Mary, and from her to Queen Elizabeth, who were respectively of the half blood to each other. Nor did the rule apply to the estates tail.1

POSSESSIO FRATRIS DE FEODO SIMPLICI FACIT SOROREM ESSE

HÆREDEM.
(3 Rep. 41.)

The brother's possession of an estate in fee simple makes the sister to be heir.

One consequence of the rule, seisina facit stipitem, remains to be mentioned, and was, that, if a man, being seised of land, had issue a son and a daughter by one venter, and a younger son by another venter, and the father died, and then the elder son entered and died, the daughter would have inherited the land as heir to her brother, who was the person last actually seised.2

*In the above maxim, however, every word is to be observed.

First, the brother ought to be in actual possession of the fee [*405]

and freehold, either by his own act or by the actual possession of another; but, if, neither by his own act, nor by the possession of another, he gains more than descends to him, i. e., the right of entry, the brother of the half blood shall inherit; and, therefore, if land, rent, an advowson, &c., descended to the elder brother, and he died before any entry by him made into the land, or before he received the rent or presented to the church, the younger brother would have inherited, and not the sister of the whole blood; the reason being, that of all hereditaments in possession the party claiming as heir must have made himself heir to him who was last actually seised.*

In copyhold land, the rule was, that the possessio fratris depended on entry, and not on admittance. Thus, the heir of an admitted heir might enter and take the profits before admittance; and, where he entered and took actual possession, and died before admittance, there would, nevertheless, be a possessio fratris. If, therefore, a

12 Bla. Com. 233; Chit., Pre. Crown, 10; Litt. ss. 14, 15; 3 Cruise, Dig., 4th ed. 386. See, also, Hume's History of England, vol. 4, pp. 242, 265.

2 2 Bla. Com. 227; Noy, Max., 9th ed., p. 72. In Murray, app., Thorniley, resp., 2 C. B. 217, the Court held, by analogy to the rule as to possessio fratris, that the words "actual possession" in the stat. 2 Will. 4, c. 45, s. 26, mean a possession in fact, as contradistinguished from a possession in law.

3 See per Abbott, C. J., Bushby v. Dixon, 3 B. & C. 304; E. C. L. R. 10; Noy, Max., 9th ed., p. 73.

4 Ratcliff's case, 1 Rep. 41; 2 Bla. Com. 227, 228; Jenk. Cent. 242.

copyholder in fee had issue a son and a daughter by one venter, and a son by another venter, and died seised, and the son by the first venter entered into the land, and died before admittance, the daughter would have inherited as heir to her brother, and not the son by the second venter as heir to his father.1

The above rule, it must be further observed, although applicable to the case of one claiming as heir from an ancestor who himself took by descent, and died before actual *seisin, does not apply to [*406] the case of one claiming as heir-at-law of a devisee, that is, of a purchaser who died before actual seisin: therefore, where A., by his will, devised certain premises to the infant daughter of his sister in fee, and the infant devisee died before entry, and before obtaining any actual seisin or possession, it was held, that she had such a seisin in law of the premises devised as to enable her heir to take them from her by descent.2

Neither was the rule applicable to estates tail; and, therefore, if a man made a gift to one and the heirs of his body, and he had issue a son and a daughter by one venter, and a younger son by another venter, and the father died, and the elder son entered and died, the younger son would inherit, per formam doni, in preference to the sister of the whole blood, for he claimed as heir of the body of the donee, and not generally as heir to his brother of the half blood.3 The doctrine of possessio fratris, we may also observe, has been held not to affect the descent of a dignity by writ."

We have already seen," that, by the recent Inheritance Act, entry is no longer necessary in order to constitute a good ancestor; and, likewise, that a sister must now trace her descent through the father, and not directly from her brother of the whole blood; and, therefore, the rule of possessio fratris is, by the operation of that act, virtually abolished, and is inapplicable to any case which has occurred since the 1st of January, 1834.

1 1 Judgment, Doe d. Hamilton v. Clift, 12 Ad. & E. 572, 573; E. C. L. R. 40, and authorities cited in that case. See, also, the argument, Doe d. Parker v. Thomas, 4 Scott, N. R. 458.

2 Doe d. Parker v. Thomas, 4 Scott, N. R. 449.

3 Ratcliff's case, 3 Rep. 41; Doe d. Gregory v. Whichelo, 8 T. R. 211; Noy, Max. 9th ed., p. 73. See, also, the argument in Tolson, dem., Kaye, deft. 7 Scott, N. R. 236 et seq., where the authorities on the above point are cited and reviewed.

The Hastings Peerage case, 8 Cl. & Fin. 144.

5 Ante, p. 398.

*PERSONA CONJUNCTA ÆQUIPARATUR INTERESSE PROPRIO. [*407] (Bac. Max., reg. 18.)

The interest of a personal connexion is sometimes regarded in law as that of the individual himself.

In the words of the civil law, jura sanguinis nullo jure civili dirimi possunt,' the law, according to Lord Bacon, hath so much respect for nature and conjunction of blood, that, in divers cases, it compares and matches nearness of blood with consideration of profit and interest, and, in some cases, allows of it more strongly. Therefore, if a man covenant in consideration of blood to stand seised to the use of his brother or son, or near kinsman, an use is well raised by his covenant without transmutation of possession.2

"So, if a man menace me, that he will imprison or hurt in body my father or my child, except I make unto him an obligation, I shall avoid this duress as well as if the duress had been to mine own person; and yet, if a man menace me by the taking away or destruction of my goods, this is no good duress to plead, and the reason is, because the law can make me reparation of that loss, and so can it not of the other."3

The above maxim, as to persona conjuncta, is likewise, in some cases, applicable in determining the liability of an infant on contracts for what cannot strictly be considered as "necessaries" within the ordinary meaning of that term. Thus, as observed by Lord Bacon, "if a man, under the years of twenty-one, contract for the nursing of his lawful child, this contract is good, and shall not be avoided by infancy, no more than if he had contracted for his own *aliments or erudition." The like principle was, in a very recent [*408] case, extended so as to render an infant widow liable upon her contract for the funeral of her husband, who had left no property to be administered; for, as observed by Alderson, B., in delivering judgment in the case just referred to, the law permits an infant to make a valid contract of marriage, and all necessaries furnished to those with whom he becomes one person by or through the contract of marriage are, in point of law, necessaries to the infant himself. "Now, there are many authorities which lay it down, that decent Christian burial is a part of a man's own rights; and we think it is no great extension of the rule to say, that it may be classed as a 1 D. 50, 17, 8; Bac. Max. reg. 11. 2 Bac. Max. reg. 18.

3 Ib.

personal advantage, and reasonably necessary to him. His property, if he leaves any, is liable, to be appropriated by his administrator to the performance of this proper ceremonial. If, then, this be so, the decent Christian burial of his wife and lawful children, who are the persona conjuncta with him, is also a personal advantage, and reasonably necessary to him; and then the rule of law applies, that he may make a binding contract for it. This seems to us to be a proper and legitimate consequence from the proposition, that the law allows an infant to make a valid contract of marriage. If this be correct, then an infant husband or parent may contract for the burial of his wife or lawful children; and then the question arises, whether an infant widow is in a similar situation. It may be said that she is not, because, during the coverture, she is incapable of contracting, and, after the death of the husband, the relation of marriage has ceased. But we think this is not so. In the case of the husband, the contract will be made after the death of the wife or child, and so after the relation which gives validity to the contract is at an end, to some purposes. But if the husband can contract *for this, it is [*409] because a contract for the burial of those who are personæ conjuncta with him by reason of the marriage is as a contract for his own personal benefit; and, if that be so, we do not see why the contract for the burial of the husband should not be the same as a contract by the widow for her own personal benefit. Her coverture is at an end, and so she may contract; and her infancy is, for the above reasons, no defence, if the contract be for her personal benefit. may be observed, that, as the ground of our decision arises out of the infant's previous contract of marriage, it will not follow from it that an infant child or more distant relation would be responsible upon a contract for the burial of his parent or relative."1

The maxim under consideration does not, however, apply so as to render a parent liable on the contract of the infant child, even where such contract is for "necessaries," unless there be some evidence that the parent has either sanctioned or ratified the contract. If, says Lord Abinger, C. B.,2 a father does any specific act from which it may reasonably be inferred that he has authorized his son to contract a debt, he may be liable in respect of the debt so contracted; but the mere moral obligation of the father to maintain his child affords no inference of a legal promise to pay his debts. "In order

1 Chapple v. Cooper, 13 M. & W. 259, 260.

2 Mortimore v. Wright, 6 M. & W. 487.

to bind a father in point of law for a debt incurred by his son, you must prove that he has contracted to be bound, just in the same manner as you would prove such a contract against any other person; and it would bring the law into great uncertainty if it were permitted to juries to impose a liability in each particular case, according to their own feelings or prejudices." "It is," observed Parke, B. in the same case, "a clear principle of law, that a father is not under any legal obligation to pay his son's debts, except, [*410] indeed, by proceedings under the 43 Eliz.,1 by which he may, under certain circumstances, be compelled to support his children according to his ability; but the mere moral obligation to do so cannot impose upon him any legal liability."

Again, we read, "It hath been resolved by the justices that a wife cannot be produced either against or for her husband, quia sunt duæ animæ in carne una, and it might be a cause of implacable discord and dissension between the husband and the wife, and a mean of great inconvenience ;" and this rule is here adverted to, because it is founded partly on the identity of interest which subsists between husband and wife, though partly also on a principle of public policy, which deems it necessary to guard the security and confidence of private life, even at the risk of an occasional failure of justice.3

In the sense then so fully explained in the case of Chapple v. Cooper, above cited, but with the restrictions suggested in the remarks subjoined thereto, must be understood the maxim illustrated by Lord Bacon, and with which we propose here to conclude our list of rules relative to marriage and descent-persona conjuncta æquiparatur interesse proprio.

*CHAPTER VIII.

[*411]

THE INTERPRETATION OF DEEDS AND WRITTEN INSTRUMENTS.

I HAVE endeavoured, in the pages immediately following, to give a general view of such maxims as are of most practical utility, and are

1 See Grinnell v. Wells, 8 Scott, N. R. 741.

2 Co. Litt. 6, b.

3 See Hawksworth v. Showler, 12 M. & W. 45; Barker v. Dixie, Cas. temp. Hardw. 264; Reg. v. Tollett, Car. & M. 112. It is no defence in ejectment that the defendant is the wife of one of the lessors, of the plaintiff; Doe d. Daley v. Daley, 15 L. J., Q. B. 295.