vi

PART III.

OF CONVEYANCES DERIVING THEIR OPERATION FROM THE
STATUTE OF USES.

CHAP. I.

OF A COVENANT TO STAND SEISED TO USES

Page.

- 253

CHAP. II.

OF A BARGAIN AND SALE.

I.-Of the Nature and Origin of a Bargain and

Sale

II.-Who may make a Bargain and Sale

III.- What may be the Subject of a Bargain and

Sale

IV. Of the Requisites to a Deed of Bargain and

Sale

V.-Of the Effect and Operation of a Bargain and

Sale, whether before or after Enrolment

CHAP. III.

- 263

265

-

267

269

-

277

• 300

II.-Upon what Deed, and in what Manner, Uses

III.-Of the Construction of Declarations of Uses - 306

CHAP. V.

OF AN APPOINTMENT OF USES

1. Of the Nature and Origin of Powers of Ap-

pointment

-

·

313

· 314

II.-By whom an Appointment, in pursuance of a

-

-

Page.

- 322

Power, may be made

III.-To whom an Appointment may be made - 331

IV.-The Form and Circumstances requisite to the

Validity of an Appointment under a Power - 332

V.--Of the Effect and Operation of an Appoint-

ment

- 367

VI.-The Means by which an Appointment may be

defeated, annulled or varied

-

· 371

vii

I.-Of the Nature and Origin of Assurances by

Fine

II.-Of the several Kinds of Fines

-

III.-Of the several Parts of a Fine, and their re-

spective Operations

407

408

- 410

-

IV. What Persons are capable of levying Fines, and

to whom a Fine may be levied

V.-Of what Things a Fine may be levied, and by

VI.-In what Court and before whom a Fine may

VII.-Of the Effect and Operation of a Fine -

VIII.-The Means by which a Fine may be avoided

418

· 429

441

· 446

· 451

- 488

CHAP. II.

OF COMMON RECOVERIES.

I.-Of the Nature and Origin of common Re-

coveries

Page.

- 513

II.-Who may suffer a common Recovery

III.-Of what Things a common Recovery may be

suffered; and by what Description

523

IV.-In what Court Recoveries may be suffered; and

of the Manner in which they are to be suffered 528

V.-Of the Force and Operation of a Common Re-

ELEMENTS

OF

CONVEYANCING.

BOOK. III.

OF THE MEANS OF TRANSFERRING REAL
PROPERTY FROM ONE PERSON
TO ANOTHER.

PART I.

OF ORIGINAL CONVEYANCES.

CHAP. I.

OF CONTRACTS OR AGREEMENTS, CONSIDERED AS PRE-
LIMINARY TO A MORE FORMAL ASSURANCE.

A

DEED is defined to be "a writing on paper or CONTRACTS, parchment, sealed and delivered, to prove the agree

ment of the parties whose deed it is, to the things contained therein." As it appears by this definition, that a deed is the evidence of some prior agreement between the parties; and as the stability of the deed must consequently depend in a great measure upon the validity of the contract upon which it is founded, it will be proper, before we enter upon the immediate subject of deeds, to make some preliminary inquiries concerning the essential properties to a lawful contract, agreement or obligation. In doing which, I shall consider,

&c.

CONTRACTS, &c.

Who are capable of entering into contract.

I. WHO ARE LEGALLY CAPABLE OF ENTERING INTO
A CONTRACT.

II. WITH OR TO WHOM A CONTRACT OR CONVEYANCE

MAY BE ENTERED INTO OR MADE."

III. WHAT MAY BE THE SUBJECT OF A LAWFUL CON

TRACT.

IV. OF THE CONSIDERATION NECESSARY TO SUPPORT

v.

A CONTRACT.

OF THE REQUISITES TO A VALID CONTRACT IN
RESPECT OF OUTWARD CIRCUMSTANCES.

1. WHO ARE LEGALLY CAPABLE OF ENTERING INTO A CONTRACT.

As to which, it may be observed generally, that all persons whomsoever are able to enter into an efficient agreement concerning their property, whether real or personal, unless prohibited by some physical incapacity, or some positive rule of law. These physical imbecilities arise from the nature of a contract, which being founded upon an active assent of the mind to the thing agreed upon, it is essential that the parties contracting should be capacitated to give that free and absolute assent to the terms of stipulation which natural justice requires should be given to every contract intended to be binding upon the parties and their representatives (1); it becomes necessary, therefore, to inquire who are, and who are not, deemed in the eye of the law capable of giving such assent; and also what circumstances have been holden to be a sufficient indication of it. Consent is an act of reason, accompanied by deliberation, and supposes, in the words of Barbeyrac ↳, Grot. 1. 2, c. 11, s. 5.

(1) In omnibus rebus quæ dominium transferunt concurrat oportet affectus ex utraque parte contrahentium; nam sive ex venditio sive donatio sive conductio sive quælibet alia causa contrahendi fuit, nisi animus utriusque consensit, perduci ad effectum id quod inchoatur non potest.