dertaken to write on the subject of this assurance, have been led:-how just is the maxim, ignoratis terminis, ignoratur et ars, and the other maxim, nomina si perdas certe distinctio rerum perditur.

Of the Lease and Release.

It will now be proper to treat of the parties to a release, and the formal parts of this

assurance.

As a deed is of the essence of a release, it follows, that no one except those who can grant by deed can effectually grant by a release, and that the release must be made by deed.

It frequently happens that the release forms one only of the assurances contained in a deed. The deed may have other objects besides the release, consequently other parties besides the releasor may be necessary to give effect to these objects as far as respects the release itself, it will be sufficient that the intended releasor and releasee should be parties.

The formal parts of the deed, independent of other circumstances, are

1st. The date.

2dly. The clause which names the parties, 3dly. The testatum clause.

4thly. The récital of the lease, or bargain and sale for a year.

5thly. The parcels and exception. 6thly. The habendum.

7thly. The declaration of use.

8thly. Sometimes the declaration of trust.

9thly. The covenants.

1st. Of the Date.

In modern practice, the lease and release, as has already been observed, are parts of the same assurance, The release is generally dated on the day next after the day of the date of the lease for a year: this order of date is not absolutely necessary. On that point some observations have been offered in considering the circumstances, which, in regard to the date, are to be observed in the lease for a year. From the authorities which have been cited, it is also obvious that the release may be a transaction totally independent of a lease for a year, prepared for the purpose of being a foundation for the release. An estate for years or life, though created at any period however remote, and without any view to an enlargement of the estate of the lessee or bargainee, is equally capable of enlargement as if the estate had been created, as is the case in modern practice, immediately before the release, for the sole purpose of being enlarged.

2dly. The Clause which names the Parties.

Of the parties some notice has already been taken. It remains only to be added, that care should be taken to designate with sufficient certainty, the persons who are to be parties.

The general rule to be remembered in this place is, that no one can grant by a deed, or take an immediate estate under the deed, unless he be a party to the deed (c). But a person may take a remainder (d), or an use (e), or the benefit of a trust under a deed, without being a party to it. In a deed poll (ƒ), a person becomes a party merely from the circumstance of being named as the person by whom, or to whom the grant is made. With reference to indentures between parties, it seems to be a general rule, that no one can be considered as a party to a deed, unless he be named as a party in the clause, containing the names of the persons who are formally made parties. Thus, in the instance of an indenture, expressed to be made between A. of the one part, and B. of the other part, C. could not take an immediate estate, or be a grantor or a grantee, or a co

(c) Co. Litt. 231. a.

(d) Ib.

(e) Samms's Case, 13 Rep. 55,2. (f)1 Inst. 526,

venantor

or covenantee, because he was not named among the parties. That a remainder may be good to a person who is not a party to a deed, is the express language of Lord Coke, and of all the authorities. The proposition of Lord Coke(g),confirmed as it will be by several passages from other authors, is

And albeit, he in the remainder be no "party to the indenture (the parties there"unto only being the lessors and the te"nants for life,) yet when he in remainder "entereth and agreeth to have the lands by "force of the indenture, he is bound to

perform the conditions, contained in the "indenture: and here is also a diversity "to be understood, that any stranger to "the indenture may take by way of re"mainder, but he cannot in this case take "any present estate in possession, because "he is a stranger to the deed."

The cases applicable to this division involve minute distinctions and technical niceties; and it will be proper to observe, that there are three classes of deeds :

1st, Indentures introducing the actores fabulæ, as parties, in this form, or to this effect,

"This indenture, made, &c. between A. B.

(g) 1 Inst. 230.

"of the one part, and C. D. on the other "part."

2dly, Deeds indented, and which without naming any person as parties, begin with these or the like terms:

"It is agreed, &c. that, &c." without naming any person as parties to the agreement ; merely bringing different persons to act in different characters, as circumstances and their interest, or the intention may require. 3dly, Deeds poll, which commence with words to this, or the like effect

"To all Christian people, or to all persons "to whom these presents shall come or be "shewn, A. B. &c.sendeth greeting; or know "ye that A. B. &c. hath, &c."

These different classes of deeds give occasion to different conclusions. First, when an indenture is made between parties, the general rule that no one can take as an immediate grantee under a deed, or be a grantor, covenantor, or covenantee, unless he be named as one of the parties in the deed, is true. This rule is to be collected from Lord Coke, in the 2d Inst. 673. who states this case:

"In action of debt between Scudamore, "and others, plaintiffs, and Vandenstene, de"fendant,upon an indenture of charter-party, "the case was thus: The indenture of char"ter-party was made between Scudamore and “others, owners of the good ship called B,