description, several authorities have been referred to; and, amongst those cited on the part of the respondents, was the case of Jenkins v. Young, Cro. Car. 230, more fully reported under the name of Meredith v. Joans, Cro. Car. 244. That case is thus stated in Sanders on Uses, p. 91: "M. gave his land to E. R. and his wife, habendum to the said baron and feme, to the use of them and the heirs of their two bodies, and, for want of such issue, remainder to E. M. and his heirs: the question was whether the baron and feme had an estate-tail or an estate for their lives only. It was argued that the estate out of which the use should arise was an estate for their lives, and the use could not make the estate larger than the limitation of the seisin; but the judges conceived that there was a difference where an estate was limited to one and the use to a stranger, for there the use should not be more than the estate out of which it was derived; but not when the limitation was to two, habendum to them, to the use of them and the heirs of their bodies, for this was no limitation of the use, nor was it executed by the Statute, but it was a limitation of the estate to them and the heirs of their bodies by the course of the common law.” That case

is also important as showing that we must look at the whole of the habendum to see what was the intention of the parties. So construing it, it was held to be not a limitation of the use, but a limitation of the estate which took effect by the common law. It is extremely difficult, if this be the right view of that case, to distinguish it in principle from the present. In that sense it is that the case is adopted by Mr. Booth in the Collection of Cases and Opinions, vol. 2, p. 291, edit. by Sugden. That learned author very clearly explains that the use must be derived out of the seisin of some third person. The case is referred to by Sanders without disapprobation; as also by Mr. Butler in his Notes to Co. Lit. 271 b, and in Watkins on Conveyancing, p. 245; and it has been acted upon as law by conveyancers for a long series of years. Is there, then, any reason why we should not adopt the same view in construing the limitation of the rent-charge in the present case? If we were to do otherwise, the result would be a repugnancy between one part of the deed and another part, because then, in the one part the limitation would be to the three persons as joint tenants, and in the other part it would be to them as tenants in common, which clearly would not be carrying out the intention of the parties. The rule was, shortly after the passing of the Statute, thus laid down by Bacon, in his Reading upon the Statute of Uses, p. 65, edit. of 1806: "The whole scope of the Statute was to remit the common law, and never to intermeddle where the common law executed an estate; therefore, the Statute ought to be expounded that, where the party seised to the use and the cestui que use is one person, he never taketh by the Statute, except there be a direct impossibility or impertinency for the use to take effect by the common law."

Suppose the question had arisen here, without reference to the Statute of Uses, as to what was the true construction of the limitation,

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could any one have doubted that the object and effect of the deed were that the three persons named should take the rent-charge as tenants in common? If so, the Statute of Uses cannot alter the common law construction of the deed. The case of Doe v. Prestwidge, 4 M. & S. 178, has also an important bearing upon this question, as showing that the whole limitation in the habendum is to be taken together, and a rational interpretation to be put upon it. There, the limitation was to Thomas and Henry and their heirs. habendum to them, their heirs and assigns, as tenants in common, and not as joint-tenants, to the only proper and absolute use and behoof of them, their heirs and assigns for ever. There was, therefore, a difference between the two parts of the habendum, the limitation of the use being such as to create a jointtenancy. The matter was argued, and further time was given to Reader, the counsel for the plaintiff, to consider it; and upon a subsequent day," he admitted that Thomas and Henry took as tenants in common," although, if it had been an use executed by the Statute, the consequence would be that they were joint-tenants." That case is cited by various text-writers; and I do not find that it is questioned by any of them, except that in 3 Bythewood and Jarman's Conveyancing, p. 324, the learned editor (Sweet) says: "This was certainly admitting the principle to a great extent, and it seems that there was ample room for argument." That room has been afforded here, and the result shows that there is no authority to contradict it. There is also an important passage in the 7th edition of Sheppard's Touchstone, by Preston, at p. 106, where that very great conveyancer says: "But if a grant be made to a man and his heirs, habendum to him and his heirs, to the use of him and his heirs for lives, this habendum and declaration of use are one entire limitation at the common law, and the grantee hath merely an estate for the lives," which passage is very applicable to the present case. It is, indeed, only acting upon the general rule of construction of a deed, which is, that, in order to ascertain the intention of the grantor, regard must be had to the whole of the instrument, and especially of the habendum. So dealing with the deed in the present case, the effect of it seems to me to be that the three persons named take the rent-charge as tenants in common. Each takes a legal estate in an undivided third part of the rent; and, no third party intervening, there is nothing for the Statute of Uses to operate upon. The party claiming, therefore, taking by force of the common law, the case is entirely out of the operation of the Statute of Uses. Consequently, it cannot come within the decision in Heelis v. Blain, but is governed by the two previous cases of Murray v. Thorniley, and Hayden v. Twerton.

The decision of the revising barrister, therefore, must be reversed, on the ground that the claimant had not been in actual possession of the rent-charge for the period required by § 26 of the Reform Act of 1832.

BRETT, J. In this case Orme claimed to be registered as a voter in

respect of a rent-charge; and, in order to substantiate his claim, it was necessary for him to bring himself within § 26 of 2 Wm. 4, c. 45; that is, to show that he had been in "actual possession" of the rent-charge for six months previously to the last day of July. In point of fact he had not been in actual receipt of the rent for the required period, the first payment having only become due on the 5th of April preceding; and the question is, whether, notwithstanding this, the claimant has brought himself within § 26.

It seems to me that there are two canons or rules of conduct which the court in dealing with these revising appeals ought to observe. The first is, to construe the words of these Statutes according to their ordinary meaning; and the second is, to adhere loyally to former decisions, unless clearly satisfied that they are wrong. Now, the first case which is applicable to the present is that of Murray v. Thorniley, 2 C. B. 217; 15 L. J. (C. P.) 155. It was there held that "actual possession" in § 26 of the Reform Act meant a possession in fact as contradistinguished from a possession in law. The next case was Heelis v. Blain, 18 C. B. (N. S.) 90; 34 L. J. (C. P.) 88, where it was held that, though the grantee of a rent-charge under a grant at common law is not entitled to be registered until he has been in the actual receipt of the rent for six months prior to the last day of July, since until such receipt he had only a possession in law, and not the actual possession required by 2 Wm. 4, c. 45, § 26, it is otherwise where he acquires the rent-charge by a conveyance operating under the Statute of Uses, for then the person to whose use the rent-charge is limited is by virtue of the Statute of Uses to be deemed to be in actual possession. It follows, therefore, if we observe the rule of conduct I have referred to, that, if the deed conveying the rent-charge in the present case operates at common law, the case is governed by Murray v. Thorniley; and that, if it operates under the Statute of Uses, then the case is governed by Heelis v. Blain, and we are bound to hold, whatever be our opinion of that case, that the possession given by the Statute of Uses is the possession required by the Reform Act. The result is, that the question for our determination is whether the deed conveying the rent-charge in respect of which Orme claimed in this case was one which operated at common law or by virtue of the Statute of Uses.

The result of the authorities cited is this: You must first look at the whole deed of conveyance; and wherever the grant in the habendum and the declaration of uses is to the same person, if the description is general in the one part and specific in the other part, the latter is to override the former; and, so reading it, it is a common-law conveyance, and the Statute of Uses has no application at all. In Jenkins v. Young, Cro. Car. 230, the limitation was to E. R. and his wife, in the form of a declaration of uses; but, inasmuch as the habendum was general in its terms, and not inconsistent with the declaration of the use, it was held that it was "a limitation of the estate to them and the heirs of

their bodies by the course of the common law.” The case put in Sanders on Uses, p. 91, is open to the same observation. The limitation was to A., B., and C., and their heirs, to the use of A., B., and C., for their lives and the life of the survivor. There again the habendum was general, and the supposed declaration of use specific; but there was no inconsistency, and therefore the habendum was read as specific, and the conveyance was held to be a common law conveyance. In Doe v. Prestwidge, 4 M. & S. 178, the habendum was to two persons, their heirs and assigns, as tenants in common, and not as joint-tenants; that which was called the declaration of uses was general, "to the use of them, their heirs and assigns; " but, inasmuch as the habendum was specific, it was held that the whole must be read as if the declaration of uses had been as specific as the limitation, and so the deed took effect as a common-law conveyance. This seems to me to be the result of the opinions of Lord Bacon, Mr. Booth, Mr. Butler, and Lord St. Leonards.

Apply that to the present case. The grant is to Orme, Lawton, and Kerfoot and their heirs, — habendum "to Orme, Lawton, and Kerfoot, their heirs and assigns, to the use of the said Orme, Lawton, and Kerfoot, their heirs and assigns for ever, as tenants in common, and in equal shares." The habendum is general, and the declaration of uses specific; therefore the habendum is to be read as if it were as specific as the declaration of the use. Consequently the conveyance is a common-law conveyance of the rent-charge to the three as tenants in

common.

I should have been prepared to go the length of Mr. Herschell's argument and to say that the Statute of Uses does not apply, unless there be some person named in the declaration of the use who is not named in the grant. It is not necessary, however, to go that length in the present case: it is enough to say that, one part of the habendum being general, and the other part specific, the whole is to be read together, and the intention collected from that part which is specific.

The result is that this must be taken to be a common law conveyance, and not a conveyance operating by force of the Statute of Uses. The case is, therefore, within Murray v. Thorniley, and is not within Heelis v. Blain. I therefore think the decision of the revising barrister was wrong, and that the appeal must be allowed.

GROVE, J. I am of the same opinion. The question turns upon § 26 of the Reform Act, 2 Wm. 4, c. 25, which enacts that no person shall be registered as a county voter in any year in respect of his estate or interest in any lands or tenements, as a freeholder, unless he shall have been "in the actual possession thereof, or in the receipt of the rents and profits thereof," for his own use, for six calendar months at least next previous to the last day of July in such year. Prima facie, the meaning of those words is clear and simple: "actual possession" would seem to mean an actual and not a constructive possession

or receipt of the rent. The proviso which is engrafted upon that section would seem to show that that is its true meaning,—" provided always, that, where any lands or tenements, which would otherwise entitle the owner, holder, or occupier thereof to vote in any such election, shall come to any person at any time within such respective periods of six or twelve calendar months, by descent, succession, marriage, marriage-settlement, devise, or promotion to any benefice in a church, or by promotion to any office," such person shall be entitled to be inserted as a voter. This was the meaning put by this court in Murray v. Thorniley, 2 C. B. 217; 15 L. J. (C. P.) 155, where it was held that the possession required by that section was an actual possession, as contradistinguished from a possession in law; and there would have been no difficulty in this case but for the decision in Heelis v. Blain, 18 C. B. (N. S.) 90; 34 L. J. (C. P.) 88, where, the use being in a person different from the person who took the fee, the Statute of Uses applied, and it was held to give such a possession as amounted to actual possession. Now the question arises, whether the Statute of Uses is confined to a case where the use is not limited to the same persons as those to whom the rent-charge is granted. It seems to me to be clear, as well from the language of the preamble as from the enacting words of § 1, that the Statute was intended only to meet the case of a limitation of the use to persons other than those to whom the rentcharge is granted. The object of the Statute was to prevent conveyances from being otherwise than bona fide, and to make the ostensible and the real ownership of the estate always identical. We all know how that object was defeated, viz., by repeating the words "to the use of." The Statute, as I have already observed, in terms applies only to the case where the use was limited to a different person from the grantee or feoffee. One exception is that mentioned in Sammes's Case, 13 Rep. at p. 56 a, where it was resolved that, "if a man maketh a feoffment in fee to one, to the use of him and the heirs of his body, in this case, for the benefit of the issue, the Statute according to the limitation of the uses divests the estate vested in him by the common law, and executes the same in himself by force of the Statute; and yet the same is out of the words of the Statute 27 Hen. 8, which are, where any person, &c., stand or be seised, &c., to the use of any other person; and here he is seised to the use of himself; and the other clause is, where divers and many persons, &c., be jointly seised to the use of any of them, &c.; and in this case A. is sole seised: but the Statute of 27 Hen. 8 hath been always beneficially expounded, to satisfy the intention of the parties, which is the direction of the use according to the rule of the law. So, if a man seised of lands in fee-simple by deed covenants with another that he and his heirs will stand seised of the same land to the use of himself and the heirs of his body, or unto the use of himself for life, the remainder over in fee; in that case, by the operation of the Statute, the estate which he hath at the common law is divested, and a new estate vested in himself, according to the