surrender, a merger would take place as to his share only.TM

It is laid down in the text-books on this subject, that, in order to a merger, the estates must be vested in the same person, in the same right. The rights there intended are legal ones, or such only as a court of law will recognize. Thus, the circumstance of a person being entitled to one of the estates, as trustee only, will not prevent a merger at law, whatever relief a court of equity might give;" but a term which a man has in right of his church, or his wife, or as executor or administrator, does not necessarily merge in an estate of freehold which he has in his own right; for a man may have a freehold in his own right, and a term in auter droit.

In the passage last cited from Coke, it is also laid down, that a man cannot have, consisting together, a term in his own right, and a freehold in auter droit, which, of course, must be understood to apply to estates immediately reversionary on each other. But that position is open to several exceptions; for it appears to be clear, that a merger of the term will not take place, unless the coalition of the estates is occasioned by the party's own act. Thus, where the fee descended on the wife of the party entitled to the term, it was held, that, inasmuch as the union of the estates was not the act of the termor, no merger took place."

The words "surrender," and " yield up," though the most appropriate, are not the only words by which a surrender may be effected. Any language sufficient to show the intention of the parties will be sufficient.

P Lady Platt v. Heap, Cro. Jac. 275; 1 Bulst. 118. Farmer v. Rogers, 2 Wils. 26; Smith v. Mapleback, 1 Durn. and E. 441.

Attorneys.

Authority.

Amount.

Release of

errors.

CHAPTER XXXIX.

WARRANTS OF ATTORNEY,

AND DEFEASANCES THEREON.

To C. D. and E. F., attorneys of her Majesty's Court of Queen's Bench,' at Westminster, jointly and severally, or to any other attorney of the same

court.

in

These are to desire and authorize you, the attorneys above named, or any one of you, or any other attorney of the said court, to appear for me, A. B., of, &c., in the said court of term next, or at any time thereafter, and then and there receive a declaration for me in an action of debt at the suit of G. H., for the sum of two hundred pounds, [usually double the debt,] and thereupon to confess the same action, or else to suffer a judgment by nil dicit, or otherwise, to pass against me in the same action, and to be thereupon forthwith entered up against me of record of the said court, for the said sum of two hundred pounds. And I, the said A. B., do hereby further authorize and empower you, the said attorneys, or any one of you, after the said judgment shall be entered up as aforesaid, for me in my name, and as my act and deed, to sign, seal, and execute a • Common Pleas, or Exchequer, as the case It is directed to two attorneys, to provide death of one before the judgment is entered up.

may require against the (Wils. 312.)

good and sufficient release in the law to the said G. H., his heirs, executors, and administrators, of all and all manner of error and errors, writ and writs of error, and all benefit and advantage thereof, and all misprisions of error and errors, defects and imperfections whatsoever, had, made, committed, done, or suffered, or to be had, made, committed, done, or suffered, in, about, touching, or concerning the aforesaid judgment, or in, about, touching, or concerning any writ, warrant, process, declaration, plea, entry, or other proceedings whatsoever, of or in any way concerning the same. And for what you the said attorneys, or any one of you, shall do, or cause to be done in the premises, or any of them, this shall be to you, and every of you, a sufficient warrant and authority.

day of

In witness whereof, I have hereunto set my hand and seal, the in the " year of the reign of our Sovereign Lady Victoria, by the grace of God of the united kingdom of Great Britain and Ireland Queen, Defender of the Faith, and in the year of our Lord one thousand eight hundred and forty

Signed, sealed, and delivered, by the said A. B. in my presence, and I declare myself to be attorney for the said A. B., and that I subscribe as such attorney. I. K., of, &c.

DEFEASANCE.

Memorandum, that the above written` warrant of attorney is given for securing the payment by the above-named A. B., to the above-named C. D., of the sum of L. and interest thereon, after the rate of, &c., on, &c., being the days and times men

The defeasance, if indorsed or underwritten, does not require a stamp; but if made by a separate instrument, it will require one, and must be by deed, which should recite the material parts of the instruments referred to, and must be made between the same parties as are parties to the warrant of attorney. (Wood's Inst. lib. 2.)

tioned and reserved for the payment thereof, by a certain indenture of release and mortgage bearing even date herewith, and made between the said A. B. of the one part, and the said C. D. of the other part, whereby and by virtue of a bargain and sale therein mentioned, certain lands and hereditaments, situate at therein more particularly mentioned, were conveyed and assured unto and to the use of the said C. D., his heirs and assigns, subject to redemption on payment of the aforesaid sum of L. and interest after the rate and at the time hereinbefore in that behalf mentioned. And it is hereby agreed and declared, between and by the said parties, that no execution or other process shall be issued on the judgment so to be entered up by virtue of the within written warrant of attorney, until default shall happen to be made in payment of the aforesaid principal and interest moneys, or some part thereof, on the days and times hereinbefore mentioned or referred to; but, in case default shall be made in payment thereof, or of any part thereof, then it shall be lawful for the said C. D., his executors, administrators, or assigns, immediately thereupon to issue execution, or cause execution to be issued upon the said judgment for such sum or sums of money as shall then be due, for principal and interest, or either of them, by virtue of the said [bond or indenture of mortgage.] And it is hereby agreed and declared, that it shall not be necessary for the said C. D., his executors, administrators, or assigns, to revive, or cause to be revived, the said judgment,

u

If the money is payable by instalments, “ of any of the said instalments, or any part thereof respectively; but in case default shall be made in payment of any or either of such instalments, or any part thereof respectively, on any or either of the days whereon the same are made payable as aforesaid, then it shall be lawful for the said C. D., &c. &c., for the whole amount of the said principal sum of L. or such part thereof as shall be then unpaid, and all interest which may be due thereon; and it is hereby," &c.

or to do any act, matter, or thing for keeping the same on foot, although there shall have been no proceeding thereon within one year immediately preceding the issuing of such execution: And it is further declared and agreed, that, after full payment of the sum and sums of money intended to be secured as aforesaid, and all the costs, charges, and expenses (if any) occasioned by the non-payment thereof, the said C. D., his executors, administrators, or assigns, shall and will, at the request, costs, and charges of the said A. B., his heirs, executors, administrators, or assigns, acknowledge satisfaction, or cause satisfaction to be acknowledged upon the said judgment so to be entered up as aforesaid. In witness, &c.

*Defeasance in a Warrant of Attorney to secure an Annuity.

Whereas [recite the instrument by which the annuity is granted.] And whereas the said A. B. hath executed the above-written warrant of attorney, as a further security for the payment of the said annuity or yearly sum of L. on the several days, and in manner hereinbefore mentioned; and it is intended that judgment shall be forthwith entered up by virtue of the said warrant of attorney. Now, therefore, it is hereby agreed and declared, between and by the said A. B. and C. D., that no execution shall be issued upon the judgment so to be entered up as aforesaid, until the whole or some part of one of the said quarterly portions of the said annuity or yearly sum of L. , or of the proportional part thereof, shall be in arrear and unpaid for the space of days next after any of the days so appointed for payment thereof respectively as aforesaid; but, in case any one or more of such quarterly portions, or such proportional part of the said annuity as aforesaid, or some part thereof respectively, shall be so in arrear and unpaid, then, and in such case, and from time to time, so often as the same shall

+