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LAW OF EVIDENCE.
AS ADMINISTERED IN ENGLANÐ AND IRELAND;
ILLUSTRATIONS FROM THE AMERICAN AND OTHER FOREIGN LAWS.
BY JOHN PITT TAYLOR, Esq.,
JUDOE OF THE COUNTY COURTS FOR LAMBETH, GREENWICH, AND WOOLWICH,
IN TWO VOLUMES.
Longum iter est per præcepta,
WILLIAM MAXWELL & SON, 29, FLEET STREET, E.C.
Law Booksellers and Publishers.
CONTINUATION OF PART II.
RULES GOVERNING THE PRODUCTION OF TESTIMONY.
MATTERS REQUIRING TO BE EVIDENCED BY WRITINGS. § 972. In the present chapter. will be considered briefly those § 892 matters, for the proof of which the law requires a written document more or less formally executed ; and, first, as to those transactions which, at common law, are required to be evidenced by deed. The most important of these relate to incorporeal rights ; and it is now clearly determined, that all such rights, whether they amount to an interest in land or not, lie in grant, and as such can neither be created, assigned, demised, or surrendered, except by decd. The term “ incorporeal rights" includes among other things, advowsons, ferries, rents, interests in lands not in possession, as remainders, or reversions for life or years, profits à prendre, easements, and the like; and the principle, which requires such rights to be evidenced by documents under seal, does not depend on the quality or amount of interest granted, transferred, or surrendered, but on the nature of the subject matter ; a right of common, for instance, which is a profit à prendre, or a right of way, which is an easement or right in nature of an easement, can no more be granted or conveyed for life or for years or even for days without a deed, than in fee-simple.
1 Wood v. Leadbitter, 13 M. & W. 842, 843; Hewlins v. Shippam, 5 B. & C. 229 ; Co. Lit. 337 b, 338 a ; 2 Shep. Touch. 300; 1 Wms. Saund. 236 a ; Lyons v. Reed, 13 M. & W. 303–305 ; Bird v. Higginson, 2 A. & E. 696; 6 A. & E. 824, S. C. ; Mayfield v. Robinson, 7 Q. B. 486 ; Roffey v. Henderson, 17 Q. B. 574.
Mayfield v. Robinson, 7 Q. B. 486. 3 Wood v. Leadbitter, 13 M. & W. 843, per Alderson, B. See Williams v. Morris, 8 M. & W. 488 ; Perry v. Fitzhowe, 8 Q. B. 757, 777, 778.
$ 973. So strictly has this rule been interpreted, that even a $892 ticket of admission to a theatre during a season, or to a grand-stand during the races, can afford no irrevocable title to the party purchasing it; but after notice of revocation, he can be removed by the owner of the premises, without assigning any reason, and without so much as returning the price of the ticket; and his only remedy, if any, is to bring an action, founded on a breach of contract, against the person who sold the ticket, or against those who authorised its sale. It further deserves notice, that, while a mere personal licence of pleasure, as the privilege of hunting, will be revocable, whether granted by parol, or under seal, the privileges of hunting, fishing, or shooting, if granted to a party and his assigns, and if coupled with a right of taking away the game when killed, will be profits à prendre, and as such may be, and can only be, irrevocably granted by deed.
§ 974. Although a parol demise of an incorporeal hereditament $ 893 passes no estate, it by no means follows, that the party who actually occupies and enjoys the thing so demised, is protected from all liability to pay for his occupation and enjoyment; and the better opinion is, that the grantor will still be entitled to recover from the grantee, in a count for use and occupation, such reasonable sum as the jury shall assess, for the actual enjoyment of the hereditament demised.
$ 975. With respect to the transfer of personal property the law $ 891 appears to be as follows :-a donatio mortis causâ, which, by the
i Wood v. Leadbitter, 13 M. & W. 838, 843—855 ; overruling Tayler t. Waters, 7 Taunt. 374 ; and explaining Webb v. Paternoster, Palm. 71 ; Roll. R. 143, 152; Noy, 98 ; Poph. 151, and Godb. 282, S. C.; Wood v. Lake, Say. 3 ; and Wood v. Manley, 11 A. & E. 34 ; 3 P. & 1). 5, S. C. See, also, Taplin v. Florence, 10 Com. B. 744.
2 Wood v. Leadbitter, 13 M. & W. 844, 845 ; Wickham v. Hawker, 7 M. & W. 79 ; Thomas v. Sorrell, Vaugh. 351.
3 Doe v. Lock, 2 A. & E. 705 ; Wickham v. Hawker, 7 M. & W. 63; recognised in Durham & Sunderl. Ry. Co. v. Walker, 2 Q. B. 967; Bird t. Higginson, 2 A. & E. 696 ; 6 A. & E. 824, S. C.; Barker . Davis, 34 L. J., M. C. 140.
4 Bird v. Higginson, 2 A. & E. 696 ; 6 A. & E. 824 ; 4 N. & M.506, S. C.; Thomas v. Fredericks, 10 Q. B. 775. See post, $$ 985-987, 1036, 1043.
CHAP, XVIII.) DONATIO MORTIS CAUSÂ—GIFTS—CONTRACTS BY CORP. 819
way, must be clearly proved to have been given in contemplation of death, passes no property to the donee without delivery ;8 and it is immaterial whether at the time of the gift the chattel be in the actual possession of the donor or of the donee. The gift of a chattel inter vivos is irrevocable, though made verbally or in writing without deed, if it be either accompanied by delivery of possession, or followed by some statement or act on the part of the donee testifying his acquiescence in the gift. A similar gift, if made by deed, is complete without any delivery by the donor or acceptance by the donee, until disclaimer by the latter ;7 but such disclaimer may be by paro). An assignment of chattels for a valuable consideration by way of mortgage will be binding upon the parties, though the instrument be not under seal, and though it be unaccompanied by any actual or symbolical delivery.
$ 976. Another class of transactions, which, at common law, are $ 895 in general required to be evidenced by deeds, consists of contracts made, and acts done, by corporations.10 The general rule of law, , that a corporation aggregate cannot express its will or do any act except under seal, may be traced to a remote antiquity, and is founded on the assumption, that the concurrence of the whole body corporate in any particular act, can best be authenticated by the
See M‘Gonnell v. Murphy, I. R., 3 Eq., 460.
Cosnahan v. Grice, 15 Moo. P. C. R. 215. * Smith v. Smith, 2 Str. 955 ; Bunn v. Markham, 2 Marsh. 532; 2 M. & Gr. 691, n. a ; Powell v. Hellicar, 26 Beav. 261; M'Gonnell v. Murphy, I. R., 3 Eq. 460. See Moore v. Moore, 43 L. J., Ch. 617; 18 Law Rep., Eq. 474, S. C.; Rolls v. Pearce, L. R., 5 Ch. D. 730.
+ Shower v. Pilck, 4 Ex. R. 478. s See Bourne v. Fosbrooke, 18 Com. B., N. S. 515.
si Com. B. 381, n. b, & 2 M. & Gr. 691, n, a; cited by Parke, B., in Flory v. Denny, 7 Ex. R. 583 ; questioning Irons v. Smallpiece, 2 B. & A. 551.
7 Id. ; Siggers v. Evans, 5 E. & B. 367. See Hobson v. Thellusson, 36 L. J.,
9 Flory v. Denny, 7 Ex. R. 581.