The doctrine now abolished.



(n) Stat. 2?, & 24 Vict. c. 38, s. 7.

(o) See Co. Litt. 271 b, n. (1), VII., 1.


Judgment debts.

New act.

(p) Slat. 32 & 33 Vict. c. 71, ss. 15, par. (4),25,par. (5). The former actsgave a similar power to the assignees of the bankrupt, stat, 6 Geo IV. c. 16, s. 77, and 12 & 13 Vicl. c. 106, . 147, now repealed by stat. 32 & 33 Vict. c. 83.

(q) Stat. 1 & 2 Vict. c. 110, ss. II, 13.

(r) Ante, pp, 83, 84.

(s) Stat. 27 & 28 Vict. c. 112, ante, p, 85.

Suppose, however, that B. should exercise his power, and appoint the lands by deed, to the use of D. and his heirs. In this case, the execution by 13. of the instrument required by the power, is the event on which the use is to spring up, and to destroy the estate already existing. The moment, therefore, that B. has duly executed his power of appointment over the use, in favour of D. and his heirs, D. has an estate in fee simple in possession vested in him, by virtue of the Statute of Uses, in respect of the use so appointed in his favour; and the previously existing estate of C. is thenceforth completely at an end. The power of disposition exercised by B. extends, it will be observed, only to the use of the lands; and the fee simple is vested in the appointee, solely by virtue of the operation of the Statute of Uses, which always instantly annexes the legal estate to the use (if). If, therefore, B. were to make an appointment of the lands, in pursuance of his power, to D. and his heirs, to the use of E. and his heirs, D. would still have the use, which is all that B. has to dispose of; and the use to E. would be a use upon a use, which, as we have seen (u), is not executed, or made into a legal estate, by the Statute of Uses. E., therefore, would obtain no estate at law; although the Court of Chancery would, in accordance with the expressed intention, consider him beneficially entitled, and would treat him as the owner of an equitable estate in fee simple, obliging D. to hold his legal estate merely as a trustee for E. and his heirs.

In the exercise of a power it is absolutely necessary that the terms of the power, and all the formalities required by it, should be strictly complied with. If the power should require a deed only, a will will not do; or, if a will only, then it cannot be exercised by a deed(v) or by any other act, to take effect in the lifetime of the person exercising the power (x). So, if the power is to be exercised by a deed attested by two witnesses, then a deed attested by one witness only will be insufficient (y). This strict compliance with the terms of the power was carried to a great length by the Courts of law; so much so, that where a power was required to be exercised by a writing under hand and seal attested by witnesses, the exercise of the power was held to be invalid if the witnesses did not sign a written attestation of the signature of the deed, as well as of the sealing (z). The decision of this point was rather a surprise upon the profession, who had been accustomed to attest deeds by an indorsement, in the words "sealed and delivered by the within-named B. in the presence of," instead of wording the attestation, as in such a case this decision required, "Signed, sealed and delivered, etc." In order, therefore, to render valid the many deeds which by this decision were rendered nugatory, an act of parliament (a) was passed by which the defect thus arising was cured, as to all deeds and instruments, intended to exercise powers which were executed prior to the 30th of July, 1814, the day of the passing of the act. But as the act had no prospective operation, the words "signed, sealed and delivered" were still necessary to be used in the attestation, in all cases where the power was to be exercised by writing under hand and seal, attested by witnesses (b). It is, however, now pro- in which case the Court of Exchequer intimated that they considered the case of Wright ruled (c) that a deed executed after the 13th of August, 1859, in the presence of and attested by two or more witnesses in the manner in which deeds are ordinarily executed and attested, shall, so far as respects the execution and attestation thereof, be a valid execution of a power of appointment by deed or by any instrument in writing not testamentary, notwithstanding it shall have been expressly required that a deed or instrument in writing made in exercise of such power should be executed or attested with some additional or other form of execution or attestation, or solemnity. Provided always, that this provision shall not operate to defeat any direction in the instrument creating the power that the consent of any particular person shall be necessary to a valid execution, or that any act shall be performed, in order to give validity to any appointment having no relation to the mode of executing and attesting the instrument; and nothing contained in the act is to prevent the donee of a power from executing it conformably to the power by writing, or otherwise than by an instrument executed and attested as an ordinary deed; and to any such execution of a power this provision is not to extend.

Exercise of power by deed.

The power is only over the use.

The terms and formalities of the power must be complied with.

(t) See ante, pp. 154, l55.

(u) Ante, p. 156.

Power to be exercised by writing under hand and seal, attested by witnesses.

Stat. 54 Geo. 111. c. 168.

New enactment.

(v) Majoribanks v. Hovenden, ] Drury, 11.

(x) Sugd. Pow. 210, 8th ed.; 1 Chance on Powers, ch. 9, pp. 273 et seq.

(y) Sugd. Pow. 207 et seq., 8th ed.; 1 Chance on Powers 331.

(z) Wright v. Wakeford, Taunt. 213; Doe d. Mansfield v.

Peach, 2 .Mau. & Selw. 676; Wright V. Barlow, 3 Mau. & Selw. 512.

(a) 54 Geo. III. c. 168.

(b) Sec, however, Vincent v. Bishop of Sodor and Man, 5 Ex. Rep. 683, 698,