legal power- a power that will be taken cognizanee of by courts of Law as well as of Equity; but it cannot create a Common Law power. Pari ratione powers in wills are statutory and not Common Law authorities, for at Common Law no right whatever existed to devise lands. The examples cited, therefore, of Common Law powers are samples of the same class as powers under the Statute of Uses. They all arise under Acts of Parliament.

We regret being thus obliged, in limine, to find fault with Mr. Farwell. He adopts, however, only errors common to the most celebrated writers, as well as to himself, who, indeed, also gives very fair promise of authorship. Sinning in such good company he need not take much to heart the undoubted inaccuracies of expression just referred to. But when we come to his second paragraph, we find a more serious cause of quarrel with him. He is here, too, indeed treading in the footsteps of Lord St. Leonard's, yet that he has fallen into error in his second proportion, is as certain though not as patent as that he is incorrect in calling statutory powers by a Common Law name. He alleges, (P. 3) not only as Lord St. Leonard's does, that general powers cannot be reserved in deeds not operating by transmutation of possession, but he goes a step further, and adds "if the deed be not such as to operate by transmutation of possession; that is, if it derive its effect from the Statute of Uses and merely transfer the use, there can be no further valid use than that of the first cestui qui use." Now, if Mr. Farwell means that land cannot be settled by deed of bargain and sale upon one for life, remainder to another, it is clear that his opinion is not in harmony with authority. For it appears from 2 Rolls Abridgment, 784, pl. 5, 6; Winch 61, that if a person in consideration of a sum paid by B, bargain and sell land to B for life, remainder to C in fee, these uses will arise to B and C, for though C paid nothing for the land, yet B's payment on his behalf suffices. It is also shown by the same passage in Roll, that if the bargain and sale had been made to B for life, with many remainders over, the consideration may extend to those in remainder. This being so, it is clear that contingent and future uses of every kind may be limited in deed of bargain and sale, if a consideration passed at the time of the conveyance. If it did, a general power is for the same reason quite valid in such a deed, since appointments are nothing but future uses which, as we have shown by authority, are perfectly valid in deeds of bargain and sale.

Mildmay's case (Rep. 176), which is quoted by Mr. Farwell,

in support of his untenable position, is not really a case in point. The second resolution in that case merely declares that if in a deed operating as a covenant to stand seised, "a proviso is added that the covenantor, for divers good considerations, may make leases for years, &c," such power is void in its creation. Now a covenant to stand seized is one thing and a bargain and sale is another. These classes of assurances resemble each other in not operating by transmutation of possession, but they differ in requiring each, a very different consideration. Any kind of a valuable consideration will support a use in the former class of instruments to future and contingent persons, but the rules respecting a covenant to stand seized are inexorable in requiring the consideration of blood or marriage. The second resolution in Mildmay's case, therefore, declares that there can be no departure from such a consideration to "other good considerations." Such considerations are valueless and inoperative in a deed of covenant to stand seized. Accordingly, such assurances are quite obsolete, since there could not have been inserted in them the common limitation to trustees to preserve contingent remainders. For, such trustees, being strangers by blood to the parties, could take no estate whatever under the covenant to stand seized.

But bargains and sales stand on a wholly different footing. It is of the nature of a pecuniary consideration to be unlimited in its operation. It may enure to the benefit of unknown persons, as the authorities already quoted demonstrate. There is consequently no ground for contending that general powers cannot be reserved in such a deed. Of course, no one has doubted that a special power to appoint to relatives may be contained even in a deed of covenant to stand seized. Such instruments and bargains and sales, therefore, have been classed together rather hastily, as regards powers. The reason why general powers cannot be reserved in the former class of deeds does not at all apply to the latter. The fact that both do not operate by transmutation of possession merely affects the question who has the legal estate, and whether the appointment is legal or merely equitable, but by no means defeats the appointment in any case, both at law and in equity. In a review written by us upon Sugden on Powers, supra Law Magazine and Review (May, 1862, vol. xii., p. 305,) the reader will find this point considered somewhat more at length. It is clear that, before the Statute of Uses, a general power would be good in Equity, if contained in a deed of bargain and sale, or even in a mere contract for value. The statute did not destroy any interest that could have been

previously good as a trust. It is clear, then, from principle as well as authority, that if ever the point comes to be decided by the courts, they will hold that there is no reason whatever why the appointments in question should not be deemed valid.

Treating of powers in gross, our author confounds them in terms with powers appendant. He says of a power of the former class: "It is in gross when the estate so created is beyond and does not affect the estate or interest of such donee, but notwithstanding is annexed in privity to it, and takes effect in the appointee out of an interest vested in the appointor." It does nothing of the sort. He adds, "Thus a power of jointuring given to a tenant for life is in gross." This is correct, but such a power has no effect on the estate of the tenant for life, since the jointure does not take effect until the tenant for life is dead.

The received distinction between powers appendant and powers in gross is that the latter can be extinguished only by express words to that effect, while powers appendant may be destroyed implicit either wholly or in part, as, for instance, by a grant made by the donee of his estate. Mr. Farwell says, "A power may also be released, extinguished, or suspended by implication and without express words, if the intention be clear." He does not cite any case on this point, but there is no ground for doubting the correctness of his opinion, and the authorities cited by him on the general question of the suspension and extinguishment of powers sufficiently bear him out, Curling v. Shuttleworth, 6 Bing 131. There is a sort of superstition afloat amongst members of the less learned branch of the profession, that the filing of a Bill of itself, and before decree made, affects the powers and rights of trustees. If it did, it would seriously obstruct their management of the estate. Mr. Farwell adopts Mr. Lewin's view that such powers are affected only after decree made. There is really no ground for supposing the contrary, nor [where no injunction has been prayed for, would, it seem that the institution of the suit has, in the least, affected the rights of trustees dependants. It may "seem more prudent after Bill filed to apply to the court for directions." But, in reality, there is no necessity for such an application, although, no doubt, the maxim, abundans cautela nemini nocet is as true in this as in other cases.

The case of Lantsberry v. Collier, 2 K. and I. 709, 720, following in the wake of Cole v. Sewell, 4 Dru. and War. 1, 32, and Wallis v. Freestone, 10 Sim. 225, has set at rest the timehonoured contention whether the ordinary powers of sale in

settlements were void, if their execution were not expressly confined within the line of perpetuity. The point may now be

deemed as disposed of by authority.

The case of Lantsberry v Collier also seems to imply that a power of sale cannot exist in one person, while the fee is in another. But there is no strong ground of principle apart from authority for this assumption. If the tenant in fee is in by the Statute of Uses, why may he not be subject to a shifting clause as in the old limitation to uses to bar dower? As regards the rule of perpetuity, it appears to us that no objection upon that ground is at all applicable to a power of sale. A power of sale tends to bring land into the market. How, then, is it open to the objection that it ties up land for any time, much less for a period beyond the line of perpetuity? That the object of the settlor was that that power should cease when any person under the settlement took a fee in possession is not at all clear as a question of construction. Every one knows, indeed, as a matter of fact, that such is the intention of the parties to the settlement. But the Statute of Frauds requires this, as well as well as every other intention to settle or dispose of land, to be evidenced in writing. Why then must a presumed intent, not declared in the settlement, be suffered by the court to affect its construction of a written document? If such considerations are to affect the interpretation of assurances, no power or appointment can ever be deemed void for remoteness, for no settlor intends that the powers inserted in the settlement should be illegal. Is the court then, to cut down the excess of a void power in order to give it a partial operation? Had the courts always done this, no one would complain. But from the beginning it was not so; and certainly the Statute of Frauds is in the way of any such liberal construction. Nay, even in the case of a will, intrinsic evidence of the testators circumstances is not admissable to control the construction of an abstract sentence, not affected by any local custom, nor by any ambiguous description of a concrete subject or object.

We refer to the point merely on account of the interest that once attached to it. Mr. Farwell is quite fortified by authority in his statements on the matter. The fact is, that decisions on the rule against perpetuity have been almost from the beginning opposed to principle. Lord St. Leonards, for instance, states, in the first page of his work that questions of perpetuity did not arise at Common Law. They ought not to have so arisen, yet such were mooted in the course of time, and the courts held the objections valid in many cases.

Let us

suppose that at the present day, in a Common Law deed, land is limited to A. for life,with a perpetual succession of life estates to his eldest lineal issue; all these remainders would be deemed void, except the estate to the unborn son of A. There are numerous authorities to this effect. Yet, on principle, the objection ought to be untenable; for, as a contingent remainder was in the power of the particular tenant, it could be barred by one who was within the line of perpetuity; the contingent remainder, therefore, was, itself, also within that line. The rule against perpetuities, of course, cannot possibly appply to a vested remainder.

Again, as to powers of sale and exchange, why may not a power be given to A. and his heirs in a deed under the Statute of Uses, although the land is by the same deed limited to B. and his heirs, since a right of way can be given to A. and his heirs over the same land and no objection can be raised to the grant of this easement on the ground of its being a perpetuity? Authority, in short, is the only safe guide at the present day on such points.

Those who are looking for a code not founded on cases ought to consider well what a chaos our legal system would be, if cases were disposed of in this off-hand way. We do not mean to say that a code is not a prime necessity of our time. But it should be, as recommended by us in the Law Magazine and Review for last month, a compilation built on cases, which it should consolidate, arrange, and digest, but not abolish.

Mr. Farwell, though generally a careful writer, yet is sometimes less specific than is necessary in his laying down of rules. For instance, one of his propositions is as follows:-" In a gift of real estate, the court may examine whether the circumstances of the testator's property are such as to give effect to the will: in a gift of personality the court cannot go beyond the will."

Dolosus versatur in generalibus. The above proposition is too abstract and general to be of any practical use. If Mr. Farwell means that in every gift of realty, the court may look outside the will, in order to aid the construction, he is quite in error. The second branch of his proportion is equally erroneus.

In construing a written document the court must always look outside the instrument, in order to apply it, but not to aid the construction. If the document in its grammatical meaning fits a certain subject, no parol evidence is admissible to prove that the testator meant some other person or thing than those indicated by the grammatical meaning of the terms. But if the document is totally inapplicable to any person or thing known,