HUSBAND AND WIFE-INCORPOREAL HEREDITAMENTS. 79

91. A. allows and pays his wife a yearly sum of money for dress, sufficient for her station in life, but upon condition that she is not to pledge his credit. Notwithstanding this, the wife obtains certain articles of dress from B., a draper, on credit. The prices are reasonable, and the articles necessaries, in the sense that they are suitable to the wife's degree and condition in life. The agreement between her and her husband that she will not pledge his credit is unknown to B., the tradesman. Can B. maintain an action against A. for the price of the articles sold to the wife? State shortly the law upon the subject.

No, he cannot; because her implied authority to pledge her husband's credit was expressly revoked by the condition imposed by her husband upon her, whilst he has performed his part of the agreement by paying the yearly sum. (Debenham and another v. Mellon, 50 L. J. Q. B. (H. L.) 155, following Jolly v. Rees, 15 Com. B. Rep. N. S. 628; 33 L. J. C. P. 177.)

The law on the subject is that where the husband and wife are living together the wife is authorised by him as his agent to bind him by contracting for necessaries, such as food, clothes and furniture, according to the apparent circumstances of the husband and wife, unless there is evidence to the contrary; but that a wife who is living separately from her husband has no such authority, unless the separation was by her husband's unjustifiable compulsion, or occasioned by his misconduct, or by mutual consent, and she has no adequate provision for her support. In the latter cases the husband is responsible for necessaries for her, even for necessary legal advice. (Smith's Man. Com. Law, 8th ed., 150.)

INCORPOREAL HEREDITAMENTS.

92. What is a "profit à prendre"; and what is the difference between a customary and a prescriptive right to a profit à prendre?

A profit à prendre is a right to enter on the land of another and take therefrom a profit of the soil. (Wharton's Law Lexicon, 6th ed., 770.)

The origin of the term is to be found in the fact that he who is entitled to profits of this kind must himself enter upon the land and take them. There is no render of the profits to him by another as in the case of rent.

A customary right to such a profit savours of locality, as where the copyholders of some particular manor have an immemorially established right to cut turf on the common lands of that manor. A prescriptive right to a profit à prendre is, on the other hand, a personal right, and arises "where a man can show no other title to what he claims than that he and those under whom he claims have immemorially enjoyed it." It will be remembered that the law relating to titles by prescription is now governed by the Prescription Act (2 & 3 Will. IV. c. 71). (See Haynes's Student's Statutes, 2nd ed., 165.) It follows, therefore, that the word "immemorially" as used in this answer must be understood with reference to the periods of limitation laid down by the above Act.

INHERITANCE.

93. What was the effect of the Inheritance Act, 1833, upon a devise to the heirs of the devisor? How were pecuniary legatees affected by the change?

The Inheritance Act, 1833 (3 & 4 Will. IV. c. 106, s. 3; Haynes's Student's Statutes, 2nd ed., 107) enacted that upon a devise to the heir of the devisor, such heir shall be considered to have acquired the land as devisee (i.e., as purchaser), and not as heir by descent, as was the case prior to that Act. Pecuniary legatees were thereby benefited to a certain extent. Before that Act the land so devised was liable before the general pecuniary legacies in the administration of assets, as being in the third line in the order of liability. General pecuniary legacies are in the fifth line in the order of liability. Since that Act, the land so devised is made liable, but only after the general pecuniary legacies in the administration of assets, as being now in the sixth line in the order of liability. (Snell's Equity, 5th ed., 280.)

94. A., by his will dated in 1830, devises certain freehold estates to the use of his nephew, B. (only son, by her first marriage, of A.'s only sister deceased, and A.'s heir-at-law), for life, with remainder to B.'s first and other sons successively in tail male, with remainder to the use of his nephew C. (eldest son by a second marriage of A.'s said sister), for life, with remainder to C.'s first and other sons successively in tail male, with remainders over in favour of two younger brothers of C. for life, and their issue in tail male, with an ultimate remainder in favour of the right heirs of A. Upon the death of A. in 1832, B. succeeds to the estates, but dies intestate and unmarried in the lifetime of C., leaving a sister of the whole blood his heiress at law. The younger brothers of C. also die without issue in the lifetime of C., who ultimately dies without male issue, having by his will devised all his real estate to his three daughters as tenants in common. Who, upon C.'s death, is entitled to the estates devised by A.'s will? have been the same if A. had died in 1834? your answer.

Would the result

Give the grounds of

Two rules of law are involved in this question which are now exactly opposite to what prevailed as the law of the land as to the descent of freehold lands of persons who died prior to 1st January, 1834. The change was achieved by the Inheritance Act of 1833. (3 & 4 Will. IV. c. 106; Haynes's Student's Statutes, 2nd ed. 170.)

The rules involved are now as follows:-

1. If a testator shall devise land to a person who is his heir-atlaw, such heir shall be considered to have acquired as a devisee (i.e. purchaser) and not by descent. For the former law the reader is referred to Watk. on Descents 174, 176 (4th ed. 229, 231), and Williams' Real Property, 11th ed. 216.

2. A kinsman of the half blood shall be capable of being heir; and that such kinsman shall inherit next after a kinsman in the same degree of the whole blood and after the issue of such kinsman when the common ancestor is a male and next after the common ancestor when such ancestor is a female. (Williams' Real Property, 11th ed. 109.)

Now the facts here may be more clearly understood by the following table:

(These daughters are devisees under C's will).

The only persons who survive and can possibly be A.'s heir-atlaw are B.'s sister, who is B.'s heiress, on the one hand, and C.'s three daughters, who are C.'s devisees under his will.

The questions to be determined are who is A.'s heir-at-law under the old law and who under the present law? Under the old law the converse of Rule 1, supra, was binding. It is clear that B. was A.'s heir-at-law, but B. is now dead, and therefore, if he cannot take, then who is entitled, or, in other words, are we to find as entitled to the property, B.'s heir-at-law or A.'s heir-at-law? As above stated, under the old law, inasmuch as B. only would have taken by descent and not by purchase, we must find out who is A.'s heir-at law. C. is clearly, on that basis, entitled if he is alive, and if he is dead his representative or representatives, before B.'s sister, because as regards A., B.'s sister and C. are equally entitled if they were males, and the rule as to half blood does not arise as it would if we were searching for B.'s heir-at-law, but C. is a male and has priority on that ground over B.'s sister, who is of course a female. C. being dead cannot take, but his daughters and devisees can and will take, if the old law is to govern, as tenants in common.

If the new law is to govern, then inasmuch as B. became entitled, owing to Rule 1, as purchaser, the question becomes, who, as he is dead, is entitled as his heir?

Then the question being between the same parties as before, owing to the operation of Rule 2, B.'s sister will now take in priority to C., because B.'s sister, though a woman, is of the whole blood as regards B., and C. is only a half-blood relation of B.

95. A tenant of copyhold lands, acquired by purchase, dies intestate, leaving two daughters, who are duly admitted tenants on the Court Roll. One of them dies without having disposed of her interest, a widow, and intestate, leaving a son. The custom of the

manor follows the ordinary rules of descent. admission on the decease of the daughter? your answer.

Who is entitled to

Give the reasons for

The moiety or half share of the deceased daughter will devolve wholly upon her son. This is arrived at independently of 3 & 4 Will. IV. c. 106. That statute was passed in order to lay down rules where any doubt existed, but otherwise left the law of inheritance absolutely plain. In the above case, it is not necessary to trace the heirship of the son from his grandfather, but only from his mother. (Puterson v. Mills, 19 L. J. Ch. 310; Cooper v. France, 19 L. J. Ch. 313.)

96. What course of inheritance does the equitable interest in gavelkind lands ordinarily follow? A devise of gavelkind lands to trustees, upon trust for A. for life, and after his death upon trust to convey to the heirs of the body of B. Who will be entitled at A.'s death, and why?

The equitable interest in gavelkind lands ordinarily follows the course of inheritance pointed out by the custom, on the ground that trusts and legal estates are to be governed by the same rules as to devolution (Banks v. Sutton, 2 Peere Wms. 713). But in the case put in the question the person or persons answering the description of the heir or heirs of the body of B. (whether B.'s eldest or only son, or the eldest son of a deceased eldest son, &c.) will be entitled to have the conveyance executed in his favour (Robert v. Dinwell, 1 Atkins 607). For this is a case of an executory trust of gavelkind lands, and in such case the Court will direct the conveyance to be made according to the rules of the common law and not according to the custom. (Ibid., 610).

[We are indebted for the above extract to the Editor of the Law Examination Journal, No. 53, p. 282, for we must confess our inability to find a better answer from the books we have at hand. The ground is that the intention of the testator must be observed in construing the will.]

97. Explain the doctrine of "Possessio fratris." What object was served by it, and when and how was the doctrine rendered unnecessary?