rents seck, rents of assize, and chief rents.

(4) This is correctly expressed; for the act done by the testator was not properly a revocation of his will, but a parting with the estate out of which the annuity devised was to arise; and of course the will became null, according to

time within the five days. But he cannot be treated as a trespasser, merely because he retains possession of the goods distrained, although his refusal to deliver them to the tenant may amount to a conversion, so as to render him liable in trover. 4 C. B. 172. West v. Nibbs. The remedy for detaining goods taken under a distress, after a sufficient tender, is not confined to replevin. E. B. & E. 507. Loring v. Warburton. A tender of rent, without expenses, after a warrant of distress is delivered to the broker,-but before it is executed-is a good tender; for a person intending to distrain is not entitled to any expenses before he has actually distrained. 5 H. & N. 391. Bennett v. Hayes. Sed quære; for the expense in question was properly incurred and caused by the tenant's default in not paying his rent when due. As to what amounts

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the maxims, "cessante causâ ces"sat effectus.-Sublato fundo, “tollitur id quod fundi potest.” 2 Atk. 272. Brudenell v. Boughton. Ibid. 424. Galton v. Hancock. And if the testator had afterwards repurchased the lands, still the devise of the annuity would have been void, without a

to a complete impounding so as to invalidate a subsequent tender. See 8 E. & B. 336. Tennant v. Field. 4 Bing. 230. Browne v. Powell. 1 M. & G. 695. Thomas v. Harries. With respect to a distress damage feasant, the common law still prevails, and a tender of amends, after impounding, is bad. 1 Bing. 341. Sheriff v. James. 7 H. & N. 747. Singleton v. Williamson. 8 Co. 146a. The Six Carpenters' case. E. B. & E. 507. Loring v. Warburton. A man merely left in possession of a distress by the person who distrained, has no implied authority in law to receive from the tenant the rent distrained for. 2 E. & E. 369. Boulton v. Roynolds. nolds. But where But where a landlord

gives a warrant to distrain for rent, he thereby authorizes the bailiff to receive it, if tendered. 15 Q. B. 10. Hatch v. Hale.

republication of the will according to the solemnities required by the Statute of Frauds, 29 Car. 2, c. 3, s. 5, upon the same principle as that a will does not pass lands purchased after the making of it. 44 Edw. 3, c. 33, cited in Dyer, 143 b. 11 Mod. 158, 159. Arthur v. Bokenham. 3 Rep. 30 b. Butler and Baker's case. A devise of lands is an appointment of particular lands to a particular devisee, and is considered in the nature of a conveyance by way of appointment; and upon that principle it is, that no man can devise lands which he has not at the date of such conveyance. It does not turn upon the construction of the Statute of Wills, 32 H. 8, c. 1, and 34 H. 8, c. 5, which say that "any person hav"ing lands, &c. may devise;" for the same rule held before the statutes, where lands were devisable by custom. Cowp. 90. Harwood v. Goodright, per Lord Mansfield. And see 11 Mod. 122. Brunker v. Cook (k).

It seems, however, to have been for some time a prevailing opinion, that where a man devised par

() 2 Ves 427. Brydges v. Duchess of Chandos, S. P. [The law is altered in this respect as to

ticular lands by name, or all the lands which he should die seised of, though he was not seised of them at the time of making his will, but purchased them afterwards, they passed by such devise, without any new publication of the will, because it appeared to have been his intention to pass his after-purchased lands. But where he devised all his lands generally, and afterwards purchased other lands, it was always considered that the after-purchased lands did not pass, because the same intention did not appear. This distinction was taken by Serjeant Loveless in argument in Brett v. Rigden, Plowd. 343, 344, the latter part of which distinction was adjudged by the court ; and they did not deny the case put by him to illustrate the former part of the distinction, and which he founded on the authority of 39 H. 6, 18 b. Fitz. Devise, 17. Bro. Devise, S. C., namely, "That "where a man devises lands in certain, as the manor of Dale, or Whiteacre, which he is not seised "of at the making of the will, but purchases after, such lands shall

wills made after the year 1837. (See post, 402, n. (m).)]

pass to the devisee." And Saunders himself appears to have been of the same opinion. For he devised all his lands which he had or afterwards should have in Fulham. And there was a difference of opinion among his executors, who were great lawyers, as to the effect of the devise; Maynard being of opinion that the devise was not good for land there, which he had afterwards purchased; and Holt and Pollexfen, chief justices, being of a contrary opinion. Ld. Raym. 438. Lawrence v. Dodwell.

1

But this case, so put by Loveless, was denied by Holt, C. J., in Brunker v. Cook, 11 Mod. 121. S. C. 1 Salk. 238. Fitzg. 228, and the distinction overruled; for it was there decided that a devise of all the testator's lands, tenements, and estate whatsoever, of which he should be possessed or invested at the time of his decease, did not pass an estate purchased after the making of the will; and this decision was affirmed in the House of Lords. 1 Bro. P. C. 19. And Lord Holt observed that the case put by Loveless is not warranted by the 39 H. 6, where it is made a question whether, if a disseisee devises the lands of which he is disseised, and afterwards re-enters,

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it is a good plea to say that the devisor had nothing in the lands at the time of the devise. He added, that in his opinion the devisor was seised in fee at the time of the devise, and consequently the lands were well devised. For the entry purged the disseisin, and revested the estate in the disseisee, who thereupon was, in consideration of law, in possession of the estate from the time of the disseisin to all intents and purposes by relation, and entitled to recover the mesne profits from that time in an action of trespass, as much as if he had been in the actual possession thereof all the while; and therefore he might be justly said to have been seised in fee at the time of the devise. But that was very different from the case where the lands are purchased after the making of the will; for there the devisor has neither jus in re, nor ad rem, at the time. 11 Mod. 127, 128. S. P. by Holt, C. J., in Monckton v. Pashley, 2 Ld. Raym. 977. See what is said by Eyre, C. J., on this case in Goodtitle v. Otway, 1 Bos. & Pull. 602, and by Lord Chancellor Eldon in AttorneyGeneral v. Vigor, 8 Ves. 282. It is, however, necessary to observe, that what Lord Eldon is stated to have said in the last case,

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"that if the devisor is disseised "before the execution of the will, "his will would not pass the "land," it is apprehended must be understood to mean, in case the devisor dies before he has entered. For if he enters after he has made his will, his entry has relation to the time of the disseisin, and consequently to the time of making the will, and he is considered in law as having been in the actual seisin of the estate the whole time. This principle is the foundation of the action of trespass for the mesne profits from the time of the disseisin. After judgment and execution in ejectment, the plaintiff is considered in law to have been in the actual possession of the estate from the day of the demise laid in the declaration, and may maintain a possessory action, that is, an action of trespass against the defendant as a wrong-doer and trespasser upon his estate from that day. A recovery and execution in ejectment is in truth the same thing with an entry (1). A man is then said to have entered into his land; for there

() [See the judgment of Parke, B., 11 Exch. 19. Barnett v. Lord Guildford.]

(m) But now, by the new Statute of Wills (1 Vict. c. 26,

are but few instances of an actual entry to revest an estate without an ejectment. The above-cited case out of the Year Book shews that a subsequent entry by the disseisee makes the will good. The before-mentioned observation of Lord Holt had been the opinion of Lord Bacon long before, who in his Maxims of the Law, Reg. 14, says that "If I devise the

manor of D. by special name, of "which at that time I am not "seised, and after I purchase it,

except I make a new publica"tion of my will, the devise is "void." And now, since the determination in Brunker V. Cook, the law is taken to be clear, that lands purchased after the making of the will do not pass, although the devisor uses expressions of the most manifest intention to do so. The same case had received a similar decision in the Common Pleas under the name of Arthur v. Bokenham, 11 Mod. 148. Fitzg 233 (m).

However, if a copyhold manor is devised, it has been holden that

s. 3), the power of disposing by will, executed as required by that Act, is extended to all such real and personal estate as the testator may be entitled to at the time of

copyhold premises, parcel of the manor, which are purchased by and surrendered to the lord, subsequent to the time of making his will, will pass. 6 T. R. 708. Roe v. Wegy. So, if a man devises a manor, and afterwards a tenancy escheats, it will pass. 11 Mod. 129. Brunker v. Cook. S. C. 1 Salk. 238. And the reason is, because the copyhold premises are parcel of the manor, and so is the tenancy when it escheats, and the will operates upon the whole manor, and therefore they pass as part of that whole. Copyhold premises are considered so far part of the manor, that if a man seised in fee of a copyhold manor ex parte

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materna, purchase a copyhold estate of inheritance held of the manor, the newly acquired copyhold will go to his heirs ex parte materna, and not to his heirs general. 6 T. R. 710. Roe v. Wegg. But if a mortgagee in fee devises all his lands, tenements, and hereditaments, the mortgaged lands do not pass unless the equity of redemption be foreclosed (); and if, after such devise made, a foreclosure is had, yet such estate shall not pass by the general words, lands, tenements, and hereditaments, because a foreclosure is considered as a new purchase of the land. 1 Atk. 605, 606. Casborne v. Inglis.

But it is not necessary in equity

O'Toole v. Browne.
O'Toole v. Browne. [See further
as to the construction of the 24th
section, the cases collected in 1
Wms. on Exors. 213; 2 Wms.
Exors. 1331-1333, 6th edn. 8
Law. R. Eq. 229. Wagstaff v.
Wagstaff.

(n) When this reported dictum of Lord Hardwicke, in Casborne v. Scarfe and Inglis (inadvertently cited above by the name of Casborne v. Inglis) was relied on before Lord Eldon, he said. that he did not believe that Lord Hardwicke said so. 8 Ves. 436. At all events, the law is now