ADDENDUM. SINCE the observations on the case of Massey v. Parker (p. 84, note) were written, opportunity has been afforded for ascertaining the sense of the profession, which is decidedly opposed to the doctrine there laid down upon the second, and (as the judgment treats it)" the more important question," namely, "whether the intention to give the income to the separate use of the grand-daughter, if sufficiently expressed, could, under the circumstances, have effect given to it so as to deprive the husband of his ordinary right to the property.' The general impression is, that the inadequacy of the words to create separate property must be considered as the single ground of decision, and though the court did "not think it material to say much upon that point," while it enlarged upon the second point, pronouncing it "settled," and over-ruled the demurrer "upon both points," yet that the observations upon the second point are to be treated as extrajudicial. It seems, indeed, to be considered that the later decisions with reference to the effect of a clause against anticipation (and on a misapplication of which decisions the judgment in Massey v. Parker appears to be founded), cannot be sustained; but that the doctrine, which had been so long received and acted upon by conveyancers, is still to be regarded as the law upon the subject. According to that doctrine, a gift to the separate use of a female, expressly without power of anticipation, was effectual, as well to confer the sole enjoyment as to restrain alienation, whenever the restricted gift and the state of coverture co-existed, but that, as without coverture there cannot be separate estate, and as the right of disposition incident to property cannot, even with reference to a life interest, be denied, except in the instance of separate estate, the object of the gift was competent, while discovert, to dispose of her interest absolutely. Whether the property was effectually given to the separate use, or whether anticipation was effectually restrained, or whether a particular existing or intended coverture only, or the state of coverture generally was contemplated, were questions of construction merely. If it should be said that many transactions rest upon the new doctrine, the answer is, that the number of those which rest upon the old is infinitely greater, and d that a return to the old doctrine is desirable, not only as it regards the validity of past transactions, but as it regards the convenience of future family arrangements. But until the mistake has been corrected by a solemn adjudication, the practitioner will not feel himself at liberty to disregard the recent authorities. It may be proper to add, that before the decision of Lord Eldon in Brandon v. Robinson (p. 85, note), an impression prevailed that the gift of a life interest might be rendered unalienable by simply appropriating the income to the personal support of the object, and prohibiting anticipation, without regard to the distinction of sex, or to the condition of coverture, or any other circumstance; and the Writer has seen trusts prepared under that impression by the late Mr. Butler, who conceived them to be perfectly effectual, and expressed some surprise when the case of Brandon v. Robinson was produced. Another very eminent conveyancer treats the decision in Brandon v. Robinson as an oversight— a contrary doctrine having been laid down in a case decided by Lord Thurlow in bankruptcy. ERRATA. Page 57, n. (c)-for 4 Bur. & Ad. 283, read 4 Barn. & Ald. 283. 66, n. (b)-for 3 & 4 Will. 4, c. 131 read 3 & 4 Will. 4, c. 105. ib. n. (a)-for Part I. read Part IV. 102, line 10-for B. as protector read 4. as protector. ib. line 6 from bottom-for as read of. 120, n. (d), 3d and 4th lines-for take on read take effect on. 125, in margin for IV. read VI. 127, line 12, and in margin-for V. read VII. 147, line 6 from bottom-for 47 Geo. 3, st. 2, read 47 Geo. 3, sess. 2. 188, line 15-for coferred read conferred. 216, n. lines 4 and 5 from the bottom-for possion read possession. 240, margin-for proprietary uses read proprietary rights. ib. n. line 8 from the bottom-for owners read owner. 340, line 3 from the bottom-for Power v. Capron read Powis v. Capron. 368, heading for stat. 2 & 3 Will. 4, c. 74, read 3 & 4 Will. 4, c. 74. 403, last line but one of text-insert said before [Christian name]. N. B. 426, n. (13)-for "An Act for abolishing Fines and Recoveries and substituting more simple Modes of Assurance," read "An Act for the Abolition of Fines and Recoveries, and for the Substitution of more simple Modes of Assurance." AN INTRODUCTION, &c. &c. CHAPTER I. OF THE NATURE AND EFFECTS OF TENure. CHAP. I. IT is proposed, in the following historical sketch, to consider the Law of Real Property under three princi- General distripal divisions. The first division embraces the period of bution of the subject. feudal rigour, when the system of tenures flourished severe and pure, without any tincture of equitable doctrines. Some knowledge of its leading principles is not merely desirable as matter of elegant or curious research, but essential to form the sound practical lawyer. The second division exhibits the rise and progress of equitable interests under the name of USES, which, eluding the strictness of tenure, contravened the law and impoverished the seigniory, yet effected on the whole a salutary change, and laid the foundation of greater good. Distinct traces of both these æras are visible in the compound character of our law and the twofold constitution of our judicature. The third division shows by what legislative and judicial steps the materials supplied by the preceding periods were brought into a state adapted to keep pace with the progressive wants of society; how B |