The above maxim, accessorium non ducit sed sequitur suum principale, is, then, derived from the Roman law, and signifies that the accessory right follows the principal; it may be illustrated by the remarks appended to the rule immediately preceding,2 as also by the following examples:

The owner of land has, prima facie, a right to the title deeds, as something annexed to his estate in the land, and it is accordingly laid down, that, if a man seised in fee conveys land to another, and his heirs, without warranty, all the title deeds belong to the purchaser, as incident to the land, though not granted by express words.3 In like *manner, heir-looms are such goods and chattels as [*370] go by special custom to the heir along with the inheritance, and not to the executor or administrator of the last owner of the estate; they are due to the heir by custom, and not by the common law, and he shall accordingly have an action for them. There are also some other things in the nature of heir-looms which likewise descend with the particular title or dignity to which they are appurtenant.1

Again, rent is incident to the reversion, and, therefore, by a general grant of the reversion, the rent will pass; though by the grant of the rent generally, the reversion will not pass, for accessorium non ducit sed sequitur suum principale: however, by the introduction of special words, the reversion may be granted away, and the rent reserved. So, an advowson appendant to a manor is so entirely and intimately connected with it, as to pass by the grant of the manor cum pertinentiis, without being expressly mentioned or referred to; and, therefore, if a tenant in tail of a manor with an advowson appendant suffered a recovery, it was not necessary for him to make any express mention of his intention to include the advowson in the recovery for any dealing with the manor, which is the principal, operates on the advowson, which is the accessary, whether expressly named or not. It is, however, to be observed, that, although the conveyance of the manor prima facie draws after it the advowson also, yet it is always competent for the owner to sever the advowson

I Bell, Dict. and Dig. of Scotch Law, p. 7. See, also, Co. Litt. 389, a.

2 See, also, Reg. v. Stoke Bliss, 6 Q. B. 158; E. C. L. R. 51; Chanel v. Robotham, Yelv. 68.

3 Lord Buckhurst's case, 1 Rep. 1; Goode v. Burton, 11 Jur., Exch. 851.

4 See 1 Crabb, Real Prop., pp. 11, 12.

52 Bla. Com. 176; Litt. s. 229; Co. Litt. 143, a.

from the manor, either by conveying the advowson away from the manor, or by conveying the manor without the advowson; and hence there is a marked distinction between the preceding [371]

cases and those in which the incident is held to be inseparably connected with the principal, so that it cannot be severed therefrom. Thus, it is laid down that estovers, or wood granted to be used as fuel in a particular house, shall go to him that hath the house; and that inasmuch as a court baron is incident to a manor, the manor cannot be granted and the court reserved. In some cases, also, that which is parcel or of the essence of a thing passes by the grant of the thing itself, although at the time of the grant it were actually severed from it; by the grant, therefore, of a mill, the mill-stone will pass, although severed from the mill.3

Again, common of pasture appendant is the privilege belonging to the owners or occupiers of arable land holden of a manor to put upon the wastes of the manor their horses, cattle, or sheep; it is appendant to the particular form, and passes with it, as incident to the grant. But divers things which, though continually enjoyed with other things, are only appendant thereto, do not pass by a grant of those things; as, if a man has a warren in his land, and grants or demises the land, by this the warren does not pass, unless, indeed, he grants or demises the land cum pertinentiis, or with all the profits, privileges, &c., thereunto belonging, in which case the warren might, perhaps, pass.

5

Another well-known application of the maxim under consideration is to covenants running with the land, which *pass therewith, [*372]

and on which the assignee of the lessee, or the heir or devisee of the covenantor, is in many cases liable, according to the kindred maxim of law, transit terra cum onere, a maxim, the principle of which holds not merely with reference to covenants, but likewise with reference to such customs as are annexed to land,—for instance, it is laid down that the custom of gavelkind being a custom by reason of

1 Judgment, Mosely v. Motteux, 10 M. & W. 544;(*) Bac. Abr., “Grants,” (I. 4.) 2 Finch, Law, 15.

3 Shep. Touch. 90. See Wyld v. Pickford, 8 M. & W. 443. (*) As to what shall be deemed to pass as appendant, appurtenant, or incident, see Bac. Abr., "Grants," (I. 4.)

42 Steph. Com. 4, 5; Shep. Touch. 89, 240; 2 Bla. Com., by Stewart, 31; Bac. Abr., “Grants,” (I. 4); Co. Litt., by Thomas, vol. 1, p. 227.

5 Shep. Touch. 89; 1 Crabb, Real. Prop. p. 488. See Pannell v. Mill, 3 C. B. 625; E. C. L. R. 54. 6 Co. Litt. 231, a.

the land, runs therewith, and is not affected by a fine or recovery had of the land; but "otherwise it is of lands in ancient demesne, partible among the males, for there the custom runneth not with the land simply, but by reason of the ancient demesne; and, therefore, because the nature of the land is changed, by fine or recovery, from ancient demesne to land at the common law, the custom of parting it among the males is also gone.'

3

With reference to titles, moreover, one of the leading rules is cessante statu primitivo cessat derivativus—the derived estate ceases on the determination of the original estate; and the exceptions to this rule have been said to create some of the many difficulties which present themselves in the investigation of titles. The rule itself may be illustrated by the ordinary case of a demise for years by a tenant for life, or by any person having a particular or defeasible estate, which, unless confirmed by the remainderman or reversioner, will determine on the death of the lessor; and the same principle applies whenever the original estate determines according to the express terms or nature of its limitation, or is defeated by a condition in consequence of the act of the party, as by the marriage of a tenant durante viduitate, or by the resignation of the *parson who has leased the glebe lands or tithes belonging to the living.1

[*373]

The law relative to contracts and mercantile transactions likewise presents many examples of the rule that the accessary follows, and cannot exist without its principal; thus the obligation of the surety is accessory to that of the principal, and is extinguished by the release or discharge of the latter, for quum principalis causa non consistit ne ea quidem quæ sequuntur locum habent," and quæ accessionum locum obtinent extinguuntur cùm principales res peremptæ fuerint. The converse, however, of the case just instanced does not hold, and the reason is, that accessorium non trahit principale. As it would be tedious to enumerate cases illustrative of maxims so evidently true and so widely applicable to the above, we shall merely add that, as a general rule, costs follow the verdict. So, likewise, interest of money is accessory to the principal, and must, in legal

I Finch, Law, 15, 16.

31 Prest. Abs. Tit. 245.

8

28 Rep. 34.

4 1 Prest. Abs. Tit. 197, 317, 358, 359.

5 D. 50, 17, 129, 1; 1 Pothier, Oblig. 413.

7 1 Pothier, Oblig. 477; 2 Id. 147, 202.

62 Pothier, Oblig. 202.

8 See Chappell v. Purday, 16 L. J., Chanc. 261; Reg. v. Stoke Bliss, 6 Q. B. 158; E. C. L. R. 51.

language, "follow its nature;"1 and, therefore, if the plaintiff in any action is barred from recovering the principal, he must be equally barred from recovering the interest.2

In a recent case, the declaration stated that the defendant, sixteen years before, delivered his promissory note payable on demand with interest, to the plaintiff, but neglected to *pay, except inte[*374] rest, which he paid up to a day within six years; the defendant pleaded that the cause of action did not accrue within six years: and this plea was held sufficient on demurrer, for the cause of action was the principal money due, to which the interest was only accessory, and the plea being good in bar of the principal, the accessary must necessarily fall along with it.3

Lastly, in criminal law it is also true that accessorius sequitur naturam sui principalis; and, therefore, an accessary cannot be guilty of a higher crime than his principal, being only punished as a partaker of his guilt."

LICET DISPOSITIO DE INTERESSE FUTURO SIT INUTILIS TAMEN FIERI POTEST DECLARATIO PRÆCEDENS QUE SORTIATUR EFFECTUM INTERVENIENTE NOVO ACTU.

(Bac. Max., reg. 14.)

Although the grant of a future interest is invalid, yet a declaration precedent may be made which will take effect on the intervention of some new act.

"The law," says Lord Bacon, "doth not allow of grants except there be a foundation of an interest in the grantor; for the law that will not accept of grants of titles, or of things in action which are imperfect interests, much less will it allow a man to grant or incumber that which is no interest at all, but merely future. But of declarations precedent, before any interest vested, the law doth allow,

13 Inst. 139; Finch, Law, 23.

2 Judgment, Clark v. Alexander, 8 Scott, N. R. 165. See, per Lord Ellenborough, C. J., 3 M. & S. 10; E. C. L. R. 30; 2 Pothier, Oblig. 479. “This giving of interest is not by way of a penalty, but is merely doing the plaintiff full justice, by having his debt with all the advantages properly belonging to it. It is in truth a compensation for delay:" Judgment, 16 M. & W. 144.(*)

3 Hollis v. Palmer, 2 Bing. N. C. 713; E. C. L. R. 29.

54 Bla. Com. 36.

4 3 Inst. 139.

[*375]

dent."

but with this difference, so that there be some new act *or conveyance to give life and vigour to the declaration prece

With respect to the first part of the above rule, viz., that a disposition of after-acquired property is altogether inoperative, it was observed in a recent case, that Lord Bacon assumes this as a proposition of law which is to be considered as beyond dispute, and accordingly we find the same general rule laid down by all the old writers of authority. "It is," says Perkins,3 "a common learning in the law that a man cannot grant or charge that which he hath not; and, therefore, if a man grant a rent charge out of the manor of Dale, and in truth he hath nothing in that manor, and after he purchases the same manor, yet he shall hold it discharged." And again, it is said, that if a man grants unto me all the wool of his sheep, meaning thereby the wool of sheep which the grantor at that time has, the grant is good; but a man cannot grant all the wool which shall grow upon his sheep that he shall buy hereafter, for then he hath it neither actually nor potentially. So, it was held in a recent case, that a man cannot by deed of bargain and sale pass the property in goods which are not in existence, or, at all events, which are not belonging to the grantor at the time of executing the deed ; and, in accordance with the same principle, where a bill of sale purported to be an absolute assignment of furniture and farming stock, "and other things, which are now, or which at any time during the continuance of this security shall be in, and about, and belonging to

the *dwelling-house," the Court of Queen's Bench held, that [*376] such deed could not operate as an assignment of the goods thereafter to be brought upon the premises, and not specified therein."

It will be observed, however, that, according to the distinction just stated, a grant of the future produce of property actually in the possession of the grantor at the time of the grant is valid. "He that hath it (land) may grant all fruits that may arise upon it after, and the property shall pass as soon as the fruits are extant;" and

1 Bac. Max., reg. 14.

2 Judgment, 1 B. C. 386.

3 Tit. "Grants," s. 65. See, also, Vin. Abr. "Grants," (H. 6); Noy, Max., 9th ed. 162; Com. Dig. "Grant," (D.) 4 Perkins, tit. "Grants," s. 90. Touchstone, by Preston, 241.

5 Grantham v. Hawley, Hob. 132. See Shep.

6 Lunn v. Thornton, 1 C. B. 379; E. C. L. R. 50. See Tapfield v. Hillman, 6 Scott, N. R. 967.

7 Gale v. Burnell, 7 Q. B. 850; E. C. L. R. 53; affirming the principle laid down in Lunn v. Thornton, 1 C. B. 79; E. C. L. R. 50.

Grantham v. Hawley, Hobart, 132.