created before the 1st of January, one thousand eight hundred and forty-five,' has already received a practical exposition in the generally adopted opinion, that the act has no application to any estate tail, estate for life, or other particular estate, or to any lease existing at the commencement of the act, or, so far as the power of alienation is concerned, to any contingent or future interest created before that date. This is wholly unreasonable; and an undistinguishing withdrawal from the presumable benefits of the act of a large class of interests which have the first claim to be attended to in any legislative measure, could not have been intended; and even had no other alteration been required, yet in this particular an amendment of the act would have been absolutely necessary.

"I have the honour to remain

"Your Lordship's obedient Servant,

"H. BELLENDEN KER.

66 LINCOLN'S INN, 28th April, 1845."

D

OBSERVATIONS

ON

THE ACT 8 & 9 VICT. CAP. 106 (a).

It is a great merit in this act that it contains no definitions extending the meaning of words beyond their ordinary acceptation. Such definitions are useful when they shorten an act, and simplify its expressions; but they have been introduced in many acts not longer than this, in which they obviously lengthen and embarrass, instead of shortening and simplifying. They are also frequently misapplied, by declaring that one word shall mean exactly what another already means, as that "land" shall mean what "hereditaments" means (6).

In the act now before us, " tenements and hereditaments" are used in their common and wellknown sense, viz. that of all property which can be holden or is inheritable. The word "tenements"

(a) See the Act, infra, p. 81.

(b) See, for instance, the act for extinguishing attendant terms, 8 & 9 Vict. c. 112, infra, which is an instance of both these mistakes.

is, however, superfluous, for every tenement is necessarily a hereditament (a).

Act to simpli

fer of Proper

ty, 7 & 8

Vict. c. 76.

SECTION 1.-The effect of repealing ab initio Repeal of the that part of the Act to simplify the Transfer of Pro- fy the Transperty, which converted contingent remainders into executory devises, or executory estates in the nature of executory devises, will be, to remove these anomalous estates altogether from titles, and to render unnecessary the investigation of their nature and properties. The contingent remainders, which, from their creation, after the 1st January, 1845, were executory devises or estates by force of the Transfer Act, are now made contingent remainders from the beginning, as they would have been if that act had never passed. The provision, too, of the Transfer Act as to the failure or destruction of contingent remainders is repealed ab initio, but, by the 8th section of the present act, a contingent remainder created before the passing of the present act, and existing at any time after the 31st of December, 1844, is protected from failing on account of the determination of any preceding estate of freehold, by forfeiture, surrender, or merger; but that part of the Transfer Act which protects contingent remainders existing on the 31st of December, 1844, from failing by reason of the determination of the preceding estate by any other means than the natural effluxion of the time of

(a) Co. Litt. 6. a.; 2 Bl. Comm. 17.

such preceding estate, or some event on which it was in its creation limited to determine, is not reenacted.

It does not appear, however, that there are any means by which a contingent remainder can fail, except the forfeiture, surrender, or merger, of the preceding estate, or its determination by the natural effluxion of time, or some event on which it was in its creation limited to determine; and, in the two latter cases, it is allowed, by both the Transfer Act and the present act, to fail according to the ancient rule of law. See further on this subject, Mr. Bellenden Ker's Letter, supra, pp. 36 et seq., and infra, p. 70.

The remainder of the Transfer Act is repealed only from the 1st of October, 1845: so that, as to instruments executed between the 1st of January and the 1st of October, 1845, that act I will still have to be consulted. It is believed, however, that very few drafts were framed on the faith of it; and it will, probably, be little heard of hereafter. The clause providing that the receipts of trustees and of the survivors of mortgagees shall be discharges has, it is understood, been occasionally omitted in reliance on the Transfer Act; and it may, therefore, be found needful, in some cases, to see if that act will make good the omission. The defects of the clause were pointed out in the former edition of this work, and are stated in Mr. Bellenden Ker's Letter, supra, pp. 21-24. It is not probable that any convey

ances have been taken from executors of mortgagees under the Transfer Act; the provisions on that point (as pointed out in the former edition and in Mr. Bellenden Ker's Letter, supra, pp. 17-21) were so framed as to render it almost impossible. The reasons for omitting in the present act the provisions as to the receipts of trustees and mortgagees, and as to conveyances from executors of mortgagees, are mentioned in Mr. Bellenden Ker's 17-24.

Letter, supra, pp.

With the exceptions above adverted to, the objects of the Transfer Act are those also of the present act, but they are now effected by enactments which appear to be free from the numerous objections to which the Transfer Act was open.

tinction be

SECTION 2.-According to the well-known rule Ancient disof law, the immediate freehold of all corporeal tween estates lying in livery hereditaments lay in livery, that is to say, passed and in grant." at common law by feoffment, with livery of seisin or corporal tradition, to which, from very early times, a deed or charter of feoffment was added as evidence of the feoffment. In modern practice, the deed of feoffment became the principal instrument of the conveyance, and the livery of seisin a ceremony needful to perfect it. Reversions and remainders in corporeal hereditaments, and all incorporeal hereditaments (a), whether in possession

(a) The reversion or remainder of a corporeal hereditament is in truth an incorporeal hereditament, but the distinction in the text is useful for the present purpose.