(q) See 1st Report of Real Property Commissioners, 25.
(r) "An act for the abolition of fines and recoveries and for the substitution of more simple modes of assurance." Stat. 8 & 1 Will. IV. c. 74, drawn by Mr. Brodie';
1 Hayes's Conveyancing, 165.
(s) The inrolment must be within sis calendar months after the execution, sect. 41. See sect. 7 4.
(t) Cruise on Fines, chap. 1.
(u) 2 Black. Com. 348.
(w) Stat. 18 Edw. I. stat. 4; 2 Black. Com. 349, 354; Co. Litt. 121 a, n. (1).
(.x) Stat. 34 Edw. III. c. 13, a curious specimen of the conciseness of ancient acts of parliament. This is the whole of it: " Also it is accorded, that the plea of non-claim of fines, which from henceforth shall he levied, shall not be taken or holden for any bar in time to come."
(y) 1 Rich. III. c. 7.
(z) 4 Hen. VII. c. 24; sec also stat. 31 Eliz. c. 2.
(a) Stat. 11 & 12 Vict. c. 70.
(b) Bro. Abr. tit. Fine, pl. 1; Dyer, 3 a; Cruise on Fines, 173.
(c) 4 Reeves's Hist. Eng. Law, 135, 138; 1 Hallam's Const. Hist. 14, 17. The deep designs attributed by Blackstone (2 Black. Com. 118, 354) and some others to Henry VII. in procuring the passing of this statute, are shown by the above writers to have most probably had no existence.
(d) 32 Hen. VIII. c. 3G.
Although strict and continuous entails have long been virtually abolished, their remembrance seems still to linger in many country places, where the notion of heir land, that must perpetually descend from father to son, is still to be met with. It is needless to say that such a notion is quite incorrect. In families where the estates are kept up from one generation to another, settlements are made every few years for this purpose; thus in the event of a marriage, a life estate merely is given to the husband; the wife has an allowance for pin money during the marriage, and a rent-charge or annuity by way of jointure for her life, in case she should survive her husband. Subject to this jointure, and to the payment of such sums as may be agreed on for the portions of the daughters and younger sons of the marriage, the eldest son who may be born of the marriage is made by the settlement tenant in tail. In case of his decease without issue, it is provided that the second son, and then the third, should in like manner be tenant in tail; and so on to the others; and in default of sons, the estate is usually given to the daughters. By this means the estate is tied up till some tenant in tail) attains the age of twenty-one years; when he is able, with the consent of the father, who is tenant for life, to bar the entail with all the remainders. Dominion is thus again acquired over the property, which dominion is usually exercised in a re-settlement on the next generation; and thus the property is preserved in the family. Primogeniture, therefore, as it obtains among the landed gentry of England, is a custom only, and not a right; though there can be no doubl that the custom has originated in the right, which was enjoyed by the eldest son, as heir to his father, in those days when estates tail could not be barred. Pri-mogeniturej as a custom, has been the subject of much remark (f). "Where family honours or family estates are to be preserved, some such device appears necessary. But, in other cases, strict settlements, of the kind referred to, seem fitted rather to maintain the posthumous pride of present owners, than the welfare of future generations. The policy of the law is now in favour of the free disposition of all kinds of property; and as it allows estates tail to be barred, so it will not permit the object of an entail to be accomplished by other means, any further than can be done by giving estates to the unborn children of living persons. Thus an estate given to the children of an unborn child would be absolutely void (g). The desire of individuals to keep up their name and memory has often been opposed to this rule of law, and many shifts and devices have from time to time been tried to keep up a perpetual entail, or something that might answer the same end (h). But such contrivances have invariably been defeated; and no plan can be now adopted by which lands can with certainty be tied up, or fixed as to their future destination, for a longer period than the lives of existing persons and a term of twenty-one years after their decease (i).
(e) 3 & 4 Will. IV. c. 74.
(f) See 2 Adam Smith's Wealth of Nations, 181, M'Culloch's edition; and M'Culloch's n. xix., vol. 4, p. 141. See also Train's de Legislation Civile et Penale, ouv-rage extrait des Manuscrits de Bentham, par Dumont, torn. 1, p. 307, a work of profound philosophy, except where a hardened scepticism makes it shallow.
(g) Hay v. Earl of Coventry, 3 T. Rep. 86; Brudenell v. Elwes, 1 East, 452.
(h) See Fearne's Contingent Remainders, 253, et seq.; Main-irnring v. Baxter, 5 Ves. 458.
(i) Fearne's Contingent Remainders, 430, et sea. The period A perpetuity.
Whenever an estate tail is not an estate in possession, but is preceded by a life interest to be enjoyed by some other person prior to the possession of the lands by the tenant in tail, the power of such tenant in tail to acquire an estate in fee simple in remainder expectant on the decease of the tenant for life is subject to some limitation. In the time when an estate tail, together with the reversion, could only be barred by a recovery, it was absolutely necessary that the first tenant for life, who had the possession of the lands, should concur in the proceedings; for no recovery could be suffered, unless on a feigned action brought against the feudal holder of the possession (k). This technical rule of law was also a valuable check on the tenant in tail under every ordinary settlement of landed property; for, when the eldest son (who, as we have seen, is usually made tenant in tail) came of age, he found that, before he could acquire the dominion expectant on the decease of his father, the tenant for life, he must obtain from his father consent for the purpose. Opportunity was thus given for providing that no ill use should be made of the property (l). When recoveries were abolished, the consent formerly required was accordingly still preserved, with some little modification. The act abolishing recoveries has established the office of protector, which almost always exists during the continuance of such estates as may precede an estate tail. And the consent of the protector is required to be given, either by the same deed by which the entail is barred, or by a separate deed, to be executed on or before the day of the execution of the former, and to be also inrollcd in the Court of Chancery at or previously to the time of the inrolment of the deed which hars the entail(m). Without such consent, the remainders and reversion cannot be barred (n). In ordinary case-; the protector is the first tenant for life, in analogy to the old law(o); but a power is given by the act, to any person entailing lands, to appoint, in the place of the tenant for life, any number of persons, not exceeding three, to be together protector of the settlemenl dining the continuance of the preceding estates (p); and, in such a case, the consent of such persons only need be obtained in order to effect a complete bar to the estate tail, and the remainders and reversion. The protector is under no restraint in giving or withholding his consent, but is left entirely to his own discretion (q). If he should refuse to consent, the tenant in tail may still bar his own issue; as he might have done before the act by levying a fine; but he cannot bar estates in remainder or reversion. The consequence of such a limited bar is, that the tenant acquires a disposable estate in the land for so long as he has any issue or descendants living, and no longer; that is, so long as the estate tail would have lasted had no bar been placed on it. But, when his issue fail, the persons having estates in remainder or reversion become entitled. When the estate tail is in possession, that is, when there is no previous estate for life or otherwise, there can very seldom be any protector (r), and the tenant in tail may, at any time by deed duly inrolled, bar the entail, remainders, and reversion at his own pleasure.