[But livery is not now requisite as the immediate freehold of land lies in grant (8 & 9 Vic. c. 106, s. 2; 2 Chron. 70). The old rule should be remembered-viz., that where livery of seisin was required, the word 'heirs' was necessary to create a fee].

Devises and uses-How construed.-But why, then, do we not adhere to the same principles in the construction of conveyances by devise? We have seen that a feoffiment, at the common law, by deed, is of no avail, without the specific act or ceremony of livery of seisin; and this was, during the feudal times, for two reasons: first, that it might appear against whom the præcipe was to be brought, in the case of a disputed title; and, secondly, that the lord might run no risk of being defrauded of his fines and services. But, it is evident, that these reasons did not apply where there was no livery, as in the case of uses for instance; for, the use being granted distinct from the possession, no fines or services could attach to it, neither was the cestui qui use liable to the præcipe in the case of a disputed title. Now, if we apply the same reasoning to limitations by devise, we shall find them to be precisely within the same exception; for, not taking effect till after the decease of the testator, they can enure no otherwise than by way of declaration of the use, to which the seisin is afterwards silently executed by the statute (27 H. 8, c. 10) of uses (see hereon, 3 Chron. 242; Burt. pl. 280, 281; Hay. Conv. 51, 4th edit.). Therefore, because these devised estates are in their nature analogous to uses, and not to feoffments, they are allowed to operate as uses, and are reviewed with the same latitude of construction. Accordingly, if A. devises to B. for ever, or to B. and his assigns for ever, B. shall take the inheritance or fee simple, though the word 'heirs' was not mentioned; for the word forever is a word of perpetuity, and sufficiently ascertains the testator's meaning; and the legal strictness, arising from the feudal rules and maxims with respect to feoffments, is not to be regarded in this instance, for the reasons already mentioned. [A devise passes a fee unless a contrary intention appears by the Will. 1 Vic. c. 26, s. 28; 1- Chron. 51].

Uses, origin and effect of-Trusts-Use upon use.— Uses were the invention of very early times, from motives of fraud, fear, or convenience. First, of fraud: as, if A. having an infant son B. made a feoffment to C. to the use of B.; upon A.'s death the lord was defrauded of those grand fruits of military tenure, wardship, and marriage; and, if A. died without heir, the lord was further defrauded of his escheat. Again, where a tenant had a defective title, he had only to infeoff another to his use; and if, afterwards, a præcipe quod reddat was brought against him, he could plead non tenet; for the præ

cipe lay only against the actual tenant of the freehold, till the statute 1 H. 7, c. 1, which gave it against the pernor of the profits. It was thus, too, the statutes of mortmain were used to be avoided by infeoffing trustees to the use of the convent, when infeoffing the convent would have been a forfeiture. Secondly, of fear; and not only the fear of being impleaded in a real action, but also the fear of confiscation, which was always a very powerful motive in those troublesome times, when attainders were so frequent (see Co. Litt. 272, a.). Thirdly, of convenience; for, by infeoffing to uses, they made their estates mouldable to the various purposes of raising portions for younger children, of creating contingent remainders, of limiting future or springing uses, and of devising by will, which, by the common law, they could not do, but only in certain places by the custom. Adapted to these various considerations, limitations by way of use were beginning to be generally resorted to through the kingdom, when Henry 8, from the idea of his being thus defrauded (as he called it) of his feudal services, prevailed upon his Parliament to pass the statute of uses (27 H. 8, c. 10) which enacts, that the seisin shall be executed to the use by the mere operation of law, thereby making the seisin and the use convertible terms. It is, however, to be observed, that this has introduced no other material change in conveyancing than the addition of a trust, or, as Lord Hardwicke emphatically expresses it, just three words more. For, instead of A. infeoffing C. as formerly, to the use of B., &c., he now infeoffs C. to the use of him and his heirs in trust for B.; and the statute having once operated to convey the legal estate from A. to C. its operation is held to be spent, so that it cannot operate a second time (see the note, 231, to Co. Litt. 271, b.; 3 Chron. 166, 167; 1 Id. pp. 52, 437).

Rent-When heir.-Again, let us take the wellknown rule of law respecting the reservation of rent, -that 'rent reserved upon a lease derived out of a freehold, though reserved by the lessor to himself and his executors, shall go upon his decease to his heir, and not to his executor; and so è converso, if the lease upon which the rent has been reserved was derived out of a chattel, the executor shall have it, and not the heir, notwithstanding the lessor may have expressly reserved it to himself and his heirs, and not to himself and his executors' (Co. Litt. 47, a.). The distinction which the common law takes between feudal and commercial, with respect to the descent or alienation of real or landed property, has been attempted to be elucidated in the foregoing proposition, as it concerns the form of the conveyance. We have, in the present instance, to consider it as it applies to the quality o the estate.

Feuds-Descents.-It has been already remarked,

that the constitution of feudal tenure was introduced into this kingdom, and became a part of the common law of landed property, at a very early period of our history (2 Chron. 69). By the rules of succession, as they were consequently then framed upon feudal principles, the descent of lands was restricted, by the course of the common law, to those alone who were of the blood of the feudatory or first purchaser. It was presumed, that the fidelity of the ancestor would survive in his descendants, and be hereditary in his family; and, perhaps, too, that he might naturally transmit to his posterity his personal ability to serve in war, which was the principal condition of feudal tenure in.general.

Tenant of the freehold-Reversion and rent go together. An estate thus constituted, and which could no otherwise be created than by the feudal ceremony of investiture, or public and solemn act of livery of seisin, was denominated a freehold, and he who had this species of seisin, which was always for life at least, was called the tenant; a term which appears to have been then used, not as at this day, to signify indifferently the tenant in possession, whether tenant for life or years, but to denote the proper tenant of the freehold, who was likewise tenant to the præcipe, and the ostensible person to whom the lord was to look for the discharge of his fines and services. Let us suppose, then, that such tenant of the freehold makes a lease for years, reserving rent to himself and his executors, and dies now, by the course of the common law, the reversion descends to the heir and not to the executor; but if the executor could claim the rent, distinct from the reversion, then would the rent go in one direction, and the reversion in another; which would be creating a double tenure, contrary to the statute (18 Ed. 1) of subinfeudations. Inasmuch then, as the heir is entitled to the reversion by descent, so also shall he have the rent as an incident thereto; for we have seen that the reversion and the rent cannot go in different directions; and, therefore, the law says, the reversion, which is the principal, shall draw after it the rent, which is but the incident. The maxim is, accessorium sequitur suum principale, non ducit (Noy's Max. 90, 202; Co. Litt. 52, a.).

Chattels real go to the executor-Covenants in leases -Assent to bequest.-On the other hand, estates which were less than freehold, as leases for years of every description, and which even to this day come under the general denomination of chattels, were considered, under the feudal system, to be of little or no value; their tenure being of that precarious nature, that, till the 21st of Henry 8, the freeholder had the power of defeating them, at any time, by a common recovery. (The termor could not falsify a

covinous recovery of the freehold before the stat. 21 H. 1, c. 15, because he could not have the thing to be recovered. Co. Litt. 46, a.). And, because these inferior tenants were not considered to have any property of their own in the land, but only an interest in the estate, as the bailiffs or farmers of the freeholder, their interest was allowed to vest upon their decease in their executors, like the stock upon the farm, and other personal goods and chattels in general; the heir having no more to do with these, than the executor has with the freehold. It is for this reason that the covenants in leases are required to be made with the heirs and assigns of the lessor, where he is himself the owner of the inheritance; but where he is only the lessee of the proprietor of the estate, then with his executors and administrators. For the same reason, where a term for years is devised, the devisee cannot enter without the consent of the executor. For the devisee, in that case, takes as legatee of a chattel, out of which the executor is bound to see that all the debts are paid before the legacies: the default of which would be a devastavit, and make him liable de bonis propriis. But with the freehold, the executor has no right to intermeddle, causa qua supra (Co. Litt. 111, a.; Ibid. 388, a. ; 2 Chron. 67, 86). By the same rule, then, as the reversion expectant upon the determination of a lease derived out of a chattel, shall go as a chattel to the executor, in exclusion of the heir, so likewise shall the reserved rent (if any) as an incident thereto; and no stipulation to the contrary can give it a different direction; for a condition which contravenes a settled maxim or rule of law, is of no effect, and ought to be rejected (Co. Litt. 206, b.; Noy's Max. 57).”

ASSETS.—Administration of-Priorities—Executor-Claim by a creditor to retain money in payment in priority disallowed-Set-off-Au executor has a recognised right to be paid any sum which may be due to him out of the assets of his testator, in priority over any other creditor; but where a creditor claims to retain assets come to his hands in liquidation of his debt, he must show, in a case where the assets are not enough to pay all the other creditors, that his right stands higher than the other creditors.

There is no express authority for the proposition that a creditor can retain assets upon the same footing as an executor. There are, indeed, some expressions in the case of Cherry v. Boultbee (4 Myl. and Cr. 442) which seem to go to this, that a creditor can retain money, and appropriate it in payment of his debt; but that was not expressly so decided. On the other hand, Lord Eldon, in Exparte Blagden (19 Ves. 465), would not permit a creditor of a bankrupt to set-off a debt which the bankrupt owed against a debt in which the creditor became indebted to the assignees of the bankrupt in right of the bankrupt, subsequently to the commission. In fact, as Lord Hardwicke said, a creditor cannot, unless under peculiar circumstances, prevail against the right of the other creditors to have the assets distributed equally. L., at the time of his decease, was indebted to H., to whom and another he had assigned a policy of insurance, the proceeds of which were received by H., and in part applied in liquidation of his debt. In administering the estate of L., which was insolvent, H. claimed to retain the money which he had received, but the chief clerk refused to allow the claim. On application to vary the chief clerk's certificate, the court declared that the sum received by H., and applied in liquidation of his debt, was assets for the benefit of all the creditors. Beyer v. Adams, in re Law, 3 Jur. N. S. 710.

CHARITIES.-Amalgamation-Private founderQueen's charter-Variation by decree-Jurisdiction.Although the governors of a private charity are incorporated by royal letters patent, and are empowered to make rules and regulations for its management, still the Court of Chancery has jurisdiction, and will direct a scheme for the future management of the charity, and will include in the scheme divers other charity estates, some of which were given for purposes wholly different from those of the incorporated charity. The Attorney-General v. The Governors of the free Grammar School in Dedham, 26 Law Journ. Ch. 497; 3 Law Chron. 367, 368.

CHARITABLE LEGACIES [vol. 1, p. 261; vol. 3, p. 124].-Pure personalty-Liability to debts.The rule respecting the application of a testator's estate to the payment of legacies for charitable purposes, and which are directed to be paid out of the pure personalty, was considered in Robinson v. Geldard (3 Mac. and G. 735), and the rule there laid down is said to be founded on extreme good sense. In that case the testator gave large charitable legacies, which he directed should be paid out of that part of his personal estate not savouring of realty; and the pure personalty which remained after payment of debts and funeral and testamentary

expenses, was sufficient to pay the charitable legacies in full, if no part of the other legacies were taken out of it, but insufficient if the pure personalty were to contribute to the general legacies. Lord Truro held, that the pure personalty was not to contribute to the other legacies. There was sufficient for each class of legacies, and the question did not arise as to what would have been done had the other fund not been sufficient for the general legacies; but Lord Truro considered that the direction in the will meant, that pure personalty was to be applied primarily in payment.of thre charitable legacies; he did not say that the gift out of the pure personalty was a demonstrative legacy, but only that the charity legacies were demonstrative or analogous thereto. Then comes the question, what is the personal property which is, by law, applicable to charitable purposes? The answer is, so much of the pure personal ́estate as remains after contributing rateably to the payment of debts, funeral and testamentary expenses, and costs. Such, at least, was the decision of the Lords Justices in the following case. A testatrix, after bequeathing certain specific and pecuniary legacies, gave several pecuniary legacies to charities, and directed that the charitable bequests should be paid, in precedence of the other pecuniary legacies, out of such part of her personal property not specifically bequeathed as was, by law, applicable for charitable purposes. The pure personal estate was insufficient to pay the charity legacies; but the other personal estate was sufficient to pay the other legacies and debts, &c.: Held, reversing the decision of one of the Vice-Chancellors, that the pure personal estate must, before being applied to the satisfaction of the charitable legacies, contribute, with the other portion of the personalty, to the payment of the debts, funeral and testamentary expenses, and costs. Tempest v. Tempest, 26 Law Journ. Ch. 501.

DEVISE.-Maintenance-Bequest to wife for maintenance of herself and children-Condition.-A testator, who was an hotel-keeper, bequeathed all his property to trustees. One of the trusts was to permit and suffer his wife to carry on the business of the hotel so long as the same could be conducted with profit and advantage to his estate, and to permit bis said wife to have and receive the profits arising from the said business, so that she might apply the same in the maintenance of herself and her family, and the education of her children. The widow eloped with a married man, and the business was carried on under the direction of the court: Held, upon the whole will, that there was an implied condition that the widow should be a fit person to carry on the business, and for the care and education of her children, and that she had by her conduct put her

self out of the trust, but that she was entitled to maintenance. Castle v. Castle, 3 Jur. N. S. 723.

ELECTION [vol. 2, pp. 27, 195, 200].—Dower— Direction to sell-Part of proceeds given to wife.—The doctrine of the Court of Chancery is, that if there be anything in a will inconsistent with the common law right of the testator's widow to have her dower set out by metes and bounds, there she shall be put to her election, otherwise not (Birmingham v. Kirwan, 2 Sch. and L. 444). Different judges, however, have come to different conclusions as to what is inconsistent. In Dickson v. Robinson (Jac. 503) the court thought that where there was a direction to sell, and divide the property among certain parties, that was inconsistent with the widow taking by metes and bounds. In the following case there was nothing to defeat the widow's rights, except a simple direction to sell; and whatever difficulty may have arisen on a power of leasing (and it seems now agreed that such a power is inconsistent with the wife's right of dower), there is a great difference between that case and a power of sale. As to a sale, indeed, it is every days' practice to have lands sold subject to the right of the widow to dower. In Hall v. Hill (1 Dru. and W. 94), Lord St. Leonards expressly limits himself to the case of a power to demise, and saw no such inconsistency in the existence of a power of sale. And in Ellis v. Lewis (3 Hare, 310), Sir J. Wigram remarked to the same effect, that he had met no case where a simple power of sale had been held to show such inconsistency with the right of the widow to dower; and he goes on further to say, that if the direction for sale creates no such inconsistency, he did not see how any direction as to the distribution of the money could make a difference. In accordance with these authorities it has been held that a direction to sell realty contained in a will, is not in itself alone inconsistent with the intention that the widow should have her dower, as a power to demise would be. A testator gave all his household furniture and effects in his house to his wife; a pecuniary legacy, debts, &c., to be paid out of the general personalty; all his real estates to be sold by auction, and the one-half of the whole personalty, and of the proceeds of the realty to his wife, and one-fourth to a nephew, and one-fourth, to a niece: Held, that the widow was not bound to elect between her dower and the benefits given her by the will. Bending v. Bending, 26 Law Journ. Ch. 469; 3 Jur. N. S.: p. 535; ante, p. 43.

EXECUTOR.-Carrying on testator's trade—Joint stock companies-Shares remaining in the name of Executor of deceased shareholder-Rights of creditors.— The following case as to the personal liability of an executor continuing the trade or to hold the shares

of his testator is of importance :-The executor of a trader carrying on the trade after his death, though doing so avowedly in the character of executor, is revertheless personally liable for all the debts contracted in the trade after his death, whether he is entitled or not entitled to be wholly, or to any extent indemnified by the testator's personal estate, and whether it is sufficient or insufficient for the purpose; nor does the propriety of his conduct, as between himself and those beneficially interested in the testator's personal estate, give the creditors of the trade becoming so after the death the rights of creditors of the testator; it being immaterial also, as far as they are concerned, whether the testator, if he had a partner, was bound by a covenant with him, that the testator's executors should continue the trade in partnership with the surviving partner (see Exp. Garland, 10 Ves. 110; Exp. Richardson, 3 Madd. 138). Upon the principles thus stated, it was decided that the executor of a deceased shareholder in a joint-stock company is not liable to make good out of the assets of his testator to the creditors of the company, debts contracted subsequently to the testator's death, though continuing to hold the shares and receive the dividends in his character of executor. Labouchere v. Tupper, 5 Week. Rep. 797.

FEME COVERT.-Wife's chose in action-Reduction into possession-Equity to settlement [vol. 3, pp. 39, 121, 282].-It has long been established that where a reversionary legacy is given for the benefit of a married woman, an assignment of it by the husband and wife will not operate at all against the wife surviving; but when the legacy comes into possession during the wife's life, the assignment operates as an assignment by the husband and wife just as if it had been made after the death of the tenant for life. The effect of an assignment by the husband of the wife's legacy, payable in præsenti, is no doubt to put the assignee in the place of the husband, and, consequently, if payment be made to the assignee, it is good whether the assignment be by way of mortgage, or absolute; if the assignment be absolute, the assignce takes it absolutely; if by way of mortgage, he takes it subject to redemption. An estate was devised to A. B. for life, with remainder to C. D. in tail, charged with £200 payable to E. F., a married woman, on the death of A. B. During the life, A. B., E. F., and her husband, assigned this legacy to her father as a security for £200 then advanced by him to the husband; but the assignment contained no covenant to pay, or proviso for redemption. The father died, leaving C. D. his executor and sole residuary legatee, and he paid, on account of the father's debts, a larger amount than the personal estate he received. A. B. died, leaving the husband

surviving, and thereupon C. D. came into possession of the estate; E. F. instituted a suit to have the legacy settled upon her and her children, but it was held (reversing the decision of one of the ViceChancellors), that the legacy had been reduced into possession, and, therefore, that she was not entitled to a settlement. Allday v. Fletcher, 26 Law Journ. Ch. 519.

INJUNCTION.-Restraining divulgement of facts pursuant to agreement.—Publication of facts contrary to agreement will be restrained, although occasioned by a very small difference in money arrangements. Anon, 3 Jur. N. S. 685.

LANDLORD AND TENANT.--EjectmentBreach of covenants-Equitable relief.-The particulars of the following case will be found ante, pp. 44, 45. A court of equity will not interfere generally to restrain an action of ejectment brought against a lessee for breaches of covenant in the lease, except for breach in non-payment of rent. Where a lessee covenanted to make certain drains, it is no equitable ground of interference that he employed persons to make the drains, but that they did not do the work properly. Nokes v. Gibbon, 3 Jur. N. S. 726; ante, 44, 45.

LUNACY.-What acts of lunatic valid—Inquisition -Creditor's right to traverse-Issue.-The result of the authorities as to what acts of a lunatic will be held valid seems to be, "that dealings of sale and purchase by a person apparently sane, though subsequently found to be insane, will not be set aside against those who have dealt with him upon the faith of his being a person of competent understanding." A person who was tenant in tail of copyhold estates was by inquisition found lunatic in 1852, and the lunacy was dated back to the 1st May, 1846. The lunatic subsequently obtained permission to traverse the inquisition, but died without having done so. It turned out that in the year 1847 the lunatic had executed deeds (not pursuant to contract with third parties) appointing an attorney to surrender the copyhold to issues, so as to enlarge her estate tail into a fee simple, and the surrender was made accordingly. Upon a claim by a simple contract creditor to make this copyhold property liable: Held (reversing the decision of Sir J. Stuart, V. C.), that the entail was not effectually barred, there being no analogy to the old doctrine that fines and recoveries were good although made by a lunatic, which depended on a fiction, a deed barring an entail being now open to every objection that might be taken to any other deed. The prima facie evidence of insanity afforded by the finding of the inquisition having been in part rebutted by the leave to traverse: Held, that the creditor had a right to an issue to try the question of the lunatic's sanity on the day on

which she executed the disentailing deed. Elliott v. Ince, 3 Jur. N. S. 597.

LUNACY [vol. 3, p. 396].— Commission-Principle on which court orders an inquisition - Protection of party's person and properly — Primary objects.— In the following case, the Lords Justices laid it down as a rule that the court, upon a petition praying that a commission may issue to inquire into the state of mind of a person alleged to be a lunatic, does not merely consider the medical evidence to ascertain whether the irregularities and defects do, or do not, amount to insanity, but is governed by a regard to the wellbeing and happiness of the lunatic, and the condition and security of his property. In other words, it is the first duty and object of the court to see whether it will be for the benefit of the alleged lunatic that a commission should issue. Where there is any doubt, the court, before ordering a commission to issue, will direct further inquiry into the circumstances, with a view to sparing the alleged lunatic vexation and expense. Re Hoblyn, exp. Peter, 29 Law Tim. Rep. 305.

PARENT AND CHILD.-Maintenance, education, and support — Father's right to be re-couped out of child's income.-Trustees were directed to receive the income of a fund of £1,000, and pay and apply the same for the benefit, maintenance, and education of the children of the marriage, and to pay and divide the fund, and all accumulations thereof, among the children, at twenty-one. There was no express direction to accumulate. The father wholly maintained the children, six in number, for ten years, at a much larger expense than the income of the fund: Held, that he was entitled to receive the accumulations of income for the past time, and the future income during the infancy of his children. Birch v. Sumner, 3 Jur. N. S. 712.

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POWER. Trust-Charity - Uncertainty.-The following distinctions as to trusts and also as to gifts being void or not for uncertainty of persons and objects are worth consideration. Where a fund is given to A. to be by him employed at his discretion upon certain objects, a trust in favour of those objects, and not a mere power, is created. Where a fund is given to A. to be applied for the benefit of B. or C. as A. shall think fit, and A. does not make any appointment, the bequest is void for uncertainty. Where a fund is given to A. to apply part for B. and part for C. as he shall think fit, and A. does not make any appointment, B. and C. shall be declared to be entitled in equal shares. By will dated 1837, the testator gave £2,000, part of the money to be received on certain policies, to his wife absolutely, and the surplus to her for life; and on her decease, to be divided, one moiety thereof to A., the other moiety to be at the disposal of the widow of the