follow that the land should be liable in his hands to answer in an action on the covenants of the deed, in case of a refusal to give up the possession, the same as if the grantee were an heir; but no one would hazard the statement of such a proposition.

The difference between a purchaser and an heir claiming under the grantor only is manifest. The latter is bound as a privy because he gets the estate without cost; and it is right therefore that he should stand in the situation of his ancestor. A purchaser, however, pays value for the estate; and while he acquires no better title than his grantor appears to possess, he may well be considered as freed from the effect of any secret obligations as to the property by which his grantor may be bound. It is a sufficient protection to one who has been so rash as to purchase before the grantor has a title, that he can call upon his grantor to make a further assurance upon acquiring title, or, if he has already sold to another, that he may enjoin him from passing the deeds and giving possession (see Theobalds v. Duffoy 1), or, if too late for this, that he may maintain an action upon the covenants of his deed.

But, while we reach the conclusion that a conveyance by one having neither title nor seisin cannot operate against a subsequent purchaser whose deed is executed after title is obtained,2 the situation of the grantee of a disseisor without title is very different. Such a case comes within the terms of the Statute of Uses, and the grantee acquires a legal estate, though by wrong. And if the grantor should afterwards acquire title, and then make a new conveyance, the second grantee would take nothing of which he could avail himself; not on the ground that the new title directly passed to the first grantee, for that could no more be effected in this case, it would seem, than in the other. But the reason is, that the grantor has now no seisin out of which to serve a use in the second grantee; 3 and the Statute of Uses, therefore, cannot operate to give him a legal estate. Nor could he recover the land in the name of his grantor, for his grantor is estopped by his previous deed. Besides, the second conveyance,

19 Mod. 102.

2 We are speaking of the case apart from the effect of the registry laws, supposing both deeds to have remained unrecorded; though, according to Mr. Rawle, as has been said, the registration of the first grant before the second was made would make no difference.

being executed while another is in adverse possession, is void as to him and those claiming under him under the champerty law. 3 Washb. Real Prop. 293.

The first grantee, however, has not a perfect title, as has been intimated, though he has nothing to fear from any one claiming title from his grantor. He is still in danger of the creditors of his grantor, or, if the conveyance was made by an heir, of the creditors of his grantor's ancestor; and his only safety, at best, lies in going into chancery and calling upon his grantor to make a further assurance. And there may be doubt whether even such assurance would be effectual against creditors, unless it were founded upon a new consideration.

We have thus attempted to show that our modern assurances with warranty do not possess the efficacy of the ancient feoffment in respect of after-acquired estates. But there is another difference which is worthy of note. At common law there was probably no case in which the donor was precluded from setting up a subsequent interest where he could not be met by a rebutter; the ground of which was the prevention of a circuity of action. The estoppel, it is true, indicated the direct passing of the afteracquired estate; but there was always connected with it this doctrine of rebutter. At the present day there are many instances of estoppel upon grantors where there can be no rebutter. Mr. Rawle has collected four classes of cases of this kind, which he distributes as follows: 1. Where the question has arisen between the assignees of the original title and the assignees of that subsequently acquired. 2. Where a married woman has been held (as she has in some states) to be estopped by joining with her husband in the covenants of the deed. 3. Where the grant is made by the state; the courts generally holding that the state will be estopped by the covenants, though not liable to an action upon them. 4. Where the covenantor has been adjudged a bankrupt; in which case it is held that, although his discharge in bankruptcy may be a release from liability on his contracts, yet he will be precluded by his covenants from asserting title. Rawle, Covenants, 401-403 (4th ed.). And in the same connection Mr. Rawle mentions another case where there is held to be an estoppel apart from rebutter; namely, where the covenants are barred by limitation. Cole v. Raymond.1

In none of these cases is there any right of action; and therefore the doctrine of rebutter cannot be applied. But it does not follow that an admission of the correctness of some of these positions drives us to an acceptance of the doctrine that future estates directly pass in such cases as soon as acquired. In most of the cases under the heads given by Mr. Rawle, the point was not necessarily raised. The question was between grantor and grantee or their privies, while almost the only way that the point could arise would be in a contest between purchasers before and after title acquired. Between grantor and grantee it is well enough, perhaps, in a contest for the new estate, to say that it enures and passes to the grantee. It might as well be so in such a case; the grantor would be no worse off, and the grantee no better.

The only case of the four which this explanation will not reach is the first. That, in reality, is the case we have been considering in the main throughout this article; and we have endeavored to show that the new title passes to a subsequent purchaser without notice. And Mr. Rawle, upon a learned and elaborate examination of the subject, reaches the same conclusion upon a different line of reasoning. Rawle, Covenants, 427 et seq. (4th ed.). And so does the American editor of Smith's Leading Cases in the extensive notes to the Duchess of Kingston's Case.1

It should be added, also, that the covenants considered in many of the cases coming within the above category were covenants for title merely, such as seisin and right to convey. Now it would seem that covenants of this kind, so far as the question of estoppel is concerned, are of no greater effect than a specific recital of the facts. The only difference is, that by putting the statement of facts into the form of a contract there arises a right of action for the breach.2 The covenant in reality is only a recital with an agreement to respond in case of its falsity.

1 2 Smith's L. C. 720 (6th Am. ed.).

M. M. B.

2 Quære, if there is even this difference; for why might not an action of deceit lie upon a false recital, in a case otherwise proper, as well as for a verbal misrepresentation?

DIGEST OF THE ENGLISH LAW REPORTS FOR AUGUST, SEPTEMBER, AND OCTOBER, 1874.

The plaintiff employed the defendant to purchase a vessel as cheaply as he could. The owner of the vessel had agreed with his broker to allow him all in excess of £8,500 obtained for the vessel. The defendant, being aware of this, purchased the vessel for £9,250, and by agreement with said broker kept £225 for himself. The plaintiff discovered the transaction, and brought an action for money had and received against the defendant for the £225. Held, that the action would lie. - Morison v. Thompson, L. R. 9 Q. B. 480.

See JUDGMENT, 1.

ADULTERATION.

A person entered the appellant's shop and asked for green tea. The appellant sold him tea which upon analysis proved to be faced with gypsum and prussian blue. It appeared that tea imported from China as green tea, and known as such to the trade, is faced as above, and that tea not faced is imported from Japan, and is not generally known as green tea; but this is not generally known to the public. The tea sold as above was faced in China. Held (by CockBURN, C. J., and BLACKBURN and ARCHIBALD, JJ., — QUAIN, J., dissenting), that the appellant was guilty of selling adulterated tea as unadulterated. Roberts v. Egerton, L. R. 9 Q. B. 494.

ADVERSE POSSESSION.

A testator by will dated 1824 devised all his estates and all other his estates of which he might be possessed at the time of his death to his wife for life, with remainder over. He purchased a freehold estate after the date of his will. After his death his widow entered into possession of all of the estates of which he died possessed, believing she was entitled so to do under the will; and she continued in possession more than twenty years. Held, that she had acquired title by adverse possession. Paine v. Jones, L. R. 18 Eq. 320.

A London draper sold the furniture in his house and shop, and hired it back at a weekly rent. The draper became bankrupt. Held, that the furniture was in the order and disposition of the draper with consent of its owner, and passed to the creditors. — Ex parte Lovering. In re Jones, L. R. 9 Ch. 621.

See MARSHALLING ASSETS; PARTNERSHIP, 2.

BEQUEST.-See LEGACY; WILL, 6.

BILL IN EQUITY.

In a bill filed by a principal against his agent, praying an account, an item of damages occasioned by the negligence of the agent in disobeying the instructions of his principal cannot be introduced. Great Western Insurance Co. v. Cunliffe, L. R. 9 Ch. 525.

BILL OF LADING.

1. The plaintiffs shipped sixty-nine bales hides on the defendant's steamer, bound for London, "to be delivered at London from the ship's deck, where the ship's responsibility shall cease." The steamer arrived at the Victoria Docks, where the usage is to give notice to the consignees on arrival, and to land goods on the quay by servants of the dock's company. If the consignees apply for the goods within twenty-four hours, they get them free of charge, which is paid by the shipIf the consignees do not apply within twenty-four hours for the goods, they are warehoused by said company, and the consignees pay for warehousing. All the bales were delivered to the dock company, and notice sent to the consignees, but only sixty-eight bales were delivered to the consignees, and the missing bale was never found. Held, that the defendant was not liable for the missing bale. - Petrocochino v. Bott, L. R. 9 C. P. 355.

owner.

2. The L. firm in London purchased goods of H., upon the terms that the invoices of the goods which were to be shipped to the same L. firm in Hong Kong should state that the proceeds of the shipment were to be remitted to the London L. firm, in order to there meet the bills accepted by said London firm in payment for the goods. Bills of lading of such goods were sent to the Hong Kong L. firm. A bank at Hong Kong had advanced money to the L. firm there upon their agreement to hand over to the bank shipping documents to the extent of such advances; and upon the firm's failure so to do, the bank threatened immediate legal proceedings if the firm failed to fulfil its contract without delay. The firm then agreed to hand over the above bills of lading to the bank if it would consent to release the firm from its obligation to deliver shipping documents as aforesaid, and abstain from beginning legal proceedings. The bank so agreed, and the bills of lading were indorsed to the bank, which was ignorant of the above agreement to remit the proceeds of the goods to meet said bills. Held, that there was a valuable consideration for the indorsement of said bills of