quantities not exceeding a quarter of an acre, at rents to be fixed every ten years by the valuer, but free of all tithes and taxes whatsoever, which are to be paid by the wardens; and no dwelling is in any case to be suffered to be erected, or if erected is to be pulled down. If the rent is in arrear for forty days, possession may be resumed, as also if the occupier removes to a distance of more than a mile from the parish. The rents are to be applied to the payment of tithes, taxes, rent-charge, &c.; and the residue, if any, to go in aid of the poor-rates.

With reference to allotments, the 9 & 10 V. c. 70, enacts that where any allotment for exercise or recreation, or for any other public purpose, shall have been made the condition of any provisional or supplemental provision, the commissioners may, at any time before the valuer has made his award, allot an equal quantity of land in lieu of that allotted by the previous order; and s. 5, by which they may award rent-charges on the allotments to the lord of the manor, in lieu of any allotment of land to which he may be entitled. By s. 9, also copyhold and customary lands, though not subject to inclosure, may be exchanged under this act; as may also shares of land and cattle-gates and stints.

Allotments under inclosure acts are freehold, unless otherwise directed by the act of inclosure. The 11 & 12 V. c. 99, allows the commissioners, in the case of an allotment of less value than five pounds, to compensate the person entitled thereto, with his consent, by a payment in money.

Commons must be driven yearly at Michaelmas, or within fifteen days after.

CHAPTER III.

Mortgage.

MORTGAGE is a pledge of land, tenement, or anything immovable, bound for money borrowed, to be the lender's if the money be not repaid at the time stipulated: the borrower in these bargains is called the mortgagor, and the lender the mortgagee.

The perpetual alienation of real property was interdicted by the Mosaic law, which provided that no estate could be sold, or any way conveyed to another, for a longer period than the next jubilee, which occurred every fifty years; when, if not previously redeemed, it reverted, free of incumbrance, to the original owner and his heirs.

Although, by law, a mortgage is forfeited on non-payment of the sum borrowed at the time agreed on, yet a court of equity will interfere to prevent the sale and if the value of the mortgage is greater than the sum advanced, it will allow the mortgagor, within reasonable time, to redeem his estate, paying to the mortgagee

his principal, interest, and expenses: without this, an estate worth £500 might be forfeited for the non-payment of £50. The advantage thus allowed to the mortgagor is called the equity of redemption. But, on the other hand, the mortgagee may either compel the sale of the estate, in order to get the whole of his money immediately, or else call upon the mortgagor to redeem his estate; or, in default, to be for ever foreclosed, and thus lose his equity of redemption.

But by the act of 1852, the 15 & 16 V. c. 86, s. 48, the Court of Chancery is empowered to direct a sale of mortgaged property instead of a foreclosure, on such terms as it may think fit. The court may order real estate to be sold, if required; and, where real or personal estate is the subject of proceedings, it may allow to parties a portion or the whole of the annual income.

When the mortgagee is in possession, the mortgagor is barred by 3 & 4 W. 4, c. 27, at the end of twenty years, unless in the interim the mortgagor has received from the mortgagee some acknowledgment of his claim in writing.

A mortgage is often effected by a simple deposit of deeds: and if a memorandum in writing accompanies the deposit, equity will consider it a mortgage, and decree payment or sale of the property mortgaged. If no memorandum accompanies the deposit, the court will not readily interfere, and the lender has generally to go to a court of law for his money, retaining the deeds till he is paid. In a mortgage of real estate, the consent of the wife by deed is necessary to bar her of dower, if married before January 1, 1834.

It has become the practice, of late years, to insert in a mortgage an absolute power of sale, in case of breach of the condition of the deed; this power is not always advisable for the mortgagee to avail himself of, and it is almost invariably an objectional power for the mortgagor to grant.

By 4 & 5 W. & M. c. 16, if any person mortgage his estate a second time, and do not inform the mortgagee, in writing, of the prior mortgage, or of any judgment or incumbrance he has voluntarily brought upon the estate, the mortgagee shall hold the estate as an absolute purchaser, free from the equity of redemption of the mortgagor. But the statute does not bar the widow of any mortgagor from her dower, who did not legally join with her husband in such second mortgage, or otherwise exclude herself.

It is held to be an established rule of equity that the second mortgagee, who has the title deeds, without notice of a prior incumbrance, shall be preferred; because the negligence of the first mortgagee, in lending money without taking the title deeds, enables the mortgagor to commit a fraud, 1 T. R. 762.

Whatever may be the value of the estate, it is of great importance to those who lend money upon real security to be certain that there is no prior incumbrance upon it; for it is settled, that if a third mortgagee, who, at the time of his mortgage, had no notice of the second, purchase the first mortgage, even pending a bill

filed by the second to redeem the first, both the first and third mortgages shall be paid out of it before any share of it can be appropriated to the second: the reason assigned is, that the third. by thus obtaining the legal estate, has both law and equity on his side, which supersede the mere equity of the second. But, in mortgages where none has the legal estate, the rule in equity is that the prior mortgage has a prior claim.

When two different estates are mortgaged to the same person, one cannot be redeemed without the other, Amb. 733. So of the other securities given by the mortgagor to the mortgagee.

The investment of estates of infants and lunatics on mortgage, unless under very special circumstances, is not allowed, 1 Cooper,

157.

The 3 & 4 V. c. 55, amended by 8 & 9 V. c. 56, enables the owners of settled estates to defray the expense of draining them, by way of mortgage. These acts apply to England and Ireland.

CHAPTER IV.

Wills and Testaments.

A WILL or testament is an act whereby a man declares his intention as to the disposal of his property after his decease.

The person who makes a will is called a testator; he who dies without a will is called an intestate.

A gift of land or tenements, by will, is called a derise; the person to whom they are given, the devisee; and the person who makes the will, the devisor.

I. DESCRIPTION OF WILLS.

Wills are of two kinds, written or verbal; the latter is called a nuncupative will, being made by word of mouth before witnesses; and, till recently, was legal in case of sudden illness or emergency, if afterwards reduced to writing. But a verbal will never extended to the real estate, only the personal; and of the personal estate it was invalid, if the value of the property bequeathed exceeded £30, unless proved by the oaths of three witnesses present at the utterance of the same. All verbal wills, however, made subsequent to December 31, 1837, are rendered invalid, except those of soldiers in actual service, and of sailors at sea, who may dispose of their personal property as heretofore.

The 1 V. c. 26, besides rendering void all future parole or nuncupative wills, effects other important changes in the old law of testamentary disposition. 1. Wills of personal estate must now be attested by two or more witnesses in the same manner as devises

of real estate, which, however, will no longer require the presence of three witnesses. 2. All devisable estates, real, personal, freehold, or copyhold, are now placed on the same footing, in the mode of devising them. 3. The power of devise extends not only to property possessed by the testator at the time of making his will, but to that he may subsequently acquire up to the time of his death. 4. No will of a person under twenty-one years of age is valid; nor of a married woman, except such as might be made before the act. This abolishes the power of infants to bequeath personally, and, in certain manors, copyhold estates. 5. Legacies to an attesting witness, or his or her wife or husband, are void. Therefore, if a testator wishes to give anything to an attesting witness, he must do it in some other way than by a legacy. But creditors and executors can be attesting witnesses. 6. Marriage revokes a will previously made; otherwise a will can only be revoked by being destroyed by the testator, or by his direction, with intent to revoke, or by the execution of a new will. tions in wills must be made in the same way as a will is made: that is, must be witnessed and signed. 7. Lastly, wills must be hereafter construed as if made immediately before the death of the testator, unless a contrary intention appears from the terms of the will itself.

The act does not extend to Scotland.

Altera

Prospectively, the statute greatly simplified and better secured testamentary dispositions; but it must be borne in mind that the old law continues in force, both as to written and verbal wills, made prior to January 1, 1838.

II. PERSONS NOT QUALIFIED TO MAKE A WILL.

The following persons, either for want of sufficient discretion, or for want of free will, or for criminal conduct, are deemed unqualified to dispose of property by will:-1. Infants under twenty-one years of age. 2. Idiots, lunatics, and persons in their dotage; but the wills of persons in sound mind at the time of making their wills, are not affected by subsequent insanity or infirmity. 3. A man born deaf and dumb. 4. A drunken man, when so far intoxicated as to be deprived of his reason, unless it appear he had sufficient understanding to comprehend his act. 5. A person convicted of felony cannot make a will, unless he is pardoned, which restores him to competency. 6. Outlaws, whether for crime or debt, cannot bequeath, for their property is forfeited by outlawry. A suicide may devise the real estate, but the personal estate is forfeited: the crown, however, restores the forfeiture to the widow or nearest of kin.

A married woman is incapable of making a will without the consent of her husband. But, if her husband be transported for life, she may make a will, and act in everything as a single woman. If

a married woman have any pin-money, or separate maintenance, she may bequeath it without the husband's consent.

III. PROPERTY DEVISABLE BY WILL.

By the Wills Act, all property, whether real, copyhold, or personal, is placed on the same footing, and may be devised in the same manner. Formerly no real estate could be devised for longer than a term of years; but now every person is enabled to dispose of the whole of his landed property to whom and what object he pleases, and that even to the total disinheriting of the heir-at-law, notwithstanding the vulgar error of the necessity of leaving the heir a shilling, or some other legacy, effectually to disinherit him. Some restraints, however, are still continued on devises to charitable uses by the Mortmain Acts, which were intended to check the accumulation of land in the hands of religious or corporate bodies, by which it became comparatively unproductive; and also to control the weakness of those who vainly thought to extenuate the wickedness of their lives by leaving their property to be applied to works of piety or charity. The last act of this description is the 9 G. 2, c. 36, and probably the provisions of this law might be safely repealed, in an age inclined to be sceptical in matters of faith, and which, under the guidance of the new school of political economy, is not likely to fall into excess either of posthumous or contemporary benevolence. By this act, no lands or tenements, or money to be laid out therein, shall be given for or charged with any charitable use whatever, unless by deed indented, executed in the presence of two witnesses, twelve calendar months before the death of the donor, and enrolled in the Court of Chancery within six months after its execution, and unless such gift be made to take effect immediately, without the power of revocation. Devises to the two universities, and to the colleges of Eton, Winchester, and Westminster, are excepted out of the statute; and by 5 G. 4, c. 39, s. 3, to the British Museum.

In the opinion of Lord Hardwicke, persons are at liberty to leave by will a sum of money, or other personal property, to works of charity, provided it is not directed to be invested in land. And by 43 G. 3, c. 107, every person is at liberty, by deed or will, to give real or personal property for the augmentation of Queen Anne's bounty. Another act, in the same year, allows devises by deed enrolled, or will executed three calendar months before the death of the testator, of real or personal property to the amount of £500 for the repair of any church or parsonage-house.

By 1 W. 4, c. 40, the undisposed of residue of testators' estates goes to the executor or trustees for the next of kin, unless executor was intended to take beneficially. This act is extended, by 11 & 12 V. c. 89, to the land of deceased debtors.