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the American bar to the subject. We are too much in the habit of yielding implicit confidence to every statement found in English treatises of law, especially when prepared by men who, before or since their publication, have attained high professional fame. Mr. Sugden is the present Solicitor General of England. I send you therefore my manuscript remarks for publication, if you shall deem them sufficiently important to merit a place in your valuable magazine. With a view of preventing any mistakes I beg you to transcribe the original text of Mr. Sugden, so that my comments may be more easily understood. The text extends from the 2481h to the 254th page of the first edition, and from the 316th to the 322d

page of the third London and American edition, and from the 319th page to the 325th page of the fourth London edition. May, 1830.

J. S. MR. SUGDEN'S TEXT. It is generally thought that the reservation of a power of revocation only will not enable the donee to revoke the old uses, and also to appoint new ones.(a) Mr. Powell in one place states clearly that in such case new uses may be declared, (6) whilst in a subsequent page he enters into a long discussion to prove the contrary.(c)

'Becket's case, which is the first in the books apparently on this subject, is thus stated in Lane:(d)(I) “R. B., seized of lands in fee, levies a fine, &c. and declares the use to be to himself for life, and after to T. B. with power of revocation, and to limit new uses; and if he revoke, and not declare, then the use shall be to the use of himself for life, and after to Henry Becket, (and then, by a subsequent deed, R. B. revoked the first deed, and limited new uses), with power in that indenture also to revoke and limit new uses, and that then the fine shall be to such new uses, and no other; and after, by a third indenture, he revoked the second indenture, and declared the use of the fine to be to the use of himself for life, and after to Henry Becket in tail, the remainder to T. B.” The question was, whether the third indenture was a good revocation and limitation. It is evident that there is a chasm in the statement of the facts : I have attempted

(a) 2 Vol. Cas. & Opin. p. 97; 2 Trea. Eq. p. 163, 2d Edit. Fonblanq. n. ibid. and 4 Cruise's Dig. 232, s. 18.

(b) Pow. Powers, 244.
(C) Ib. 272
(d) Lane, 118; see ib. 91.

(I) Mr. Powell does not refer Becket's case to the true ground of the decision. In stating Baron Snig's argument, he omits the only part of it from which that Judge's opinion can be collected.

to fill it up with the words between crotchets. It appears clearly, from the judgment of the court, that there was a second indenture executed, which also contained a power of revocation and limitation of new uses. Bromley and Altham, Barons, thought that the new uses were well raised by the third indenture, and they relied on Digges's case. Snig, Baron, held the contrary, as the first deed ought to authorize all the declarations on the fine; and he said, “ that such an indenture to declare uses upon uses was never made, and it would be mischievous to declare infinite uses upon uses. And Tapfield agreed with Snig, but on a different ground; he appears to have thought that the power to limit new uses was not well pursued, as he had declared, but not limited new uses. It seems quite clear, that the point under consideration did not arise in this case, for the power in the second indenture actually authorized a new limitation of uses; the question simply was, whether such powers could be reserved from time to time.(I) This is proved by Rolle's report of the same case, which is in these words: “If a man suffer a recovery, and limit the uses by indenture, with a power of revocation and limitation of new uses, and afterwards by another indenture he revokes and limits new uses, with like power of revocation and limitation of new uses, this second power of revocation and new limitation of uses is good, for all arise out of the recovery, which is the foundation. Becket's case, per curiam præter Snig:"(a) If further evidence were wanting, it is abundantly supplied by Lord Chief Justice Hale's argument in the case of Fowler and North. (b) therefore dismiss Becket's case from our consideration ; it does not affect the question before us, and the point which was then doubted is now perfectly established.

"The first case that appears to be in point is Ward and Lenthal :(c) A man levied a fine, with a power of revocation and limitation of new uses, and by a second deed he revoked the uses, and made new limitations, with a power only to revoke; and by a third indenture he revoked the uses of the second indenture, and limited new ones. It became unnecessary to decide the point; but the court is reported to have resolved, that where powers of revocation and new appointment are given, the donee may revoke and limit new uses toties quoties, and all the estates shall be raised out of the first seizin. But if in any indenture he reserve a power of revocation, and do not reserve a power ex

We may

(I) In the judgment in Hele v, Bond, supra, p. 313, which I have lately obtained, the doubt is stated to have been, whether such new power could be reserved in the second deed unless specially reserved in the first deed. [Added in 2d Ed.] (a) 2 Ro. Abr. 262, (B) pl. 2.

(b) 3 Keb. 7. (c) 19 Car. 2, 1 Sid. 343.

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pressly to limit new uses, he can only revoke, and cannot limit new uses by virtue of the estate first raised.

Now in this case we observe the resolution merely was, that where a deed is executed under a power of revocation, reserved upon the execution of a former power, no uses can be limited out of the old seizin, unless the deed creating such power of revocation also contain an express authority to limit new uses. This seems to depend upon the ground of the decision in Hele and Bond. But it is observable, that it is no where said that a power of revocation in the original settlement is not tantamount to a power of revocation and limitation of new uses.

In the case of Smith and Wheeler, (a) Twisden, Justice, said, that whoever hath a power of revocation, hath a power of limitation. In the case of Fowler and North, (b) no decision was made; but Hale, Chief Justice, laid it down that a power of appointment might with a power of revocation be executed toties quoties; and he said it was resolved before, upon as great a settlement as any subject in England had, without any power to limit new uses. (1) Agreeably to this was my Lord Nottingham's judgment, when Lord Keeper, (c) that a power of revocation in an original settlement enabled the donee not only to revoke the old uses, but to limit new ones; and on a subsequent hearing he declared himself clearly of the same opinion. (d)

• It remains to state an anonymous case in Strange. The case was this : A suffered a recovery to the use of himself for life, rer nder to three persons successively in tail, remainder to himself in fee, with power to revoke the three remainders in tail; he accordingly revoked them, and by the same deed declared new uses in favor of the plaintiffs, without any words of conveyance, covenant to stand seized, or consideration expressed. The court held, that the uses were not well raised, because the uses of the recovery were full before, and the power was only to revoke, and not to limit new uses. (e)

This case does not appear to be in opposition to the decision of Lord Nottingham. It seems from the report, that A limited new uses out of the fee-simple generally, and certainly it cannot be contended that he could affect his life-estate or reversion without an express power, for the power of revocation did not extend to those estates, but only to the remainder in tail. The question there must have been, not whether a power of revocation (a) 22 Car. 2, 1 Mod. 39, 40.

(b) 24 Car. 2, 3 Keb. 7. (c) 26 Car. 2, Anon. 1 Cha. Ca 241. (d) See Colston v. Gardner, 2 Cha. Ca. 46. (e) Anonymous, 1 Str. 584.

(I) The same case is reported in 1 Ventr. 197, nom. Sir Samuel Jones v. The Countess of Manchester. Ventris appears to have mistaken the arguments at the bar for the resolutions of the court, as will appear upon an attentive perusal of the reports.

implied a power to limit new uses, but whether a power of revocation itself could be implied as to part of the estate in the land, to which it did not expressly relate. Besides, as he reserved a partial power of revocation, and would after the revocation become seized of the entire fee-simple, and part of the fee could not be affected by a bare appointment, an intention appeared to reserve a power of revocation only, and not a power to limit new uses, which would not have answered the purposes of the settlement. This case is very distinguishable from a general power of revocation, extending to all the limitations in the settlement.

And here we must be careful to distinguish the case of Atwaters and Birt. (a) There it was declared, that upon

the revocation the uses should cease, and the estate should remain to the use of the settler and his heirs; and it was held, that after revocation he could not limit new uses out of the old seizin, as no one was seized to his use, and therefore no use could arise. No one can doubt the propriety of this determination : by the very terms of the settlement the seisin was exhausted in serving the use in fee, limited to the settler, and consequently no use could be raised, except by an original conveyance. Whenever, therefore, it is declared, that upon the revocation the estate shall remain to the settler in fee, it cannot be contended that he has a power to limit new uses.

"The result of the authorities appears to be,

'1st. That in a deed executing a power, a power of revocation and new appointment may be reserved, although not expressly authorized by the deed creating the power.(b) And that such powers may be reserved toties quoties.(c)

(2d. That where an appointment under a power is made by deed, it cannot be revoked unless an express power be reserved in the deed by which the power is executed : a revocation will not be authorized by a general prospective power in the deed creating the first power. (d)

(3d. That although in the original settlement a power of revocation only be reserved, yet a power to limit new uses is implied, and may be executed accordingly,(e) unless a contrary intention can be collected from the whole settlement, (f) or the estate is expressly limited to other uses. (9) But,

4th. That every power reserved in a deed executing a power

(a) Cro. Eliz. 856. (b) Adams v. Adams, Cowp. 651; see Digges's case, 1 Rep. 173, b. (c) Becket's case, Lane, 118; Hele and Bond, Pre. Cha. 474; App. No. 3; 2 Digges's case,

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sup. (d) Hele and Bond, Prec. Cha. 474.

(e) Fowler v. North, 3 Keb. 7; Anon. 1 Cha. Ca. 242; Colston v. Gardner, 2 Cha. Ca. 46. (f ) Anon. Str. 584.

(g) Atwaters v. Birt, Cro. Eliz. 85.

will be strictly construed, and therefore a mere power of revocation in such a deed will not authorize a limitation of new uses.'(a)

REMARKS.

The following is a literal transcript of Becket's case, as it stands in Lane's Reports, 118.

'R. B. seized of lands in fee, 36 Eliz. levies a fine, &c. and declares the use to be to himself for life, and after to T. B. with power of revocation and to limit new uses, and if he revoke and not declare, then the use shall be to himself for life and after to Henry Becket, and then by a subsequent deed R. B. revoked the first deed and limited new uses. (b)] with power in that indenture also to revoke and limit new uses, and that then the fine shall be to such new uses and no other; and afterwards, 42 Eliz. by a third indenture he revoked the second indenture, and declared the use of the fine to be to the use of himself for life and afterwards to Henry Becket in tail, the remainder to J. B. [T. B.?] R. B. dies and T. B. his brother and heir is found a recusant, and the lands seized; and thereupon comes H. B. and shows the matter as above; and upon that the king's attorney demandeth. BROMLEY and ALTHAM, Barons. That the declaration of the uses made by the third indenture was good, and he having a power by the first to declare new uses, may declare them with power of revocation; for it is not merely a power, but conjoined with an interest, and therefore may be executed with a power of revocation. And then when he by the third indenture revokes the former uses, now it is as if new [no?] uses had been declared; and then he may declare uses at any time after the fine, as it appears by 4 Mar. Dyer. 136, and Coke Lit. 9, Drunsam's case. And in this case they did rely upon Digges's case, Coke Lit. 1 [p. 173] where it is said that upon such a power he can revoke but once for that part, unless he had a new power of revocation of uses merely to be limited; whereby it is implied that if he had a new power to appoint new uses, he may revoke them also. SNIG, Baron, to the contrary; and said that he had not power to declare three several uses by the first contract [indenture] which ought to authorize all the declarations upon that fine. And then the revocation by the third indenture is good, and the limitation void; and then it shall be to the use of R. B. and his heirs. And so by the death of R. B. it doth descend to T. B. the recusant. And also he said that such an indenture to declare uses upon uses was never made; and it would be mischievous to declare infinite uses upon uses.

TANFIELD, Baron,

(a) Ward v. Lenthal, 1 Sid. 343.

(b) These words are added by Mr. Sugden, and are indispensable to a right understanding of the case.

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