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Formedon En Remainder at Common Law

Published online by Cambridge University Press:  16 January 2009

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Extract

It is a far cry to go back now to a controversy which took place almost fifty years ago between two of the foremost exponents respectively of the historical and practical schools of English law, Maitland and Challis. The technical subject of Remainders after Conditional Fees before the passing of De Donis was in question. According to Maitland's view, Remainders limited after Conditional Fees, were common enough, and he vouched Bracton, and a considerable number of Fines all prior to 1285, in support of his argument, at the same time admitting that no Writ protecting such Remainders had been found in any Registrum Brevium.

Type
Research Article
Copyright
Copyright © Cambridge Law Journal and Contributors 1941

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References

1 See art. in 6 L. Q. E. (1890) 22–26, on ‘ Remainders after Conditional Fees ’, reprinted in Collected Papers, ii, 174–181.

2 Westm. II (De Donis), c. 1. ‘Breve per quod donator habet recuperare suum deficiente exitu satis est in usu in Cancellaria.’

3 Challis, Real Property, 1st ed. (1885) 64–65.

4 Cf. Westm. I, c. 39 (1275) ‘ … et auters briefs semblables par les queux terres ou tenements sont demaunds que devoient descend reverter remainder ou eschier per mort danc' ou dauter …’ would seem to indicate that writs to protect remainders were well known many years before ‘ De Donis ’

5 Collected Papers, ii, 179.

6 Real Property, 2nd ed. (1892), App. II, 392.

7 2nd ed. (1898), ii, 25.

8 3rd ed. (1923), iii, 18, note 4

9 MS. 511.9, f. 124.