to advance the wages of seven years, before a single day's-work was performed by the laborer; and this, even at the risk of losing the whole sum advanced .... As this was the only alternative between losing what had been already expended in the purchase of lands, the planters found themselves obliged upon these hard terms, to cultivate their lands, by purchasing slaves. The only means by which this could be effected was borrowing of money, which, from the necessity of having it under these circumstances, would, therefore, command a high rate of interest. Adequate returns were not made from the annual profit of the lands, to repay the principal; but the borrower conceived that the increasing value of his lands, and the increasing number of his slaves (where he purchased females as well as males) more than compensated the deficiency of his annual returns from the land, by a kind of compound interest .... Money could not be borrowed for these purposes, but from the merchants in the mother country, or their agents here, and bills of exchange were substituted for the actual specie. As the African ships were owned in England these bills answered all the purposes of specie to the purchasers of slaves. They were accordingly accounted as ready money, and the damages in case of protest being very high, those damages became, in time, the measure of interest for money lent in that manner. As the re-payment was usually * Smith's Wealth of Nations, p. 93.

expected to be made in the same manner as the loan itself, when the debtor was called upon to pay one creditor, he often applied to another person, who gave him a bill for the amount of the loan, and took the borrower's own bill, with a responsible endorser, as a security for the sum thus lent. The borrower having no funds in the hands of the person on whom he drew, his bill was sure to return, protested, and consequently the lender became entitled to receive a higher interest thereon, under the name of damages. For the security of the lender, the law gave an action of debt, jointly, or separately, against the drawer, and every indorser, of which, in proportion to the lender's caution, there were often several. The bill, if protested, had the force of a judgment against the executors and administrators of all the parties thereto. There was supposed to be no limitation to the time, in which a suit thereon might be brought. A bill, in the hands of an importunate creditor was frequently renewed, and the interest and damages were every time added to the principal .... These damages in the year 1666, were fixed at fifteen per cent, on the amount of the bill .... before that period they were thirty per cent. In 17SO, they were fixed at ten per cent, per annnm. The rate of interest on bonds was fixed at six per cent, in 1730. In 1748, it was reduced to five per cent, and all contracts for a higher rate of interest were declared void. Thus at one, and the same time, there were different rates of intesest fixed by law. Actual loans of money seem to have been generally earned on by bills of exchange. .... Where a bond was taken for a debt before contracted, or upon a sale of lands on credit, the interest was not to exceed five per cent. But if an adventurous planter wanted to make a purchase of slaves for ready money, or was pushed for the payment of a debt to a creditor in England, he drew U bill of exchange. Tobacco being substituted in many instances as a circulating medium of colonial trade, the want of specie was not felt in these transactions, and when paper money was issued for very small sums, it was felt still less, except when the debtor was obliged to pay sterKw? money. Hence the rate of interest, in ordinary transactions, rarely exceeded jthe legal limits of five per cent, but where a projector proposed to himself an extraordinary advantage by the command of specie, or sterling money, or was pushed to support his credit, he hesitated not to give double that interest, and the law in favor of bills of exchange sanctioned the transaction.

Paper money can only serve as a substitute for specie to a certain extent, and can never be said to represent it, but when the government exchange it for specie without reserve, whenever it is

required. The paper money emitted in this country before the war, was for internal commerce considered equal to specie; but for foreign commerce it was altogether useless. The capacity of holding lands in Virginia enjoyed by the merchants of Great Britain, in some degree supplied the want of specie to make good the balance of trade that continually accumulated against the colony. This kept down the rate of interest in some measure, by substituting land for money in payment of debts. But when the separation between Great Britain and the colonies took place, and trade was diverted into other channels, the'paper money which had been greatly augmented in quantity, and which was not only unfit for foreign commerce, but for want of adequate funds to redeem it, had become a mere ideal currency, soon fell into such discredit that no man would keep it by him a day, if he could meet with any thing to purchase. The rapidity of circulation which it acquired from this circumstance so long as the laws made it a legal tender, though the effect of distrust, in some degree supplied the absence of a valuable circulating medium : it daily depreciated; but the man who received it in the morning, hoped to get rid of it before night: the total absence of specie at the same time, supported it as a medium of exchange in this daily traffick, much longer than its own credit. On the other hand those who foresaw an advantage from a purchase to be made on credit, did not hesitate to allow for that credit, a rate of interest equal to five, ten, or twenty per cent, per month, in the expectation of selling what they purchased, at a still greater advance before the day of payment arrived. But when this advantage was generally understood the vendor to guard against the effects of a rapid depreciation, fixed the value of his debt in tobacco, which was supposed to bear a more stable relation to the value of specie. These tobacco contracts, contrived at first to evade the penalties denounced against those who demanded more for their commodities in paper than in specie, and afterwards recurred to, merely to prevent the seller's being injured by the depreciation of paper, became after the abolition of paper money, and the consequent introduction of specie, a most violent engine of extortion; the creditor availing himself of the rise or fall of that article, to demand a new bond from his debtor, for money, when the price of tobacco had risen, and again for tobacco, when the price was low, and expected to rise. Although by these means a debt was in two or three years doubled, trebled, and even quadrupled, yet these shifts appear not to have been deemed usurious : at least I have not heard of any decision to that effect. The enormity of the evil begun to work its

Own cure, when new sources of speculation successively presented to avaricious minds the means of gratification. The liquidated debts of the state, and of the United States, were thrown into circulation as a vendible commodity, which the necessity of the possessors induced them to part with, and the hopes of speculators prompted them to purchase at a vast discount. The land offices in the various states, where principalities in extent might be acquired for a few dollars in specie; the prospect, now rendered certain by the adoption of the constitution of the United States, that the debts of the Union would appreciate as fast as they had depreciated : the golden hopes inspired by the establishment of banks; the impulse given to trade by an European war, which had not begun to exercise its spoliations on our commerce; the advanced price of our produce arising from the additional demand for provisions created by that war; for a time seemed to inundate the United States with wealth, which among a certain class of men encreased with such rapidity, as to give to the use of money an almost unlimited advantage; hence the laws which restrain immoderate interest have been universally disregarded, and the most enormous usury has been openly practised without the smallest apprehension of the consequences. Five per cent a month it is said has been frequently given. Half that rate for a week, and even one per cent a day, has on some occasions been offered and accepted. It is easy to perceive that no honest commerce could long support such a defalcation from its profits. Accordingly numerous bankruptcies have taken place, particularly in those parts of the United States where there was the greatest quantity of money in circulation. .... Our foreign commerce having no longer the same immunity as some years ago, the United States have ceased to be the Entrepot of the produce of the colonies of the belligerent powers, and a general deficit may be expected, among the commercial part of the nation, unless some favorablei change should happen very shortly in our external relations and connections. The produce of our lands will fall accordingly, and the lands themselves will sink still lower in value.

Were it possible for the laws to restrain this evil, nothing would be more worthy of the attention of a wise legislature than to purge a state from the corruption which the projects, the rapacity, and the frauds of avaricious speculators, swindlers, land-jobbers, and usurers infallibly produce. Money as the means of assisting honest industry can not be procured on any terms which would not consume the borrowers gains, though fourfold'as great as any honest occupation ever produced. The farmer, the mechanic, the

VOL. VI. 5 A

retail shop-keeper, can neither of them procure the credit necessary for their subsistence. The use of money is confined only to the hands of those who are sure to abuse it .... A moderate interest is the life of commercial credit. The manufacturer gives a credit to the merchant, the merchant to the shopkeeper, the shopkeeper to the farmer, and the mechanic of small capital; the farmer in his turn cun give credit for his crops to the merchant; who can thus enlarge his capital, and afford to lessen his profits. The rate of interest in these cases is supposed to be such, as to make a moderate compensation for the use .of money, without lessening the gains of the. profit. But where the rate of interest bears no proportion either to the profits of land, or of manufactures, or of merchandise, but merely to the hopes and expectations of projectors and speculators, and the avarice of usurers, the culture of land ,attention to manufactures, and the pursuit of an honest commerce will be equally neglected, and the state must suffer a pecuniary palsy until the cause of the disease be removed.

In the country below the mountains in Virginia, very little of the best land remains to be cleared, and the far greater part of them have been cultivated, without improvement, till they are not more productive than fresh lands of far inferior quality. This circumstance, together with the great abundance and low price of lands in other parts of this and the neighbouring states, occasions there being very few purchasers of land in the middle and lower country. The tracts are generally large, and the proportion that is cultivated small. It would probably be a very high estimate should we suppose the generality of farmers to make ten per cent, per annum upon the whole value of their lands and slaves. I incline to believe that,very few exceed eight per cent, and out of this, the clothing and provisions of their slaves and horses employed in making the crop, ought to be deducted. A nett profit of five per cent, is prpbably more than remains to one in twenty, for the support of himself and his family. If he wants money to encrease his stock, even the legal interest is probably equal to his additional profit; but the interest usurers demand, and speculators pay, without scruple, will amountto fourfold, perhaps, tenfold his profits. Agriculture then can hope for no aid while interest remains unchecked ; on the contrary every man who can find a purchaser will sell his lands, and turn money lender, until the total neglect of agriculture shall in its turn make the money lenders bankrupts. Nor is it in this view alone that exhorbitant interest must injure agriculture. A fanner ought to be able to get credit with the merchant, at least, for his

tools, his farming utensils, and the clothing of his servants, upon the faith of payment from his ensuing crop.. If the use of money will command five per cent, per month, what storekeeper can afford to lie out of his money six or eight months, without a proportionate advance on his goods, and what farmer can purchase at such an advance ? If the ordinary profits of trade be twenty per cent, per annum, when credit can be got at five per cent, what must those profits be when sixty per cent is counted upon as the product of money. Who could deal with a shopkeeper who should advance his gains ten or twelvefold ? Trade then must suffer equally with agriculture. Is the mechanic better off? He must be supported both by the farmer and merchant. Labor and industry of every kind, must, therefore, be brought to a stand, or these ruinous practices must fail} and since labour is the only true source of wealth, it must accordingly eschew that fate. .... It will, however, be sometime before this happens. The speculators in lands will be buoyed up for a time' by the prospect of their lands rising in value. But vast tracts of unsettled lands are of little more value than the parchment which conveys them .... Population first creates a value in land; "without that, it is of less value than the waters of the Ocean ; these at least serve for an high way. Uncultivated desarts whatever they may promise, yield, only to population and industry .... Very few land-jobbers have had any other object in view than selling their lands in the gross, to some dupe, or other speculator. The settling and cultivating the lands form no part of their plan. It is not till they are ruined, or till projectors of a different character shall become purchasers, that these lands will ever acquire more than a nominal value, or yield any real profit. Hence it is easy to foresee that this source of exhorbitant usury must have an end. Bank-paper, and every other species of paper credit have aided in blowing up the bubble, and when it bursts will fall with it. The artificial demand for this circulating paper occasioned by these immense speculations, being lopped off with them, the quantity of this kind of currency will again be regulated by the demands of productive commerce, instead of unproductive speculation.

Nor is excessive usury more inimical to every species of honest industry, than it is to the moral conduct of men. The heart that is once corroded by avarice, becomes callous to generosity and friendsh'p, obdurate against the cries of distress, regardless of justice, and insensible of every impulse, or passion, except only the isatiable thirst of amassing.

We have said, that in 1730, the rate of interest was limited in Virginia to six per cent .... in 1748, it was reduced to five ; the act

of 1786, confirmed this standard. In 1796, it was again raised to six per cent, the obvious, or at least, ostensible reason for which, was, that the public pay interest at that rate. These acts are nearly a transcript of the British statutes.

VERY few cases have hitherto been decided in our courts on the subject of the acts for restraining usury. I shall notice some of those which have been reported, and one, which I believe has not. It was as follows:

In June, 1789, the chancellor referred the following case for the opinion of the judges of the general court, upon it.

A bond for 1000 pounds of tobacco was executed when that commodity was worth eighteen shillings per 100 pounds. Another executed for the payment of 18/. when tobacco was worth thirty-six shillings, and given in discharge of the former. And whether this latter bond was usurious was the question referred to the court, for their opinion.

One of the judges who was prevented by indisposition from attending at the term, when it was expected that the judges would have delivered their opinions, had prepared to deliver his own to the following effect.

The act concerning usury declares," That no person shall upon any contract, take directly or indirectly, for .loan of any money, wares or merchandize, or other commodity above the value of five pounds for the forbearance of one hundred pounds per year, and after that rate for a greater or lesser sum, or for a longer or shorter time; and all bonds, contracts, covenants, conveyances or assurances, to be made for payment, or delivery of any money or goods, so to be lent, on which a higher interest is reserved, or taken, shall be utterly void."

Although the question referred to the court falls immediately under this clause of the act, yet as the succeeding clause may serve further to elucidate the intention of the legislature, it will be proper to consider it likewise... .... It is as follows :

" If any person shall by any ways, or means of any corrupt bargain, loan, exchange, shift, covin, device, or deceit, take, accept, or receive for the loan of, or giving day of payment for money, wares, merchandize, or other commodity, above the rate of five pounds for one hundred pounds for one year, every person so pffending shall forfeit double the value of the money, wares, merchandize, or commodity so lent, exchanged, or shifted; one moiety

to the use of the commonwealth, and the other to the informer..•. And,

" Any borrower of money, or goods, may exhibit a bill in chancery against the lender, and compel him to discover upon oath, the money or thing really lent, and all bargains, contracts, 01' shifts, which shall have passed between them, relative to such loan, or the repayment thereof, and the interest, or consideration for the same ; and if thereupon it shall appear that more than lawful interest was reserved, the lender shall be obliged to accept his principal money without interest, or other consideration, and pay costs j but shall be discharged of all other penalties of the act."

In order to answer the question propounded by the chancellor for the opinion of this court ; viz. whether the bond given for 18/. was usurious, it may be proper to enquire ; first; whether this bond be taken, contrary to the express words of the statute, and, secondly whether it be an evasion out of it.

As to the first point, whether this bond was taken contrary to the express words of the statute ; I am inclined to think that the case stated by the chancellor is too naked, for us satisfactorily to give an opinion upon that point. Tobacco being in this country both a vendible commodity, and very frequently a medium of exchange, also, contracts respecting it may be fair, or usurious, according to the relation they bear to these several and distinct properties. If, lor example, a planter should engage to sell his crop to a merchant at eighteen shillings by the hundred, and give his bond to the merchant for the delivery thereof accordingly, in consideration of having received the purchase money, or part thereof, and fail in his contract ; and then in order to avoid a suit, and indemnify the merchant for his failure, he were to give the merchant his bond for as much money as the tobacco was fairly worth at the time, this transaction, simply, and unconnected with any other circumstances, would not, I conceive, be usurious. Whether the transactions between the parties in the case referred to this court by the chancellor originated in this way, or in any other that might be considered as standing upon as fair ground does not appear, at least not sufficiently, for me to give an opinion upon the first point. I shall, therefore, proceed to the second.

2. Then is this bond given for the sum of eighteen pounds, when tobacco was worth thirty-six shillings per 100 pounds, in discharge of a former bond, given for 1000 pounds of tobacco, when that commodity was worth only 18*. per 100 wt. or 91 in the whole, a

shift or evasion to avoid the statute ? In which case it will fall under the statute, though not expressly within the words of the enacting clause.

As our statute is nearly a transcript from the English statutes the decisions in England will aid us in the true construction of it.

To make a contract usurious within the statute, there must be a reward for forbearance, or giving day of payment; and whatever shift may be used, it will be usury. 2 Vezey, 142.

And, in England, where annuities are frequently granted in consideration of a present sum paid, if the bargain be really for the purchase of annuity, though at ever such an under price, it> seems agreed not to be usury. But if upon inquiry it shall appear that the annuity is a mere device to pay the principal with usurious interest, in order to evade the statute, this will bring it within the statute.. ....

2 Vezey, ibid.

A bargain on a mere contingency where the reward is for the risk, and not for forbearance, has been solemnly adjudged not to be within the statute. Spencers Exors. vs. Janson. 2 Vez.. 125. 1. Wilson286. 1 Atk. SOI. .

So a bottomry bond, being a contract founded on a risk really run, has been adjudged not within the statute. 2 Vez. 142, 143.

• In like manner a contract to receive double in the event of the borrower's outliving another person, and nothing, in case it should happen otherwise, has been determined not to be within the statute* 1 Atk. 301.

But in these cases it depends upon the risk really run, and not merely upon a colourable risk, to evade the statute ; as, in the case of a bond given if one ship out of twenty, bound from one place to another in time of peace, and in a fair season of the year, should arrive safe. 2 Vez. 143.

In like manner, where the chance was that a young man in perfect health did not live six months, the hazard was merely colourable, and the loan was adjudged to be usurious. Mason -vs. Abdy, Carthew's Rep. 67. Comb. 125. 3 Salk. 390. 2 Blacks. Rep. 863.. and Cowper, 777,

A power of redemption to the borrower, without interest, within n certain time has also been held to be not within the statute, though more than legal interest be reserved after that time is past; as if one lend 100/. to another for two years, and the borrower agree to pay 30/. for the loan of it: but if he pay the principal at a year's end, he shall pay nothing for interest; this has been held not to be usury;'

for the party hath his election, and may discharge himself by the payment of the principal only, if he pleases, 3 Wils. 395. Yet in this case, if it were privately agreed between the parties that the borrower, notwithstanding this stipulation should not repay the money until the first year was past, this case would also fall within the intent to evade the statute.

In these cases, respectively, if there be a fair and bona fide sale of the annuity, and not a colourable one in consequence of a negotiation for a loan ; or, a fair and banaf.de risk of the principal, upon a probable (or rather not improbable) contingency; or a fair and bona fide election given to the borrower, whereby he may discharge himself of the debt, within a reasonable time, without paying any interest ; or in any other case, where either the principal or interest may be fairly and bona-fide put in hazard, the contract, although more than legal interest may be eventually reserved thereon is not deemed usurious, or within the statutes : but if the sale, or the risk be merely colourable, in order to evade the statute, the bare intention to evade it seems to bring the case expressly within it's

meaning.

. And the subsequent acts of the parties may be evidence of such intention, and turn that into an usurious transaction, which was not such upon the face of the original contract.

For if a man sets out with borrowing money, and afterwards turns the loan into the shape of an annuity, this is a shift and evasion to avoid the statute ; and yet any man may purchase an annuity on as low terms as he can. 1 Atk. 851.

And the same point was resolved in a gvi tarn action, where the original communication was for a loan, but the contract was for an annuity. Cowp. Rep. 770. Richards q. I.vs. Brown.

It is likewise lawful for a man to sell his goods at as high a

price as he can get for them ; yet if the sale of goods be merely a

colourable mode of obtaining more than the real value of the goods,

• and legal interest thereon. Such a bargain has been adjudged to be

usurious. Douglas's Rep. 708. I -owe S31 al vs. Waller. 5 Ba. Abr.

'408. $. 9.

If one delivers wares of the value of 100/. and no more, and takes a bond with condition for the re-delivery of them within a month, or to pay 120/. for them, at the end of the year ; this obligation hath been adjudged to be void. 5 Ba. Abr. 408. §. 8

And, it seems to be agreed, that the reducing a former debt to a speciality, and giving day of payment thereafter, converts the former debt into a loan. For it is not so much the form of a trans-

action as the essence of it, which must determine it's nature. Now the essence of a loan, is the giving a day of payment, in consideration of interest, to be paid for the forbearance. 12 Mod. 385.

We have the concurrent authority of judge Burnett, lord Hardwicke, and lord Mansfield in favour of the utility of these statutes, and that they ought to be so construed, that where a door is left open by the parties, to evade them, the court should if possible get at it. 2 Vez. 142. Douglas, 710. Hardwicke's cases, 235.

•It therefore becomes this court maturely to weigh the case referred to them ; for as the decision may open a wide door to those who study shifts, evasions, and cunning devices in order to elude the effects of these statutes, on the other hand, the decision in this case may perhaps affect the interest of many innocent creditors.

Whatever may have been the foundation of the debt originally due from the obligors to the obligee, the original value of it as stated in the case referred to us, appears not to have exceeeded 91. current money : at least, this was the actual value at the time the first bond was given. That bond being given as a security for the debt, and interest accruing thereon of course, it is to be regarded, upon the principles of the case in 12 Mod. 385, as the evidence of a loan, the real value of which was 91. only, at that time, and for the forbearance of which interest was stipulated to be paid.

At law the obligee could recover nothing more than the specific thing lent, whether money or tobacco, with interest thereon. In conscience, he was entitled to nothing else, but that or the value at the time of the lending.

For the value of a loan is not to be estimated by the rise or fall in the price of any fluctuating commodity, but according to that standard which the laws of the land have established for the regulation of transactions of that nature; and that standard is the value of the precious metals, as fixed by law.

At a subsequent day, the lender in consideration that the borrower would give another bond for double the value of the original loan, and interest upon the value so doubled, agrees to give a further day of forbearance. What other consideration appears to have moved the lender to grant this further day ? I am at a loss to divine it.

Upon comparing this case with the authorities before cited I am therefore unavoidably led to conclude that this last transaction must be deemed a shift, or devise, to elude the statute, and consequently an unconscionable, and usurious bargain within the meaning of it, unless it can be shewn to be a fair bargain for the actual pur-

chase of one thousand pounds of tobacco, the consideration for which the bond is supposed to be given.

To constitute a sale of any commodity, there must be a possession in the vendor, or his agents. Had the obligee possession of the tobacco? No, it was merely a chose in action. Did the obligor want to purchase tobacco ? No, he had not wherewithal to pay what he already owed the obligee. Is there a single feature of a purchasor, in this case ? None that I can discover. The debtor being called upon to pay, and unable to make payment, in order to obtain further time, enters into a new, and essentially different contract from the former, by which he actually doubles the value of his original debt.

If a man sets out with borrowing, says lord Hardwicke, though he afterwards -actually purchase an annuity, it is an evasion to avoid the statute. 1 Atk. 351. Cowper 770, S. P.

In the present case the parties set out with a loan ; it is scarcely possible, as was said by lord Mansfield, to wink so hard as not to see that the latter bond was not a contract for the purchase of tobacco : consequently, to my understanding it appears to be a shift with a view to the obtaining a greater interest for the forbearance of a loan than the statute allows, and as such usurious. And that we ought to certify our opinion to the chancellor, accordingly*.

In the case of M'finire vs. Warder, it was said by the president of the court of appeals, that the court will never presume a contract to be usurious unless it be proved ; especially where such presumption would be at variance with the degree of a court, which it is not to be supposed would sanction such a contract: and that as the residence of the creditor usually fixes the place of the contract, they would presume a contract with a person residing in Pennsylvania to be made there, especially where the debt is stipulated to be paid in Pennsylvania money, rather than interpret a contract to be usurious upon which more than legal interest in Virginia was reserved, although not more than the laws of Pennsylvania allow. But if the interest were increased merely to procure a further indulgence, it would be usurious-fin the 'case of Gibson vs. Friscor, where the defendant being indebted to the plaintiff, in 44S/. sterling, and about to remove to Kentucky, assigned to the plaintiff bonds, which were afterwards

* Adams vs. Pickett and Currie .... The Editor is not acquainted with the decision of the chancellor, in this case j he has some reason to believe thai no opinion upon it was given by the judges of the general court, on'iciall/. t 1 Wash. Hep. 368.

paid, to a greater amount than the value of the original debt, and interest, at a value agreed on between the parties, and moreover gave a new bond, for the balance, which according to a statement then made between the parties, appeared to be still due to the plaintiff, the district .court of Dumfries decided that this last bond was usurious ; and the court of appeals, dissentiente Lyons, Judge, affirmed the judgment. 1 Call's Rep. 62.

And in that case the court held, that it is sufficient if the verdict finds facts, amounting to usury ; although the jury does not find the corrupt agreement in technical words. Ibid.

And in this case it seems to have been agreed by the majority of the judges, that a corrupt forbearance of money, then due, is as much within the statute as an original loan.

In order to constitute usury, there must be a borrowing, and a lending with intent to exact an exorbitant interest; that is to say, both parties must consent to the usurious agreement. And therefore a bill of exchange drawn upon an obscure person in Scotland, if there be no agreement that it shall be protested, although the payee may expect it, will not render the transaction usurious. And this, although the drawee was known to the payee, (whose brother he was) and not to the drawer, who had no former correspondence with him. Price -vs. Campbell, 2 Call 110. In this case the court seem to have regarded the original transaction between the parties as a purchase, and not as a loan. But if the negotiation had been for a loan, I humbly conceive that the circumstances above mentioned must have been deemed sufficient evidence of a corrupt agreement between the parties, to secure a greater interest to the lender than the law allows, by the bill's being returned protested.

An agreement to set the profits of the thing mortgaged, against the interest of the money lent, or due by the mortgage, where it greatly exceeded the legal interest, was held to be so far usurious and void. Robertson vs. Campbell, 2 Call 430. The same point seems also to have been before decided in like manner, in the high court of chancery, between Woodson and Woodson. Wythe's Rep. fol. 55.

THE END.

PKINIED BY ROBBR'l CARR, NO. 10, CHURCH-ALLEY.