diftinction of the canonifts, acquires the jus ad rem, or inchoate and imperfect right, by nomination and institution; but not the jus in re, or complete and full right, unless by corporal poffeffion. Therefore in dignities poffeffion is given by installment; in rectories and vicarages by induction, without which no temporal rights accrue to the minifter, though every ecclefiaftical power is vefted in him by inftitution. So also even in descents of lands by our law, which are cast on the heir by act of the law itself, the heir has not plenum dominium, or full and complete ownership, till he has made an actual corporal entry into the lands: for if he dies before entry made, his heir fhall not be entitled to take the poffeffion, but the heir of the person who was last actually seised *. It is not therefore only a mere right to enter, but the actual entry, that makes a man complete owner; fo as to transmit the inheritance to his own heirs: non jus, fed feifina, facit flipitem'. YET, the corporal tradition of lands being fometimes inconvenient, a fymbolical delivery of poffeffion was in many cafes antiently allowed; by transferring fomething near at hand, in the prefence of credible witneffes, which by agreement should serve to reprefent the very thing defigned to be conveyed; and an occupancy of this fign or fymbol was per- [313] mitted as equivalent to occupancy of the land itself. Among the Jews we find the evidence of a purchase thus defined in the book of Ruth":"now this was the manner in for"mer time in Ifrael, concerning redeeming and concerning "changing, for to confirm all things: a man plucked off "his fhoe, and gave it to his neighbour; and this was a tef"timony in Ifrael." Among the antient Goths and Swedes, contracts for the fale of lands were made in the presence of witneffes who extended the cloak of the buyer, while the feller caft a clod of the land into it, in order to give poffeffion; and a staff or wand was alfo delivered from the vendor to the vendee, which paffed through the hands of the wit [ 314 ] neffes". With our Saxon ancestors the delivery of a turf was a neceffary folemnity, to establish the conveyance of lands. And, to this day, the conveyance of our copyhold eftates is ufually made from the feller to the lord or his steward by delivery of a rod or verge, and then from the lord to the purchafor by re-delivery of the fame, in the presence of a jury of tenants. CONVEYANCES in writing were the laft and most refined improvement. The mere delivery of poffeffion, either actual or fymbolical, depending on the ocular teftimony and remembrance of the witnefles, was liable to be forgotten or mifreprefented, and became frequently incapable of proof. Befides, the new occafions and neceffities, introduced by the advancement of commerce, required means to be devised of charging and incumbering eftates, and of making them liable to a multitude of conditions and minute defignations for the purposes of raising money, without an abfolute fale of the land; and sometimes the like proceedings were found useful in order to make a decent and competent provifion for the numerous branches of a family, and for other domestic views. None of which could be effected by a mere, fimple, corporal transfer of the foil from one man to another, which was principally calculated for conveying an abfolute unlimited dominion. Written deeds were therefore introduced, in order to specify and perpetuate the peculiar purposes of the party who conveyed yet ftill, for a very long feries of years, they were never made use of, but in company with the more antient and notorious method of transfer, by delivery of corporal poffeffion. LIVERY of feifin, by the common law, is neceffary to be made upon every grant of an eftate of freehold in hereditaments corporeal, whether of inheritance or for life only. In hereditaments incorporeal it is impoffible to be made; for they are not the object of the fenfes and in leafes for years, or other chattel interefts, it is not neceffary. In • Hickes Differt. Epiftolar. 85. leafes Stiernhook. de jure Sacon. 1. 2. c. 4. leafes for years indeed an actual entry is neceffary, to vest the estate in the leffee: for the bare leafe gives him only a right to enter, which is called his intereft in the term, or intereffe termini: and, when he enters in pursuance of that right, he is then and not before in poffeffion of his term, and complete tenant for years P. This entry by the tenant himself ferves the purpose of notoriety, as well as livery of feign from the grantor could have done; which it would have been improper to have given in this cafe, because that folemnity is appropriated to the conveyance of a freehold. And this is one reason why freeholds cannot be made to commence in futuro, because they cannot (at the common Taw) be made but by livery of seifin; which livery, being an actual manual tradition of the land, must take effect in praefenti, or not at all a. On the creation of a freehold remainder, at one and the fame time with a particular eftate for years, we have before seen that at the common law livery must be made to the particular tenant'. But if fuch a remainder be created afterwards, expectant on a lease for years now in being, the livery must not be made to the leffee for years, for then it operates nothing; “nam quod femel meum eft, amplius meum "effe non poteft;" but it must be made to the remainder-man himself, by consent of the leffee for years: for without his [315] confent no livery of the poffeffion can be given; partly becaufe fuch forcible livery would be an ejectment of the tenant from his term, and partly for the reafons before given for introducing the doctrine of attornments. LIVERY of feifin is either in deed, or in law. Livery in deed is thus performed. The feoffor, leffor, or his attorney, together with the feoffee, leffee, or his attorney, (for this may as effectually be done, by deputy or attorney, as by the principals themselves in perfon) come to the land, or to the p Co. Litt. 46. • Co. Litté 49. house [316] Book II. houfe; and there, in the presence of witneffes, declare the contents of the feoffment or leafe, on which livery is to be made. And then the feoffor, if it be of land, doth deliver to the feoffee, all other perfons being out of the ground, a clod or turf, or a twig or bough there growing, with words to this effect; "I deliver thefe to you in the 86 name of feifin of all the lands and tenements contained in "this deed." But if it be of a houfe, the feoffor must take the ring, or latch of the door, the houfe being quite empty, and deliver it to the feoffee in the fame form; and then the feoffee must enter alone, and fhut to the door, and then open it, and let in the others w. If the conveyance or feoffment be of divers lands, lying scattered in one and the fame county, then in the feoffor's poffeflion, livery of feifin of any parcel, in the name of the reft, fufficeth for all *; but if they be in feveral counties, there must be as many liveries as there are counties. For, if the title to these lands comes to be difputed, there must be as many trials as there are counties, and the jury of one county are no judges of the notoriety of a fact in another. Befides, antiently this feifin was obliged to be delivered coram paribus de vicineto, before the peers or freeholders of the neighbourhood, who attested such delivery in the body or on the back of the deed; according to the rule of the feodal law, pares debent intereffe inveftiturae feudi, et non alii: for which this reason is exprefsly given; because the peers or vafals of the lord, being bound by their oath of fealty, will take care that no fraud be committed to his prejudice, which strangers might be apt to connive at. And though afterwards the ocular atteftation of the pares was held unneceffary, and livery might be made before any cre dible witneffes, yet the trial, in case it was disputed, (like that of all other atteftations 2) was ftill referved to the pares or jury of the county. Alfo, if the lands be out on leafe, though all lie in the fame county, there must be as many liveries as there are tenants: because no livery can be made in this cafe, but by the consent of the particular tenant; and the confent of one will not bind the reft". And in all thefe cafes it is prudent, and usual, to endorse the livery of feifin on the back of the deed, fpecifying the manner, place, and time of making it; together with the names of the witnefies". And thus much for livery in deed. LIVERY in law is where the fame is not made on the land, but in fight of it only; the feoffor faying to the feoffee, "I give you yonder land, enter, and take pofleflion." Here, if the feoffee enters during the life of the feoffor, it is a good livery, but not otherwife; unless he dares not enter, through fear of his life or bodily harm and then his continual claim, made yearly, in due form of law, as near as possible to the lands, will fuffice without an entry. This livery in law cannot however be given or received by attorney, but only by the parties themselves". 2. THE Conveyance by gift, donatio, is properly applied to the creation of an eftate-tail, as feoffment is to that of an estate in fee, and leafe to that of an estate for life or years. It differs in nothing from a feoffment, but in the nature of the eftate paffing by it: for the operative words of conveyance in this cafe are do or dedi; and gifts in tail are equally imperfect without livery of feifin, as feoffments in fee-fimple". And this is the only distinction that Littleton feems to take, [317] when he fays," it is to be understood that there is fcoffor "and feoffee, donor and donee, leffor and leffee;" viz. feoffor is applied to a feoffment in fee-fimple, donor to a gift in tail, and leffor to a leafe for life, or for years, or at will. In common acceptation gifts are frequently confounded with the next fpecies of deeds: which are, 3. GRANTS, conceffiones; the regular method by the common law of transferring the property of incorporeal heredita b Dyer. 18. See Appendix. No. I. d Litt. § 421, .. e Co. Litt. 48. f Ibid. 52. 8 Weft. Symbol. 256. h Litt. § 9. i§ 57. ments, |