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Common Pleas held, that an assignée of an existing rent-charge did not acquire actual possession of it before he received payment. In Heelis's case, Mr. Joshua Williams, for the appellant, contended, that as the rent-charge was limited to his use, the Statute of Uses, 27 Hen. 8, c. 10, s. 1, gave him " the lawful seisin, estate, and possession of and in the same" rent; and he cited many authorities to shew that the statute passes the actual possession; among them, an anonymous case in Cro. Eliz. 46, or rather a note of the reporter, “that cestui que use at this day is immediately and actually seised and in possession of the land, so that he may have an assize or trespass before entry against any stranger who enters without title, and this by the words of the statute; and this was the opinion of divers justices." On the strength of these authorities, the Court decided in favour of the claim. "At common law," said Erle, C. J., "there would have been no actual possession till July; and there are two authorities for this. But this was not a conveyance at common law, but under the Statute of Uses. The stat. 27 Hen. 8, c. 10, s. 1, gives the cestui que use possession immediately on the execution of the deed creating the use. Now, the stat. 2 Will. 4, c. 45, by sect. 26, requires the claimant to be in actual possession. I think, however, that the Legislature intended the same meaning to the word 'possession' in the stat. Hen. 8, as it did to the words actual possession' in the 26th section of the Reform Act. Of course, any illusory act would have no operation, such as the payment of a penny for rent." [Why not? Such a payment would give the actual seisin of the rent at common law, and could not be more illusory than the merely technical juggle of limiting a use.] "The word 'possession' has always had a technical and perfectly well understood meaning among conveyancers; and we have the highest authority for giving great weight to the practice of conveyancers." According to the report in the Weekly Reporter, the Chief Justice remarked, that the mantle of some of the old conveyancers had descended on Mr. Williams, and the Court had had the benefit of it in the argument—a well-merited compliment—which, however, would have been more valuable if the Court had shewn a better appreciation of the learned conveyancer's argument, by exposing the fallacy that lurked in it. Mr. Williams made the best of a bad case, and obtained a judgment in his favour, but the decision was plainly erroneous. The conveyance in question was not a conveyance operating under the Statute of Uses, but a grant at common law, passing a legal seisin or title, but insufficient to pass the actual seisin or possession of the rent, which could only be obtained by the receipt of the rent, or of something in lieu of it. The words of the 1st section of the Statute of Uses are, that the person who has the "use, shall from thenceforth stand and be seised, deemed, and adjudged in lawful seisin, estate, and possession of and in the same honours, castles, manors, lands, rents, service, remainders, and hereditaments, with their appoint ONE of the main evils of profuse reporting is the encouragement it affords to the arguing and deciding of cases by reference to authorities supposed to be in point, rather than by the light of established general principles. For illustration, we may refer to the case of Heelis, App., Blain, Resp., decided by the Court of Common Pleas (Erle, C. J., and Keating, J.) in November, 1864 (11 Jur., N. S., part 1, p. 18; 13 Weekly Rep. 262). The question arose upon a case stated by a revising barrister, by which it appeared that the appellant claimed to vote under the Reform Act, 2 Will. 4, c. 45, s. 26, as having been in "the actual possession" of a share of a certain rent-charge of 501. for six calendar months previous to the 31st July, 1864. The rent-charge was originally created by a deed of the 10th June, 1839, and made payable at Midsummer and Christmas, and had been paid half-yearly since that time. By indenture, dated the 29th January, 1864, Stephen Heelis, in whom the rent-charge was vested, granted it to John Heelis and his heirs, to the use of the five sons of the said Stephen Heelis, their heirs and assigns for ever, as tenants in common. The first half-yearly payment which fell due after the transfer, was paid in July, 1864. It was objected, that the appellant, who was one of the five cestuis que use, did not obtain actual possession of his share until the payment in July; and the case of Murray and Another, Apps., Thorniley, Resp. (2 C. B. 217; 10 Jur. 270) was relied on. In that case, a claim to be registered in respect of the possession of a rentcharge for six months previous to the last day of July, 1845, was rested on a deed dated the 25th January, 1845, whereby a rent charge of 61. 3s. (not previously existing) was granted to the appellants and their heirs, to be paid on the 1st January in every year, the first payment to be made on the 1st January then next ensuing. The argument against the qualification proceeded on the well-known rule, that there is no actual seisin of a rent-charge at the common law until the owner has received some payment on account of the rent; and this, whether he claims under a grant or devise of a rent newly created, or a grant or devise of a rent previously existing. The Court held, that the words "actual possession," in the Reform Act, meant "a possession in fact, as contradistinguished from a possession in law; and that, as the possession in fact of a rent-charge must be the actual manual receipt of the rent itself, or some part of it, or of something in lieu of it, so there could be no such possession in fact in that case, where the first payment of the rent did not become due until after the expiration of the month of July, and where nothing whatever took place but the mere execution of the deed;" and they referred to the authorities collected in Com. Dig., tit. "Seisin,” (C.) and (D.), establishing the distinction between a seisin in law and a seisin in fact of a rent-charge. In Hayden, App., Overseers of Twerton, Resp. (4 C. B. 1), the Court of เ * Smith v. Jersey (2 Br. & B. 599). ments, to all intents, constructions, and purposes in the law, of and in such like estates as they had or shall have in use, trust, or confidence of or in the same, and that the estate, title, right, and possession that was in such person or persons that were or hereafter shall be seised of any lands, tenements, or hereditaments, to the use, confidence, or trust of any such person or persons, or of any body politic, be from thenceforth clearly deemed and adjudged to be in him or them that have, or hereafter shall have, such use, confidence, or trust after such quality, manner, form, and condition as they had before in or to the use, confidence, or trust that was in them." Nothing can be plainer from these words, than that the estate and possession which are transferred to the cestui que use are the estate and possession, or part of the estate and possession, which are in the grantee to use, and cannot exceed or be more absolute or consummate than such estate 28 A further moral to be deduced from the case is, that the old learning as to seisin and possession and uses, having done its work, is now obsolete, and should be abolished, as fines and recoveries have been abolished; provided that the task be undertaken by some one fully enveloped in the mantle of the late Mr. Brodie. It is the fashion to abuse the practice of conveyancing as being founded on the abstruse learning of uses. Theoretically, that is so, although the practice at the present day is simple enough, and none of the evils that the laity are taught to charge on the Statute of Uses are fairly attributable to it. But still the old learning crops up occasionally, and never to any good purpose. Review. The Notanda Digest, with Synoptical Index of the Decicisions in Law, Equity, Bankruptcy, Admiralty, Divorce, and Probate Cases. By TENISON EDWARDS, Esq. of the Inner Temple, Barrister-at-Law. From December, 1862, to December, 1864. 8vo., pp. 151. [Day.] and possession. "The matter and substance of the estate of cestui que use is the estate of the feoffee, and more he cannot have." (Bac. Uses, 47). "If the conusee of a fine, before any attornment, by deed indented and inrolled, bargaineth and selleth the signiorie to another, the bargainee shall not distrain, be- Ir is now nearly two years since Mr. Edwards comcause the bargainor could not distrain, et sic de simi- menced the publication of his very useful Notanda. libus, for nemo potest plus juris ad alium transferre Great praise is due to him for his enterprise in the quàm ipsi habet." (Co. Litt. 309. b.) Sir Moyle commencement of an undertaking which, we believe, Finch's case (6 Rep. 68 a.) was not cited by Mr. Wil- for a long time attracted little notice from the Profession, and for the perseverance and industry with liams, although, as far as it goes, it is an authority in which he has carried it on, until (as we must infer from his favour. There it was held, that a fine levied by a its continuance to the present time) it has become a reversioner to the use of another than the conusee, successful speculation. For the sake of those who passed the estate so completely that cestui que use are still unacquainted with the work, we may reprint the author's explanation of his original plan:might avow for the rent, or have an action for waste, "The question is: How can the practitioner with without any attornment, because the Statute of Uses the greatest facility make himself acquainted with the passed the seisin immediately, and made it impossible latest decisions upon any given subject? And my that the conusee should have a quid juris clamat, &c. reply is: By looking, not through a dozen annual diBut the reasons, such as they were, on which that gests, but by looking to the standard text-books, such conclusion was founded, were held to be inapplicable as Sugden's Vendors and Purchasers, Williams on Exeto a conveyance by deed; so that a grant of a rever-sition with the topics treated of, and on the very page cutors, Jarman on Wills, &c.; and there, in juxtaposion to uses was imperfect without attornment, and where the author in his next edition would introduce was capable of being perfected by attornment to the modern decisions, to find clear and intelligible cestui que use. (Harwell v. Lucas, Moore, 99 a). See notes of such decisions as have been come to upon the Dixon v. Harrison, Vaugh. 51; and the conclusion of particular topic since the edition of the work. Or, if the judgment in Long v. Buckeridge (1 Str. 112). to turn to the section of that statute, and there to the question turn upon the construction of a statute, However it might have been in the case of a fine or a find like clear and intelligible notes of the decisions recovery, it is clear, equally on principle and on au- upon that particular section. I have explained my thority, that in that of a mere grant to uses the plan in answering the above question, and I have no actual seisin or possession does not pass under the fear of a contradiction from any practical man.” Statute of Uses, unless it is first in the grantee to in the authorised and unauthorised reports, and of the The work consists of short notes of cases reported uses. In the principal case John Heelis took by grant statutes as they are passed, with references to the text at common law a legal seisin of the rent, and he took books, leading cases, or statutes, in which they may nothing more than that seisin, and nothing more passed be noted up, either by copying or by actually cutting to the cestuis que use. The Court committed the mis- out each note and gumming it to the place referred to, take of confounding a conveyance to uses, transferring or by entering merely the number of the note, for the title by a common law assurance, with a bargain The number affixed to the last entry in Notanda for which purpose the notes are numbered consecutively. and sale or covenant to stand seised of an existing December, 1864, is 3214. rent by one already in the actual seisin and possession of the rent. Finding decisions to the effect, that the Statute of Uses transfers the actual possession, they looked no further, but jumped to the conclusion, that wherever the statute operates, the actual seisin passes. This would not have happened fifty years ago, when cases were the servants, not the masters, of principles. Not content with the use of the work as an aid to noting up, Mr. Edwards now publishes with each number an index to that number, and to all those which have preceded it, so that there is never any more than one index for reference. This, he suggests, may serve as a partial index to all the text books referred to in the Notanda, and also be a digest, revised and renewed at frequent intervals, to all the cases from the time of |