so may she perform a condition without the coucurrence of her husband. W. Jones 137, 138, both cafes being founded upon the same reason, namely the impossibility of any detriment arifing to the husband, by her acting in matters concerning which he has no interest, and the inconvenience which might arise were his concurrence neceffary. To the inquiring student, it will be proper however, to notice that a distinction has been attempted between a mere power or authority, or a condition, and a trust, Jones Just. holding in the cafe of Daniel and Uply, (W. Jones, 137,) that where the legal estate of land was vested in a feme covert upon trust for another, the could not convey it to the cestui que truft, without the husband joining, and though Whitlock and Dodridge were of a different opinion, yet Mr. Hargrave appears to have thought, and with great reason, that the opinion of Jones is more conformable to fstrictly legal doctrines, and very rationally accounts for Jones's distinction between a trust and a power, or a condition, by observing, that trufts are properly the subjects of equitable cognizance only, they being scarcely ever recognized by courts of law, purely as judiciary estates. Sce Co. Lit. 112, a. n. (6). 1 Diftinction beand a truft. tween a power It seems that the delegation of an authority must be by How an autodeed, the reason given for which, is, that it may indispu- rity may be delegated. tably appear that the person appointed has actually a power of representing his principal, and to what extent. 2 Roll. Ab. 8. Co. Lit. 48. b. Salk. 96. But as an authority in writing merely (without fealing and delivery, which conftitute a Deed,) seems to be equal evidence of these circumstances, and nothing passes by the delegation, the reason of a deed being essential to its validity, does not feem to be very easily explained. And as the attorney takes nothing by the deed, but has merely a naked authority given him, it is not neceffary that he should be party to the deed appointing him, even though the deed be an indenture, which supposes two parts at the least, and "as a man may take an estate in remainder, without being party to the deed, a fortiori may he How an autho pursued and executed. Diftinction be 1 take, a naked power, or authority. Touch. 217. and fee 2 Roll. Ab. 8, 9. A difference has already been intimated between a narity is to be ked or mere authority, and an authority coupled with an interest, and this difference in the old books is very strongly taken, where upon this distinction, it is laid down, that a devise that the testator's executors shall fell his lands, gives but a naked authority, and the lands will not vest in the executors, but descend to the heir till the fale is made. And further, that as the will in such cafe gives a mere authority, all the executors must join in the fale, and confequently if either of them die, it cannot be executed at all, as for want of an interest it will not survive. Co. Lit. 112, 113, 181. See the cafes confirming and controverting this distinction, industriously collected, and ingenioufly applied by Mr. Hargrave, Co. Lit. 8vo. 113, a. 2. (2) from the result of which he inclines to the opinion, that a power given to executors to fell lands, is capable both of transmission and furvivorship, and abundant reason there appears for fuch combination of opinion, for as to transmission, it is faid Kelw. 44, 2 Brown 194. that, if a power (i. e. a power not coupled with an interest,) be given to executors, it will pass to his exécutors and administrators; and with refpect to furvivorship, if fuch a power be transmissable, in the way of fuccession, in infinitum, till executed by reason of its being given to executors, much more it should seem would it furvive; befides, it can scarcely be imagined, as Mr.Hargrave observes, (ub. fupr) that a teftator " when he entrusts his executors with a power of felling land, should mean to have those for whose benefit he directs the sale, disappointed by the death of one of the persons invested with an authority, which the survivor is equally capable of executing." Qualification of the diftinction. But this distinction though deferving notice, left the student should be hastily led away by the current of ancient authorities he may happen to meet with, is not now of any material importance, for whether fuch a power be extinct or not at law, it has long been the practice to enforce it in equity; our courts of equity confidering the object of the fale to be the substantial part of the devise, and the persons directed to fell, as mere trustees, it therefore falls within the general rules of its jurisdiction over trusts. See, as to this point in particular, the cases collected, Co. Lit. 8vo. 113, a. n. (2) and as to the general doctrine upon this branch of authorities, 1 Bac. Ab. 8vo. 315, (c). So at the common law, if one of the executors empowered to fell lands refused, the others could not fell, but now by stat. 21. Henry 8, c. 4, though fome of those to whom the power is devised refuse, yet the rest may fell (a) Co. Lit. 113. 181. These remarks upon the devise of an authority, may appear to the student to be irrelevant here, as relating more properly to the head of WILLS, but as fuch an authority whether delegated by will or by deed, receives the fame construction with respect to the mode in which it is to be executed, they are admitted, as perfectly appofite, to illustrate the subject now under confideration. When a perfon- is authorized to do a thing for another, Authority to be it is more regular to do it in the name of the person giving executed in the the authority, 9 Co. 76 b. Lord Raymond 1418, Stra. 705, principal. Salk. 96. Roll. Ab. 331. But this does not seem to be effential, for executors having power to fell lands, may do it in their own names, Roll. Ab. 331, and wherever a man does an act which cannot be effectual, otherwise than as done by virtue of his authority, it shall be deemed to have been so done, and valid though done in his own name, instead of the name of his principal. See Salk. 95, 96. name of the (a) As may also such of those to whom land is devised to be fold as are willing, though the others refuse, only that they cannot fell to the executor refufing, who still continues executor and privy to the will. Co. Lit. 113, 181. Hence Coke observes ubi fupra, that it is the safest way in empowering executors to fell, by a devise, to limit it to the survivors or furvivor, or those that prove the will, &c. and when an estate is devised to executors to be fold, it is advisable to appoint that the profits taken by them before the fale, shall be affets, for otherwife they shall not. Co. Lit. 113, a. See quere, as to this latter position, Authority must be perfonally executed, and in the lifetime of the principal. Licence to alien. Where however, he has an interest as well as an authority, he must be careful in executing his authority, to declare that the act done by him, be in execution of fuch authority, for it will otherwise be prefumed to have been done by virtue of his interest ib. and 6. Co. 18. a. Co. Lit. 111. b. Hob. 160. 1. Atk. 559. 1 As the delegation of an authority to another, is founded upon a confidence reposed in the party to whom it is delegated, an authority must be personally executed by himself, and cannot be affigned or transferred by him to another, (a) 9 Co. 77, b. Roll. Ab. 330. Whence it is holden that a deputy cannot appoint a deputy, nor a person having a power of attorney, delegate his power to another, unless there be an express authority for him to do so contained in his power. And so upon the general principle, that authorities are not affignable, it is held that a lessee for life, with the usual powers to grant leases, rendering the ancient rent, &c. cannot make them by attorney, but must execute them perfonally, 2 Roll. Ab. 393, 9 Co. 76. So too, must an authority given by letter of attorney be executed in the life time of the person giving it, for as the attorney is the representative pro tanto, of his principal, it follows that his power must neceffarily be dissolved, when the person whom he represents is no more, Co. Lit. 52, b. 2 Roll. Ab. 9, Plow. 457, unless when the authority is given by devise, or by special custom, Co. Lit. 8vo. 52, b. Hal. MSS. But it is otherwise where an interest passes with the authority, as where a lessee is restrained from aliening without licence, and he obtains licence, but the lessee die before it is ufed, in this case the licence is not vacated, Co. Lit. 52, b. because the licence operates as an exemption from the penalties attached to alienation without licence, (a) But quere, whether executors having power to sell, cannot do it by attorney, though the above authorities seem contrary. and is therefore in the nature of an agreement executed on the part of the lessor, and therefore, though the lessor in this case should grant his estate over, yet the license will continue good, and bind the grantee, Co. Lit. 52, b. Cro. Ja. 103. Some of the preceding Points respecting the Nature and Operation of Appointments, may receive Illustration from the two following Cafes and Opinions in my Possession. By a bargain and sale, and a recovery thereupon fuffer- Cafe. ed, lands were limited to the use of M. R. for life, and from and after his decease, to the use of fuch perfon and perfons, and for fuch estate and estates, and under and fubject to such power, &c. as M. R. and O. should, by deed executed by both of them, direct, limit, and appoint, and in default of and in the mean time, subject to such appointment, &c. to the use of O. his heirs and assigns. And by a subsequent lease and release and appointment, M. R. and O. granted, bargained, fold, and released, and alfo in pursuance of the above power and authority, and of all other powers, &c. they directed, limited, and appointed, the lands unto H. L. his heirs and assigns, to hold unto H. L. his heirs and affigns, to the use of O. his heirs and alligns, for ever. Upon this limitation it is to be observed first, that by Opinion. virtue of the bargain and sale, and subsequent recovery, and the statute, the use was executed in M. R. for life, and the use in the remainder, in fee, was also executed in O. but the latter use was liable to be postponed, abridged, divested, or defeated, by the execution of the power in the same way as it would have been upon the birth of a fon, in cafe there had been an intermediate limitation to his first and other son in tail, the one depending on the act of God, the other depending on the act of man. Now when they make the lease and release and the appointment, (the latter of which deed is however unskilfully prepared, inasmuch as two distinct forms are blended together, viz. the grant and release, with the directions |