have a substantial part. Some such assumption was necessary, to warrant its interference in the teeth of the instrument. But, were the appointment treated as an actual fraud, the jurisdiction should have been extended to objects of every description; as next of kin, &c., since, where fraud is concerned, these fall equally within the scope of equitable relief. Were it reposed upon the mere ground of the donor's intention, this might have been best ascertained, in general cases,by observing how powers have been framed, since this species of jurisdiction became frequent. Have donors themselves ever prescribed what should be deemed a substantial share; as a fourth, or a sixth at least? On the contrary, the subsequent practice has been to render the powers exclusive; leaving it to the appointor's discretion to limit the whole to any one of the objects; and thus protect them against equitable justice. In the mean while, the question soon arose of, What was a substantial share? It was, however, more readily raised than answered; and, finding the principle untenable, or at least the rule impracticable, but deeming it too late to abandon an established doctrine, courts of equity have gradually remeasured their steps; and having decided, on one occasion, that a 190th share was unsubstantial; the actual rule is, that any gift short of that disproportion, (in one case a 122d part) is not illusory. Such has been the dilemma between retraction and imbecility, into which a deviation from the established rules of construction has finally resolved itself! The preceding remarks are offered, not as a complete outline of the subject of powers; for that, though executed in the most compendious manner, would greatly exceed the limits which can be allowed to this article; while, for practical purposes, the subject at large has already been treated, in recent times, with a clearness and precision not to be surpassed; but merely to exhibit-somewhat of their general nature and effects;-the influence produced upon them by the triple system of tenures, uses, and trusts;-the mischievous consequence of allowing every individual donor of a power to depart, at his own caprice, in prescribing the mode of their execution, from the general rules of law;-the exclusion, in the instance of testamentary appointments, of a great remedial statute, by the narrow interpretation of a prior one;-the multiplication of distinctions, and consequently of questions, introduced by courts of equity, in their attempts either to alleviate the hardships occasioned by the ignorance of these private arbitrary rules, or to curb the appointor's express power within an imaginary line of intention. How much useless refinement, obscurity, and anomaly, in this subject would vanish, and how much the subject itself might be contracted-By dividing powers into general and particular only- H By not permitting any theory of disturbance of seisin, or departure with the legal estate without the whole beneficial interest, to operate their destruction, contrary to the intent-By rendering the appointable interests disposable, like others, without any special formalities, or modes, to be annexed to their execution; except in the single instance of a married woman, (who should be required to undergo a judicial examination, whereever her disposition is in the nature of a deed; and whom it may be occasionally necessary to protect, by confining her appointment to will, against any undue influence of her husband,)-By rendering general powers not only assignable, as they are now, in cases of forced alienation, on bankruptcy, and selfdeclared insolvency, but also extendible by creditors, to whom the same principle applies-And, finally, by annexing legal powers of leasing, selling, exchanging, and, where necessary, making partition, to the estates of all tenants for life, in possession, under settlement by deed or will. Sect. 7. Of Involuntary Alienation, or the These are divisible into two classes,-The one affecting the property of the debtor while living,the other affecting his real and personal representatives, in respect of the property devolved to them, which is called assets (assez pour satisfaire.) No. 1. Of the Rights of Individual Cre- I have used the general term property, because the liens of creditors on realty and personalty do not admit of severance. Originally a creditor, after judgment for his debt, could only apprehend the debtor's person, take and sell his goods and chattels in possession, and receive the profits of his lands. Then the statute of 13 Edw. I. c. 18, allowed judgment creditors, upon insufficiency of chattels, in lieu of apprehending the person, to take, and hold till payment, a moiety of the lands which the debtor was seised of at the time of the judgment given; or (as it has been construed) (a) had afterwards acquired, until the debt was paid. (a) See the authorities in 2 Cru. Dig. 58. This, as it is a remedy of the plaintiff's election, is called an Elegit. The remedy was extended by 29 Car. 2, c. 3, to estates held in trust for the debtor; but this, it has been held, does not reach his equity of redemption of a mortgage. Being more efficient than the former remedy against the mere profits of the land, (called a levari facias,) it rendered that mode of execution obsolete. The result is that, as the law now stands, a judgment-creditor may take in execution for his debt, his debtor's person and goods, or his lands and goods; but not his person and lands. The writ of elegit, however, runs only against freehold lands. Copyholds are not affected by it, nor indeed in any manner subject to the demands of creditors. They are protected under the fiction, that the lord may choose his tenant. That lord, whose only interest lies in his fine, and other customary dues, which he gains on every change; and that tenant whom his copyholder may, at any time, force upon him, by the daily processes of surrender and admittance! Against freeholds even, this remedy, like many other just rights, is liable to be defeated by the practice, already so often noticed and reprobated, of getting in prior technical interests, as terms for years, judgments, &c. On the subject of goods leviable in execution, it may be here observed, that choses in action, as they are phrased, or whatever are not in actual posses |