CONTENEMENT—continued. especially as writers are not agreed upon the meaning of the word. "No man shall have a larger amercement imposed upon him than his circumstances or personal estate will bear: saving to the landholder his contenement, or land; to the trader his merchandize, and to the countryman his wainage, or team, and instruments of husbandry." It would appear from the above that the word contenement signifies means of support, i.e., the lands, tenements, and appurtenances are the same to the landholder as the merchandize is to the merchant, or his wainage to the waggoner. Blount; Spelm.

Anciently the parties

to an action, or their attorneys for them, used to appear in open Court; the plaintiff's advocate stated his cause of complaint vivâ voce; the defendant's advocate his ground of defence; plaintiff's advocate replied; and the altercation continued till the two parties came to contradict one another, or, as it was termed, to an issue. If this issue was upon a point of law, the judges decided it if upon a point of fact, it was tried by a jury, or by one of the other modes which prevailed at that period. While this was going on the officers of the Court, who sat at the feet of the judges, took a written minute of the proceedings on a parchment roll, which was called the record, and was preserved as the official history of the suit, and that alone, the correctness of which could be afterwards recognised and depended on, was the only evidence of the matters stated there, and the Court would not allow it to be contradicted. As the proceedings generally occupied more days than one, the Court used to adjourn them from time to time; if these adjournments, which were called continuances, were not made, the suit was at an end, since there was no period at which either party had a right again to call the Court's attention to it; and if the continuance, though made, were not entered on the record, the suit was equally at an end, since the record was the only evidence the Court would admit of the fact of the continuance In such a case the action was said to be dis-continued. And latterly when a cause was put down

CONTINUANCE-continued.

in the list of causes to be tried at a certain time, and from some cause or other it was not then tried, but was adjourned, a minute of such adjournment was entered on the record, which was technically termed entering a continuance, because such entry signified that the cause was not yet finished, but continued pending. This practice of entering continuances was, however, abolished by r. 31, T. T., 1853.

In

CONTINUANDO (by continuing). trespasses of a permanent nature, where the injury is continually renewed (as by spoiling or consuming the herbage with the defendant's cattle) the declaration may allege the injury to have been committed by continuation from one given day to another, which is called laying the action with a continuando, and the plaintiff shall not then be compelled to bring separate actions for every day's separate injury. 2 Roll. Abr. 545.

CONTRAINTE PAR CORPS. In French law, is the civil process of arrest of the person, which is imposed upon vendors falsely representing their property to be unincumbered, or upon persons mortgaging property which they are aware does not belong to them, and in other cases of a moral heinousness.

(2.) They have the effect of an estoppel; (3.) They require no consideration; and, (4.) They used to bind the land of the judgment debtor, but since 1864 they do not.

II. Specialty contracts, which are really only agreements by deed, possess the following characteristics :

(1.) They merge all simple contracts or other grounds of action;

(2.) They have the effect of an estoppel; (3.) They require no consideration; and (4.) They may be made to bind the land by binding the heir.

Specialty contracts, although they estop the parties, may be avoided on the ground of fraud or illegality: thus in Collins v. Blantern (2 Wils. 341) the defendant had covenanted by deed to pay the plaintiff £700, and having refused to do so the plaintiff sued him upon the covenant; the defendant pleaded that the bond was given

G

contract.

Thus if a man has covenanted to repair or to build a house he can only be discharged by doing the thing, or else by another deed releasing him. This rule is without exception where the covenant has not yet been broken (ie., before breach of covenant), but after breach there is one exception, and that is where an uncertain sum of money is to be got as damages for the breach. Blake's Case. 6 Rep. 43 b.

III. Simple contracts. To every simple contract there are the three following general or abstract requisites :

(1.) Certainty in the terms of the contract; (2.) Assent of both parties to it (assensus ad idem); and

(3.) Mutuality of obligation.

To every simple contract there are also the three following particular requisites :(1.) Request;

(2.) Consideration; and
(3.) Promise.

Whence the following distinction, viz.:—

I. Where the consideration is executory, i.e., in the case of executory contracts, the request and also the promise are implied by law, although, of course, both or either of them may be express.

II. Where the consideration is executed, i.e., in the case of executed contracts,There are two classes of cases, viz. :(1.) The acceptance of an executed consideration which was not moved by a previous request; and (2.) A consideration executed on request. As to the former of these two subdivisions, the former is invariably obligatory (see title RATIFICATION); but as to the second subdivision, the following varieties present themselves, viz. :—

(a.) Where the plaintiff has been legally compelled to pay what the defendant was legally compellable to pay, e.g., A. was surety for B. for £500 owing by B. to C.; C. compelled A. to pay; then A. brought his action against B. to be repaid. Here the request and the promise are both implied in law; (b.) When the plaintiff has voluntarily paid what the defendant was legally compellable to pay, and the defendant afterwards promises to repay the plaintiff, e.g., A. owes B £50, and C., to oblige A., pays

CONTRACTS-continued.

the £50 to B. for him, then A. promises to repay C. Here the request to pay is implied in law, but the promise is not; and (c) When the plaintiff has voluntarily paid what the defendant was morally, but not legally compellable to pay, e.g., A. owes B. £50 on an immoral debt, and C., to oblige A., pays it; then A. afterwards promises to repay C. Here the request to pay is not implied, and the promise to repay is without a legal consideration.

In every contract privity is an essential requisite to any one suing on it; in other words, no person can take advantage of the consideration in a contract excepting the party from whom the consideration has moved, which means that no person can sue on a contract excepting the parties to it; and this is what is understood by privity. An example of the absence of privity is the following:-A. gives £50 to his servant to pay a tradesman's debt; the tradesman knowing of it sues the servant for money had and received to the tradesman's use (Baron v. Husband, 4 B. & Ad. 611); in this case the tradesman lost his action for want of privity between him and the servant.

CONTRACTS IN RESTRAINT OF TRADE. All such contracts as a general rule are void, because they are against public policy (Mitchel v. Reynolds 1 Sm. L. C. 356). But such contracts are allowed to be good where the restraint is limited to a particular time, or to a particular locality, and when a valuable consideration has been given for them.

The requisites to a valid contract in restraint of trade are two, viz. :— (1.) That the restraint be limited either in time or in locality, or in both; and

(2.) That a valuable consideration should have been paid for the restraint. What shall be reasonable in point of time or locality varies with the nature of the business.

And generally, the restraint is only allowed so far as is necessary to protect the trader.

CONTRAT.

(2.)

CONTRAT-continued.

posed to be an equivalent for what
the other does to him; or
(4.) Aléatoire, where the consideration
for the act of the one is a mere
chance; or

(5.) Contrat de bienfaisance, where the
one party procures to the other
a purely gratuitous benefit; or
(6.) Contrat à titre onereux, where each
party is bound under some duty
to the other.

CONTRIBUTION. It is a rule of law, that all persons in the nature of co-sureties for the debt of another shall directly (as in Roman Law) or indirectly (as in English Law) bear their proper share of the liability, so far as regards the mutual relief of each other, and depend for their individual reimbursement upon their action against the principal debtor. The remedy of a cosurety against his co-surety is said to be for Contribution; that against the principal debtor is said to be for Re-coupment (see title SURETY). It is likewise a rule of law, that there is no contribution between wrongdoers. Merryweather v. Nixan, 8 T. R. 186.

CONVENTICLE ACT: See title STATUTES ECCLESIASTICAL.

CONVENTION. The most general name for agreement.

CONVENTION

PARLIAMENT, ACTS OF. The matters to be provided for by this parliament (which assembled in 1660) were the following:

(1.) An indemnity for the past; (2.) The restoration of the church; (3.) The settlement of the revenue; and (4.) The repeal of the late obnoxious statutes.

With reference to the first of these four matters, Charles II., by his declaration from Breda, had offered an indemnity to all persons who had been concerned in the late irregular proceedings, with the excep tion only of his father's regicides; and this promised indemnity was endeavoured to be secured by "The Act of Indemnity and Oblivion," which Act excepted, however, not only those who had signed the death-warrant against Charles I., but also all those who had sat when sentence was pronounced against that king, together with several others.

With reference to the second of these four matters, Episcopalianism was restored as the national religion, and with it the bishops were reinstated in the House of Lords. The lands, also, of the church, which had been confiscated, and some of them even sold to purchasers from the state, were also restored to the church, and

CONVENTION PARLIAMENT, ACTS OF -continued.

no compensation given to the purchasers who were deprived of them. The dispossessed clergy who survived at the Restoration were restored to their former livings or to fresh benefices, so far as such restoration could be carried out without dispossession of the then existing incumbents, who were allowed to remain in possession if willing to conform.

With reference to the third of these four matters, military tenures were abolished, and with them the revenue derived by the Crown from aids, wardships, &c.; and, in lieu thereof the excise was given to the

crown

With reference to the fourth of these four matters, the militia was replaced under the sole command of the king; the Triennial Act of 1641 was repealed; and the following Acts of an ecclesiastical character were passed:-The Corporation Act, the Act of Uniformity, the Act against Conventicles, and the Five Mile Act.

CONVENTUAL CHURCH. A church consisting of regular clerks professing some order of religion, or of a dean and chapter, or other such society of ecclesiastics. Cowel. CONVERSION. This word has two significations in law. (1.) In the action of trover, in which it is the gist of that action, it denotes the appropriating by the defendant to his own use of the goods of the plaintiff, in a manner short of criminal; the appropriation consisting substantially in the negative act of withholding them from the plaintiff, upon his demand; (2.) In Equity it denotes the notional alteration of land into money, or of money into land, in accordance with a direction to that effect of a testator or settlor, and in pursuance of the equitable doctrine that what is agreed or imperatively directed to be done is already done, or as good as done. As a consequence of this doctrine, it has been held

(1.) That lands directed to be converted into money for certain purposes, some of which fail, descend, in the case of the direction being contained in a will, to the heir-at-law of the testator (Ackroyd v. Smithson, 1 Bro. C. C. 503); and, in case of his death, to his next of kin (Smith v. Claxton, 4 Maddox, 492); but that, in the case of the direction being contained in a deed, the rule is just the reverse; and

(2.) That money directed to be converted into land for certain purposes, some of which fail, goes, in the case of the direction being contained in a will, to the executor of the testator (Cogan v. Stevens, 1 Beav. 492, n.); and, in the case of his death, to his executor (Reynolds v. Godlee,

uses;

(4.) Deeds of revocation of uses;
(5.) Deeds of appointment under
powers; and generally

(6.) Any Common Law conveyance
made to uses.

B. Conveyances under statutes other
than the Statute of Uses, and
hereunder,-

(1.) Release under 4 Vict. c. 21;
(2.) Grant under 8 & 9 Vict. c. 106;
(3.) Disentailing assurances under 3 &
4 Will. 4, c. 74;

(4.) Assurances of married women under 3 & 4 Will. 4, c. 74; and (5.) Conveyances and leases (concise forms) under 8 & 9 Vict. c. 119, and other subsequent statutes. Again, of deeds which operate under the Statute of Uses, there is this further division, namely,

CONVEYANCES-continued.

I. Deeds operating without transmutation of possession, and hereunder,— (1.) Bargain and sale:

(2.) Covenant to stand seised, &c., the statute itself effecting the alteration in the legal seisin; and

II. Deeds operating with transmutation of possession, and hereunder,

(1.) Deeds leading or declaring the uses; (2.) Feoffment to uses, &c.,

the legal seisin being first transferred by a Common Law assurance before the statute operates to effect a second transfer.

I. Conveyances at Common Law, and hereunder the following,

(1.) Feoffment. This was the most ancient form of conveyance applicable to corporeal hereditaments. It consisted of two parts, viz.,—

(a.) The limitation of the estate intended for the feoffee; and

(b.) The livery of seisin.

First. The limitation of the estate. This consisted in defining by the customary words of limitation the estate which was intended to be given to the feoffee. Originally, it sufficed to pronounce these solemn words orally in the presence and hearing of witnesses and of the feoffee; and although a deed or writing may have been (as in fact it was) occasionally used for that purpose, the same was unnecessary. However, by the stat. 29 Car. 2, c. 3 (Statute of Frauds), s. 1, it was enacted that all leases, estates, interests of freehold or term of years, or any uncertain interest in messuages, manors, lands, tenements or hereditaments, made or created by livery of seisin only, or by parol, and not put in writing and signed by the parties so making or creating the same, or their agents thereunto lawfully authorized in writing, should have the force and effect of leases or estates at will only, and no greater force and effect; the only exception being that leases for a term not exceeding three years from the making thereof were to be good, although made by parol without writing, provided they reserved a rent of two-thirds at least of the full improved value. And now, by the stat. 8 & 9 Vict. c. 106, s. 3, it is enacted that no feoffment other than a feoffment made under a custom by an infant, shall be valid unless made by deed. So powerful was the efficacy of the feoffment that it frequently operated by wrong, whence also it was called a tortious conveyance, passing to the feoffee the full estate marked out by the words of limitation, although that should be in excess of the estate which the feoffor had in himself to grant. But by the stat. 8 & 9 Vict. c. 106, s. 3, the feoffment was deprived of this tortious effect, and was reduced to the

CONVEYANCES-continued. level of an innocent conveyance. Even feoffments made by idiots and lunatics were valid until the same were avoided, which might never be; and an infant's feoffment of gavelkind lands is absolutely valid, provided he be of the age of fifteen years.

Secondly, the livery of seisin. The seisin was the feudal possession; and a transfer of the land accompanied with seisin was the transfer of an estate carrying the seisin with it. Livery of seisin was of two kinds,—either

(1.) Livery in deed; or

(2.) Livery in law. See these titles.

No deed of feoffment was complete, or to the present day is complete, unless the same has been followed with livery of seisin; and as a convenient mode of evidencing the fact of such livery having been made, it is usual to indorse upon the deed which contains the limitations a notice to the effect that the seisin was delivered at a certain place, day, and hour.

The feoffment, strictly speaking, was the proper form of conveyance of an estate in fee simple absolute or determinable; if it was used to pass a fee tail, it was more properly termed a gift (see that title), and if it was used to pass a life estate, it was more properly termed a lease (see that title.)

When a particular estate, whether for years or of freehold, and a freehold remainder are created together de novo out of a corporeal hereditament in possession, the livery which is given to the tenant of the particular estate in possession enures to the remainderman; on the other hand, when an estate is created afterwards, expectant on a lease for years then in being, the livery must not be made to the lessee for years, but to the remainderman himself with the consent of the lessee for years. Of course, no such remainder created afterwards can be expectant on a lease for life, or estate of freehold.

The feoffment was a conveyance of very powerful efficacy. Thus, by reason of the entry and livery of seisin, it clears all disseisins, abatements, intrusions, and other wrongful or defeasible estates, when the entry of the feoffor is lawful; and it not only passes the present estate of the feoffor, but bars him of all present and future right and possibility of right to the thing which is so conveyed; insomuch that if he has divers estates all of them pass by the feoffment, and if he has any interest, rent, common, condition, power, or contingent use or benefit in, to, or out of the land, it is extinguished by the feoffinent; and the feoffment destroys also all contingent remainders in strangers, if supported only by an estate of freehold in the feoffor. And prior to the Act 8 & 9 Vict. c. 106, s. 4, it

CONVEYANCES-continued.

had a tortious operation so as to pass even a larger estate than the feoffor had in him to pass.

(2.) Gift. This was the form of conveyance properly applicable to an estate tail; whence the person creating the estate tail is termed the donor, and the person taking it the donee. It required livery of seisin to make it effectual.

(3.) Grant.-This was the distinctive mode of conveyance of an incorporeal hereditament, which however must have been in existence at the date of the grant, and not created by the grant.

(4.) Bargain and Sale.-This form of conveyance was applicable not only to corporeal but also to incorporeal hereditaments in actual existence. It required to be for money, or money's worth, and not for natural love and affection merely. All persons having an estate of freehold might convey by means of it, but not a mere term, or for years. The enrolment of a bargain and sale, if made within the proper time relates back to the execution of the deed, and any intervening alienation or charge by the bargainor would therefore be void, but such an alienation or charge by the bargainee would be good when the bargain and sale was afterwards perfected by enrolment. Inrolment was first rendered necessary by the Statute of Inrolments (27 Hen. 8, c. 16), but only when the bargain and sale was for an estate of freehold.

(5.) Lease, including Underlease.—A lease is properly a conveyance (subject to rent) of lands or tenements made for life, for years, or at will, but always for a less estate than the lessor has in the premises; and similarly an underlease is a lease made by the lessee for a less period than the period of his own lease.

Sometimes, what purports in its language to be only an agreement for a lease is, in reality, an actual lease; for if there are words of present demise and an apparent intent to the effect of these words, then the deed is an actual lease, notwithstanding the words are agrees to let,"

66

and allusion is made to a lease to be executed at some future date. Poole v. Bentley, 12 East, 168; Doe d. Phillip v. Benjamin, 9 Ad. & El. 644.

By the Common Law, a tenant for life (except under a power) cannot make a lease for a longer period than that of his own life; and a lease granted by him for a longer period is as to the excess absolutely void as against the remainderman or reversioner. When the tenant for life and the remainderman or reversioner unite in making a lease, the lease is considered during the life of the tenant for life as his lease, and as the confirmation thereof by