ities towards his inferiors in rank; but reserved them almost entirely for the society of such as it is to be presumed were least accustomed to meet with them in others. Whether this was done from an affectation of eccentricity, or from a morbid desire to make it apparent, even in the most trivial matters, that he stood in no awe of rank and station however elevated, we do not pretend to determine. Certain it is, that, in the presence of his equals, he often chose to emancipate himself altogether from the restraints of politeness. For example, he was visiting once at the mansion of a nobleman in Yorkshire, and as he was being conducted by the host, together with a large party, through the grounds, he was asked, on approaching the conservatories, whether he would not like to go in and taste the grapes. "Grapes, indeed," growled he, "did not I just now tell you I had got the gripes?"

The

Lord Thurlow died (12th Sept. 1806,) being suddenly seized while at Brighton, with an attack of illness which carried him off in two days. His remains were privately conveyed to his house in Great George street, whence they were removed to the Temple church for interment. funeral procession was a very splendid one, and attended by a great concourse of persons, including many high in rank and office; among others, the lord chancellor, the chief baron of the exchequer, the duke of Newcastle, lord Ellenborough, lord Eldon, and sir William Scott, who officiated as pall-bearers. Lord Eldon was appointed one of the executors, but, we believe, refused to act as such. His talent as a lawyer had been, from his first coming into practice, fully appreciated by lord Thurlow, who, it is said, at one time offered him a mastership in chancery. However, his then rapidly increasing business induced him to decline the appointment.

There remains but little for us to say of lord Thurlow as a lawyer or a statesman. Whatever capabilities he may

have possessed for distinguishing himself in either character, he must of course be judged, not by what he could have done, but by what he actually did; and that, as we have already shewn, was very little. In the cabinet he was always little better than a cipher; in the court of chancery, if he shone with more lustre than elsewhere, he certainly was far from being a star of the first magnitude: and, even such as he appeared, he glittered in part with a borrowed light. The two houses of parliament seem to have afforded him the most favorable arena for displaying that native strength and vigor of mind, which to a certain extent he undoubtedly possessed; and yet, upon the whole, his career as a politician certainly cannot be said to furnish matter of panegyric. No power of argument, no command of language, no degree of ability as an orator or as a statesman, can cover over a stain, such as the want of political integrity has left upon his character. When he deserted his party to secure his place, he must have known very well that the power and emolument he coveted could not be retained but by a sacrifice of his fair fame. That sacrifice he voluntarily and deliberately made: he paid the price, and concluded what he considered an advantageous bargain. It is now too late to dispute about the reasonableness of the contract. There is no retracting from this kind of engagement. It is like paying for admission to the theatre; when once you have entered, if you are not pleased with the performance you may retire if you please, but no money is returned. If, therefore, without fear of arousing from his grave the classic ghost of Dr. Parr, we might venture to suggest so barbarous an interpretation of the word fortuna, as that which is conveyed by the most common acceptation of our English word fortune, that is, wealth, we should say that in this sense, as well as in the more obvious and correct one, we may readily admit the justice of the remark applied to lord Thurlow by the learned prefacer of Bellendenus: "Fuit ei, perinde atque aliis, fortuna pro virtutibus.”

ART. II. ESTOPPEL-ERASURE.

QUESTIONS. 1. Whether, when the son and heir apparent of the tenant of an estate in fee simple conveys land thus holden, and afterwards dies in the lifetime of his father, the heir of the father, who also makes his pedigree through the son, is estopped?

2.

Whether, if the father, after the conveyance by his son and heir apparent, execute a deed of confirmation to the grantor of the son, an unexplained erasure in a material part of the deed avoids it?

Ar the time of the supposed conveyance the grantor had nothing in the land, and his deed could have no immediate operation. If it had effect by way of estoppel or rebutter it was because a right of action existed against him, and he was estopped to prevent circuity of action, or rebutted because the title was derived through him. His heirs would be estopped or rebutted for the same reason. If the son, who made the conveyance, had survived the father, he would have been barred. He could not have averred, in defence to an action, that he had no interest in the land at the time of the conveyance. Judgment must have been rendered against him, and that judgment would have bound him and his heirs. As such would have been the effect of a judgment, the law provides that when the feoffor or grantor becomes entitled to the land, his previous conveyance shall have the effect of creating a perfect title as against him and his heirs. The estate by estoppel would, according to the uniform language of the authorities, on the vesting of the title, become an estate in interest.'

There are various kinds of conveyances of real estate, with different degrees of efficacy. There is a release which

Pollexf. 54; 2 Ld. Raym. 1058.

operates upon existing rights; feoffinent, which ransacks the estate and conveys all that the feoffor is capable of conveying or of holding, but has no effect upon the future rights of the heir, unless they are derived directly from the feoffor; and there are conveyances with warranty, which enlarges the effect of releases and other conveyances, that would otherwise transfer only existing rights.

A release with warranty, without assets, has the same effect upon future rights as a feoffment, but the efficacy of a feoffment is not increased by reason of a covenant of warranty without assets. A warranty with assets takes effect when the heir of the warranty does not inherit the estate from the ancestor making the warranty.

A proper discrimination between the different modes of conveyance will be found to be decisive of the question. A release with warranty has effect as a feoffment, because the releasor and his heirs with assets are concluded by the warranty and rebutted from asserting any title derived under him. Then suppose the case put by Littleton, sect. 706, where there is grandfather, father and son, and the grandfather is disseised, and the father release to the disseisor with warranty and dies, and afterwards the grandfather dies, the son is barred by the release of the father. Here the release would convey nothing merely as a release. It derived its power from the warranty, and operated as a feoffment against the releasor, by conclusion. If the father had survived the grandfather, it would have bound the title and concluded the heirs; but as the father died in the life of the grandfather, the lineal warranty took effect, as in all other cases, by reason of assets. This was certainly the meaning of Littleton. And the release with warranty was entirely void as against the heirs, unless they inherited from the father other lands of equal value. The grantor had no estate at the time of his conveyance, and if the estate descended from the grandfather to the son, immediately as

heir, he had not, by reason of that descent, any assets. The heir was not concluded because he was obliged to make his title through his father.

1

This point was directly decided in the case of Edwards v. Rogers. There the land was conveyed by a fine with warranty, by a collateral ancestor who never became seised of the land, but through whom the heir of the real owner, at the time of the levying of the fine, made his pedigree. On the effect of this fine with warranty, the court were divided in opinion. Jones, J., contended very strenuously, that the heir of the collateral ancestor was barred by the fine, because he could not make out his title without naming the conusor in the fine; and he distinguished the case from one in which a younger brother inherited from his father, although the blood of the elder was corrupted by an attainder, as in the latter case the younger son made his title without naming the elder brother. The majority of the court, however, were of opinion, that as the heir did not make out his title, but traced his pedigree merely through his collateral ancestor, he was not barred by fine. But the whole court were decidedly of opinion, that there could be no difference between the effect of the warranty and the fine, because the warranty descended in the same manner as the fee. The heir would be estopped by the warranty on the same principle that he would be rebutted by the fine. It is very evident, from the doctrine of the court, that the warranty was without assets, for if there had been assets the heir would have been bound, and it would have been quite unnecessary to inquire whether the fine, by its own efficacy, transferred the title. The court were of opinion. that the conveyance had no effect, and that the warranty wrought no estoppel because the heir did not derive his title by descent immediately from the party making the conveyance and the warranty.

1 W. Jones Rep. 456.