Sivut kuvina

found by an inquest of office) being immediately forfeited to the king." (10)

⚫ Co. Litt. 2.

statute; as to make an agreement, for so long as you and I please, at the rate of 201. per annum, and an action of assumpsit, will lie thereon; or you shall have my house for so long as you and I please, for so much as it is worth. And Mr. Serjt. Williams, in his note on this case, 1 Saund. 8. n. 1., considers it to be decisive of the right of an alien artificer to hold a dwelling-house or shop under an agreement, which does not amount to a lease, as if he be a tenant from year to year, or for one year, or a shorter time; and this note was referred to, apparently with approbation, by lord Ellenborough, in giving judgment in the case of the king against the inhabitants of Eastbourne, on a question of parish settlement, 4 East, 103., where his lordship decided, that the foreigner whose claim to a settlement constituted the question in dispute, though he might not take a lease of a dwellinghouse or shop, by reason of the statute, 32 Hen. VIII. c. 16. yet might occupy a tenement of 10l. a year, the amount necessary in order to give a right of settlement, and carry on his trade there, like any other person. The same liberality of construction appears to have prevailed in the case of Jevens and Harridge, 1 Saund. 6. 8. Com. Dig. Aliens, C. 7., the judges there seem all to have agreed, that though a dwelling-house might not be let to an alien by a lease, yet is lawful for him to take a lease of a barn or a stable. It should be observed, that the 21 Hen. VIII. c. 16. s. 18.,which confirms an order of council therein recited, provides "that no stranger artificer or handicraftsman, born out of our obeisance, not being denizen, which at the day of making of this decree, is not a householder within this our realm, or keepeth any shop or shops within the said eity or suburbs, or any other city, town, or borough within this our realm, shall from that day forward set up and keep any house or shop or chamber within our city of London, suburbs, or parishes before rehearsed, or within any other city, town, borough, or village within this our realm, wherein he shall exercise and practise any handicraft or mystery." But it is apprehended that the decisions of the courts have proceeded upon the principle that the words of

32 Hen. VIII. by confining their prohibition to actual leases, do virtually repeal the more general enactments just cited from the 21 Hen. VIII.

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Doubts have sometimes arisen as to the precise description of persons, who are meant by the statute 32 Hen. VIII. to be included within the words handicraftsmen or artificers. There is a case upon this subject, 3 Mod. 94. Com. Dig. Alien, C. 7. Bac. Ab. Aliens, C. but the decision of the chief justice throws little light upon the question. Bridgham, the plaintiff, brought an action for the performance of covenants in a lease granted by him to an alien vintner: the question was, whether a vintner could be considered an artificer within the meaning of the act; and it was decided that he could not, but for a reason which may be considered as too special, and perhaps too ludicrous for a guide in future cases. The counsel for Frontee, the defendant, argued that mercers, drapers, or grocers, though not properly artificers, were within the meaning of this act. The chief-justice said, "this statute refers to another of 1 Rich. II. c. 9. which prohibits alien artificers from exercising any handicraft in England, unless as a servant to a subject skilful in the same art, upon pain of forfeiting his goods; so that it is plain that those who used any art or manual occupation, were restrained from using it here to the prejudice of the king's subjects; now the mystery of a vintner chiefly consists in mingling of wines, and that is not properly an art but a cheat;" so the plaintiff had judgment. But even if it were possible to decide what classes of persons shall be deemed artificers or handicraftsmen within the meaning of this statute, the specification of all these classes in this place would be a tedious and unprofitable task; instead, therefore, of attempting to ascertain who are artificers or handicraftsmen, the statute 22 Hen. VIII. c. 13. may be referred to, by which it is enacted, that certain classes of persons therein mentioned shall not be so considered; these excepted persons are bakers, brewers, surgeons, and scri


(10) But not before the inquest, 5 Co. 52. b. and if the purchase be made with

Papists, lastly, and persons professing the popish religion, and neglecting to take the oath prescribed by statute 18 Geo. III. c.60. within the time limited for that purpose, (11) are by statute 11 & 12 W. III. c. 4. disabled to purchase any lands, rents, or hereditaments; and all estates made to their use, or in trust for them, are void.0


II. We are next, but principally, to inquire, how a man may II. Modes of aliene or convey; which will lead us to consider the several modes of conveyance.

In consequence of the admission of property, or the giving a separate right by the law of society to those things which by the law of nature were in common, there was necessarily some means to be devised, whereby that separate right or exclusive property should be originally acquired; which, we have more than once observed, was [294] that of occupancy or first possession. But this possession, when once gained, was also necessarily to be continued; or else, upon one man's dereliction of the thing he had seised, it would again become common, and all those mischiefs and contentions would ensue, which property was introduced to prevent. For this purpose therefore of continuing the possession, the municipal law has established descents and alienations: the former to continue the possession in the heirs of the proprietor, after his involuntary dereliction of it by his death; the latter to continue it in those persons to whom the proprietor, by his own voluntary act, should choose to relinquish it in his lifetime. A translation, or transfer, of property being thus admitted by law, it became necessary that this transfer should be properly evidenced: in order to prevent disputes, either about the fact, as whether there was any transfer at all; or concerning the persons, by whom and to whom it was transferred; or with regard to the subject-matter, as what the thing transferred consisted of; or, lastly, with relation to the mode and quality of the transfer, as for what period of time (or, in other words, for what estate and interest) the conveyance was made. The legal evidences of this translation of property are called the common assurances of the kingdom; whereby every man's estate is assured to him, and all controversies, doubts, and difficulties are either prevented or removed.

• 1 P. Wms. 354.

the king's licence, there can be no forfeiture. 14 Hen. IV. 20. Harg. Co. Litt. 2. b. n. 2.

(11) The form of that oath is superseded by that required in 31 Geo. III. c. 32. s. 1. 43 Geo. III. c. 50.

These common assurances are of four kinds : 1. By matter in pais, or deed; which is an assurance transacted between two or more private persons in pais, in the country; that is (according to the old common law), upon the very spot to be transferred. 2. By matter of record, or an assurance transacted only in the king's public courts of record. 3. By special custom, obtaining in some particular places, and relating only to some particular species of property. Which three are such as take effect during the life of the party conveying or assuring. 4. The fourth takes no effect till after his death; and that is by devise, contained in his last will and testament. We shall treat of each in its order.



ture of deeds.

IN treating of deeds I shall consider, first, their general nature; General naand, next, the several sorts or kinds of deeds, with their respective incidents. And in explaining the former, I shall examine, first, what a deed is; secondly, its requisites; and, thirdly, how it may be avoided.



I. First, then, a deed is a writing sealed and delivered by the 1. What is a parties. It is sometimes called a charter, carta, from its materials; but most usually, when applied to the transactions of private subjects, it is called a deed, in Latin factum, кar' ε§oɣηv, because it is the most solemn and authentic act that a man can possibly perform, with relation to the disposal of his property; and therefore a man shall always be estopped by his own deed, or not permitted to aver or prove any thing in contradiction to what he has once so solemnly and deliberately avowed. Ifa deed be made by more parties than Indenture, one, there ought to be regularly as many copies of it as there are parties, and each should be cut or indented (formerly in acute angles instar dentium, like the teeth of a saw, but at present in a waving line) on the top or side, to tally or correspond with the other; which deed, so made, is called an indenture. Formerly, when deeds were more concise than at present, it was usual to write both parts on the same piece of parchment, with some word or letters of the alphabet written between them; through which the parchment was cut, either in a straight or indented line, in such a manner as to leave half the word on one part and half on the other. Deeds thus made were denominated syngrapha by the canonists; and with us chirographa, or hand-writings;d the word cirographum or cyrographum being usually that which is divided in making the indenture: and this custom is still preserved in making out the indentures of a fine, whereof hereafter. But at length indenting only has come into use, without cutting through any letters at all; and it seems at present

a Co. Litt. 171.

c Lyndew. l. 1. t. 10. c. 1.

(1) See in general, Com. Dig. Fait; Cru. Dig. index, Deed; Vin. Ab. Deed ; Bac. Ab. Obligations; and see 3 Chitty's

b Plowd. 434.
d Mirror. c. 2. § 27.

Com. L. 5. to 11. as to the requisites of
deeds and the distinctions between them
and other contracts and instruments.

II. Requisites of deed. (4) Parties to

to serve for little other purpose, than to give name to the species of the deed. (2) When the several parts of an indenture are interchangeably executed by the several parties, that part or copy which is executed by the grantor is usually called the original, and the rest are counterparts: though of late it is most frequent for all the parties to execute every part; which renders them all originals. A deed made by one party only is not indented, but polled or shaved quite even; and therefore called a deed-poll, or a single deed.* (3)

II. We are in the next place to consider the requisites of a deed. The first of which is, that there be persons able to contract and be contract. (5) contracted with for the purposes intended by the deed: and also a thing, or subject-matter to be contracted for; all which must be expressed by sufficient names. So as in every grant there must be a grantor, a grantee, and a thing granted; in every lease a lessor, a lessee, and a thing demised.


The consi.

Secondly, the deed must be founded upon good and sufficient deration (6) consideration. Not upon an usurious contract ; nor upon fraud or collusion, either to deceive purchasors bona fide, or just and lawful creditors; any of which bad considerations will vacate the

e Mirror. c. 2. § 27. Litt. § 371, 372. Stat. 13 Eliz. c. 8. h Stat. 27 Eliz. c. 4.

(2) Com. Dig. Fait, C. 1. A deed between several parties is now called an indenture whether indented or not, and the actual indenting seems immaterial. The 5 Eliz. c. 4. required the binding of apprentice to be by indenture, and under that act it was held necessary that the instrument should be actually indented. Rex v. Mellingham, 2 Bott, 70. pl. 400. 1 Sess. Cas. 417. on which account the 31 Geo. II. c. 11. was passed expressly to declare that the apprentice should not be precluded from gaining a settlement in consequence of the instrument not being indented.

(3) Com. Dig. Fait, D. A deed-poll is not, strictly speaking, an agreement be tween two persons, but a declaration of some one particular person. Thus a feoffment from A. to B. by deed-poll is not an agreement between A. and B. but rather a declaration by A. addressed to all mankind, informing them that he thereby enfeoffs B. of certain lands therein mentioned. It was formerly called charta de una parte, and usually begins thus: Sciant

f Co. Litt. 35.

i Stat. 13 Eliz. c. 5.

presentes et futuri quod ego A, &c. &c.
Know all men by these presents, that
I. A. have granted and enfeoffed, &c. &c.
Lit. S. 370. Cruise Dig. title xxxii. s. 23.
Thus there is a material distinction be-
tween a deed professedly made inter
partes and a deed-poll, for one not named
as a party to a deed inter partes cannot
at law sue thereon, though it contains a
stipulation for his benefit; but in the case
of a deed-poll or indenture not inter
partes, there may be a covenant with a
stranger upon which he may sue. S Lev.
138. This distinction, however, does not
exist in cases of instruments not under
seal. 2 Dowl. & R. 277. 3 Dowl. & R.
273. It has recently been determined
that a power of attorney for the trans-
fer of government stock is a deed within
the meaning of the 2 Geo. II. c. 25. 2
Bing. 413.

(4) See in general, Com. Dig. Fait.
(5) As to these, see 3 Chitty's Com. L

14 to 63.

(6) As the consideration in general, see 3 Chitty's Com. L. 8. 63 to 99.

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