And here ariseth a diversity in law between next of blood inheritable by descent, and next of blood capable by purchase. And therefore in the case before mentioned, if a lease for life were made to A. the remainder to his next of blood in fee; in this case, as hath been said, D. shall take the remainder, because he is next of blood and capable by purchase, though he be not legally next to take as heire by descent.

3. But if there be father and son, and the father hath a brother that is uncle to the son, and the son purchase land in fee simple, and die without issue, living his father, the uncle shall have the land as heir to the son, and not the father, yet the father is nearer of blood; because it is a maxime in law, that inheritance may lineally descend, but not ascend. Yet if the son in this case die without issue, and his uncle enter into the land as heire to the sonne (as by law he ought) and after the uncle dieth without issue, living the father, the father shall have the land as heire to the uncle, and not as heir to his sonne, for that he commeth to the land by collateral discent and not by lineall ascent.

"Yet the father is neerer of blood." And therefore some do hold upon these words of Littleton, that if a lease for life were made to the sonne, the remainder to his next of blood, that the father should take the remainder by purchase, and not the uncle, for that Littleton saith the father is next of blood, and yet the uncle is heire. As if a man hath issue two sons, and the eldest sonne hath issue a sonne and die, a remainder is limited to the next of his blood, the younger sonne shall take it, yet the other is his heire.

“It is a maxime in law, that inheritance may lineally descend, but not ascend."

[11. a.] Maxime, i. e., a sure foundation or ground of art, and a* conclusion of reason, so called quia maxima est ejus dignitas et certissima authoritas, atque quod maxime omnibus probetur, so sure and uncontrollable as that they ought not to be questioned. And that which our author here and in other places calleth a maxime, hereafter he calleth a principle, and it is all one with a rule, a common ground, postulatum, or an axiome and it were too much curiositie to make nice distinction between them. And it is well said in our bookes, n'est my a disputer L'ancient principles del ley. I never read any opinion in any booke, old or new, against this maxime, but only in Lib. Rub. where it is said, si quis sine liberis decesserit, pater aut mater ejus in hoereditatem succedat, vel frater et soror si pater et mater desint; sinec hos habeat, soror patris vel matris, et deinceps qui propinquiores in parentelâ fuerint hoereditarid succedant; et dum virilis sexus extiterit, et hoereditas abinde sit, foemina non hoereditat. But all our ancient authors and the constant opinion ever since, do affirme the maxime.

By this maxime in the conclusion of his case, onely lineall ascention in the right line is prohibited, and not in the collaterall. Quaelibet haereditas naturaliter quidem ad haeredes haereditabiliter descendit, nonquam quidem naturaliter ascendit. Descendit itaque jus quasi pon.

derosum, quod cadens deorsum rectâ lineâ vel transversali, et numquam reascendit eâ viâ quâ descendit post mortem antecessorum, â latere tamen ascendit alicui propter defectum haeredum inferius provenientium; so as the lineall ascent is prohibited by law, and not the collaterall. And in prohibiting the lineall ascent, the common law is assisted with the law of the 12 tables.

Here our author for the confirmation of his opinion draweth a reason and a proofe (as you have perceived) from one of the maximes of the common law. Now that I may here observe it once for all, his proofes and arguments, in these his three books, may be generally divided into two parts, viz, from the common law and from statutes, of both which, and of their several branches, I shall give the studious reader some few examples, and leave the rest to his dilligent observation.

For the common law his proofes and arguments are drawn from 20 several fountaines or places.

First, from the maximes, principles, rules, intendment and reason of the common law, which indeed is the rule of the law, as here and in other places our author doth use.

Secondly, from the bookes, records, and other authorities of law cited by him ab authoritate, et pronunciatis.

Thirdly, from originall writs in the Register, à rescriptis valet ergumentum.

Fourthly, from the forme of good pleading.

Fifthly, from the right entrie of judgments.

Sixthly, à præcedentibus approbatis et usu, from approved precedents

and use.

Seventhly, à non usu, from not use.

Eighthly, ab artificialibus argumentis consequentibus et conclusionibus, artificiall arguments, consequents and conclusions.

Ninthly, à communi opinione jurisprudentum, from the common opinion of the sages of the law.

Tenthly, ab inconvenienti, from that which is inconvenient.

Eleventhly, à divisione, from a division, vel ab enumeratione partium, from the enumeration of the parts.

Twelfely, à majore ad minus, from the greater to the lesser, or from the lesser to the greater à simili à para.

Thirteenthly, ab impossibili, for that which is impossible.
Fourteenthly, a fine, from the end.

Fifteenthly, ab utili vel inutili, from that which is profitable or unprofitable.

Sixteenthly, ex absurdo for that thereupon shall follow an absurditie, quasi à prolatum, because it is repugnant to understanding and reason. Seventeenthly, a naturâ et ordine naturæ, from nature, or the course of nature.

Eighteenthly, ab ordine religionis, from order of religion.

Nineteenthly, a communi præsumptione, from a common presump

tion.

Twentiethly, a lectionibus jurisprudentium, from the readings of learned men of law.

(To be continued.)

Kent, Vol. II., 129–150.

Law Studies.

Husband and Wife.

(Part One).

April, 1890.

"The legal effects of marriage, are generally deducible from the princi. ple of the common law, by which the husband and wife are regarded as one person, and her legal existence and authority in a degree lost or suspended, during the continuance of the matrimonial union.

No contracts between husband and wife without intervention of trustees. Cannot convey lands directly to each other. Husband may devise land to his wife.

I. The right which the husband acquires by marriage in the property of the wife.

(1) To her lands in fee.—Husband takes the rents and profits of the wife's real estate during their lives. A freehold estate in him. Estate in him for life of wife, for his own life, dying before his wife. Husband, tenant by curtesy, where there are children; if no children wife's heirs immediately succeed. A gift of land, to, or purchase of land by husband and wife, neither makes them joint tenants nor tenants in common, they are both seized of the entirety and cannot sell without the other's consent, and the survivor takes the whole. Joint tenants, and of the entirety, words of conveyance in. (2) To her life estate,-If at time of marriage the wife has an estate for her own life or for that of another, the husband becomes seized of the estate in right of the wife and is entitled to the profits during the marriage. Wife's death ends the estate for her own life, but not her estate in the life of another still living and the husband's interest continues during the life of the person who survives. He can only sell or charge to the extent of his interest.

(3) To chatiels real.-Husband's interest in chattels real, such as leases for years. Can sell, assign or mortgage. May be sold for his debts. Can not devise by will. Husband' sabsolutely on death of wife by survivorship.

(4) To her choses in action.—Debts due wife, bond note or otherwise, husband may sue on and recover, and when so reduced to his possession in most cases become his absolutely. The same rule applies where a legacy accrues to the wife. He can release and discharge debts, and change securities with the consent of the debtor. Husband's right to administer on wife's estate. Liability for wife's debts dum sola. Husband properly takes under the statute of distribution as husband. He must take as husband and not as trustee or the wife will take as survivor and not his personal representatives. In aiding husband to possession of wife's property chancery will require provision for support of wife and children. Wife's personal property such as money, goods and chattels, and

movables vest immediately and absolutely in the husband and he can dispose of them as he pleases.

II. The duties which the husband assumes.

(1) To pay her debts.—For debts before coverture. For none after coverture ceases. "The rule of law on this subject may operate very injuriously to creditors; for if the wife be largely indebted before marriage, and the husband takes and apppropriates all her personal property to himself, and the wife dies before the creditors have collected their debts, the husband is no longer liable, and the creditors of the wife are left without remedy. If the husband himself dies before the debts are collected, his representatives are not lable; and though the wife remains liable after her husband's death, for her former debts remaining unpaid, she may have no property to pay them."

(2) To maintain her.-Must provide her with necessaries suitable to her situation, and his condition in life; but he is not chargeable beyond necessaries. The seller, where husband's dissent is given, may be obliged to show absolute necessity for the purchase. Where tradesman gives credit to the wife husband not liable. Nor for money lent to his wife. Where he provides for necessaries during his temporary absence, he is not liable to tradesmen beyond that, if clearly sufficient. A tradesman trusts the wife at his peril if sle goes beyond reasonable and prudent purchases.

(3) Liable for her torts.-Husband liable for torts and frauds of the wife committed during coverture. If committed in his company or by his order he is alone liable. If not, they are jointly liable and must be so sued. Wife cannot be taken on a ca, sa., during coverture for her debt dum sola, or a tort dum sola, without her husband. If the penalty for the offence is imprisonment, or other coporal punishment, the wife alone bears the penalty unless coercion is shown. Coercion presumed where the act is committed in the husband's presence. This presumption of coercion may be repelled by evidence, like any presumption of law.

Student's Notes.

Questions.

1. How are husband and wife regarded in law?

2. Can husband or wife convey lands directly to the other?

3. What right or interest does he acquire in her real estate ?

4. What, as tenant by curtesy ? 5. Can husband's interest in wife's estate be seized on execution?

6. How does a joint gift, or joint purchase of lands affect husband and wife ?

7. How do they take, and what interest has the survivor?

8. In what respect are joint tenants and tenants by entirety alike in conveyance?

9. What interest has the husband in his wife's estate for life, and how does her death affect his interest?

17. When must they be joined respective claims upon their comin a suit?