J

COVENANTS.

terest without the production of the deeds, while to produce them would be to give success to the fraud intended. The existence of a covenant to produce the deeds has some advantage in this point of view, because it ascertains the party entitled to claim the production; but we think that is not sufficient to warrant a restriction of the right to the particular case where such a covenant exists. We think the party, who seeks a production of the deeds, should be required to state a prima facie case, upon affidavit, before a judge at chambers. The party having the custody might answer this case in the same manner, and if there was no greater difficulty than the judge could decide on such affidavits, relief might be given, and an order to produce the deeds made; if a case of doubtful right should be disclosed, it might be proper to leave it for a more solemn decision. In such a case, we think the party, seeking cases a bill may to enforce a production of the deeds, might be left to institute a suit in equity, in which all equitable circumstances might have due consideration.

Party requiring
production to
state a primá
facie case be-
fore a single
judge;
who, in a clear
case, may order

the deed to be

produced.

In doubtful

be filed.

An action on

the case may be
given for injury
or damage.

An action on the case might be given to a party interested in the preservation of a deed, to recover damages against any other party, having the custody of it, for any injury or damage which he may sustain, from its being lost or destroyed under circumstances of fraud or gross neglect.

BOOK III.

OF DIFFERENT KINDS OF ASSURANCES.

385

CHAPTER I.

OF PURCHASE DEEDS.

meaning of

deeds."

IN strictly technical language a purchase deed is Common any deed, by the operation of which a man acquires "purchase property, or, at least, real property (a). But in the ordinary language of lawyers, a purchase deed means a conveyance in pursuance of a purchase for money; or, in other words, a deed by which, after property has been sold and bought, it is conveyed to the buyer. As the law relating to purchase deeds is fully treated of in Sir Edward Sugden's work on the Law of Vendors and Purchasers (b), and the principal points of practice are adverted to in the notes to the Precedents in the third volume of this work (c), it is needless to enter into the subject here; it will be more useful to offer a short account of the different kinds of deeds which are employed as purchase deeds.

The most ancient forms of conveyance are the Feoffment and Feoffment, perfected by livery of seisin, and the grant. Grant. They were the only forms known to the common law (i. e. before the introduction of uses) for

(a) 2 Bl. Com. 241.

(c) See, particularly, the notes

(b) 2 Vend. & Purch. ch. xiii. to precedents xvi. and xvii. pp. 192, 205.

10th edit.

Feoffment.

Grant.

the conveyance of freehold estates (a). The feoff-
ment, with livery of seisin, was, and is still, the ap-
propriate form of conveyance for an estate in posses-
sion, in land or other corporeal hereditaments; while
the grant was, and is still, applicable to pass
all estates
in manors, tithes, advowsons, and other incorporeal
hereditaments, and remainders and reversions in cor-
poreal hereditaments. The feoffment has, for the
most part, been superseded by other forms of convey-
ance, but is still sometimes used. One of the occa-
sions on which it is employed, is that of a conveyance
by a corporation; for some question having been
made whether a corporation can stand seised to a use,
it is not considered prudent to take a conveyance
from a corporation by lease and release, unless the
lease be a common-law lease, perfected by actual
entry. And the stat. 4 & 5 Vict. c. 21, for ren-
dering a release as effectual for the conveyance of
freehold estates as a lease and release, does not
remove the difficulty, because it gives only such
effect to the release as it would have if a lease for a
year were duly executed, and does not supersede
the necessity for actual entry, if such was required
to perfect the lease by a corporation. And in
some cases it is considered that the feoffment has a
more forcible effect than a conveyance by lease and
release (b). The conveyance by grant is seldom

(a) It must be borne in mind that the present chapter does not contemplate exchanges, or the like, but simply purchase deeds,

in the vulgar sense, and is speak-
ing of the ordinary course of con-
veyance at common law.
(b) See precedents of feoff-