with an interest, a right of entry, a title of entry, a right of action, an interesse termini, a condition, a contingent interest, are all distinguishable from each other; and the distinctions, though often subtile, sometimes lead to very important legal consequences. Thus, for example, there can be no seizin of a right; it can neither be assigned, nor devised; there can be of it neither dower, nor curtesy, nor a possessio fatris. Watkins on Des. 44, 47, 48, 51, 52, 82, 109. Neither can a title of entry, or a right of entry be assigned, and, perhaps, not even devised. Goodright v. Forrester, I Taunton, 578. Nor is there dower or curtesy of such a title, or right, though they be transmissible by descent, and may be released. 10 Coke, 48. So a condition can neither be granted nor devised. Hence a mortgager, before condition broken, can neither alienate nor devise. He may grant or devise his equity of redemption, but he must have it before he can do either; and an equity of redemption only arises after condition broken; before condition broken, it is a pure condition, and not a possibility coupled with an interest, which is devisable at law, though not assignable, and is assignable in equity, (though some say at law also.) Vide 1 Powell on Mortgages, Coventry's edition 268, Note N; 2 Preston's Abstracts of Title, 186. So likewise an interesse termini is assignable at law, and is said to be the only instance of this species of right which is thus alienable. 1 Preston on Estates, 63, 88, 89.

As to possibilities, they have generally been divided into two kinds, viz. naked, and coupled with an interest. And though there are many instances given in the books, illustrative of each species, there has never been any very comprehensible rule or criterion pointed out, by which they may be clearly and certainly distinguished from each other. Mr. Coventry finds fault with the phrase 'possibility coupled with an interest,' and says the phrase, though a common expression, is yet exceptionable, and not, strictly speaking, correct; for if the possibility be accompanied with an interest, it ceases to be a possibility, and is a contingent interest.' Vide Coventry's Powell on Mortgages, 270. He therefore thinks that these two species of right should be called possibility, and contingent interest, the first being what is usually called a naked possibility, (such as an heir's hope or expectation of inheritance-a joint tenant's jus accrescendi-such contingent remainders and executory devises as do not ascertain the person,

as for example an estate to A for life, remainder to the right heirs of B, or a devise or use to the heirs of B, or an estate to A and B for life, remainder in fee to the survivor) and the second, called by Mr. Coventry contingent interests,' and by others' possibilities coupled with an interest,' are exemplified by such contingent remainders, executory devises, shifting and springing uses, as do ascertain the person, be the contingency what it may.

In regard to the assignable quality of possibilities, or similar rights, by whatever name they may be called, a diversity of opinion appears to exist. Some writers seem to think that possibilities of neither class are assignable at law; others say that all are assignable in equity. Again, some contend that naked possibilities are not assignable even in equity, whilst others say that those coupled with an interest are assignable equally at law and in equity, whilst naked possibilities are assignable in equity only.

It is said that all contingent interests, being executory, cannot be assigned at law, because those who claim the rights have no estates. 10 Coke, 50 a. Co. Litt. 264, 6, 265 a, note 212; 1 Ves. 390, 409; 3 Ves. 391; 7 T. R. 589.

Under the idea that whatever is contingent is a possibility, and therefore not assignable, or devisable, it was, at one time, questioned whether a contingent remainder, or an executory devise could, in any case, be assigned, or devised; but when the courts took the distinction between a naked possibility and one coupled with an interest, a contrary doctrine was established, and the latter are now both assignable and devisable.

A right of survivorship and an heir's hope of inheriting are classed with mere naked possibilities; they are mere expectancies, or chances, and are neither assignable, nor devisable. But an executory devise, or a contingent remainder, if the person be ascertained, may be said to be more than a mere chance, expectancy, or possibility; it is a present right, which may, or may not vest an estate or interest in the person; and is, as all admit, assignable in equity, and, some say at law also, and is clearly devisable. They may likewise be released; are transmissible by descent; pass by bargain and sale to the commissioners under the statutes of bankruptcy; may be bound or extinguished by estoppel, (and hence, in this way, sometimes virtually conveyed at law). And though they are

not assignable by the ordinary rules of the common law, are, nevertheless, bound in equity by covenant or contract.

On the other hand mere possibilities, as an estate to the survivor of several persons, to issue who shall attain a certain age, to children, if living at their parents' death &c. &c. are not devisable at all; nor do they pass to bankrupt commissioners nor are they assignable at law; but they may be bound by estoppel at law; and after the contingency has accrued, equity will decree a specific execution. As to the assignment, devise, &c. of possibilities, vide 1 Maddock's Chan. 549, Butler's ed.; Fearne on Ex. Devises, 548; Vin. Abr. Grant N.; Shep. Touchstone, 239; 1 Preston on Estates, 75, 76; 1 Chan. Rep. 29; 1 Chan. Cases, 8; 2 Preston's Abstracts of Title, 92, 202; Anstr. Rep. 11; Cro. Car. 477; 4 Coke, 66; Goodright v. Forrester, 1 Taunton's Rep. 578, 602, 604, Beames's Elem. of Pleas in Equity, 118; Helps & wife v. Hereford, 2 Barn. & Alder. 242; Carlton v. Leighton, 3 Meriv. Rep. 662. In equity, perhaps, every species of possibility or contingency, may be bound by contract, 1 Ves. 409; 2 P. Wms. 132, 191; 2 Atk. 420; 6 Ves. 261; 3 T. R. 88; 1 Cov. Pow. on Dev. 18, note A, sed vide Carlton v. Leighton, 3 Mer. Rep. 662.

The language of the books speaks, almost universally, as if possibilities, even coupled with an interest, were assignable in equity only. 1 Mad. Chan. 549. And Cruise says that executory devises, and contingent remainders, though limited to ascertained persons, are assignable only in equity. 2 Cru. Dig. 298, Remainder, Title xvi. § 15, 20, 21, 22, 23.

Some have been inclined to think that all possibilities coupled with an interest are not only devisable, but assignable at law; and they desire to extend the doctrine to mere choses in action. If such devises be good at law, and the like assignments be void at law, it arises from the technical nature of a grant at common law, and the peculiar nature of a devise. On the whole, I am inclined to believe that possibilities of every kind, as well as choses in action, are transferable inter vivos only in equity, except when the transfer is an estoppel, operating virtually as a conveyance at law, as was the case in Weale v. Lower, Pollex. 54, which was a fine levied by one, to whom a contingent remainder had been limited. It was held that though the fine operated at first by conclusion, and passed no interest; yet, upon the happening of the contingency,

the estate by estoppel became an estate in interest, of the same effect as if the contingency had happened before the fine was levied; and that the conusor and his heirs after him, were bound by the fine. So likewise in Helps v. Hereford, 2 Barn. & Alder. 242, A and his wife had granted to trustees an estate of which the wife's father was seized at the time of the grant; and in the life time of the father they also levied a fine of the lands to the use of the settlement. On the death of the father, a moiety of the lands descended on the wife. The court were of opinion that the fine operated as an estoppel against the husband and wife, and all claiming under them, as to this moiety. Vide also Wright v. Wright, 1 Ves. 409; Vick v. Edwards, 3 P. Wms. 372; Edwards v. Rogers, Sir Wm. Jones's Rep. 456; Co. Litt. 352, a; Shep. Touchstone, 6. But all of these are cases of fine or recovery; and, perhaps, no case can be found of a deed thus operating by estoppel, virtually to convey at law such possibilities. A contrary doctrine was expressly held in Whitfield v. Fausset, 1 Ves. 387, where the distinction between a fine and a deed is taken and admitted, and the deed was held to be wholly inoperative to convey by estoppel the possibility attempted to be conveyed. So also in the case of Taylor v. Phillips, 1 Ves. 229, a copyholder surrendered his possibility, and the court held that it did not pass by estoppel. Vide also Goodtitle v. Morse, 3 T. R. 365, &c.

But even admitting, argumenti gratia, a deed of grant to be as operative by way of estoppel, as a fine or a recovery, the instrument, signed by Mullins, in the case under consideration, is not a deed of conveyance; and being a covenant only, could not operate, even in equity, as a conveyance by estoppel.

I shall finish my remarks on this fourth and last view of the instrument, viz. as a grant of John Mullins's possibility, by a brief inquiry, whether this be a naked possibility, or one coupled with an interest; and if naked, whether the title can be complete in the assignee, on the happening of the event (viz. the drawing of the lots) without any further act or conveyance of Mullins.

That this is not a possibility coupled with an interest appears to be strongly manifested by the examples I have stated of each species of possibility. Even in the case of contingent remainders, executory devises, conditional limitations, springing and shifting uses, we have seen that it is essential that the

person be ascertained, otherwise they are classed under the head of mere naked possibilities, and are not even devisable. These remainders, &c. are clearly distinguishable from mere chances, hopes, expectancies, and such like, for they import an actual continuance of the same seizin, and though the interest or estate be not vested, but remains contingent till the occurrence of the event, there is still a recognised difference between such a right and a mere naked chance. If the jus accrescendi, or mere right of survivorship in case of joint tenants, is properly classed under the head of naked possibilities, and hence are not even devisable, I can see no distinction between such a right and the chance of drawing a prize in a lottery. In the case of a right of survivorship the chance is that he may survive or may die. So in a lottery, the chance is he may gain a prize or meet with a blank. But, it may be said that the holder of a lottery ticket has paid value for it, and has an interest in the ticket, and also in the entire fund out of which the prizes may be drawn. To this I reply that the joint tenant also paid his money and obtained a deed, as well for his present interest as his possibility, or jus accrescendi; and further, that if the grant of Mullins's possibility does transfer the ticket, (which is questionable) still the right which is granted is nothing more than the possibility, though it be evidenced by the ticket. The ticket is one thing, the right granted is another; as a law is, in strictness, the mandate of the legislator, whilst the statute, or act of assembly, is the written evidence of that mandate. The one is an ens rationis, is invisible and incorporeal; the other is tangible and corporeal; and the grant of the right does not necessarily transfer the corporeal evidence of that right. But admitting that it did transfer the ticket, at law as well as in equity, still a possibility only passes; for the ticket is but an evidence or muniment of title to a possibility. It is also a petitio principii, to say that the assignor of the ticket and possibility had any fixed or legally comprehensible interest in the fund out of which the prizes were to come; this is not the idea of a lottery; he owned nothing but the chance of obtaining a prize, and if he could grant, or has granted any thing, it was the chance only, and not any interest in the joint fund. This chance then, being, as I think it is, a mere naked possibility, was not capable of being legally assigned to Young and Blake.

Lastly. If I be right in considering it a naked possibility,