-over-ruled.

ruption or denial from or by the said [appointor,] or any person or persons rightfully claiming or to claim through,

give the issue-what?-a chance of something. This conceit, pregnant with the absurdity of placing the inheritance in the power of the first taker in furtherance of the intention, introduced the perplexing distinction between cases governed by the rule in Shelley's case, and cases governed by general intention a distinction without a difference, for the courts would never have held the devisee for life to be tenant in tail if the rule had not compelled them either to adopt that course, or to reject altogether the construction of an estate tail. They would have saved both the particular intent, and general intent, (if we must use these unmeaning terms,) by holding the first taker to be tenant for life, with remainder to the heirs of his body with remainder over. Lord Redesdale has justly observed, (Jesson v. Wright, 2 Bligh, 57,) that to say that the general intent shall overrule the particular is not the most accurate expression of the principle of decision, but that the rule is, that technical words shall have their legal effect, unless from subsequent inconsistent words, it is very clear that the testator meant otherwise'-adding that those who have to decide on such cases ought not to rely on petty distinctions, which only mislead parties, but look to the words used in the will.(a)

But whatever might be the value of these arguments, it cannot be doubted that the increasing embarrassment arising from the indiscriminate resort to "general and particular intention," which, from meaning originally nothing, had come to mean almost any thing or every thing, contributed mainly to bring the doctrine into discredit. It appears at length to have been solemnly adjudged a mischievous fallacy by the Court of King's Bench in the late case of Doe d. Gallini v. Gallini, 2 Nev. & Mann. 632; 5 Barn. & Adolph. 621. Lord Denman, C. J. in delivering the judgment of the Court animadverts upon the doctrine in these terms:-" The doctrine that the general intention must over-rule the particular intention, has been much, and we conceive justly, objected to of late, it being as a general proposition incorrect and vague, and likely to lead in its application to erroneous results. See Powell on Devises, 3d edit. c. 27, vol. ii. p. 552.(b) In its origin, it was merely descriptive of the operation of the rule in Shelley's case; and it has since been laid down in others, where technical words of limitation have been used, and other words, shewing the intention of the testator, that the objects of his bounty should take in a different way from

(a) Hayes's Principles, (1829,) 44; and see 25, 106.

(b) The second volume, cited in the judgment, is entirely the work of Mr. Jarman.

-for freedom

from incum.

surance.

under or in trust for him; Free from or by the said [appointor], his heirs, executors or administrators, effectually brances, kept indemnified from or against all former or other estates, rights, titles and incumbrances, created or occasioned by the said [appointor], or any person or persons claiming or to claim through, under or in trust for him. And lastly, that the said for further as[appointor], and every person rightfully claiming or to claim, through, under, or in trust for him, will, at any time or times, at the request and costs of the said [purchaser], his appointees, heirs or assigns, make, do and execute every such act, deed, or assurance for more effectually assuring the said hereditaments and premises or any part thereof, to the uses aforesaid, or according to the direction of the said [purchaser,] his appointees, heirs or assigns, as by the said [purchaser,] his appointees, heirs or assigns, or his or their counsel in the law shall be reasonably required or advised, and as shall be tendered to be done or executed. IN WITNESS, &c.

that which the law allows, have been rejected; but in the latter cases, the more correct mode of stating the rule of construction is, that technical words, or words of known legal import, must have their legal effect, even though the testator uses inconsistent words, unless those inconsistent words are of such a nature as to make it perfectly clear that the testator did not mean to use the technical words in their proper sense; and so it is said by Lord Redesdale in Jesson v. Wright (a). This doctrine of general and particular intent ought to be carried no further than this; and thus explained, it should be applied to this and all other wills, Another undoubted rule of construction is, that every part of that which the testator meant by the words he has used, should be carried into effect as far as the law will permit, but no further; and that no part should be rejected, except what the law makes it necessary to reject."

Such must be the ultimate fate of all legal doctrines which, having no foundation in principle, are vague" in their terms, and "lead in their application to erroneous results;" for the impossibility of understanding and applying them induces at last the necessity of disclaiming them.

It is a remarkable fact, that when two eminent conveyancers, favourable to the doctrine, were asked for a definition and example, each stated and illustrated it in a manner wholly different !

(a) 2 Bligh, 57.

TESTATUM.
Consideration.

part, and [bargainee], of, &c. of the other part, WITNESSETH, that in consideration of the sum of £, of lawful British money paid by the said [bargainee] to the [bargainor], on the execution of these presents, the receipt of which sum, and that the same is in full for the absolute purchase of the fee simple in possession, whereof the said [bargainor] is now seised, of the manor, messuages, lands and hereditaments hereinafter described, the said [bargainor] hereby acknowledges, and from the same sum hereby acquits and releases the said [bargainee], his heirs, executors, administrators and Operative words. assigns, The said [bargainor] Hath bargained and sold, (60)

Bargains and sales, proper and improper, distinguished.

Relation of enrolment of the proper bargain and sale.

(60) Conveyances under the old bankrupt acts, &c. purporting to be bargains and sales, are not unfrequently confounded with bargains and sales within the statute of uses, but they are in fact perfectly distinct in their nature. A bargain and sale within the statute of uses, (or, in other words, a bargain and sale properly so called,) is a contract, in consideration of money or money's worth, by the owner of land, for the total or partial alienation of his interest, which contract raises a use in favour of the purchaser, grounded on the seisin of the bargainor, and the use so raised (provided the contract, if it concern the freehold, be attended with the ceremonies prescribed by the statute of enrolment, 27 Hen. 8, c. 16,) is instantly transformed into possession by the statute of uses. The enrolment of the proper bargain and sale has relation to the execution of the instrument. The statute of enrolment denies effect to the assurance," except the same bargain and sale be made by writing, indented, sealed and enrolled, &c., and the same enrolment be made within six [lunar] months after the date," &c. ;-the condition being

And by these presents Doth bargain and sell unto the said
[bargainee], his heirs and assigns, All [parcels], Together Parcels.

complied with, the statute of uses imparts legal efficacy to the use from its inception. But a bargain and sale under the bankrupt acts is merely the execution of a naked authority given to A. to dispose of the estate of B., and has no other title to the appellation of a bargain and sale than that which it derives from the occurrence of the words "bargain and sell" in the statute which confers, and in the instrument which executes the authority. The same observation applies to every instrument, assuming the form of a bargain and sale, by which lands are disposed of in pursuance of a power or authority, whether created by statute or by other means. Suppose, for example, that land were conveyed to such uses as A. should, by deed indented, and enrolled within six months from the date, bargain and sell the same;-a deed perfected conformably to this power would have all the qualities and incidents of an appointment, and none of the qualities or incidents peculiar to a bargain and sale; though, if the appointment were made to A., to the use of B., the legal estate would vest in A., just as under a bargain and sale to A., to the use of B., the use is executed in A. Considered as the execution of a power, the instrument could operate only from the time of the completion of the ceremonies prescribed by the power. So, an instrument made in pursuance of a statutory authority to bargain and sell, has its legal inception in the fulfilment of the requisites of the statute. If the power or authority requires the deed to be enrolled, but does not limit the time, the enrolment is wholly independent of the period fixed by the statute of enrolment, (Ingram v. Parker, T. Raym. 239, cited,) but till enrolment the power or authority remains unexecuted at law. The enrolment of a proper bargain and sale relates back to the creation of the use, which springs, on the execution of the deed, from the seisin of the bargainor; but it is manifest that an instrument enrolled, purporting to be a bargain and sale in pursuance of a mere power or authority to " bargain and sell by deed enrolled," can have no such relation. It is hardly necessary to add, that a power or authority to bargain and sell may be executed by any other form of expression; and as the use, in such cases, of the words bargain and sell, is apt to suggest an erroneous notion of the nature and operation of the instrument, it seeins desirable to avoid using them.-An authority given to executors to sell, is in effect a power to ascertain the purchaser, who is in as a devisee under the will, and the result of the execution of the power is to supply the devise with an object.

Under the statute 10 Anne, c. 18, s. 3, examined copies of the enrolment of a bargain and sale (i. e. such a bargain and sale as is within the statute

Appointments purporting to be

bargains and sales.

Copies of eurol

ment of bargain

and sale, evidence.

General words.

All estate clause.

HABENDUM.

Bargain and sale for a particular estate, with remainders.

Bargains and sales in bankruptcy.

with all courts, franchises, rents, services and other privileges and fruits of seigniory, mines, minerals, trees, woods, ways, waters, watercourses, profits, easements, rights, members and appurtenances whatsoever to the said manor and other hereditaments and premises belonging, or at any time heretofore held, used, or enjoyed therewith. And also all the estate, right, title, interest, claim and demand, at law or in equity, of the said [bargainor], in, to, out of, or upon the said manor and other hereditaments and premises, or any part thereof, with their appurtenances, To HAVE AND TO HOLD the said manor and other hereditaments and premises hereby bargained and sold, or intended so to be, with their appurtenances, unto and to the only proper use of the said [bargainee], his heirs and of enrolment) are admissible in evidence, without proof of the loss of the original. The conveyance by bargain and sale is, therefore, sometimes adopted on account of the security and facility in point of evidence afforded by the enrolment, particularly where the subject of conveyance is a large estate about to be sold in lots; and it was formerly much the practice to convey to a purchaser, as well by lease and release, as by a contemporaneous bargain and sale enrolled. It should be borne in mind, however, that if a bargain and sale be made to A. to uses, the legal estate will be executed in A., and the uses will in effect be trusts in equity, for that which passes by the bargain and sale is the use, upon or out of which uses of course cannot be limited. But it is conceived that the use may be distributed through a series of limitations by way of bargain and sale, and consequently that a bargain and sale may be made to the use of a purchaser for life, with remainder to a trustee for the life of the purchaser, with remainder to the purchaser in fee. The power of appointment, however, which formed part of the limitations hitherto commonly inserted to prevent dower, would be inadmissible.

The consideration of money, or of money's worth, is essential to raise the use, but it is by no means requisite that the consideration should move from the bargainee to the bargainor. The use would arise upon a bargain and sale by A. to B. in consideration of money paid by C. to D.

With respect to bargains and sales in bankruptcy, they are taken away, except as to copyholds, by the Act of 1 & 2 W. 4, c. 56, ("An Act to establish a Court in Bankruptcy,”") which vests all the other real estate of the bankrupt in the assignees by virtue of their office, s. 26. As to the conveyance of copyholds under the bankrupt acts, vide infrà, Part III.