not assignable by the ordinary rules of the common law, are, nevertheless, bound in equity by covenant or contract.

On the other hand mere possibilities, as an estate to the survivor of several persons, to issue who shall attain a certain age, to children, if living at their parents' death &c. &c. are not devisable at all; nor do they pass to bankrupt commissioners nor are they assignable at law; but they may be bound by estoppel at law; and after the contingency has accrued, equity will decree a specific execution. As to the assignment, devise, &c. of possibilities, vide 1 Maddock's Chan. 549, Butler's ed.; Fearne on Ex. Devises, 548; Vin. Abr. Grant N.; Shep. Touchstone, 239; 1 Preston on Estates, 75, 76; 1 Chan. Rep. 29; 1 Chan. Cases, 8; 2 Preston's Abstracts of Title, 92, 202; Anstr. Rep. 11; Cro. Car. 477; 4 Coke, 66; Goodright v. Forrester, 1 Taunton's Rep. 578, 602, 604, Beames's Elem. of Pleas in Equity, 118; Helps & wife v. Hereford, 2 Barn. & Alder. 242; Carlton v. Leighton, 3 Meriv. Rep. 662. In equity, perhaps, every species of possibility or contingency, may be bound by contract, 1 Ves. 409; 2 P. Wms. 132, 191; 2 Atk. 420; 6 Ves. 261; 3 T. R. 88; 1 Cov. Pow. on Dev. 18, note A, sed vide Carlton v. Leighton, 3 Mer. Rep. 662.

The language of the books speaks, almost universally, as if possibilities, even coupled with an interest, were assignable in equity only. 1 Mad. Chan. 549. And Cruise says that executory devises, and contingent remainders, though limited to ascertained persons, are assignable only in equity. 2 Cru. Dig. 298, Remainder, Title xvi. § 15, 20, 21, 22, 23.

Some have been inclined to think that all possibilities coupled with an interest are not only devisable, but assignable at law; and they desire to extend the doctrine to mere choses in action. If such devises be good at law, and the like assignments be void at law, it arises from the technical nature of a grant at common law, and the peculiar nature of a devise. On the whole, I am inclined to believe that possibilities of every kind, as well as choses in action, are transferable inter vivos only in equity, except when the transfer is an estoppel, operating virtually as a conveyance at law, as was the case in Weale v. Lower, Pollex. 54, which was a fine levied by one, to whom a contingent remainder had been limited. It was held that though the fine operated at first by conclusion, and passed no interest; yet, upon the happening of the contingency,

the estate by estoppel became an estate in interest, of the same effect as if the contingency had happened before the fine was levied; and that the conusor and his heirs after him, were bound by the fine. So likewise in Helps v. Hereford, 2 Barn. & Alder. 242, A and his wife had granted to trustees an estate of which the wife's father was seized at the time of the grant; and in the life time of the father they also levied a fine of the lands to the use of the settlement. On the death of the father, a moiety of the lands descended on the wife. The court were of opinion that the fine operated as an estoppel against the husband and wife, and all claiming under them, as to this moiety. Vide also Wright v. Wright, 1 Ves. 409; Vick v. Edwards, 3 P. Wms. 372; Edwards v. Rogers, Sir Wm. Jones's Rep. 456; Co. Litt. 352, a; Shep. Touchstone, 6. But all of these are cases of fine or recovery; and, perhaps, no case can be found of a deed thus operating by estoppel, virtually to convey at law such possibilities. A contrary doctrine was expressly held in Whitfield v. Fausset, 1 Ves. 387, where the distinction between a fine and a deed is taken and admitted, and the deed was held to be wholly inoperative to convey by estoppel the possibility attempted to be conveyed. So also in the case of Taylor v. Phillips, 1 Ves. 229, a copyholder surrendered his possibility, and the court held that it did not pass by estoppel. Vide also Goodtitle v. Morse, 3 T. R. 365, &c.

But even admitting, argumenti gratia, a deed of grant to be as operative by way of estoppel, as a fine or a recovery, the instrument, signed by Mullins, in the case under consideration, is not a deed of conveyance; and being a covenant only, could not operate, even in equity, as a conveyance by estoppel.

I shall finish my remarks on this fourth and last view of the instrument, viz. as a grant of John Mullins's possibility, by a brief inquiry, whether this be a naked possibility, or one coupled with an interest; and if naked, whether the title can be complete in the assignee, on the happening of the event (viz. the drawing of the lots) without any further act or conveyance of Mullins.

That this is not a possibility coupled with an interest appears to be strongly manifested by the examples I have stated of each species of possibility. Even in the case of contingent remainders, executory devises, conditional limitations, springing and shifting uses, we have seen that it is essential that the

person be ascertained, otherwise they are classed under the head of mere naked possibilities, and are not even devisable. These remainders, &c. are clearly distinguishable from mere chances, hopes, expectancies, and such like, for they import an actual continuance of the same seizin, and though the interest or estate be not vested, but remains contingent till the occurrence of the event, there is still a recognised difference between such a right and a mere naked chance. If the jus accrescendi, or mere right of survivorship in case of joint tenants, is properly classed under the head of naked possibilities, and hence are not even devisable, I can see no distinction between such a right and the chance of drawing a prize in a lottery. In the case of a right of survivorship the chance is that he may survive or may die. So in a lottery, the chance is he may gain a prize or meet with a blank. But, it may be said that the holder of a lottery ticket has paid value for it, and has an interest in the ticket, and also in the entire fund out of which the prizes may be drawn. To this I reply that the joint tenant also paid his money and obtained a deed, as well for his present interest as his possibility, or jus accrescendi; and further, that if the grant of Mullins's possibility does transfer the ticket, (which is questionable) still the right which is granted is nothing more than the possibility, though it be evidenced by the ticket. The ticket is one thing, the right granted is another; as a law is, in strictness, the mandate of the legislator, whilst the statute, or act of assembly, is the written evidence of that mandate. The one is an ens rationis, is invisible and incorporeal; the other is tangible and corporeal; and the grant of the right does not necessarily transfer the corporeal evidence of that right. But admitting that it did transfer the ticket, at law as well as in equity, still a possibility only passes; for the ticket is but an evidence or muniment of title to a possibility. It is also a petitio principii, to say that the assignor of the ticket and possibility had any fixed or legally comprehensible interest in the fund out of which the prizes were to come; this is not the idea of a lottery; he owned nothing but the chance of obtaining a prize, and if he could grant, or has granted any thing, it was the chance only, and not any interest in the joint fund. This chance then, being, as I think it is, a mere naked possibility, was not capable of being legally assigned to Young and Blake.

Lastly. If I be right in considering it a naked possibility,

and the instrument be a grant, (which is denied) still the occurrence of the contingency (viz. the drawing a lot) would not, I think, per se, vest the full legal title in Young and Blake. It would require some further act of Mullins, or a court of equity to establish the grantee in his title, and as neither Mullins nor a court of equity have done any such act, it appears to me that the defendants have no title, even admitting, for the sake of argument, that there has been a grant, and that a grant of a possibility is good at law as well as in equity.

On the whole view of this instrument, therefore, I am of opinion,

1. That Young and Blake had no power to convey the lots, when drawn:

2. That it is a mere covenant by Mullins, which cannot aid the defendant in this suit, and, perhaps, not even in equity, against the claim of a bona fide purchaser under Mullins:

3. That there is no power, coupled with this covenant, which authorizes Young and Blake to execute in any way the covenant, and if there were, it has not been done:

4. That this is not a grant, and if it were, it is only a grant of a naked possibility, cognizable in equity only, where the conflicting claims of the plaintiff might be arrayed against those of the defendant; and where he who has the better right or equity, would prevail.

If what has been stated be correct, it would be sufficient to dispose of the entire case. But even if the whole of the preceding views be untenable, (except that which would make the instrument a grant of a possibility coupled with an interest, and valid at law, without any further act by Mullins, which, I presume, could not be contended) still there remains a very material inquiry, after we admit that Young and Blake were authorized to convey, as the agents or attorneys of Mullins.

We shall now proceed, secondly, to the examination of the validity of the deed under which the defendants claim title.

II. If we should admit that the instrument I have just cornmented on, be a power of attorney authorizing Young and Blake to convey; the next inquiry is, have they legally and duly executed that power; have they so made the deed that the law can recognise it as a conveyance from Mullins, through the agency of his attorneys?

This question, as I understand, has been the main one on

which the case has turned. I shall, therefore, be excused if I enter into it very fully, and deduce the principles and authorities regularly from the earliest times, to the present day. The point then is, does a deed, executed by an attorney having power to convey, bind the principal, if it be not executed in the name of the principal? And what is the true import and meaning of the expression 'in the name of the principal?' I am of opinion that established principles of law, fortified by an uninterrupted current of British and American authorities, from the Year Books to our own times, has clearly settled the point against the validity of the deed in question. But as the question has sometimes been a little misunderstood, and distinctions have been attempted to be made which do not legally exist, I shall, in a preliminary way, lay down some positions which will be found to cover nearly the whole ground of the question, in whatever light it may be viewed. I shall then conclude with an examination of the leading cases which have occurred upon the point. The positions and distinctions to which I allude are,

First. That such an authority ought to be strictly pursued. It was special in its nature, and it was the duty of the attorneys to execute it, not only strictly according to the general requisitions of law, but in conformity to the terms of the power itself. Even incidental circumstances, prescribed in the creation of the agency, must be strictly pursued. Vide 1 Liver. on Agents, 96, 106, 107, 115; Simpson v. Hornesley, Prec. in Chan. 452.

Secondly. Mullins's power expressly requires that all acts done by his attorneys shall be done for him and in his name.

Thirdly. The books clearly show that the invalidity of a deed, executed as this was, does not at all depend upon the want of sufficient evidence in the deed that the agent is not acting for himself; for that fact is manifested in nearly every case in which the question has arisen, and yet the deed has been held void.

Fourthly. The true inquiry is, has the agent done the act strictly and technically in the name of his principal? Has he signed the name of the principal? Has he appropriated the seal as of the principal? If these things have not been done, it is in vain to urge that the entire deed discloses the fact of agency, and that the act is done in that character; for if these facts be ever so manifest from the deed, but it be not executed