and that the powers conferred on the court shall only be exercised in cases where it deems such a course "proper "and consistent with due regard to the interests of all "parties entitled under the settlement" (g); and shall not "be exercised in any case where an express declaration "or manifest intention that they shall not be exercised "is contained in the settlement, or may reasonably be "inferred therefrom, or from extrinsic circumstances or "evidence" (h).

In connection also with the second branch of the subject that has been under discussion, viz. the capacity of alienees, it may be fit to remark, that no person can be compelled to take an estate against his will. If land, therefore, be conveyed in invitum, (as not unfrequently happens, where it is given by will, upon trust, without having obtained the consent of the proposed trustee to his nomination,) the effect of the conveyance may always be avoided, by the execution of a deed of disclaimer on the part of the dissentient alienee (i).

II. [We are next, but principally, to inquire how a man may aliene or convey; which will lead us to consider the several modes of conveyance.

A translation or transfer of property being once admitted by law, it became necessary that this transfer should be properly evidenced: in order to prevent disputes, either about the fact, as whether there was any transfer at all; or

[concerning the persons by whom and to whom it was transferred; or with regard to the subject matter, as what the thing transferred consisted of; or, lastly, with relation to the mode and quality of the transfer, as for what period of time (or, in other words, for what estate and interest) the conveyance was made. The legal evidences of this translation of property, are called the common assurances of the kingdom; whereby every man's estate is assured to him, and all controversies, doubts, and difficulties are either prevented or removed.]

These common assurances or conveyances (as they are otherwise termed) will be examined in their order; but because most of them are usually transacted by the means of that particular kind of instrument called a deed, we purpose to consider the nature of deeds separately, and in the first instance, before we enter upon the different kinds of conveyance.

CHAPTER XVI.

OF DEEDS.

[IN treating of deeds we shall consider, first, what a deed is; secondly, its requisites; thirdly, how it may be avoided;] and lastly, the general rules which the law has laid down for its construction.

I. [First, then, a deed is a writing sealed and delivered by the parties (a),] and used in a great variety of different transactions; among which, one of the most important is the alienation of real estates. Indeed, by 8 & 9 Vict. c. 106, s. 3, it is expressly provided, that certain conveyances in the Act specified, made after the 1st October, 1845, shall be void at law, unless made in that method (b). Such writing under seal and delivered [is sometimes called a charter, carta, from its materials (c); but most usually, when applied to the transactions of private subjects, it is called "a deed,” (in Latin, factum, xar' oxv,) because it is the most solemn and authentic act that a man can possibly perform, with relation to the disposal of his property; and therefore a man shall always be estopped by his own deed,]

(a) Co. Litt. 171 a. A contract by writing, not sealed and delivered, is called a simple or parol contract; vide post, bk. 11. pt. 11. c. v.

(b) The conveyances mentioned in 8 & 9 Vict. c. 106, are a "feoffment" (other than a feoffment made under custom by an infant); a "partition" or an "exchange " of hereditaments, not being copyhold; a "lease," required by law to be in

writing, of any hereditaments; an "assignment" of a chattel interest, not being copyhold, in any hereditaments; and a "surrender" in writing of an interest in any hereditaments, not being a copyhold interest, and not being an interest which might by law have been created without writing.

(c) Co. Litt. by Harg. 9 b, n. (1.)

that is, shall not be [permitted to aver or prove any thing in contradiction to what he has once so solemnly and deliberately avowed (d).] And for the same reason, when an engagement has been made by way of simple contract (that is, without deed), and afterwards the very same engagement is made between the same parties by deed, the first contract is merged in the second (e); to which may be added this further rule, that a contract by deed is not capable of being contradicted or explained by any other contract or declaration between the same parties, which is not itself also under seal (f). [If a deed be made by more parties than one, there ought to be regularly as many copies of it as there are parties;] and the deed so made is called an indenture, because each part used formerly to be cut or indented in acute angles (instar dentium, or like the teeth of a saw) on the top, or side, to tally or correspond with the other (g). Formerly too, [when deeds were more concise than at present, it was usual to write both parts on the same piece of parchment, with some word or letters of the alphabet written between

:

(d) We may here remark, that there are other species of estoppel besides the estoppel by deed mentioned in the text, viz. estoppel by record, and estoppel by matter in pais. The first obtains in the case where any fact is alleged in a court of record, or any judgment given therein the second, where an act is done out of court. By such matter of record, persons who were parties to the suit-and by such matter in pais persons who were parties to the act in question-are in general precluded from afterwards alleging matters which would be contradictory to what the record or act imports. For further information as to estoppel, and the different species thereof, see Plowd. 434; Co. Litt. 260,

352 a; 1 Saund. by Wms. 325 a, n. (4) and (c); 2 Saund. by Wms. 148; Smith's Leading Cases, vol. ii. pp. 436, 460. See also Hill v. Manchester Company, 2 Barn. & Adol. 544; Carter v. James, 13 M. & W. 137; Lyon v. Read, ibid. 285; Downs v. Cooper, 2 Q. B. 256 ; R. v. Leominster, 5 Q. B. 640; Pargeter v. Harris, 7 Q. B. 708; Dawson v. Gregory, ibid. 756.

(e) See Bayley on Bills, 334; Price v. Moulton, 10 C. B. 561.

(f) Gwynne v. Davy, 1 Man. & G. 857.

(g) See Co. Litt. 47 b; Litt. s. 371. The history of the practice of indenting, is given in Co. Litt. by Butl. 229 a, n. (1).

[them; through which the parchment was cut, either in a straight or indented line, in such a manner as to leave half the word on one part and half on the other. Deeds thus made were denominated syngrapha by the canonists (h); and with us chirographa, or hand-writings (i); the word cirographum or cyrographum, being usually that which was divided in making the indenture:] and in the indentures of a fine, this custom continued to be observed until the recent abolition of that species of conveyance. But for a long time past the practice of cutting through any letters has, in all other instances, been disused; and even that of indenting saw-wise: the modern method being to cut the top of the parchment in a waving line. Neither this, however, nor any other method of indenting, is necessary to the legal validity of the instrument (k). [When the several parts of an indenture are interchangeably executed by the several parties, that part or copy which is executed by the grantor is usually called the original, and the rest are counterparts; though of late it is most frequent for all the parties to execute every part; which renders them all originals. A deed made by one party, only, is not indented, but polled or shaved quite even; and is therefore called a deed-poll, or a single deed (7).

II. We are, in the next place, to consider the requisites of a deed. The first of which is, that there be persons able to contract and be contracted with, for the purposes intended by the deed; and also a thing, or subject-matter,

(h) Lyndew. 1. 1, t. 10, c. 1. (i) Mirrour, c. 2, s. 27 ; Co. Litt. by Harg. 143 b, n. (4).

(k) In certain cases a deed indented is made by statute essential to the validity of the transaction. (Co. Litt. by Butl. 229 a, n. (2).) And in such cases it was, till lately, necessary that the deed should have

been actually indented; but by 8 & 9 Vict. c. 106, s. 5, a deed, purporting to be an indenture, is to have the effect of an indenture though not actually indented. Et vide sup. p. 466, n. (x).

(1) Mirrour, c. 2, s. 27; Litt. s. 371, 372; Gardner v. Lachlan, 8 Sim. 123.