"for myself, &c. on the behalf of the said "Charles Rock, that is to say, that the said "Charles Rock shall pay the rent and per"form the other covenants, &c." reciting them particularly, &c. which deed was sealed by Rock and Ridgly; and after oyer, the defendants demurred generally.

And it was argued for him that he was not bound by this covenant, because he was not a party to the deed; and it is a rule in law, that he who is not a party to the deed, can never give or take any thing, &c. except it is by way of remainder, which is not this case, and for authorities in point the cases in the margin were cited (y).

It was argued for the plaintiff that this deed was in the nature of two deeds, upon one and the same piece of parchment (which might very well be, as it was agreed on all sides,) and therefore the defendant shall be obliged by it; and it doth not appear in this case, whether the deed was indented or not, so that if it is taken as a deed of the first person, and a stranger, he may be very well obliged by such a deed to have any thing performed as a fide jussor, which in former

(y) 3 Cro. 56. Skidmore v. Vandevestan, 2 Inst. 673. 2 Roll. Abr. 220. 2 Cro. 359. Goodman v. Knights, 1 Inst. 352. Roll. 72. See Lev. 138. Gilby and Copley, 2 Lev. 74. Cooker v. Child.

days was a customary form; and to prove this were cited the cases in the margin (z), And it was also said one who is not a party to the deed may be made an attorney by the deed itself, to make livery and seisin upon a feoffment (a). And where an attorney is made by a deed to which he is a stranger, the deed itself may be by indenture as well as by deed poll.

And in addition to the point so ruled by Holt, Chief Justice, the court was clear in opinion that the action did lie against the defendant upon this deed.

દ

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And it is to be observed that this case arose on an instrument which was not indented, and hence the observation of Holt, Chief Justice, as found in a report of the same case, viz. "This doth not appear to be "an indenture: it is per quoddam scriptum fact, &c." In Shower's Report the opinion of Holt, Chief Justice, is stated in Why cannot a man oblige "himself by a deed, if there be express "words for it and he seals it? Suppose at "the end of an indenture it be 'And be it "known unto all men, that A.B. for him"self covenant, &c.' and he seals it, why "not this oblige him? A man cannot take

these terms:

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immediately where he is not a party;

(z) 40 Ed. 3. 5. Fitz. Ab. Tit. Oblig. 16. F. N. B. 146. b. (a) 1 Inst, 52. b.

"but where do you find that a man cannot give without being a party? In a deed of feoffment, a warrant of attorney to A. not "a party, is good now, though formerly held "to be otherwise."

To resume the general observations on this head, it is usual with some gentlemen in describing the parties, to arrange them under different heads, according to the different characters or the circumstances under which they are to act or to grant. For instance, when A. is a beneficial owner, and also a trustee with B., they make A. a party of the first part, and A. and B. parties of the second part; and they observe a like course when one person is to take estates or receive benefits under different characters, or in different modes; for example: when A. is to be a trustee jointly with B. of one estate, and a trustee jointly with C. of another estate, they make A. and B. parties in one clause, and of one part, and A. and C. parties in another clause, and of another part.

There is an accuracy in this mode of practice, since it opens to the mind the different operations of different parts of the deed. It also facilitates the remembrance of the different characters in which the parties are acting. But the rule of law does not require this or any other like arrangement

of the parties. Though A. and B. are parties only in one clause, they may be grantors or grantees, covenantors or covenantees, either jointly or severally; and although they are named jointly, and the grant be to one of them separately, or the nomination of the other be a mere dead letter, still the deed will not be in any manner invalidated.

3dly. Of the Testatum Clause.

In the testatum clause it is usual to express the consideration for which the release is made, and the mode of expressing the consideration must be governed by circumstances, so as to adapt the language of this part of the instrument to the facts and the intention of the parties.

By the rules of the common law no consideration is necessary to the validity of a release, or of any other deed. The consideration is added, for the purpose only of shewing the equitable title, or rebutting the presumption which would raise a resulting use or resulting trust, or to shew on the internal evidence of the deed, that the deed was not voluntary, &c. so as to be fraudulent against creditors or subsequent purchasers.

That there may be a resulting trust under a conveyance by lease and release, for want of a consideration, is perfectly clear: whether

there may be a resulting use, is a point which requires more minute investigation ; and on that point, some observations will be afforded in the division which respects the declaration of use.

Sometimes the consideration is merely nominal.—In that case the receipt is acknowledged very briefly by the words "the "receipt whereof is hereby acknowledged;" and when the nominal consideration is paid to several persons, the clause should be in this form or to this effect:-" the receipt "whereof respectively they do hereby respectively acknowledge ;" or thus, receipt of which said sums of

"the

and

to the said respectively paid as "aforesaid, they respectively do hereby acknowledge."

When a full and valuable consideration is paid, the receipt for the consideration should be expressed more fully as in the subjoined clauses, and these clauses should vary according to the mode in which the consideration is to be paid. The form in which the consideration is expressed, and of these receipts are now to be added.

1. A simple Form of Consideration paid by one to one.

In consideration of £

of lawful money

of the united kingdom of Great Britain and