1

Abinger. "It is a practice," said his lordship, in a case of night-poaching, "which deserves all the reverence of the law, that judges have uniformly told juries that they ought not to pay any respect to the testimony of an accomplice, unless the accomplice is corroborated in some material circumstance. Now, in my opinion, that corroboration ought to consist in some circumstance that affects the identity of the party accused. A man who has been guilty of a crime himself will always be able to relate the facts of the case, and if the confirmation be only on the truth of that history, without identifying the persons, that is really no corroboration at all. If a man were to break open a house and put a knife to your throat, and steal your property, it would be no corroboration that he had stated all the facts correctly, that he had described how the person did put a knife to the throat, and did steal the property. It would not at all tend to show that the party accused participated in it. *** The danger is, that when a man is fixed, and knows that his own guilt is detected, he will purchase impunity by falsely accusing others." If two or more accomplices are produced as witnesses, they are not deemed to corroborate each other; but the same rule is applied, and the same confirmation is required, as if they were but one." The testimony, too, of the wife of an accomplice will not be considered corroborative of the evidence of her husband.3

§ 891. One class of persons, apparently accomplices, may here be named, to whom the rule requiring corroborating evidence does not apply; namely, persons who have entered into communication with conspirators, but who, in consequence of either a subsequent repentance, or an original determination to frustrate the enterprise, have disclosed the conspiracy to the public authorities, under whose direction they continue to act with their guilty confederates, till the matter can be so far advanced and matured as to insure their conviction and punishment.

' R. v. Farler, 8 C. & P. 107, 108.

The

2 R. v. Noakes, 5 C. & P. 326, per Littledale, J.; R. e. Magill, Ir. Cir.

R. 418, per Perrin, J.

3 R. v. Neal, 7 C. & P. 168, per Park, J.

Gr. Ev., § 382, almost verbatim.

early disclosure is considered as binding the party to his duty; and though a great degree of objection or disfavour may attach to him for the part he has acted as an informer, or on other accounts, yet his case is not treated as that of an accomplice.'

1

R. v. Despard, 28 How. St. Tr. 489, per Lord Ellenborough.

CHAPTER XVIII.

MATTERS REQUIRING TO BE EVIDENCED BY WRITINGS.

§ 892. In the present chapter will be considered briefly those matters, for the proof of which the law requires a written document more or less formally executed; and, first, as to those transactions, which, at common law, are required to be evidenced by deed. The most important of these relate to incorporeal rights; and it is now clearly determined, that all such rights, whether they amount to an interest in land or not, lie in grant, and as such can neither be created, assigned, demised, or surrendered, except by deed. The term "incorporeal rights" includes among other things, advowsons, ferries, rents, interests in land not in possession, as remainders, or reversions for life or years, profits à prendre, easements, and the like; and the principle which requires such rights to be evidenced by documents under seal, does not depend on the quality or amount of interest granted, transferred, or surrendered, but on the nature of the subject-matter; a right of common, for instance, which is a profit à prendre, or a right of way, which is an easement or right in nature of an easement, can no more be granted or conveyed for life or for years or even for days without a deed, than in feesimple. So strictly has this rule been interpreted, that even a ticket of admission to a theatre during a season, or to a grandstand during the races, can afford no irrevocable title to the party purchasing it; but, after notice of revocation, he can be removed by the owner of the premises, without assigning any

1 Wood v. Lead bitter, 13 M. & W. 842, 843; Hewlins v. Shippam, 5 B. & C. 229; Co. Lit. 337 b, 338 a; 2 Shepp. Touch. by Preston, p. 300; 1 Wms. Saund. 236 a; Lyon v. Reed, 13 M. & W. 303-305; Bird v. Higginson, 2 A. & E. 696; 6 A. & E. 824, S. C.; Mayfield v. Robinson, 7 Q. B. 486; Roffey v. Henderson, 17 Q. B. 574.

2 Mayfield v. Robinson, 7 Q. B. 486.

3 Wood v. Leadbitter, 13 M. & W. 843, per Alderson, B. See Williams v. Morris, 8 M. & W. 488; Perry v. Fitzhowe, 8 Q. B. 757, 777, 778.

reason, and without so much as returning the price of the ticket; and his only remedy, if any, is to bring an action, founded on a breach of contract, against the person who sold the ticket, or against those who authorised its sale.' It further deserves notice, that, while a mere personal licence of pleasure, as the privilege of hunting, will be revocable, whether granted by parol, or under seal, the privileges of hunting, fishing, or shooting, if granted to a party and his assigns, and if coupled with a right of taking away the game when killed, will be profits à prendre, and as such may be, and can only be, irrevocably granted by deed.'

§ 893. Although a parol demise of an incorporeal hereditament passes no estate, it by no means follows, that the party who actually occupies and enjoys the thing so demised, is protected from all liability to pay for his occupation and enjoyment; and the better opinion is, that the grantor will still be entitled to recover from the garantee, in a count for use and occupation, such reasonable sum as the jury shall assess, for the actual enjoyment of the hereditament demised."

5

§ 894. With respect to the transfer of personal property the law appears to be as follows:-A donatio mortis causâ passes no property to the donee without delivery; and it is immaterial whether at the time of the gift the chattel be in the actual possession of the donor or of the donee. The gift of a chattel

1 Wood v. Lead bitter, 13 M. & W. 838, 843-855; overruling Tayler r. Waters, 7 Taunt. 374; and explaining Webb v. Paternoster, Palmer, 71; Roll. 143, 152; Noy, 98; Popham, 151, and Godbolt, 282, S. C.; Wood c. Lake, Sayer, 3; and Wood v. Manley, 11 A. & E. 34; 3 P. & D. 5, S. C. See also Taplin v. Florence, 10 Com. B. 744.

* Wood v. Leadbitter, 13 M. & W. 844, 845; Wickham v. Hawker, 7 M. & W. 79; Thomas v. Sorrell, Vaughan, 351.

3 Doe v. Lock, 2 A. & E. 705; Wickham v. Hawker, 7 M. & W. 63 ; recognised in Durham & Sunderland Rail. Co. v. Walker, 2 Q. B. 967 ; Bird v. Higginson, 2 A. & E. 696; 6 A. & E. 824, S. C.

* Bird v. Higginson, 2 A. & E. 696; 6 A. & E. 824; 4 N. & M. 506, S. C.; Thomas v. Fredericks, 10 Q. B. 775. See post, §§ 900-902, 946,

953, 954.

' Smith v. Smith, 2 Str. 955; Bunn v. Markham, 2 Marsh. 532; 2 M.

& Gr. 691, n. a.

Shower v. Pilck, 4 Ex. R. 478.

inter vivos is irrevocable, though made verbally or in writing without deed, if it be either accompanied by delivery of possession, or followed by some statement or act on the part of the donee testifying his acquiescence in the gift.' A similar gift, if made by deed, is complete without any delivery by the donor or acceptance by the donee, until disclaimer by the latter; but such disclaimer may be by parol." An assignment of chattels for a valuable consideration by way of mortgage will be binding upon the parties, though the instrument be not under seal, and though it be unaccompanied by any actual or symbolical delivery.

2

$895. Another class of transactions, which, at common law, are in general required to be evidenced by deed, consists of contracts made, and acts done, by corporations. The general rule of law, that a corporation aggregate cannot express its will or do any act except under seal, may be traced to a remote antiquity, and is founded on the assumption, that the concurrence of the whole body corporate in any particular act, can best be authenticated by the affixing of the corporate seal to the document relating to such act. In short, the common seal has been termed, in the quaint phraseology of olden times, "the hand and mouth of the corporation." This rule has been denounced in the United States as highly impolitic, and is now almost entirely superseded in practice; but in England it still holds its ground,

1 1 Com. B. 381, n. b, & 2 M. & Gr. 691, n. a; cited by Parke, B., in Flory v. Denny, 7 Ex. R. 583; questioning Irons v. Smallpiece, 2 B. & 2 Id.; Siggers v. Evans, 5 E. & B. 367.

A. 551.

3 Id.; Shepp. Touch. 285. 5 Arnold v. Mayor of Poole, 4 M. Charlton, 6 M. & W. 815; & E. 861; Paine v. Strand

Flory v. Denny, 7 Ex. R. 581.

& Gr. 860; Mayor of Ludlow v. Church v. Imp. Gas Light & Coke Co., 6 A. Union, 8 Q. B. 326; Lamprell v. Billericay Union, 3 Ex. R. 283, 306. As to contracts made by the Metropolitan Board of Works, see 18 & 19 Vict., c. 120, § 149.

6

Mayor of Ludlow v. Charlton, 6 M. & W. 823, per Rolfe, B. ; Church

v. Imp. Gas Light & Coke Co., 6 A. & E. 861.

7 R. v. Bigg, 3 P. Wms. 423, cited by Tindal, C. J., in Gibson v. East India Co., 5 Bing. N. C. 269. As to when a corporation may adopt a private seal, see ante, § 128.

8 In 2 Kent's Com. 289, it is said, "At last, after a full review of all the authorities, the old technical rule was condemned as impolitic, and essentially discarded; for it was decided by the Supreme Court of the United