Swabey's work, but we may say that it appears to us to be very well executed, and to furnish just such information as practitioners are likely to require. He has furnished a very useful introduction, giving an account of the divorce law in England, and of the marriage contract both here and abroad. Then comes the statute itself, accompanied by notes, and some of them of great length: indeed, in two or three instances, of too great length to be agreeable, and which would have been better placed by way of appendix at the end of the work. Afterwards, we have an appendix of forms, which will be useful to counsel if not to solicitors; and the whole is wound up by a very ample index. Want of space forbids extracts in this number, but we hope in our next to supply the deficiency, as it is a work which furnishes very much extractable matter, and such as is likely to be generally serviceable.

MOOT POINTS.

No. 18.-Surgeon's Apprentice.

Will you permit me, as a subscriber to your journal, to solicit through its medium the opinion of your correspondents on the following point:

A., a minor, was apprenticed for five years to a surgeon in the country. After serving for two and a-half years with his master, he went up to London, in accordance with a proviso in his indentures to spend the remainder of his apprenticeship in "walking the hospitals." He, with the consent and in the presence of his father, agreed verbally with B., a London surgeon, to assist him in his profession during the two and a-half years he proposed remaining in London, in consideration of his (B.) providing him (A.) with board and lodging during that period. After remaining with B. about a year, circumstances arose which rendered A. desirous of determining his engagement with B., who, on being applied to for that purpose, refused his assent, and, moreover, threatened that if A. refused to fulfil his engagement, he would have him arrested and take proceedings against him. The matter was, however, ultimately arranged amicably.

Under these circumstances, what would have been the respective powers and liabilities of A. and B. ?

I apprehend B. would have had no remedy or right of action against A., since it appears to me that the agreement was void ab initio, being merely verbal, and therefore not in accordance with the 4th section of the Statute of Frauds, which provides that no action shall be brought on any agreement that is not to be performed within one year from the making thereof, unless such agreement or some memorandum or note thereof shall be in writing, and signed by the party to be charged therewith, or by his lawful agent. CIVILIS.

No. 19.-Articled Clerks.

I shall be much obliged if some of your numerous correspondents will favour me with the following information (viz.): 1. Whether it is the duty of an articled clerk (when the usual clauses are in the articles) to copy abstracts, wills, &c., and engross? 2. What it is customary for an articled clerk to do when in the office? 3. Can an articled clerk compel his master to let him serve his last year with agents in London (where there is no mention made in the articles concerning it), and if so, by what means? AN ARTICLED CLERK. No. 20.-Board of Health-Costs of Legal Proceedings.

Are the expenses incurred by a Local Board of Health in depending or instituting proceedings to maintain a public right of way payable out of the general district rate? or how otherwise?

It should be borne in mind that the local board are appointed surveyors of the highways under the 71st section of the Health of Towns Act.

ALIQUIS.

No. 21.-Specific Performance with Compensation.

By a written unqualified agreement, A. sells to B. for £400, a house and garden containing altogether about half an acre. On delivery of the abstract, it appears all mines, minerals, and quarries had been reserved by C. (a former vendor), with the usual powers of entry and working by C., his heirs and assigns, his and the agents, workmen and servants and with liberty to make roads, trenches &c., and to erect engines and works in, on, or under any part of the said hereditaments, to promote any other works of said C., &c., in the neighbourhood paying a compensation at the rate of £4 per acre annually for any damage to the surface during the existence of such damage only. Can B. insist on a specific performance of the contract with a compensation for the undisclosed incumbrance, or must he altogether accept or reject the contract?

S. H. P.

No. 22.-Devise-Lapse―Jointure. A., by his will, gives an estate to B. in trust for E., F., and G., in such parts, &c., as B. shall appoint, and in default of appointment to the said E., F., and G. as tenants in common in fee. F. dies in testator's lifetime. Will one-third of the property fall into the testator's residuary bequest? Will a power to raise portions displace a jointure previously appointed? H. W.

No. 23.-Deposit of goods as collateral security. Does a person lending money upon a promissory note, and receiving as collateral security a deposit of plate or goods, render himself liable to the pawnbroking Acts? An answer will oblige,

J. (Liverpool).

COURSES OF LAW STUDIES.

(Continued from p. 190).

Guardianship. There is distressing confusion in Blackstone's explanation of the different kinds of guardianship (1 Bl. Com. 461), and which seems to arise from not distinguishing, with sufficient accuracy, between guardianship by nature-which is confined, by the common law, to the heir apparent alone, and continues till he attains the age of twentyone-and guardianship by nurture, which is of all the children equally, and ceases at fourteen, in the case both of males and females (Co. Litt. 84. a. b. and see note 66). He designates the father, and, in some cases, the mother, as the guard ans by nature, which is, implicitly, to exclude the other ancestors; whereas, in point of fact, the law makes no such exclusion (see 3 Co. 38 b.). Neither, again, is this at all explained by the sentence which follows; "for if an estate be left to an infant," &c. On the contrary, the guardianship by nature, being restricted by the common law to the heir apparent alone, and not extending to the other children, the receiving the profits of the estates of the children in general, is, consequently, no part of the office of the guardian by nature. Again, it is a very doubtful point with regard to daughters, whether the alleged guardianship is recognised (as Blackstone says) by the construction of the statute 4 & 5 Ph. and M. (this statute is repealed by 9 Geo. 4, c. 31); or whether, on the contrary, the latter is not merely a statutory guardianship, directed by the Legislature in conformity to the dictates of nature, and upon principles of general reasoning (see the note 66, to Co. Litt. 88 b.). And still more questionable is it, whether the ordinary may appoint, in default of the guardians by nurture; or whether, on the contrary, the appointment of the ecclesiastical court is not confined merely to guardians ad litem (see the note 70, to Co. Litt. 88 b. sect. 3).

Wrongful and innocent conveyances-Contingencies -Common law leases-Grant and livery-Fines and recovery.—It is usually understood, I believe, that of the four volumes which form the subject of our present consideration, the second (upon the rights of things) is that in which Blackstone principally excels; not only in the selection and arrangement of his materials, but also in the propriety and perspicuity of his manner of treating them. And yet, with respect to the doctrines which confessedly fall under this division of inquiry, how extremely difficult it is for the student to form to himself a clear and precise notion of those ordinary common-place distinctions between droiturel and tortious conveyances, between descendible freehold and fee-simple qualified, and between estates limited in contingency

by deed and by devise. How difficult is it, from what is said in explanation of the nature of our common-law leases, together with their several enlargements and restrictions, to collect even the primary distinctions between void and voidable, for years and for life, and between things in grant and in livery. The operation of a fine too, as it differs from that of a recovery (where the tenant in tail has the reversion in himself, and there are no intermediate remainders), is by no means distinctly elucidated; nor why a recovery cannot be had of an estate-tail with single voucher, but only with double voucher at least.

It is proposed to elucidate the above matters by examining them separately in some detail, which, with what has been before stated, will be useful, not only to the practioner, but also to the student, as furnishing a model for the due investigation of other points of law.

OF THE DISTINCTION BETWEEN DROITUREL AND TORTIOUS CONVEYANCES.

Innocent and tortious conveyances.-Droiturel, otherwise called innocent conveyances are of the right only, and not of the possession, and are either primary or secondary. Of the first description are all original conveyances of things which lie only in grant, and not in livery, and of which no visible possession can be delivered, as advowsons, rents, commons, reversions, and other incorporeal hereditaments. Those of the second class are, where there is already such subsisting privity of estate between the parties, that any further delivery of possession would be vain and nugatory; as in the case of release, confirmation, and surrender. Conveyances which are thus made, can be evidently no other than droiturel-that is to say, they cannot enure to pass more than may be innocently or rightfully conveyed; for the transfer of a right becomes a mere nullity when exercised beyond the subsisting right to transfer; nemo potest plus juris ad alium transferre quàm ipse habet (Co. Litt. 309 b.). On the other hand, all original or primary conveyances, wrongfully made of things in livery, as of lands or tenements (of which the corporal possession is made over by the act of livery of seisin without any reference to the right) were, prior to the 9 & 10 Vic. c. 106, said to be tortious. [But by sec. 4 of that statute feoffments made after the 1st October, 1845, have not now any tortious operation; fines and recoveries by which the effect of a tortious alienation was had, were abolished by the 3 & 4 Will. 4, c. 74.] Thus, if A. tenant in tail by a feoffment leased to C. for life, remainder to D. in fee, the discontinuance was in fee; for both estates were created by one and the same livery. But if A. having leased

to C. for his life, had afterwards granted the reversion to D. in fee, the discontinnance would have been then for life only, and not in fee; for the reversion lies in "grant," and not in "livery." And so it is and always was of a bargain and sale inrolled, a lease and release, a covenant to stand seised, and the like. They were and are all of them droiturel or innocent conveyances, because they operate upon the right only, and not by transmutation of the possession, and, consequently, could and can convey no more than may be rightfully and lawfully conveyed (See the note 231, Co. Litt. 271 b.). [It must be borne in mind that the immediate freehold of corporeal tenements and hereditaments now lies in grant as well as in livery (8 & 9 Vic. c. 106, s. 2), and that a discontinuance after the 31st December, 1833, does not defeat or toll any right of entry or action for the recovery of the land (3 & 4 Will. 4, c. 27, s. 39), so that now all conveyances may be considered as innocent; but the former distinction must be borne in mind as to old transactions.]

Feoffment and release by tenant in tail.-Again; if tenant in tail made a feoffment, it was a discontinuance, because the feoffee's estate was created by livery of seisin, and was of a greater quantity of estate than could be lawfully carved out of an estate-tail. But if the tenant in tail was disseised, and released in fee to the disseisor, albeit the fee was not his to release, yet it was no discontinuance; for there was no transmutation of the possession or freehold by the release, but only a transfer of the right (Co. Litt. 42 a. 252 a.).

Tenant in tail, mortgage.-Again, take the following case of a mortgage, which was not at all uncommon. A. tenant in tail, made a mortgage to D. by lease and release, and died; and afterwards B. the issue in tail, entered and suffered a recovery. In this case the recovery was good, notwithstanding the mortgage; because the conveyance by lease and release was droiturel, and consequently determined upon the death of the tenant in tail, and entry of the issue. But, if the mortgage had been by feoffment, it would have been otherwise, because the feoffment would have operated as a discontinuance, and the issue could not have made a tenant to the præcipe until he had first defeated that discontinuance, which he could not do by his entry, but only by his action. [By the 3 & 4 Will. 4, c. 74, if a tenant in tail of lands makes a disposition of them under that act (i. e., by an inrolled conveyance), by way of mortgage, or for any other limited purpose, such disposition to the extent of the estate thereby created, is an absolute bar to all persons as against whom such disposition is by the act authorised. Thus a mortgage in fee in the usual form will be an absolute bar; if pur autre vie or for a less estate, or a mere charge, it will be a bar pro tanto (Brow. 85)].

Powers, extinguishment by conveyance.-Upon the same principle, where there are powers relating to land, which have their operation under the statute of uses, or the statute of wills, the tenant by a tortious conveyance, might often have extinguished such of those powers as are said to be "in gross;" but if the conveyance is droiturel, they remain unaltered. As for example: "If tenant for life, with a power to jointure an after-taken wife, conveys a life-estate by bargain and sale, lease and release, or covenant to stand seised, this conveyance will not affect the power of making a jointure. If he even makes a conveyance in fee by any of these assurances, as it is not their operation to pass a greater estate than the grantor has a "right" to convey, the power in gross is not affected by it; but if he conveyed by fine, feoffment, or recovery, as these assurances not only passed the estate of the grantor, but conveyed a tortious fee, they necessarily disturbed the whole inheritance, and consequently divested the seisin, out of which the uses to be created by the power were to be fed; they, therefore, operated in extinction of the power (see note 298 Co. Litt. 342 b.; see supra).

Innocent conveyances prefered to tortious, even before the abolition of the latter.-It is to be further remarked, that the law even formerly intended every conveyance, wherever it could be so intended, to be droiturel rather than tortious (and now there can be no tortious conveyance). For example: suppose A. granted to B. in tail, keeping the reversion to himself. If, afterwards, B. re-infeoffed A. the law would have intended this to be only a surrender of B.'s particular estate, and on B.'s death the issue in tail might have entered. For, if A. had taken by feoffment, he would have tortiously defeated his own reversion, which would have been against the received maxim, "that a small estate by right, is to be preferred in law to a greater estate by wrong (Co. Litt. 42 a, 252 a). And so, again, if lands were given to A. for life, remainder to B. for life, remainder to C. in fee, and afterwards B. disseised A he acquired by the disseisin a fee simple; for the law would not have allowed him to qualify his own wrong (see note (255) Co. Litt. 296 b); but if, afterwards, A. died in the lifetime of B., his wrongful estate in fee was changed, by judgment of law, into the rightful estate for life, and consequently the old reversion was again vested in C. as before the disseisin. It may be added that the construction which is agreeable to law, is always to be preferred to that which is against the law. Thus, if tenant in tail leases to another for life, it shall be construed to be for his own life, for that stands with the law, and not for the life of the lessee, which it is beyond his power to grant; but otherwise it is, if the lessor

1

has fee simple. Et sic de cæteris (Co. Litt. 42 a b, Ibid. 183 a b).

OF THE DISTINCTION BETWEEN DESCENDIBLE FREEHOLD AND FEE SIMPLE QUALIFIED. Fee simple qualified and descendible freeholds defined. -A fee simple qualified is the same in quantity of estate as a fee simple absolute; it has, likewise, all the incidents to a fee simple absolute, as inheritance, dispunishment of waste, right of dower and curtesy, and so forth, being only less than a fee simple absolute in respect of its duration (Co. Litt. 18 a); but a descendible freehold is without any of those incidents; being in effect no more than an estate pur autre vie, to which the heir succeeds, not as heir at the common law, but as the person specially appointed in place of an occupant (Co. Litt. 41 b.; and see the note 241). The distinction between descendible 'freehold and fee simple qualified, has been probably admitted since Littleton wrote (see Litt. sec. 612, 650; Co. Litt. 331 a.; Ibid. 345 b.). Grant by tenant in tail.-For example: "If tenant in tail do grant to another all the estate he hath in the tenements to him entailed, by deed of bargain and sale (which, being of the inheritance, is required to be inrolled by the statute 27 H. 8, c. 16), to have and to hold to the other, and to his heirs for ever;" it operates as a droiturel conveyance of his whole estate and interest (see note 231, Co. Litt. 271 b); and, consequently, as the grantor had an estate of inheritance in fee tail, so the grantee takes an estate of inheritance, not indeed of fee tail, because of the want of the proper words of limitation, "to the heirs of the body of the grantee," neither was it formerly of fee simple absolute, because it must necessarily have determined upon the dying without issue of the tenant in tail [but under the effect of the 3 & 4 Will. 4, c. 74, it would operate as a disentailing assurance, and be a full bar, and pass a fee simple absolute], but, in all other respects, this determinable or qualified fee simple (as it formerly was) had the properties of a fee simple absolute; it went to the heir as an inheritance,-the widow should have been endowed, the husband should have been 'tenant by the curtesy, and the tenant in tail should not have had an action of waste because he had parted with the reversion (Co. Litt. 53 a, Ibid. 356 a; and see note 286 Co. Litt. 331 a). But, "if tenant in tail do grant to another all the estate he hath in the tenements to him entailed by deed of lease, to have and to hold to the other and to his heirs for ever;" this [if not inrolled] is no inheritance to the grantee, but a mere descendible freehold (Co. Litt. 333 a). For the operation of the lease is only upon the freehold, leaving the fee or inheritance in the lessor and his heirs, of whom the lessee holds as of the

reversion. Suppose, then, the grantee enters under the lease, and afterwards dies during the life of the tenant in tail, it is not the inheritance that descends to the heir of the grantee, but the mere freehold which the grantee himself had, and to which his heir does not succeed by descent, at the common law, as in the former case, but by force of the special words of the original grant; and, consequently, in case of waste or forfeiture, the tenant in tail may have an action of waste, or may enter, &c., in right of the reversion. [We cannot find the reference; see Litt. s. 613, and the note to our edition.-EDS.]

Devise in tail of estate pur autre vie.-And so, again, if a person seised of an estate pur autre vie, devises it to one and the heirs of his body, this is no estate tail, for all estates tail must be of inheritance, be dispunishable of waste, have right of dower, and must also be within the statute de donis (Co. Litt. 224 a); but it is the limitation of a descendible freehold; and the words heirs of the body are no more than a description of the person who shall hold the same during the life of the cestui que vie, to prevent an occupant (Co. Litt. 388 a).

Descendible freeholds devisable, assets for paying debts. It is further to be observed, that descendible freeholds were not devisable under the [repealed] statute of wills (32 & 34 H. 8), but were made so long afterwards, by the [part repealed] stat. 29 Chas. 2, [and now by the 1 Vic. c. 26, s. 3, "whether there shall or shall not be any special occupant thereof, and whether the same shall be freehold, customary freehold, tenant right, customary or copyhold, or of any other tenure, and whether the same shall be a corporeal or an incorporeal hereditament,"] which stat. of Chas. 2, also made them assets in the hands of executors and administrators for the payment of debts and legacies; for, by the common law, no executor could succeed to a freehold. And again, by [the part repealed] stat. 14 Geo. 2, c. 20, the surplus of such estates, after payment of debts, &c., is made distributable like a chattel interest. [By the 1 Vic. c. 26, s. 6, estates pur autre vie of a freehold nature, not devised, are chargeable in the hands of the heir, if coming to him by reason of special occupancy, as assets by descent; if no special occupant, they go to the executor or administrator, and are distributable as part of the deceased's personal estate]. But the above did not apply to the estate of the bargainee of tenant in tail, which was before devisable under the statute of wills. And as of a bargain and sale inrolled, so it was of a lease and release without any inrolment, because it operated as a feoffment at the common law (Co. Litt. 207, a, n. 3). That is to say, it conveyed the same quantity of estate, supposing

the releasor to have the inheritance, but in other respects the operation of a feoffment was very different; for, if tenant in tail made a feoffnient, it was a discontinuance; but a bargain and sale under the statute, or a lease and release at common law, never could work a discontinuance, because they were and are but droiturel conveyances, operating upon the right only, and not upon the possession. [The reader will bear in mind that the 3 & 4 Will. 4, c. 74, makes a great difference between the effects of an inrolled and an uninrolled deed.]

OF THE DISTINCTION BETWEEN ESTATES LIMITED IN CONTINGENCY BY DEED, and by Devise. Reverter, possibility of-Fee in abeyance-Contingent remainder formerly destroyed by merger.-In the case of a fee being limited in contingency "by deed," there remains no more in the grantor and his heirs than a mere possibility of reverter and no estate of reversion; for the whole estate passed out of the grantor at once, by the act of "livery" of "seisin," which alone gives effect to this species of conveyance. But the operation of a devise being no more than the declaration of the use to which the land shall be subject after the testator's death, he is therefore at liberty to dispose of as much or as little as he thinks fit, and whatever he does not dispose of, as it remains vested in himself during his life, so it descends to his heir after him (Co. Litt. 23 a). In the former case, if the inheritance is limited in contingency, the fee is, therefore, said to be in abeyance; that is to say, it is only in the remembrance, intendment, and consideration of law, caput inter nubila condit (but see Fearne's C. R. 526; 2 Black. C. 107, note by Chr.; Co. Litt. 342 b. n. 1 Noy's Max. 109, 371, Byth.); but, in the case of a devise, it descends to the heir-at-law, and remains vested in him, until the contingency happens. For example, if A. leases to C. for life, remainder to the right heirs of D., the inheritance is plainly neither granted to C. nor D., and it cannot vest in the heirs of D. till after D.'s death, quia nemo est hæres viventis; and, consequently, as A. cannot retain it against his own grant and livery, it remains in suspense, in nubibus, or in abeyance (Co. Litt. 342 b.). if A. devises (which is in the nature of a limitation of the use, as well as the other express modes pointed out by the statute of uses) to C. for life, remainder to the right heirs of D. and dies, the reversion in fec, during the suspense of the contingency, descends to the heir of the testator; for the law never supposes the fee to be in abeyance, unless where it is necessary to recur to that construction; and, in the present case, there is no such necessity; for this was no parting with the possession (as in the former instance) by livery of seisin, but a mere declaration

But,

of the use; and the statute only executes the seisin in the same proportion in which the use was disposed of, and nothing more. Supposing then, the heir and the devisee for life to join in a common conveyance, in the lifetime of D., the two estates being thus united together in succession, the particular estate will merge in the reversion, and the contingent remainder [was formerly] defeated and destroyed for ever [but now, by the 8 & 9 Vic. c. 106, s. 8, a contingent remainder, existing after the 31st Dec., 1844, shall be, and, if created before the passing of that act, shall be deemed to have been capable of taking effect notwithstanding the determination by forfeiture, surrender, or merger of any preceding estate of freehold]. But [prior to the above act] the contingent remainder was not defeated in the former case, where the limitation was "by deed;" for the particular estate does not merge in the possibility of reverter, but only in the estate of reversion (see 2 Law Chron. 252-256.)

Particular estate and reversion by one deed—Merger. -It is, however, to be observed, that where the particular estate and the reversion come, by one conveyance, to the same person, there can be no merger of an intervening contingent remainder; because it would evidently contravene the intention of the grantor or devisor. But, otherwise it is, where the particular estate comes by one conveyance, and the reversion by another; for there the operation of law has to contend with no such repugnance (2 Chron. 252). Thus where an estate is left to B. for life, remainder to the unborn son of D. in tail, remainder to the right heirs of B., B. takes a fee executed, subject to the possibility of the contingent remainder vesting. But if B. suffered a recovery, before the event on which the contingency was limited had taken place, the junction of the particular estate and the reversion in a third person, being a merger, was [before the 7 & 8 Vic. c. 76, and 8 & 9 Vic. c. 106] an extinguishment of the contingent remainder for ever (see Fearne's Cont. Rem. p. 345 et seq.; Burt. Comp. pl. 759).

OF THE CONSTRUCTION OF COMMON LAW LEASES. Leases, void and voidable-For years and lifeGrant and livery. The principal distinctions to be observed in the construction of leases which enure by the common law (and such indeed is the case with all leases which are not strictly pursuant to the statute), (stat. 32 H. 8. c. 28 [repealed, except as to ecclesiastical leases, see 2 Chron. 111]), are, first, between void and voidable; secondly, between leases for years and life; and, thirdly, between things in grant and things in livery.

Void and voidable leases.-Between "void and voidable." If tenant in tail makes a lease for forty