to take the said, &c." 3. Freedom from incumbrances. 4. For further assurance.] And each of them the said (purchaser and vendor), for himself and his heirs, doth hereby covenant with the other of them, his heirs and assigns, that while the said hereditaments hereby granted shall be rated as a part of the said rectory to any parliamentary or parochial assessment, then during the continuance of such assessment, and towards the same, the said (purchaser), his heirs and assigns, shall contribute to the said (vendor), his heirs or assigns, such part of the said assessments as shall be after the rate of and in proportion to part of the present assessment, which are £ per annum to the land tax, £ towards the poor rate, and £ towards the church rate; but that either party, his heirs or assigns, shall be at liberty to acquire a separate assessment of his respective property.

IN WITNESS, &c. (6)

(6) [The law of tithes is rapidly becoming obsolete in the generality of those cases in which it was formerly of the greatest importance. The Act for the Commutation of Tithes (6 & 7 W. 4, c. 71), with the assistance of divers supplementary Acts, passed in almost every subsequent session of Parliament, has supplanted the ancient tithes by a rent-charge, settled in the first instance by the award of commissioners, and regulated afterwards according to the average yearly price of the principal tithable grains. The conveyance of such tithe rents-charge, when in the hands of parties entitled to alienate them, will not differ from the assurance by which an ordinary rent-charge is departed with.]

CHAPTER III.

APPOINTMENTS.

IN the observations we have had occasion to make on the nature of Powers, much has necessarily been said, which might, perhaps, be more peculiarly applicable to Appointments; the power, and the appointment in exercise of it, possessing in truth the close connection of cause and effect.

The few remarks which it will be proper to make on this assurance, will be introduced in the annotations on it; and as a brief but able explanation of its abstract nature has been given by a contemporary writer, (2 Sand. U.,) the author will refer his readers to it, taking the liberty, however, of dissenting from some of its propositions. That gentleman observes, (p. 71,) that "the difference between an appointment and a declaration of use consists in the latter being an original disposition of the use by the express consent of the parties, which prevents it from following any implied designation which the rules of law might otherwise prescribe, and the former being a limitation of the use by a separate instrument, derived from and conformable to a power reserved or contained in the original conveyance, by which the seisin to serve the uses is transferred; whence it necessarily alters, abridges, or suspends the use previously declared upon such original conveyance." But this mode of distinguishing them is conceived to be objectionable. An appointment undoubtedly is a declaration of use; being to a common declaration, as the species to the genus. It is, therefore, a declaration of use possessed of certain specific qualities; the principal of which, viz. its power of barring dower (5 B. & Ald. 561) or curtesy-of raising a use which may operate as a remainder expectant on a particular estate, created by the instrument containing the power, (see Cornish on Remainders, p. 45,) notwithstanding the

rule that the particular estate and remainder must be limited simultaneously, (1 Inst. 49 a)-its important effect of admitting in a similar manner the rule in Shelley's case (Fearne, 74, 75), notwithstanding that rule requires the limitations of the freehold and inheritance to be in the same deed or will, (Doug. 470)—will be found to emanate from its retrospection to and legal combination with the conveyance creating the power. (7 T. R. 347.) Again, a declaration of use is not necessarily an original disposition of the use, preventing it from following any implied designation which the law might otherwise prescribe; as this definition is evidently inapplicable to declarations subsequent, and an appointment does not necessarily alter, abridge, or suspend, the use previously declared upon the original conveyance. If there be a conveyance to the use of B. for life, remainder to such uses as he shall appoint, without any ulterior declaration of the use in default of appointment, the inheritance results; and when the appointment is made, the implied designation of the rules of law is prevented precisely to this purpose, the same as in the case of a declaration subsequent, and here consequently the limitation in the appointment does not alter, suspend, or abridge any use previously declared.

It will not be necessary to present the reader with a simple appointment in its separate state; first, because it is rarely alone the medium of conveyance; secondly, because it may be easily abstracted from the accompanying conveyance.

[Appointments as a medium of conveyance are gradually becoming rare, and will, it is considered, ultimately be confined to cases where the party appointing is the donee of a power without any estate in default. The causes which lead to their infrequency are the wearing out of conveyances to dower uses by the deaths of vendors married before 1834, and the deprivation of an important advantage, which formerly was the consequence of an appointment, viz. the overreaching judgments against the vendor. This latter advantage was attributed to appointments, by rigidly following out the principle, that on the execution of a power the appointee is in as to the estate, from the date of the deed creating the power, just as if the limitation to him had been inserted in that deed, instead

of the mere power to appoint; consequently the appointee's estate is prior to the appointor's, and cannot be affected by any judgments against them. This was established by the case of Doe v. Jones, (10 B. & C. 459). Lands were limited to such uses as A. should appoint, and in default of appointment to A., his heirs and assigns. Judgment was then duly entered up against A., who subsequently appointed the lands to B. for a term of 500 years, and the judgment creditor having sued out execution, the question was whether the lands vested in B. could be taken, and it was decided that they could not, for the reason before stated. This decision received the sanction of equity in the case of Skeeles v. Shearley, (8 Sim. 153. 3 M. & C. 112,) where a mortgagee, who took under a general power of appointment from a mortgagor who had also the fee, was held not to be affected by a judgment prior to the mortgage, of which the mortgagee had notice.]

[The advantage thus derived from a conveyance by appointment, standing as it did upon a technical rule, and unsupported by principles of justice, was destroyed by 1 & 2 Vict. c. 110, (Abolition of Arrest Act,) which, by sect. 11, enacted that the sheriff, upon any writ of elegit upon any judgment of the superior courts, should make and deliver execution of all such lands, tenements, rectories, tithes, rents and hereditaments, including lands and hereditaments of copyhold or customary tenure, as the judgment debtor, or any person in trust for him, shall have been seised or possessed of at the time of entering up such judgment, or at any time afterwards, or over which such person shall at the time of entering up such judgment, or at any time afterwards, have any disposing power which he might, without the assent of any other person, exercise for his own benefit, in like manner as the sheriff might then make and deliver execution of one moiety of the lands and tenements of any person against whom a writ of elegit is sued out. And by sect. 13, a judgment shall operate as a charge upon all lands, &c., (including those of copyhold or customary tenure,) of or to which such person shall at the time of entering up such judgment, or at any time afterwards, be seised, possessed, or entitled, for any estate or interest whatever at law or in equity,

whether in possession, reversion, remainder or expectancy, or over which such person shall at the time of entering up such judgment, or at any time afterwards, have any disposing power which he might, without the assent of any other person, exercise for his own benefit, and shall be binding as against the person against whom the judgment shall be so entered up, and against all persons claiming under him after such judgment, and shall also be binding as against the issue of his body, and all other persons whom he might, without the assent of any other person, cut off and debar from any remainder, reversion, or other interest, in or out of any of the said lands, &c.; and that every judgment creditor shall have such and the same remedies in a court of equity against the hereditaments so charged by virtue of this Act, as he would be entitled to in case the person against whom such judgment shall have been so entered up had power to charge (a) the same hereditaments, and had by writing under his hand agreed to charge the same with the amount of such judgment debt and interest thereon, provided that no judgment creditor shall be entitled to proceed in equity to obtain the benefit of such charge, until after the expiration of one year from entering up such judgment; provided also, that nothing therein contained shall be deemed or taken to alter or affect any doctrine of equity whereby protection is given to purchasers for valuable consideration without notice.]

[These enactments, it will be perceived, entirely deprive a purchaser from an owner of land, who has a power to appoint, of any advantage by an exercise of the appointment. The Act only professes to fasten on the lands of those persons who can, "without the assent of any other person," make a beneficial disposition of them. It does not, therefore, primâ facie embrace the case of a limitation to such uses as the vendor and A. shall appoint, with the fee to the vendor alone in default; on such a case occurring, vol. 22, Law Mag. 354, may be usefully consulted for arguments to bring the lands within the statute.]

(a) [See as to a judgment affecting a living which an incumbent cannot charge, Hawkins v. Gathercole, 14 Jur. 1103. This decision has, however, been reversed on appeal, Feb., 1855.]