other sons in tail male. The marriage was celebrated, and there was issue a son. Nineteen years afterwards, the husband suffered a common recovery, and declared it to be to the use of C. D. and his heirs, in trust to sell the lands for the payment of his debts. The lands were sold accordingly, and on the death of the tenant for life, the son claimed the lands; and it was held, that the recovery enured to the uses of the settlement, and, therefore, that the purchaser had no title.

It is not easy to discover any very satisfactory reason, why an assurance designed for one purpose should be made to enure for one altogether different; and perhaps no great wrong would have resulted had the doctrine under consideration never been established; yet this effect, being a well-known incident of a fine or recovery, there was no great harm in leaving the law undisturbed, so long as these species of assurance existed. It would be very difficult, however, to assign any good reason for retaining this anomalous conclusion of law, when the modes of assurance in which it originated, and to which it was peculiarly incident, were abolished. Nevertheless, the legislature has thought fit, although abolishing fines and recoveries, to retain this one of the least intelligible and least useful of their peculiarities, with a proviso, however, obviously suggested by the decision in the case last stated. It is enacted by the 3 & 4 Will. 4, c. 74, s. 38, "That, when a tenant in tail of lands under a set"tlement shall have already created, or shall hereafter create, in "such lands, or any of them, a voidable estate in favour of a "purchaser for valuable consideration, and shall afterwards under "this act, by any assurance other than a lease not requiring in“ rolment, make a disposition of the lands in which such void“ able estate shall be created, or any of them, such disposition, "whatever its object may be, and whatever may be the extent of "the estate intended to be thereby created, shall, if made by "the tenant in tail with the consent of the protector (if any) of "the settlement, or by the tenant in tail alone, if there shall be "no such protector, have the effect of confirming such voidable "estate in the lands thereby disposed of to its full extent as "against all persons except those whose rights are saved by this "act; but if, at the time of making the disposition, there shall "be a protector of the settlement, and such protector shall not "consent to the disposition, and the tenant in tail shall not with

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"out such consent be capable under this act of confirming the "voidable estate to its full extent, then and in such case such disposition shall have the effect of confirming such voidable "estate so far as such tenant in tail would then be capable under "this act of confirming the same without such consent: provided always, that if such disposition shall be made to a purchaser "for valuable consideration, who shall not have express notice "of the voidable estate, then and in such case the voidable es"tate shall not be confirmed as against such purchaser, and the "persons claiming under him."

Covenant to levy a fine or suffer a recovery: how to be satisfied.]-The levying of fines and the suffering of recoveries having been abolished after the 31st of December, 1833, it would, but for some express provision, have become impossible to satisfy the covenant to levy a fine or suffer a recovery, a covenant of very frequent occurrence before this period, in assurances upon the sale, mortgage, or settlement of property. To meet this contingency, therefore, it was enacted "That, in case any person shall, after "the 31st day of December, 1833, be liable to levy a fine or suffer

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a common recovery of lands of any tenure, or to procure some "other person to levy a fine or suffer a common recovery of lands "of any tenure, under a covenant or agreement already entered "into, or hereafter to be entered into, before the 1st day of January, 1834, then and in such case, if all the purposes intended "to be effected by such fine or recovery can be effected by a disposition under this act, the person liable to levy such fine or "suffer such recovery shall, after the 31st day of December, "1833, be subject and liable under such covenant or agreement "to make, or to procure to be made, such a disposition under "this act, as will effect all the purposes intended to be effected by such fine or recovery; but, if some only of the purposes intended to be effected by such fine or recovery can be effected "by a disposition under this act, then the person so liable to levy "such fine or suffer such recovery, or to procure some other per"son to levy such fine or suffer such recovery as aforesaid, shall, "after the 31st day of December, 1833, be subject and liable "under such covenant or agreement to make, or to procure be made, such a disposition under this act as will effect such of "the purposes intended to be effected by such fine or recovery, “as can be effected by a disposition under this act; and, in those

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"cases where the purposes intended to be effected by such fine or recovery, or any of them, cannot be effected by any dispo"sition under this act, then the person so liable to levy such "fine or suffer such recovery, or to procure some other person "to levy such fine or suffer such recovery as aforesaid, shall, after the 31st day of December, 1833, be liable, under such covenant or agreement, to execute, or to procure to be executed, some deed whereby the person intended to levy such fine, or "suffer such recovery, shall declare his desire that such deed "shall have the same operation and effect as such fine or recovery would have had if the same had been actually levied or "suffered; and the deed by which such declaration shall be "made shall, if none of the purposes intended to be effected by “such fine or recovery can be effected by a disposition under this "act, have the same operation and effect in every respect as such "fine or recovery would have had if the same had been actually “levied or suffered; but, if some only of the purposes intended "to be effected by such fine or recovery can be effected by a dis"position under this act, then the deed by which such declaration "shall be made shall, so far as the purposes intended to be ef"fected by such fine or recovery cannot be effected by a dispo"sition under this act, have the same operation and effect in every respect as such fine or recovery would have had if the same had been actually levied or suffered."

SECT. 6.-EXISTING MODES OF DISPOSING OF ESTATES TAIL.

Disposition of estates tail in freehold lands in which the tenant has the legal, or equitable, estate in his own right, 235.-Disposition of estates tail in lands of copyhold tenure, of which the tenant has the legal, or equitable, estate in his own right, 251.-Disposition of estates tail under a fiat in bankruptcy, 252.-Disposition of estates tail in lands to be purchased out of a subsisting money fund, or monies to be produced by the sale of other lands, 253.

Into some of the details contained in the three preceding sections, it may be thought that I have entered somewhat too mi

nutely. On reflection, however, it will probably be conceded, that any exposition of the effect of assurances of estates tail would be imperfect, which did not explain the operation upon estates tail of an assurance by lease and release, covenant to stand seised, or bargain and sale enrolled pursuant to the provisions of the 27 Hen. 8, c. 16. As to what has been said of fines and recoveries, although these modes of assurance have been abolished, it will hardly be contended by those most anxious to avoid all knowledge which has not a direct practical bearing, that we have yet arrived at the period, when a moderate acquaintance with their leading characteristics and legal operation upon an estate tail, can with safety be entirely discarded. Upon these grounds, I may, perhaps, be justified in thinking that the contents of the three preceding sections are neither useless nor unimportant. I proceed now, to consider the means by which estates tail may be barred, aliened, incumbered, or otherwise partially affected, under the statute for the abolition of fines and recoveries. The last of these three objects, that is to say, the partial barring of an entail, might have been very conveniently effected without introducing into the act any express provision for the purpose. The legislature appears, however, to have thought otherwise, and therefore, to provide for the case where a tenant in tail desirous of creating a charge or incumbrance on the estate, and, subject to this charge or incumbrance, wishing the entail to continue, it has, with a superfluous, and consequently useless and in some respects mischievous, degree of precision, enacted, "That, if a tenant "in tail of lands shall make a disposition of the same, under this "act, by way of mortgage, or for any other limited purpose, “then, and in such case, such disposition shall, to the extent of "the estate thereby created, be an absolute bar in equity, as well

as at law, to all persons as against whom such disposition is by "this act authorized to be made, notwithstanding any intention "to the contrary may be expressed or implied in the deed by "which the disposition may be effected. Provided always, that, "if the estate created by such disposition shall be only an estate pur autre vie, or for years, absolute or determinable; or if, by a disposition under this act by a tenant in tail of lands, an in"terest, charge, lien, or incumbrance, shall be created without a "term of years, absolute or determinable, or any greater estate, "for securing or raising the same, then such disposition shall,

"in equity, be a bar only so far as may be necessary to give full "effect to the mortgage, or to such other limited purpose, or to "such interest, lien, charge, or incumbrance, notwithstanding "any intention to the contrary may be expressed or implied in "the deed by which the disposition may be effected1."

Dismissing, therefore, what may be considered as practically useless, I proceed to examine the main provisions respecting the disposition of estates tail. And it may be observed, as a sort of key to the general plan of the act, that it contemplates, in the first place, the disposition of estates tail of freehold lands, of which the tenant in tail has the legal or equitable estate in his own right (I.); then estates tail of lands of copyhold tenure of which he has the legal or equitable estate in his own right (II.); thirdly, the disposition of estates tail by the commissioners, under a fiat in bankruptcy (III.); and lastly, the disposition of estates tail in what is technically called money land (IV.). The great features of the scheme it provides for barring entails, are laid down under the first of these heads, which will be therefore here most fully considered.

I. Of the disposition of estates tail in freehold lands, of which the tenant in tail has the legal, or equitable, estate in his own right.

In treating this head I shall first consider the nature of the assurance by which the tenant in tail may dispose of his estate; secondly, the extent of disposing power given to the tenant in tail by the act; thirdly, the modification of this power where the tenant in tail is seised or entitled only in remainder, or subject to certain prior estates specified in the act; and fourthly, the provisions of the act in regard to the protector.

1. Of the assurance by which the tenant in tail may dispose of his estate.]—With respect to the form of assurance by which a tenant in tail may dispose of his estate, it is enacted, “That every disposition of lands, under this act, by a tenant in tail thereof "shall be effected by some one of the assurances (not being a will) "by which such tenant in tail could have made the disposition if "his estate were an estate at law in fee simple absolute 2.

And also, "That no assurance by which any disposition of lands "shall be effected under this act by a tenant in tail thereof (ex

cept a lease for any term not exceeding twenty-one years, to commence from the date of such lease, or from any time not

exceeding twelve calendar months from the date of such lease,

1 Sect. 21.

⚫ Sect. 40.