first, by the law of this country, property was settled to the separate use of the wife, equity considered the wife as a feme sole, to the extent of having a dominion over the property. But then it was found that that, though useful and operative, so far as securing to her a dominion over the property so devoted to her support, was open to this difficulty-that, she being considered as a feme sole, was of course at liberty to dispose of it as a feme sole might have disposed of it, and that, of course exposing her to the influence of her husband, was found to destroy the object of giving her a separate property; therefore, to meet that, a provision was adopted of prohibiting the anticipation of the income of the property, so that she had no dominion over the property till the payments actually became due. That is the provision of the law as it now stands, and that is found perfectly sufficient for the purpose of securing the interests of married women."

Having thus observed that our law favours the alienation of real property, to use the words of Lord Mansfield, that, "the sense of wise men, and the general bent of the people in this country, have ever been against making land perpetually unalienable;" and having seen that "the utility of the end was thought to justify any means to attain it," it remains to add, that the same policy obtains with reference to personalty; and, in support of this remark, may be adduced the well-known rule of the law-merchant-that, for the encouragement of commerce, the right of survivorship, which is ordinanarily incident to a joint tenancy, shall not exist amongst trading

[*343] partners—*jus accrescendi inter mercatores pro beneficio com

mercii locum non habet,3-a rule which is now extended to real as well as personal property. So that it may be considered as settled, that all property, whatever be its nature, purchased with partnership capital for the purposes of the partnership trade, continues to be partnership capital, and to have to every intent the quality of personal estate, unless, indeed, a special stipulation be made between the partners to prevent the application of this equi

Per Lord Cottenham, Rennie v. Ritchie, 12 Cl. & Fin. 234.

2 Per Lord Mansfield, C. J., 1 Burr. 115.

3 Co. Litt. 182, a; 2 Brownl. 99; Noy, Max., 9th ed. 79; 1 Beawes, Lex Merc., 6th ed. 42.

4 Per Sir J. Leach, M. R., Phillips v. Phillips, 1 My. & K. 663; and in Fereday v. Wightwick, 1 Russ. & My. 49; Townshend v. Devaynes, 1 Mont., Partnership, 2d ed., note, p. 96 (2 A.); per Lord Eldon, C., Selkrig v. Davis, 2 Dow, 242; Dale v. Hamilton, 16 L. J., Chanc. 397; Crawshay v. Maule, 1 Swanst. 521; cited, Baxter, app., Newman, resp., 8 Scott, N. R. 1035.

table doctrine. The rule which thus holds in cases of partnership evidently favours alienation, by rendering capital invested in trade applicable to partnership purposes, and directly available to the creditors of the firm.

Again—we have already had occasion to observe, that there cannot be an estate tail in personalty; so neither can a perpetuity be created in property of this description. Indeed, where the subjectmatter of a grant is a personal chattel, it is impossible so to tie up the use and enjoyment of it as to create in the donee a life estate which he may not alien. It is true, however, that this object may be attained indirectly, in a manner consistent with the known rules of law, by annexing to the gift a forfeiture or defeasance on [*344] the happening of a particular event, or on a *particular act being done for in that case the donee takes by the limitation of a certain estate, of which the event or act is the measure, and upon the happening of the event, or the doing of the act, a new and distinct estate accrues to a different individual. If, for instance, a testator be desirous to give an annuity without the power of anticipation, he can only do so by declaring that the act of alienation shall determine the interest of the legatee, and create a new interest in another.3

Property may also be given to a party to be enjoyed by him until he becomes bankrupt or insolvent, and if either of these events happen the property may be given over to another party. A person cannot, however, create an absolute interest in property, and, at the same time, deprive the party to whom that interest was given of those incidents, and of that right of alienation which belonged, according to the elementary principles of the common law, to the ownership of the estate. Where, therefore, a testator directed his trustees to pay an annuity to his brother, until he should attempt to charge it, or some other person should claim it, and then to apply it for his support and maintenance, it was held, that, on the insolvency of the annuitant, his assignees became entitled to the annuity."

The distinction between a proviso or condition subsequent and a

Balmain v. Shore, 9 Ves. jun. 500.

2 As to heir-looms, see the maxim, accessorium sequitur principale, post. As to annexing personal to real estate, the latter being devised in strict settlement, see 2 Jarm., Wills, 507.

3 Per Lord Brougham, 2 My. & K. 204.

4 Younghusband v. Gisborne, 15 L. J., Chanc. 355, 356.

5 A condition subsequent in defeasance of an estate, must at law be pleaded by him who would take advantage of it. Brooke v. Spong, 15 M. & W. 153.(*)

limitation above exemplified may be further explained in the words of Lord Eldon, who says: "There is no doubt that property may be given to a man until he shall become bankrupt. It is equally clear, [*345] generally speaking, that, if property is given to a man for his life, the donor cannot take away the incidents to a life estate, and, as I have observed, a disposition to a man until he shall have become bankrupt, and after his bankruptcy over, is quite different from an attempt to give to him for his life, with a proviso that he shall not sell or alien it. If that condition is so expressed as to amount to a limitation, reducing the interest short of a life estate, neither the man nor his assignees can have it beyond the period limited."

The preceding remarks will suffice to establish the truth and to show the very wide application of the proposition, that, in our law, alienatio rei præfertur juri accrescendi, for, as we have seen, the power of alienation, whether by deed or by will, of which the landowners were deprived on the introduction of the feudal system, has been in succeeding ages gradually restored to them. Both our courts of law and our legislature have, on all occasions, discountenanced attempts to create perpetuities, either by an astute application of legal machinery, for the purpose of defeating them, or by special enactments, calculated to effect the same salutary object. A perpetuity has, indeed, been pronounced to be "a thing odious in law and destructive to the commonwealth," inasmuch as its tendency is to put a stop to commerce, and to prevent the free circulation of the riches of the kingdom; and we may accordingly ascribe to the policy of our law in favouring alienation, not only those extensive innovations on the feudal system to which we have above adverted, but likewise the various measures which have, from time to time, been adopted, as well for simplifying the forms of conveyance, as for rendering the realty liable to debts, and making property in *general more easily available to creditors, and therefore [*346] more directly applicable to the exigencies of the trading portion of the community. The alienatio rei has, moreover, been effectually promoted by the negotiable character which has been esta

Brandon v. Robinson, 18 Ves. 433, 434.

3 See stat. 8 & 9 Vict. c. 119.

21 Vern. 164.

4 The feudal restraint of alienation necessarily prevented land from being subject to the debts of the tenant; but by Stat. Westm. 2, 13 Edw. 1, st. 1, c. 18, one moiety of the land was made liable to execution. Wright, Tenures, 169, 170.

blished as belonging to bills of exchange, and which has been specifically annexed to promissory notes and some other mercantile instruments. And we may remark that the disposition of our Courts at the present time evidently is to favour still further the assignment of choses in action, and thus to afford increased facilities for the transfer and circulation of property. That such is the true policy of a great commercial country cannot be doubted, and it is believed that we may yet look with confidence to the legislature for additional aid in carrying out and effecting the same beneficial object.

CUJUS EST DARE EJUS DISPONERE.
(Wing. Max. 53.)

The bestower of a gift has a right to regulate its disposal.'

It will be evident, from a perusal of the preceding pages, that the above general rule must, at the present day, be received with very considerable qualification. It does, in fact, set forth the principle on which the old feudal system of feoffment depended: tenor est qui legem dat fuedo2-it is the tenor of the feudal grant which regulates its effect *and extent: and the maxim itself is, in another form,

still applicable to modern grants-modus legem dat dona-[*347]

tion-the bargainor of an estate may, since the land moves from him, annex such conditions as he pleases to the estate bargained, provided that they are not illegal, repugnant, or impossible. Moreover, it is always necessary that the grantor should expressly limit and declare the continuance and quantity of the estate which he means to confer; for, by a bare grant of lands, the grantee will take an estate for life only, a feoffment being still considered as a gift, which is not to be extended beyond the express limitation or manifest intention of the feoffor." As, moreover, the owner may, subject to certain beneficial restrictions, impose conditions at his pleasure upon the feoffee, so he may likewise, by insertion of special covenants in a conveyance or demise, reserve to himself rights of easement and other privileges in the land so conveyed or demised, and thus surrender the enjoyment of it only partially, and not absolutely, to the

1 Bell, Dict. & Dig. of Scotch Law, 242.

2 Craig, Jus. Feud., 3d ed. 66.

42 Rep. 71; 2 Bla. Com. 299.

3 Co. Litt. 19, a.

5 Wright, Tenures, 151, 152.

feoffee or tenant. "It is not," as remarked by Lord Brougham, C.,1 "at all inconsistent with the nature of property, that certain things. should be reserved to the reversioners all the while the term continues. It is only something taken out of the demise—some exception to the temporary surrender of the enjoyment: it is only that they retain more or less partially the use of what was wholly used by them before the demise, and what will again be wholly used by them when that demise is at an end."

"The general principle," says Mr. Justice Ashhurst, "is [*348] clear, *that the landlord having the jus disponendi may annex whatever conditions he pleases to his grant, provided they be not illegal or unreasonable." It is, for instance, reasonable that a landlord should exercise his judgment with respect to the person to whom he trusts the management of his estate; and, therefore, a covenant not to assign is legal. Covenants to that effect are, indeed, frequently inserted in leases, and ejectments are every day brought on breach of such covenants.3

In accordance with the above maxim, it is also laid down, that a college or charity is the founder's creature; that he may dispose and order it as he will, and may give it whatever shape he pleases, provided it be a legal one. And hence the founder of any lay corporation, whether civil or eleemosynary, may appoint himself, his heirs, or assigns, or any other persons specially named as trustees, to be the visiters; such trustees being, however, subject to the superintending power of the Court of Chancery, as possessing a general jurisdiction, in all cases of an abuse of trust, to redress grievances and suppress frauds."

On this principle, likewise, an agreement by defendant to allow plaintiff, with whom he cohabited, an annuity for life, provided she should continue single, was held to be valid, for this was only an original gift, with a condition annexed; and cujus est dare ejus est disponere. Moreover, the grant of the annuity was not an inducement to the plaintiff to continue the cohabitation, it was rather an inducement to separate.

1 Keppell v. Bailey, 2 My. & K. 536–7.

2 Roe d. Hunter v. Galliers, 2 T. R. 137, 138.

3 Ibid.

4 Bell, Dict. and Dig. of Scotch Law, 242. See 1 Kyd on Corporations, 50; 2 Kyd

on Corporations, 195; Skin. R. 481, 502; 2 Kent Com., 4th ed. 302, 303.

5 Gibson v. Dickie, 3 M. & S. 463; E. C. L. R. 30.