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LAW OF EVIDENCE
AS ADMINISTERED IN ENGLAND AND IRELAND;
ILLUSTRATIONS FROM AMERICAN AND OTHER FOREIGN
From the Eighth English Edition.
HIS HONOUR JUDGE PITT TAYLOR.
Longum iter est per præcepta,
Breve et efficax per exempla -SENECA.
THE BLACKSTONE PUBLISHING COMPANY.
Entered according to the Acts of Congress, in the year 1887, by the BLACKSTONE PUBLISHING COMPANY, in the office of the Librarian of Congress, at Washington, D. C.
CONTINUATION OF PART II.
RULES GOVERNING THE PRODUCTION OF TESTIMONY.
MATTERS REQUIRING TO BE EVIDENCED BY WRITINGS.
§ 972. In the present chapter will be considered briefly those 892 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. 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, nor surrendered, except by deed.' The term "incorporeal rights" includes among other things, advowsons, ferries, rents, interests in lands 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 fee-simple.
1 Wood r. Leadbitter, 13 M. & W. 812, 843; Hewlins . Shippam, 5 B. & C. 229; Co. Lit. 337 b. 338 a; 2 Shep. Touch. 300; 1 Wms. Saund. 236 a; Lyon r. 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. 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.
§ 973. So strictly has this rule been interpreted, that even a 892 ticket of admission to a theatre during a season, or to a grand stand 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 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."
§ 974. Although a parol demise of an incorporeal hereditament ? 893 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 grantee, in a count for use and occupation, such reasonable sum as the jury shall assess, for the actual enjoyment of the hereditament demised.*
§ 975. With respect to the transfer of personal property the law 894 appears to be as follows:-a donatio mortis causâ,-which, by the
1 Wood v. Lead bitter, 13 M. & W. 838, 843-855; overruling Tayler v. Waters, 7 Taunt. 374; and explaining Webb v. Paternoster, Palm. 71; Koll. R. 143, 152; Noy, 98; Poph. 151, and Godb. 282, S. C.; Wood v. Lake, Say. 3; and Wood v. Manley, 11 A. & E. 34; 3 P. & D. 5, S. C. See, also, Taplin v. Florence, 10 Com. B. 744.
2 Wood v. Lead bitter, 13 M. & W. 844, 845; Wickham v. Hawker, 7 M. & W. 79; Thomas v. Sorrell, Vaugh. 351.
3 Doe v. Lock, 2 A. & E. 705; Wickham v. Hawker, 7 M. & W. 63; recognised in Durham & Sunderl. Ry. Co. v. Walker, 2 Q. B. 967; Bird v. Higginson, 2 A. & E. 696; 6 A. & E. 824, S. C.; Barker v. Davis, 34 L. J., M. C. 140.
Bird v. Higginson, 2 A. & E. 626; 6 A. & E. 824; 4 N. & M. 506, S. C.; Thomas v. Fredericks, 10 Q. B. 775. See post, 22 981-984, 1036, 1043.