to all intents and purposes, for he cannot be sworn on the homage, nor maintain an action in the lord's court as tenant; but to most intents the law taketh notice of him as of a perfect tenant of the land instantly upon the death of his ancestor, especially where he is concerned with any stranger. He may enter into the land before admittance; may take the profits; may punish any trespass done upon the ground; nay, upon satisfying the lord for his fine due upon the descent, may surrender into the hands of the lord to whatever use he pleases. For which reasons, we may conclude, that the admittance of an heir is principally for the benefit of the lord, to entitle him to his fine, and not so much necessary for the strengthening and completing of the heir's title. Hence indeed an observation might arise, that if the benefit, which the heir is to receive by the admittance, is not equal to the charges of the fine, he will never come in and be admitted to his copyhold in court; and so the lord may be defrauded of his fine.

CHAPTER XXIII.

OF ALIENATION BY DEVISE.

THE last method of conveying real property, is by devise, or disposition contained in a man's last will and testament. We find that, by the common law of England since the conquest, no estate greater than for term of years, could be disposed of by

testaments; except only in Kent, and in some an cient burghs, and a few particular manors, where their Saxon immunities by special indulgence subsisted. But by statute 32 Hen. VIII. c. 1. explained by 34 Hen. VIII. c. 5. it was enacted, that all persons being seized in fee-simple, (except married women, infants, idiots, and persons of nonsane memory) might by will and testament in writing devise to any other person, except to bodies corporate, two-thirds of their lands, tenements, and hereditaments, held in chivalry, and the whole of those held in socage: which now, through the alteration of tenures by the statute of Charles II. amounts to the whole of their landed property, except their copyhold tenements.

With regard to devises in general, the statute of frauds and perjuries, 29 Car. II. c. 3. directs that all devises of lands and tenements shall not only be in writing, but signed by the testator, or some other person in his presence, and by his express direction; and be subscribed in his presence, by three or four credible witnesses. And a solemnity nearly similar is requisite for revoking a devise by writing; though the same may be also revoked by burning, cancelling, tearing, or obliterating thereof by the devisor, or in his presence and with his consent as likewise impliedly, by such a great and intire alteration in the circumstances and situation of the devisor, as arises from marriage and the birth of a child.

This occasioned the statute 25 Geo. II. c. 6. which restored both the competency and the credit

of such legatees, by declaring void all legacies given to witnesses, and thereby removing all possibility of their interest affecting their testimony. The same statute likewise established the competency of creditors, by directing the testimony of all such creditors to be admitted, but leaving their credit (like that of all other witnesses) to be considered, on a view of all the circumstances, by the court and jury before whom such shall be contested.

A will of lands, made by the permission and under the controul of these statutes, is considered by the courts of law not so much in the nature of a testament, as of a conveyance declaring the uses to which the land shall be subject: with this difference, that in other conveyances the actual subscription of the witnesses is not required by law, though it is prudent for them so to do in order to assist their memory while living, and to supply their evidence when dead; but in devises of lands such subscription is now absolutely necessary by statute, in order to identify a conveyance, which in its nature can never be set up till after the death of the devisor. And upon this notion, that a devise affecting lands is merely a species of conveyance, is founded this distinction between such devises and testaments of personal chattels; that the latter will operate upon whatever the testator dies possessed of, the former only upon such real estates as were his at the time of executing and publishing his will. Wherefore no after-purchased lands will pass under such devise, unless, subsequent to the

purchase or contract, the devisor republishes his will.

We have now considered the several species of common assurances, whereby a title to lands and tenements may be transferred and conveyed from one man to another. Before we conclude this head, it may not be improper to take notice of a few general rules and maxims, which have been laid down by courts of justice, for the construction and exposition of them all. These are,

1. That the construction be favourable, and as near the minds and apparent intents of the parties, as the rules of law will admit.

2. That quoties in verbis nulla est ambiguitas, ibi nulla expositio contra verba fienda est: but that, where the intention is clear, too minute a stress be not laid on the strict and precise signification of words; nam qui hæret in litera, hæret in cortice.

3. That the construction be made upon the entire deed and not merely upon disjointed parts of "Nam ex antecedentibus et consequentibus fit optima interpretatio.”

it.

4. That the deed be taken most strongly against him that is the agent or contractor, and in favour of the other party.

5. That, if the words will bear two senses, one agreeable to, and another against, law; that sense be preferred, which is most agreeable thereto.

6. That, in a deed, if there be two clauses so totally repugnant to each other, that they cannot stand together, the first shall be received and the latter rejected: wherein it differs from a will; for

there, of two such repugnant clauses the latter shall stand.

7. That a devise be most favourably expounded, to pursue if possible the will of the devisor, who for want of advice or learning may have omitted the legal or proper phrases. Thus in a will a fee may be conveyed without words of inheritance; and an estate-tail without words of procreation. By a will also an estate may pass by mere implication, without any express words to direct its course. But, in general, where any implications are allowed, they must be such as are necessary (or at least highly probable) and not merely possible implications.

CHAPTER XXIV.

OF THINGS PERSONAL.

UNDER the name of things personal are included all sorts of things moveable, which may attend a man's person wherever he goes.

But things personal, by our law, do not only include things moveable, but also something more; the whole of which is comprehended under the general name of chattels, which is a French word signifying goods.

Chattels therefore are distributed by the law into two kinds, chattels real, and chattels personal.

1. Chattels real, are such as concern, or savour of, the reality; as terms for years of land, ward