10. What is necessary in order to make a fine of any avail ?—356. That the parties should have some interest or estate in the lands to be affected by it.

11. What is the nature of a common recovery?—357.

A common recovery is so far like a fine, that it is a suit or action, either actual or fictitious; and in it the lands are recovered against the tenant of the freehold ; which recovery being a supposed adjudication of the right, binds all persons, and vests a free and absolute fee-simple in the recoveror.

12. Why is the issue in tail held to be barred by a common recovery?-360.

The supposed recompense, of equal value, is the reason.

13. In what light have our modern courts of justice considered common recoveries?-360.

Only as a formal mode of conveyance by which tenant in tail is enabled to alien his lands.

14. By what deeds may the uses of a fine or recovery be applied and directed?-363.

By deeds to lead, or to declare, the uses of fines, or of recoveries.

CHAPTER XXII.

OF ALIENATION BY SPECIAL CUSTOM.

1. To what are assurances by special custom confined ?—365. To copyhold lands, and such customary estates as are holden

in ancient demesne, or in manors of a similar nature.

2. How are copyhold lands, and such customary estates, transferred?-385.

Generally by surrender.

3. What is a surrender ?—366.

Surrender, sursumredditio, is giving the estate into the hands of the lord, for such purposes as in the surrender are expressed

4. Are surrenders of feodal origin ?-366.

They are.

5. May a copyhold estate be transferred by any other assurance?

-367.

It cannot. No feoffment or grant has any operation thereapon.

6. How may the copyholder devise his estate ?-367, 368.

He must surrender it to the use of his last will and testament; and, in his last will, he must declare his intentions, and name a devisee, who will then be entitled to admission.

7. What are the several parts of the assurance by surrender?—368. Its parts are three: the surrender, the presentment, and the admittance.

8. What part of it, in effect, is the surrender ?-368.

A surrender by an admittance, subsequent whereto the conveyance is to receive its perfection and confirmation, is rather a manifestation of the alienor's intention, than a transfer of any interest in possession.

9. What if the lord refuse to admit the nominee ?—369.

He may be compelled to admit him by a bill in chancery, or mandamus; for he cannot, either by force or fraud, be deprived, or deluded, of the effect and fruits of the surrender.

10. Can the surrenderor retract, or defeat, his grant ?—369.

He cannot.

11. What is admittance?-370.

It is the last stage, or perfection, of copyhold assurances.

12. Of what sorts is admittance ?-370.

Of three sorts: 1 Admittance upon a voluntary grant from

the lord; 2. An admittance upon surrender by the former tenant; 3. An admittance upon a descent from the ancestor.

13. To what is the lord bound in admittances upon a voluntary grant?-370.

Even upon a voluntary grant from the lord, when copyhold lands have escheated or reverted to him, he is considered as an instrument. For though it is in his power to keep the lands in his own hands, or to dispose of them at his pleasure, by granting an absolute fee-simple, a freehold, or a chattel interest therein, and quite to change their nature from copyhold to socage tenure; yet, if he will continue to dispose of them as copyhold, he is bound to observe the ancient custom precisely in every point.

14. Is it in the election of heirs of a copyhold to be admitted or not?-372.

The heirs of copyholders are enforced, in every manor, to come into court, and be admitted according to the custom.

CHAPTER XXIII.

OF ALIENATION BY DEVISE.

1. What is meant by devise ?—373.

By devise, is meant the disposition contained in a man's last will and testament.

2. When did the restraint of devising lands take place?—373.

Before the conquest, lands, it is clear, were devisable by will, but upon the introduction of the military tenures, the restraint upon devising lands naturally took place, as a breach of the feodal doctrine of non-alienation without the consent of the lord.

3. What is the common law as to devises by will ?--374.

By the common law of England since the conquest, no estate, greater than for a term of years, could be disposed of by

testament; except only in Kent, and in some ancient burghs, and a few particular manors.

4. What may be devised?-375, 376.

When the statute of uses had annexed the possession to the use, uses, being now the very land itself, became no longer devisable. The "Statute. of Wills," (32 Henry VIII., c. 1, explained by 34 Henry VIII., c. 5,) however, enacted that all persons being seized in fee-simple, except femes covert, infants, &c., might by will and testament devise to any other person, except to bodies corporate, two-thirds of their lands, tenements, and hereditaments held in chivalry, and the whole of those held in socage: which now, through the alteration of tenures by the statute of Charles II., amount to the whole of their landed property, except their copyhold tenements.

5. Why were corporations excepted in the statute of wills?-376. To prevent the extension of gifts in mortmain.

6. How may a will be revoked?—376.

By burning, canceling, tearing, or obliterating it by the devisor, or in his presence with his consent; or impliedly by marriage and birth of a child.

7. How is a will of lands now considered by the courts of law?878.

Not so much in the nature of a testament, as a conveyance declaring the uses to which the land shall be subject.

8. In what respect do devises affecting lands and testaments of personal chattels differ?-378.

There is this distinction: the latter will operate upon whatever the testator dies possessed of; the former only upon such real estates as were his at the time of executing and publishing his will.

9. What are general rules and maxims, in construing deeds and wills, as laid down by the courts of justice?—379–382.

They are as follows: 1. That the construction be favorable, and as near the minds, and apparent intents of the parties, as the rules of law will admit. For the maxims of law are, that "verba

intentivni debent inserviri;" and "benigne interpretamur chartas propter simplicitatem laicorum." And therefore the construction must be reasonable, and agreeable to common understanding.

2. That quoties in verbis nulla est ambiguitas, ibi nulla expositio contra verba fienda est; but that where the intention is clear, too minute a stress be not laid on the strict and precise signification of words; nam qui hæret in litera, hæret in cortice. Therefore, by a grant of a remainder a reversion may well pass, and e converso. And another maxim of law is, that “mala grammatica non vitiat chartam," neither false English nor bad Latin will destroy a deed.

3. That the construction be made upon the entire deed, and not merely upon disjointed parts of it; and, therefore, that every part of it be, if possible, made to take effect; and that there be no word but what may operate in some shape or other.

4. That the deed be taken most strongly against him that is the agent or contractor, and in favor of the other party.

5. That if the words will bear two senses, one agreeable to, and another against law, that sense be preferred which is most agreeable thereto.

6. That, in a deed, if there be two clauses so totally repugnant to each other that they cannot stand together, the first shalı be received and the latter rejected: wherein it differs from a will; for there, of two such repugnant clauses, the latter shall stand.

7. That a devise be most favorably expounded to pursue, if possible, the will of the devisor, who, for want of advice or learning, may have omitted the legal or proper phrases.

CHAPTER XXIV.

OF THINGS PERSONAL.

1. What are included under the name of things personal ?—384. All sorts of things movable which may attend a man's person wherever he goes.