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?" Of his ordinary manner and appearance during the latter part of his life, we are fortunately able to present our readers with a very graphic description. What we are about to quote on this head is a short extract from the manuscript diary of a gentleman1 who, at that time, passed two evenings in his society at Brighton, and appears to have directed his observation particularly towards the ex-chancellor. The date is

1806, the year in which Lord Thurlow died:

"Brighton, 1806.

"We afterwards dined at to meet Lord Thurlow and his daughter, Mrs. Brown. A large party were assembled there. I was never more struck with the appearance of any one than with that of Lord Thurlow. Upon entering the drawing-room, where he was seated on a sofa, we were all involuntarily moved to silence, and there was a stillness which the fall of a pin would have disturbed. He did not move when we came into the room, but slightly inclined his head, which had before hung down on his breast. "He was dressed in an old-fashioned grey suit, buttoned very loosely about him, and hanging down very low; he had on a brown wig, with three rows of curls hanging partly over his shoulders. He was very grave, and spoke little. His voice is rough, and his manner of speaking slow.

Lord Thurlow is, I believe, only seventy-five; but from his appearance I should have thought him a hundred years old. His large, dark, heavy eyes, which he fixes at intervals upon you, are overshadowed with perfectly white eyebrows, and his complexion is pallid and cadaverous. Upon literary subjects he ordinarily converses with much seeming pleasure, but having been this morning to the races, he was fatigued, and said very little. At dinner he drank a good deal, but nothing afterwards. In the course of conversation, Mr. M. [Mr. Mellish] being remarked as a great favourite of the populace, Lord Thurlow said, 'They like him as a brother blackguard ;' and then added, 'I am of their opinion. I dislike your pious heroes I prefer Achilles to Hector, Turnus to Eneas.' Lord Thurlow has a surprising memory, and will not allow of the want of it in

1 The late Edward Jerningham, Esq. the brother of the present Lord Stafford. We owe the extract to the kindness of his son, Mr. C. E. Jerningham.-Edit.

any one else; but says that it is want of attention, and not of memory, that occasions forgetfulness. Being asked how long it was since he had been in Norfolk, he replied, About fifty or sixty years ago.'

"He went home very early, calling loudly for his hat, which I remarked as being of black straw, with a very low crown, and the largest rim I ever saw. It is easy to see that in his observing mind. the most trifling incidents remain graven. Thus upon Lady J. being asked a second time, at the end of dinner, whether she would have any wine, Lord Thurlow immediately exclaimed, in a gruff voice, Lady J. drinks no wine.'

"We went to-day to dine at Lord Thurlow's, and upon being summoned from the drawing-room to dinner, we found him already seated at the head of his table, in the same costume as the day before, and looking equally grave and ill. Lord Bute being mentioned, and some one observing that his life was going to be written, Lord Thurlow sharply observed, 'The life of a fly would be as interesting.'"

Lord Thurlow died (12th Sept. 1806,) not very long after the dinner-parties here described, 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. The 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 favourable arena for displaying that native strength and vigour 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 the 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."

B.

ART. IV.-ON COVENANTS AND CONDITIONS IN LEASES RESTRAINING ALIENATION.

THERE is no clause in a lease which has so long and so frequently engaged the attention of the courts as that which

restrains alienation by the lessee; and this, too, even in modern times, which seems to shew that the profession in general have not attained such a clear understanding of the law on the subject as would enable them, by a well expressed provision, to conclude all litigation and doubt. It is well known, that this clause is no favourite with the law, so that if it be not so exactly penned as precisely to meet the act complained of, it has no operation. "It is a general rule, that such conditions annexed to estates as go in defeasance, and tend to the destruction of the estate, being odious to the law, are taken strictly, and shall not be extended beyond their words, unless it be in some special cases."1

The object of the clause is manifest, and though not favoured is clearly allowed by the law. A condition that a lessee shall not alien the land leased, or any part thereof, during the term, and shall not transfer his estate and vest it in any one not approved of by the lessor, is certainly valid. "For," says Sir Edward Coke, at the common law, "lessee for life or years might commit waste, which was ad exhæreditationem of the lessor, and, therefore, there was a confidence betwixt the lessor and the lessee, and, therefore, the lessor might restrain the lessee from aliening or devising to another in whom perhaps the lessor had not such confidence."3

We now propose to shew, from the principal cases, how this object has been oftentimes defeated, and after exhibiting the failures, to gather from thence some cautions by which it may be surely attained. Experientia docet. The cases may be classed under three heads.

1. Cases in which there was a deficiency of expression as to the persons intended to be restrained from aliening. 2. Cases in which there was a deficiency of expression as to the tenements or the estate or interest not to be aliened. 3. Cases in which the object of the clause has been defeated through the act of the lessor himself, and his ignorance of its nature.

1 Shepp. Touch. 133.

2 Vin. Ab. Condition, Z. pl. 9. 23. Morgan v. Slaughter, 1 Esp. 8. Shepp. Touch. 130. 131.

6 Rep. 43. a.

See Lord Kenyon's judgment in Doe v. Carter, 8 T. R. 60.

1. If it be merely declared that the lessee shall not alien, that only prevents the lessee personally, and not his executors and administrators.1 But if the executors and administrators are named, they cannot alien without consent. So if the lessee, his executors and assigns, be restrained, and the lessee dies intestate, his administrator is restrained, for he is an assignee in law. Hence it would seem, that if instead of dying intestate the lessee in this case had appointed his wife executrix, and she had married again, that her husband could not have aliened without consent, for he would have been an assignee in law. But if a lessee become bankrupt, his assignees are not restrained under the word assigns,5 So a lease may be sold under an execution notwithstanding a proviso against alienation by the lessee, his executors, administrators, or assigns. However, if in such a case the assignee of a bankrupt were to make an assignment to a beggar, merely to get rid of his liability, or if a lessee suffered judgment to be entered up in order to vest the term in the creditor without the consent of the lessor, the assignment, in the former case, would be void in equity, and in the latter both at law and in equity. Quando aliquid prohibetur fieri ex directo, prohibetur et per obliquum. So if a condition in a lease be that the lessee shall not alien to J. S., and he aliens to R. B., who afterwards ⚫ aliens to J. S., the alienation is void, if the alienation to R. B. be not bona fide.9

It seems to be settled that if it be provided that a lessee shall not alien without the consent of lessor except to a person named, and an assignment be made to such person, he may afterwards alien without consent.10 This follows from the principle that the proviso is to be taken strictly, and the person named is not restrained from aliening: besides it may be said that such a proviso is merely personal and collateral, and that a person named, coming in lawfully, is not bound by

1 Dyer, 65. b.

3 More's Case, Cro. Eliz. 26. 5 Doe v. Smith, 5 Taunt. 795.

6 Doe v. Carter, 8 T. R. 57.

2 Roe v. Harrison, 2 T. R. 425. 4 Dyer, 6. a. Cro. Eliz. 757. Doe v. Bevan, 3 Mau. & Sel. 353.

7 Philpot v. Hoare, Amb. 480. S. C. 2 Atk. 219.

8 Doe v. Carter, 8 T. R. 300.

9 Dyer, 45. a.

10 Dyer, 152. pl. 7. Cro. Eliz. 757. 4 Rep. 120. b. 14 Ves. 176.