to another by act of the party without deed, and yet pafs by deed without any other ceremony requifite.

As to releajes, they are of feveral kinds, viz. (1) releases whereby the thing releated is extinguished in the poffeffion of the releases; as rights, commons, feigniories, rents, &c. and other profits iffuing out of lands by release to the tenant; or (2) relcafes whereby an estate is transferred, which is either by mitter le eflate, as of one jointenant to another; or by encreafe or enlargement of the effate, being made by the reverfioner to the leffee in privity, with apt enlarging words.

As to confirmations, they are of two forts, viz. 1. Corroborating the eftate of which it is made; as dean and chapter confirming the grant of the bishop; patron and ordinary confirming the grant of the parfon; or the diffeifee that of the diffeifor. 2. Enlarging the eftate with apt words, as in cafe of releafe.

II. And as to fuch deeds as require a ceremony concomitant with them to make them effectual; fuch ceremonies are livery of fifin in the cafe of feoffment, though by deed; or attornment, which is requifite in grants of reverfions, remainders, rents, feigniories.

The effects of attornments are, (1) To create a privity of diflrefs, or ation, as in the cafe of fines, quid juris clamat, quem redditum reddit, per que fervilia. Or (2) to pafs the intereft, as in cafes of grants fingly by deed. (a)

As to other concomitant ceremonies, vid. fupra.

Secondly, Conveyances according to, or by force or power of acts of parliament, are of two kinds; 1. By way of bargain and fale, according to the flat. 27 H. 8. 2. By way of ufe, which is either, (1) with tranf mutation of poffeffion, as by feoffinent or fine; or (2) without tranfmutation of poffeffion, by covenant to fland seised 3. By way of devife. Thirdly, Conveyances according to cuflom. These are of copyhold estates, which are either by the grant of the lord where he is abfolute owner; or by furrender and admiilance, where the owner is a copyholder.

All which kinds of deeds and inftruments, whether conftitutive, conreying, reftrictive, remiffory or liberatory, are propofed to be particu larly treated of in the enfuing part of this work.

(a) Vid. fupra. 178. n. (b) Attornments now unnecessary.

f

Df Agreements.

Contruction of Agreement. Vid. Lilly 164.

SECT. I.

Of the Nature of an Agreement.

AN agreement, in the common and ordinary acceptation of the word,

fignifies a memorandum, article, or minute, containing the confent of two or more perfons concurring, the one in parting with, and the other in receiving fome property, right, or benefit, made preparatory to a more folemn and formal execution.

In every agreement there must be, Firft, a perfon capable of entering into an agreement fo as to be binding upon him. Secondly, A property, right, or benefit, capable of being agreed about. Thirdly, A perfon capable of poffeffing, accepting, or receiving fuch property, right, or benefit.

SECT. II.

Of Perfons capable of entering into an Agreement.

N agreement, being an act of the understanding, requires that the perfons intended to be agents therein, fhould be capable of exercising that faculty. Confequently a perfon non compos is not capable of enter ing into an agreement. 1 Bae. Abr. 67.

Upon the fame principle an infant is incapable of binding himself by any agreement that is not for his own benefit, he being, from the im becility of his mind, incapable of doing any act which may prejudice him in his eftate or affairs. Ibid.

But the law allows infants to make contracts for their own benefit and advantage, with power in moft cafes, to recede from and vacate them, whenever they prove prejudicial to them; and the law will compel parties contracting with infants to perform their contracts, or give an adequate fatisfaction in damages. Burr. 566. 2 Stra. 938. 2 Bar nard K B. 174. Sid. 446. 2 Keb. 623. Vent. 51. 2 Sid. 109. 1 Brownl. II. W. Jones 164. Fitzgib. 175, 275. Barnard K. B.

290.

And if infants contract or agree for neceffaries, they are abfolutely bound thereby. Which is an exception to their imbecility to contract introduced in benignity to them; as, if they were not allowed to bind themselves for neceffaries, no perfon would truft them, which would

defeat

defeat the intent of the exemption, by placing them in a more difad vantageous fituation than perfous of full age are in. 1 Roll. Abr. 729. Salk. 386. pl. 2. Cro. Eliz. 920. Moore 679. pl. 929. 729. Lev. 86. Keb. 382, 416, 423. 10 Mod. 139.

Roll. Abr.

It follows that an infant may bind himfelf to pay for his neceffary meat, drink, apparel, neceffary phyfic, teaching and instruction, and for provifion for his wife and children, if he marries. Co. Litt. 172.

Carter 215. Stra. 168.

And the law diftinguishes between perfons as to neceffaries, as between a nobleman and a gentleman's fon; alfo the law diftinguishes in point of time and education; as at school, Oxford, and the Inns of Court; and makes a difference as to neceffaries for fchool boys and thofe of riper years. Carter 215.

But if an agreement for neceffaries be in a fum certain, and that proves to be an unreasonable value, it is faid this would not bind him. Confequently that the contract of an infant for neceffaries, quatenus a contract does not bind him; but only that fince an infant mult live as well as a man, the law gives a reafonable price to those who furnish him with neceffaries. Bac. Abr. vol. 3. fol. 134.

But an agreement by an infant to pay money lent to him to be laid out in neceffaries, will not bind the infant at law; and therefore the len der muft at his peril lay it out for him, or fee that it is laid out in ne ceffaries; for the law will not truft the infant with the application and laying it out. Salk. 386. Lord Raym. 344. 12 Mod. 197. Stra. 1c83. 5 Mod. 368.

The court of chancery will decree building leafes for fixty years of infants eftates when it appears to be for their good. 2 Vern. 224.

An agreement by an infant to take a leafe for years rendering rent, will, if he enter upon the land, render him liable to be charged with an action of debt during his minority, because the purchase is intended for his benefit. But he may make the agreement and not enter. And if more rent be referved on the leafe than the land is worth

he may avoid it. 2 Bull. 69. See Cro. Ja. 320. Roll. Abr. 731.

K. 50.

Coverture likewife is an incapacity to enter into an agreement for want of volition, the law having put a feme covert under the power of her husband. 1 Bac. Abr. 65.

Indeed it is faid, that if a feme covert, by agreement made with her hufband, is to furrender a copyhold or levy a fine, equity will compel her, though the hufband die before it be done, to perform the agree 2 Vern. 61. pl. 52. Eq. Ca. Abr. 25. pl. 6. but it appears from the register-book that the court made no decree in this caufe, it being by confent referred for arbitration. Eq. Ca. Abr. 62. pl. 2.

ment.

per cur.

An ancestor feifed in fee may, by his agreement, bind his heir. Therefore if A. agree to fell lands and receive part of the purchase-money, but die before a conveyance is executed, and a bill is brought against the heir, he will be decreed to convey. 2 Vern. 215.

But it is faid, that if a man affume for 100l. to make a leafe for 21 years and die, his heir is not compellable in a court of equity to make a leafe, because it is against the common law. 1 Roll. Abr. 377.pl. 18.

Sed. quarc.

Lut

But a tenant in tail cannot, by an agreement to convey, or bargain and fell the lands intailed for a valuable confideration, bind his iflue, either in law or equity, without levying a fine or fuffering a recovery. And, therefore, if he die before a fine levied or a recovery fuffered, fuch an agreement will be void. And even if there be a decree agaiaft tenant in tail, to levy a fine or fuffer a recovery in pursuance of an agree ment, and he die in contempt in prifon for not executing it, yet the iffue will not be bound. Hob. 203. Chan. Ca. 171. Lev. 239. 2 Vent. 350. 1 Eq. Ca Abr. 25. pl. 4. 265 pl. 2. 2 Vern. 3c6. But if the iffue in tail receive part of the purchase-money in his father's life-time, or after his death, or if he join in the deed with his father, or covenant for further affurance, &c. then it becomes his own agreement, and he will be bound thereby at law and in equity. Chan. Ca. 171. Lev. 238.

And if there be tenant in tail in equity, as of a truft, or under an equitable agreement; and he, for valuable confideration, bargain and fell the land without fine or recovery, this it feems will be binding on his iffue. Becaufe the ftatute de donis does not extend to it, being an entail in equity, and a creature of the court. Clan. Ca 234. 2 Chan. Ca. 64. 2 Vent. 350. Vern. 13. pl. 8. 440. pl. 412. 2 Vern. 133. 583.pl. 525. 702. pl. 625.

E

How Agreements ought to be made.

VERY agreement ought to be perfect, full, and compleat, fo as to fhew with precifion what is meant to be ftipulated, and the mutual confent of the parties thereto. Plowd. 5.

It fhould alfo provide for the poffibility of a failure in either of the contracting parties. With which view it fhould be executed with a recompence, or be fo clear and certain as to give an action or remedy thereon; and it is beft to ftipulate exprefsly that the party on whose default a faiJure in performance fhall enfuc, fhail reimburse the other party in all cofts incurred by reafon of entering into the contract, and in order to the accomplishment of it.

And if the agreement relate to a fale of lands, it is prudent to flate therein what covenants the party felling fhall enter into respecting the fame, as thereby any contest concerning them will be avoided, and the matter not left to opinions, which in this cafe are various, or the deci fion of a court of equity.

Any thing under feal, which imports an agreement will amount to a covenant; and a provifo, by way of agreement, amounts likewise to a covenant; and actions may be brought upon them as fuch. 1 Lev. 155. But fealing is not neceffary to take an agreement out of the ftatute of frauds. Pre. Chan. 16. 561.

It is belt that both parties fhould fign an agreement, but it will be binding, notwithstanding the ftatute of frauds, if it be figned by one party only; if the other party be fo circumttanced as that he may have a mutual remedy thereupon. Ibid. 1 Eq. Ca. dor. 21.

SECT.

* SECT. III.

Of the Kinds of Agreements.

AGREEMENTS may be either in writing or by parol

In paffing lands or tenements at common law no other folemnity was required, than that of livery and feifin, which being a translation of the feud coram paribus curtis, and teftified by them, was held a fufficient notoriety to direct the lord of whom he was to demand his fervices, and to inform ftrangers against whom they were to commence their actions. But now by the ftatute 29 Car. 2. c. 3. fec. 1. It is enacted, that "all leafes, eftates, interefts of freehold or term of years, or any uncertain interefts, of, in, or out of any meffuages, manors, lands, tenements or hereditaments, made or created by livery and feitin only, or by parol and not put in writing, and figned by the parties fo making or creating the fame, or their agents thereunto lawfully authorized by writing, fhall have the force and effect of leafes and eftates at will only, and fhall not either in law or equity be deemed or taken to have any other or greater force and effect; any confideration for making any fuch parol leafes or eftates, or any former ufage to the contrary notwithstanding."

Sec. 2. "Except leafes not exceeding the term of three years from the making thereof, whereupon the rent referved to the landlord, during fuch term, fhall amount unto two-third parts at the least of the full improved value of the thing demifed."

Sec. 3. And that "no leafes, eftates, or interefts, either of freehold or terms of years, or any uncertain intereft, not being copyhold or cuftomary intereft, of, in, to or out of any meffuages, manors, lands, tenements or hereditaments, fhall be affigned, granted or furren dered, unless it be by deed or note in writing, figned by the party fo affigning, granting, or furrendering the fame, or their agents thereunto lawfully authorized, by writing or by act or operation of law."

Sec. 4. And it is further enacted, "That no action fhall be brought whereby to charge any executor or adminiftrator upon any special promife to answer damages out of his own eftate, or whereby to charge the defendant upon any special promise to answer for the debt, default or >mifcarriages of another perfon, or to charge any perfon upon any agreement made upon confideration of marriage, or upon any contract or fale of lands, tenements or hereditaments, or any intereft in or concerning them, or upon any agreement that is not to be performed within the Space of one year from the making thereof, unlefs the agreement upon which fuch action fhall be brought, or fome memorandum or note thereof fhall be in writing, figned by the party to be charged therewith, or fome other perfon by him thereunto lawfully autho

rized."

Sec. 17. Enacts, that "no contract for the fale of any goods, wares and merchandizes for the price of 10l. fterling or upwards, fhall be allowed to be good, except the buyer fhall accept part of the goods fo

fold,