of a power cannot execute a deed of appointment by attorney. But the cases by no means authorize this position. They merely establish that the donee cannot delegate the confidence and discretion reposed in him to another. Where the deed of appointment is actually prepared, or the donee points out the precise appointment which he is desirous should be made, there no. confidence, no discretion is delegated. The appointment is, in every respect, an exercise of his own judgment; and there cannot be any reason why he should not be permitted to execute the deed of appointment by attorney. The contrary doctrine would lead to great inconvenience.

Here we must be careful to distinguish cases where the power is originally authorized to be executed by the donee of the power and his assigns; for in those cases, where the power is annexed to an interest in the donee, it will pass with it to any person who comes to the estate under him, although there are twenty mesne assignments; and whether the claimant is an assignee in fact, or an assignee in law, as an heir or executor (ƒ), In like manner the donee of a power not annexed to an interest, may delegate the power by virtue of an express authority in the deed by which it was created (g).

And where the power is tantamount to an ownership, and does not involve any confidence or personal judgment, it may be executed by attorney, in the same manner as a fee simple may be conveyed by attorney. Thus, when the statute of 1 Rich. III. gave cestui que use power to dispose of the legal estate, it was determined

(f) How v. Whitfield, 1 Ventr. 338, 339; 1 Freem. 476, 2 Jo.110, 2 Show. 57. (g) See Palliser v. Ord, Bunb. 166.

that

that he might execute his power by attorney (h). It appears to be on the same ground, that where an estate is limited generally to such uses as a man shall appoint, he may limit it to such uses as another shall appoint. The power is equivalent to the fee simple, and is merely a species of ownership, the delegation of which involves in it no breach of trust, or dereliction of personal judgment. The consideration of this point will be resumed in a future page (i).

Where a power which cannot be transferred is delegated, and estates are limited over in default of any appointment, by the person to whom the power is wrongfully delegated, the delegation is simply void, and the estates limited over take effect immediately (k).

(h) Anon. Dy. 283, a. pl. 30; and Bishop of London v. Kellet, cited, ibid; and see Warren v. Arthur, 2 Mod. 317, and Combes'

case, 9 Rep. 75, b.

(i) Vide infra, ch. 5, sect. 1.
(k) Ingram v. Ingram, 2 Atk. ss.

1

i ?

SECT.

SECTION II.

OF THE TRANSFER OR DELEGATION BY ACTS OF PARLIAMENT AND THE ACT OF LAW.

By the common law, the King was not entitled to conditions vested in persons attainted, nor were they forfeited by any act in which they were not expressly named, for by the general words of all hereditaments they would not pass, although clearly hereditaments (1). But by the 33 H.VIII. c. 20. (1) the benefit of rights, entries, and conditions, was expressly given to the crown: that is, the land itself was not given, but only the benefit of the condition, by which the land might be reduced into the possession of the party attainted, had he not been attainted (m).

The distinctions established upon this legislative provision appear to be, that where the power is inseparably annexed to the person or mind of the donee, it will not be forfeited to the crown by his attainder; but

(1) See Marquis of Winchester's (m) See 1 Hale, P. C. 244, s. 4; case, 3 Rep. 1. 2 Hawk. P. C. 453, 6. 26.

(1) By the 7th Ann, c. 21, after the decease of the Pretender, na attainder for treason was to prejudice the right and title of any person, oth than the right of the offender during his life. [For the history of this statute, see York on Forfeiture, and 4 Black. Com. 384]. By the 17th Geo. II. c. 39, the operation of the act of Anne was suspended till the death of the Pretender's sons. If these acts had ever operated, they might have occasioned some very nice questions on the doctrine discussed in the text. But by the 39th Geo. III. c. 93, the act of Anne was wholly repealed.

where

where the thing to be done is a mere ministerial or formal act, not inseparably annexed to the person or mind of the donee, but which may be performed by one person as well as another, the power will go to the

crown.

Thus, in Dacre's case, where a grant was revocable, upon a mere tender of 5s. it was resolved that such a condition was given to the King (n). But if the power is required to be executed under the proper hand, or which is the same, under the hand of the donee (o); or any other mode is pointed out to the performance of which the mind or hand of the donee himself is required, the power is not forfeited by his attainder. The difficulty is to apply this rule to the cases which arise..

In Hardwin and Warner (p), a power of revocation was given to Sir William Shelley, upon tender to the feoffees of a gold ring, or a pair of gloves of the value of 12d. or above, or the sum of 12d. he the said Sir William, tunc declarante et expressante, that the ten

(n) 17 Eliz. adj. cited by Popham,

4 Leo. 169.

(0) Duke of Norfolk's case, 7 Rep. 13, a. cited; Smith v. Wheeler, 1 Ventr. 128; 1 Lev. 279; 1

Mod. 16, 38; 2 Keb. 564, 608, 644, 763, 772; 1 Freem. 9. (I) (p) 1 Jo. 134; Latch 25, 69, 102; 2 Roll 393; Palm. 429; Noy 79.

(1) This case of Smith v. Wheeler, was first heard in error when Kelynge was Chief Justice, who remarked, that

taken, a man may commit treason pretty cheaply."

if this way be

See 1 Mod. 40,

and see 2 Keb. 645; and Kelynge deterred Serjeant Maynard from pleading against the crown according to his retainer, by putting it upon him at his peril, on forfeiture of his patent! The case arose upon an act of attainder similar to the act of Hen. VIII.

der was with intent to make void the feoffment. The case was decided against the crown, first in the Exchequer, and then in the Common Pleas; but it appeared that the Attorney-General confessed judgment in the Exchequer, for (as it was asserted) a good fee; and then when he was Chief Justice of the Common Pleas, he was unwilling to contradict his former confession. The difficulty in this case was considerable. When the case was argued in B. R. it was admitted on all hands, that if a tender of a ring, &c. only had been required, the benefit of the power would have been forfeited, and it was also conceded, that in every case of a tender there must be a declaration, although not expressly required by the power. Whitlock and Jones, on these grounds, held that the words ipso declarante were only what the law would have implied, and expressio eorum quæ tacite insunt nihil operatur. On the other hand, Crew, Chief Justice, and Dodridge (1), held that the power was inseparably annexed to Sir William's person. They with great reason took a distinction between a general declaration implied by law, and a special declaration like this, which they thought was personal to Sir William Shelley.

In a subsequent case a decision was pronounced, which savours but too much of the despotic times in which it was made. I allude to Englefield's case (q).

(9) 7 Reports 78; Mo. 303, the best report; Popham 18, 4 Leonard 135, 169, and other books.

(1) Palmer's is perhaps the best report of this case; and he says that Randall agreed with Crew and Dodridge: but however this may be, the judgment of C. B. was of course affirmed.