PREFACE. 
 
 X HE Author of the following pages, 
 when confidering the doctrine of Defcents, 
 was frequently involved in difficulties 
 ' which he was not able to remove, or by 
 any means to fatisfy hlmfelf with refpeift 
 to, from thofe Treatifes which were ex- 
 prefsly dedicated to the inveftlgation of 
 that important fubje(5l ; and more efpeci- 
 ally with regard to the defcent of rever- 
 fions and remainders expe61ant upon eftates 
 of freehold : he therefore found that his 
 fole refource was patiently to turn over 
 the pages of mifcellaneous authors, and to 
 collect, out of the profufion of matter 
 fcattered through the feveral volumes he 
 pcrufed, the particular pallages which re- 
 ft 2 lated 
 
 G03S48 
 
 TAV/
 
 PREFACE. 
 
 latcd more Immediately to thofe polncs; 
 and, by adding fome remarks as he went 
 along, to illu (Irate what he thought was 
 obfcurc, or to connect the feveral pallages 
 he felccled or referred to, to digelt, in fome 
 degree, to regular method, the chaotic 
 mafs, and form a concatenation through 
 the whole. He purfued the fcheme ; and 
 fuch was the origin of the enfuing fheets. 
 As to the execution of the defign, It Is not 
 his province to pronounce. All he fliall 
 fay Is, that he hopes the reader will not 
 expedl in fuch colleftlon the ne plus ultra 
 of Inveftigatlon, or In thofe obfervatlons a 
 profefled treatlfe on the fubject ; but to 
 remember that they are no other than a 
 collecllon of a few authorities thrown to- 
 gether with a few remarks, with a defign 
 originally to fatlsfy his own doubts, and 
 not urged by a prcfumption of being ca- 
 pable of yielding inftru(?lIon to others. 
 However, from the approbation which 
 Tome have been plcafed to exprefs of them, 
 
 and
 
 PREFACE. V ' 
 
 and in the hope that they may fave to 
 others the trouble which he has expe- 
 rienced, he is influenced to fubmit them 
 to the pubhc eye ; and ihould they throw 
 ^ any further hght on fo truly interefting a 
 fubjea, the Author would feel himfelf 
 ineffably happy in being in the leaft in- 
 ftrumental to the elucidation of a doctrine 
 fo important and extenfive in its confe- 
 t][uences. 
 
 As thefe fheets were not defigned as a 
 tegular treatife on thefubje^l,. but merely 
 to afsift the Author in his refearches, and 
 to have recourfe to for the purpofe of di- 
 re6ling him at once to the feveral books 
 in which the points he has colle6ted might 
 be found, when the hurry of the moment 
 would not permit him to hunt his fubje(?t 
 through volume after volume, he has been 
 frequent in his references ; and has fome- 
 times, perhaps, added obfervations and 
 allufions which feme of his readers may 
 5 pofsibly
 
 vi PREFACE* 
 
 pofslbly think foreign to his putfuit : but 
 as the intention of the work is thus ex- 
 plained, and as he has found thofe obfer- 
 vations and allufions frequently ufeful to 
 himfelf, he imagined that they might 
 fometimes prove fo to others ; and as they 
 would take up but little room, he has 
 fuftered them to remain. 
 
 The approbation beftowed upon the 
 former edition, has induced the Author to 
 corrc6t and to enlarge the work ; and he 
 hopes, that, in the prefent edition, h$ 
 has made it more extenllvely ufeful.
 
 CONTENTS. 
 
 CHAP. 1. 
 Of the Seifin of the Anceftor. 
 
 Sect. X. Of the Neceffity of an ASfual Seifin^ Page i 
 
 2. How an A6iual Seifin may he obtained^ 59 
 
 3. How it may be defeated^ - 82 
 
 4. Of what Hereditaments ^PossESSlo 
 
 Fratris may be^ - - 106 
 
 CHAP. II. 
 The Rules or Cianons of Defcent, - - 1X6 
 
 CHAP. III. 
 
 Of the Defcent of Reverflons and Remainders expec- 
 tant upon Eftates of PVeehold. 
 
 Sect, I. Of a MefneSeiJiny kc. - - Ii6 
 2. Ta whom he mufi make himfelf Heir who 
 clams where there has been no Mefne 
 Set fin, - - - - -I51 
 
 ^ Explanation of the Table of Defcents, 157 
 
 CHAP.
 
 viii CONTENTS. 
 
 CHAP. IV. 
 Of the EntJ-y of a Poflhumous Fleir, Page 198 
 
 CHAP V. 
 
 Of Defcents ex Parte Jldatsnia; and what Ihall 
 change fuch Defcent, and give the Preference to 
 the Paternal Line, - - - - 221 
 
 APPENDIX, 301 
 
 INEX, - - • - - - ^ r 313 
 
 ^ T E : ^ 
 
 Th» references /^a^e aaJ Fof, are to the marginal paging. 
 
 AN ESSAY
 
 AN 
 
 ESSAY 
 
 LAW OF DESCENTS, 
 
 CHAR I. 
 
 OF THE SEISIN OF THE ANCESTOR. 
 
 SECT. I. 
 
 Of the Necejfity of an ABual Seifn, 
 
 XJlNCESTORS, from whom J^eredlta-pgj-^g^^^ ^^^ 
 mcnts can be derived by defcent, may be purchafe. 
 divided into thofe who have taken imme- 
 diately by purchafe, and thofe who have, 
 themfelves, fucceeded by defcent to the 
 hereditaments claimed. 
 
 B There
 
 ESSAY ON THE Ch. I. 
 
 There are, indeed, other methods of 
 acquiring an eftate in lands and tenements, 
 to which eilate the heirs of the perfon fo 
 acquiring may inherit; but, in compli- 
 ance with the ufual mode of divifion, ef- 
 tates are here confidered as being taken 
 either by defccnt or purchafe: yet, 
 though fuch divifion is thus followed, it 
 muft, neverthelefs, be remembered, that 
 it is by no means accurate. But pofitions 
 of this kind are too commonly adopted 
 implicitly; and writers, " copying each 
 other from generation to generation," 
 without fufficicntly attending to the na- 
 ture, the caufes, or the confequences, of 
 a particular rule, are often led to apply it 
 to things which it was not originally in- 
 tended to embrace, and embarrafs them- 
 felves and their readers in endeavouring to 
 fubje(!'l: them to it. 
 
 The rule we are fpeaking of is thus fre- 
 quently applied to matters which are abfo- 
 lutely without its view, as it applies only 
 to the rightful ejiate of the tenant, as tenant ; 
 or, in other terms, it is cxprefsive of the 
 
 modes
 
 § 1. LAW OF DESCENTS. 3 
 
 modes by which the law enables him to 
 take fuch eftate. Nor does it, indeed, 
 apply unexceptionably to him {(i). 
 
 It has nothing to do with' difleifms, Difrelfm,&c. 
 abatements, &c. (b), which are eliates [2j 
 gained by wrong (f). For wlien an eliate 
 fo gained defcends io the heir of the dilfei- 
 for, &c. the eftatc fo taken by the heir is 
 prefumed to be a righttiil one until the 
 
 (a) See po/I. ch. 5. p. 156. of a remainder to the 
 heirs of the body of a perfon who takes no eliate him- 
 felf; in which cafe the heirs tr.ke neither by defcent 
 nor purchafe. 
 
 (b) Co. Lltt. 3. b. 18. b. Plowd. 47. b. 
 
 (c) And nocc ; an eflate gained by wrong is always 
 a quafi fee. For wrong is unlimited, and not con- 
 tained within rules ; as if a tenant for life be difleifed, 
 the dificifor gains a fee j fo the ufurpation of an advow- 
 i&n gained the fee at common-law, and now does fo 
 in all cafes to which the ftatutQ of Weftminfter lid. 
 does not reach. Hob. 322—3. Elvis v. ArchbiOiop 
 of York, h al 5 Com, Dig. 447. Seifin (F. i.) 9 
 r/«. 81. Diffeifm. (A,: lOS- (L) Gilh. Ten. 11^, 
 k IVatk. N. xxi. p. 371. Co. Lltt. 277. a, 296. b. 
 N. (i). Bro. EJiates., 17. 4^'- 
 
 Scealfo Co. Lltt. 3. b. 18. b. 153. b. 257. b. Lltt. 
 S. 279. & Co. Llit. 186. I Burr. ill. Taylor & 
 Atkins, V. Horde, k pcji. 5. 3. 
 
 B 2 contrar}:'
 
 Efcheat. 
 
 ESSAY ON THE Ch. 1. 
 
 contrary be fhewn; and the entry of the 
 diileifee would, at common-law (rf), have 
 been tolled by fuch defcent, for the title of 
 the heir is oflcnfibly juft; and the law, on 
 the fuccefsion of the heir, does not enquire 
 into the title of the anceftor. ' 
 
 Again ; it reaches not to the cftate of 
 the lord, as lord, i. e. when he takes by 
 efcheat (e). For, as to the eftate which 
 he holds of his fuperior, whether the lord 
 for the time being obtained fuch cflate by 
 defcent or purchafe, he muft be conlidered 
 as a tenant; but relative only to the eflate 
 held of himfelf can he be confidered as 
 lord. If he, therefore, takes by efcheat, 
 he is without the rule. 
 
 When the lord granted an eftate, the 
 portion of his property, to another and 
 his heirs, the grant, on the failure of fuch 
 heirs, necefl'arily ceafed, and the lands 
 returned to the lord. He, therefore, had 
 
 {d) See Stat, 32 Hen. 8. c. 33. 
 {e) f^ide Mich, 37 Hen. Wl.pl. I. Co. Lift. 18. b. 
 & N, (2) Harg, 2 Bl. Comm. ch. 15. p. 244. 
 
 a kind
 
 § 1. LAW OF DESCENTS. 
 
 a kind of reverfionary intcreft(/); though, 
 from the fame narrow way of thinking, 
 we frequently conceive that fuch reverlion 
 cannot exift. 
 
 But the maxim that a reverfion cannot 
 be expectant upon a fee, ought not to be 
 apphed in this cafe. A tenant having only 
 a fee-fimple himfelf, if he grant over that 
 fee-fimple to another, he, certainly, can 
 have no reverfion, as there is nothing left 
 in him. But the eftate of the lord is to 
 be confidered upon different principles: 
 the tenant has not his eftate abfolutely for 
 ever, but provifionally only, i. e. as long 
 as he fhall have any heirs exifting ; and, 
 confequcntly, as this is not an abfolute ef- 
 tate, a reverfionary intereft, or, however, 
 one of that nature, muft ftill be in the 
 lord. When an eftate is given to a perfon 
 and the heirs of his body, the reverfion 
 continues in the donor. As the fpecial 
 heirs may fail fooner than the general 
 
 (/) I Sir JVm. Bladji. Rep. 133. 163. 2 BL Comm. 
 ch. 1$. p. 244. And fee the form of the writ of ef- 
 (Wat in the Register, & F, N. B, 144. E. F. 
 
 B 3 ones.
 
 ESSAY ON THE Ch, 1, 
 
 ones, it Is regarded as a lefs eftate; and, 
 confequently, there may be a reveriion 
 expectant on it. The donor has a larger 
 eftate than the donee, becaufe a faiUire 
 of iliiic is much more Ukely to happen 
 than a failure of heirs. Ihe lord has a 
 higher eflate than a tenant in fee, beoaufe 
 the fee is determinable on the failure of 
 the tenanfs heirs; whereas his own eftate 
 is not fo determinable («). — -And here, 
 again, the cftates of tlie lord and tenant 
 in fee differ. Vppn a gr^nt in tee, the 
 lord gave a portion of h\s eftate; but on a 
 feoffment, the tenant, transfers Jtis xchole 
 iiitercji. lie does not, fince the ftatute(A) 
 ^iiia Emptores Tcrrarum^ leaye any thing 
 jn himfelf, but puts the grantee in his own 
 place to all intents and purpofes. To fay 
 that an eftate in fee mull; laft for ever, is 
 
 (^) As an eftate for one's own life is greater, in 
 confideration of law, than an eftate four autre vie : 
 thus, if A. be tenant for life, v/ith remainder over to 
 B. for life, and A. grant to B. for the life of B., A. 
 v/ill have a reverfion left in him. See Co. Lift. 41. b, 
 42. a. Bro. EJI. 67. Fifzh. Ahr. Doxver. 55. 
 
 (/') See Co. L'ltt. 269. b. Watk.^, xxxvii. U Ivi, 
 %0 Qilh. Ten. p. 391. 400. 
 
 improper.
 
 § 1. LAW OF DESCENTS. 
 
 improper, as the failure of licirs thus de- 
 terniiuesit; it may, indeed, by pofsibility 
 do fo, and fo may an cltatc-tail(/); and 
 yet a reverfion is allowed upon the latter 
 eftate. 
 
 But there is another objection which 
 may, perhaps, be thought to carry greater 
 force, which is this; as the reveriion, if 
 it be one, is expectant upon an eftate in 
 fee, there can be no mefne feifin of it ; 
 and if fo, how can it go, as it evidently 
 muft, to whoever has the manor or feigni- 
 ory, in exclufion of the half-blood? But 
 this objection, however plaufible, is, cer- 
 tainly, not juitly founded. The defcent 
 of this intereft differs effentially from that 
 of the reverfion of the tenant. The one, 
 indeed, can be no more the fubje6t of an 
 actual feifin than the other. But here the 
 cafes differ. The tenant has nothin<r to 
 which the reveriion can attach ; and, con- 
 fequently, the defcent muft be ruled by 
 its own feifin. The reverfion of the lord 
 
 (/■) 10 Co. 44. a. Jennings's cafe. Dsugl. 324. 
 Davie v. Stevens, i Pr. JFrns. 366. 
 
 B 4 Jp^
 
 8 ESSAY ON THE Ch. I. 
 
 is not felf fubf.ftent, but attached to bis 
 feigniory ; it is, as it were, an incident or 
 appcndancy to it, and, therefore, Ihall 
 follow it as its principal (A). 
 
 But when lands a(9:ually fall, the lord, 
 in order to complete his title to tlie pre- 
 mifes fo efcheated, ought abfolutely to 
 enter or bring his writ of efcheat; for 
 if he negleCl: to enter or to fue out his 
 writ, or if he do any act which may 
 ani'/unt to an implied waivureof his right, 
 his title by efcheat will be barred (I). 
 
 The embarrafTment of feveral authors, 
 in endeavouring to :)ring the title by ef- 
 cheat within the rule, is evident alfo from 
 this; their being fometimes driven to con-* 
 fidcr the lord as an aisign^^e of the tenant, 
 or as ultimus h<£res. Now, as th(^ lands 
 cannot pofsibly efcheat until thejeftate of 
 the tenant be abfolutely expired, there 
 
 {k) See 4 Co. ii. 3. he. Bevil's cafe. Harg. N, 
 (2) to Co. Litt. 18. b, kpoji. S. 4. p. 86, 
 
 (/) ?. Bhrhfl. Comm. ch. 15. p. 245. See Co. Litt, 
 >6S, a. & b, and F, A. i>. 144, 
 
 CAn
 
 § 1. LAW OF DESCENTS. 9 
 
 can be nothing to afsign ; nothing to be 
 inherited. 
 
 Yet, notwitliilanding what has been 
 faid, as I intend, at leail principally, to 
 fpeak of defcents as they relate to com- 
 mon individuals, or tenants (as fuch) only, 
 I thnik the ufual divifions of eftates into 
 fuch as are acquired by defcent or pur- 
 chafe, fufficieniiy corrc(5l for my prefent 
 purpofe. 
 
 If a perfon takes immediately by pur- fj^l 
 CHASE, and the hereditaments purchafed Anc^ortak- 
 
 in-y V par- 
 te corporeal, he generally, and indeed chaie. 
 
 always if the inllrument by wliich they 
 are conveyed is founded upon feodal prin- 
 ciples, at tiie fame time acquires or re- 
 ceives the corporeal feifin or poifefsion. If 
 they are incorporeal hereditaments, and 
 efpecially if they are reverfions or remain- 
 ders, ^vhereof no fuch corporeal feifin can 
 ^ had, then the property therein, whether 
 it be vefted in poffefsion, or in intereil 
 only, or merely contingent, is fixed or 
 fettled in fuch purchafcr, at the time of 
 fuch purchafe made. 
 
 But,
 
 10 ESSAY ON THE Ch. 1. 
 
 But, whether the hereditaments pur- 
 chafed be corporeal or incorporeal, or in 
 [4] poffefsion or rev-erfion, yet, on fuch pur- 
 chafe being completed, and the property 
 in them being transferred, fuch purchafer 
 immediately becomes the ftock of defcent, 
 and the hereditaments fo purchafed be- 
 come tranfmifsible to his own heirs. 
 
 Remainders And here it may not be improper to re- 
 ecendi e. j-j-,^j.]-^ ^|-,^(- .^ remainder of inheritance, 
 
 whether vefled or contingent, is tranfmif- 
 
 fible to the heirs of the perlon to whom 
 
 limited (m), equally with an eflate which 
 
 ip 
 
 (w) See Fearne on Contingent Rem. 286. (3d edit.) 
 and vol. i. p. 534. (4th edit.) I Fefey., 47. Hodgfon 
 v. Rawfon, 237. Peclcy. Parrot. 2 f^ef. iig. Exel v. 
 Wallace, and note |. 2 Jtkins, 621. Chauncey & ^/. 
 v. Graydon Si al. 
 
 And, confequently, where fuch repiainder is in fee, 
 it fhall efcheat for default of heirs. Bro. Ten. 107. 
 and fee ibid-. Prerogative le Roy^ pi. 251. and jEa'?/^- 
 giti/hment, pi. 3. .r 
 
 And the lord may maintain an aiftion of wafte, as 
 the remainder-man might have done. See Bro. ubi. 
 [up. and F. N. B. 58 G. 
 
 But he fhall not have his writ of efcheat during the 
 life of the particular tenant j though he fliall have a 
 
 writ
 
 § 1. LAW OF DESCENTS. 11 
 
 is vefted in poflcfslon. For it matters not 
 whctlicr there be, or be not, a capacity 
 
 in 
 
 writ of intrufion if a flranger enter on his death. F. 
 N. B. 144. B. Bro, Efcheate^ pi. 6. & 22. Wa/fey 
 pi. 40. 
 
 For a remainder is held of the lord (Bro. Tenures^ 
 pi. 107. Prerogative le Roy, pi. 25. and ExtinguiJ/j- 
 ?nentj pi. 3.) as well as a reverfion, or particular te- 
 nancy, (See ZJj'^r, 137. />/. 26. Bro. Efch.b. IVaJle.^ 
 40. Glib. Ten. 88. 
 
 But note, this is confined to a remainder in fee; for 
 a remainder in tail is held of the donor, and, confe- 
 quently, cannot efcheat to the lord of whom it is not 
 holden. See 5ro. EJch. 21. Kitch. in, 112. 
 
 And if the tenant in tail enter, and die without if- 
 fue, the donor (hall have a writ of formedon, and not 
 of efcheat. F. N. B. 144. A. oc 219. E. &c. 
 
 If the donor grant his reverfion over to a ftranger, 
 the donee fliall hold of fuch ftranger. F. N. B. 2ig. 
 E. 2 Co. 92. a. h b. 
 
 But if lands be given to A. in tail, with remainder 
 in fee to a ftranger, the donee ftiall hold of the chief 
 lord; as, in this cafe, the whole ejlate is conveyed. 
 Bro. Ten. 21. Dyer.^ lb2.pl. 19. 2 Inji. 505. Co. 
 Lift. 21. b. 
 
 If the tenant in tail has the reverfion in himfelf, 
 there, although the tv/o eftates continue diftincl, yet, 
 as he cannot hold of himfelf, the tenure of the eftate- 
 tail is fufpended, and he is tenant to the lord in fee. 
 See 2 Co. 92. b. Bro. Ten. 84. 107. F. N. B. 143. 
 A. 144. A. Dyer^ 235./-/. 22. 20 P^in. Ten. (FL a.) 
 
 */. 12. 
 
 And
 
 12 ESSAY ON THE Ch. I. 
 
 m fuch REMAINDER of velHng in poffef- 
 /ion, if the pofl'efsion were to become va- 
 
 ' cant ; 
 
 Relief. And it fecriis that, if the perfon having the fee- 
 
 fimple have .vlfo the pojjejjlon of the lands, though it 
 be only ..^ call, he fhall pay a relief to the lord on the 
 defcent of the fee. See 20 ^m. 252. Tenure. (H.a.) 
 pL 12. Bro. Reliefe^ 2. Fitzh. Ahr. Reliefe^ 2. N. 
 (a.) to F.N. B. 143. A. See Dyer, 252. pi. 22. 
 308. pi. 74. Kitch. 146. a. &b. 
 
 So v/here the tenant in tail holds, as fuch, of the 
 lord, as where the remainder is over to a ftranger, he 
 Ihall pay a relief if he have the poffeffion. Kitch. 
 146. b. 
 
 But if the perfon who fo holds in fee or in tail of 
 the lord, have not the pofTeiTion, as if there be a pre- 
 cedent eftate of freehold in exillence, it feems that 
 the relief is not leviable on the defcent of fuch fee or 
 entail, during the continuance of fuch precedent ef^ 
 tate; as if it be to A. for life, remainder to B. in tail, 
 remainder to the right heirs of B. ; and B. die, living 
 A.; the relief fhall not be levied in A.*s life-time. 
 Kitch. 146. b. F. N. B. 1^2' ^' 
 
 So it feems, if there be a grant to C. in tail, with 
 remainder to D. in fee; that C, being tenant to the 
 lord, the relief fliall be paid on the defcent of his ei^ 
 tate, and not on that of D. See before. 
 
 But if A. grant to B. in tail, and afterwards grant 
 the reverfion over to a ftranger, fo that the tenant in 
 tail fliall hold of fuch ftranger, and the ftranger hold 
 over of the lord, it does not appear clear, whether 
 any relief is payable to the lord on the defcent of the 
 
 reverfionary
 
 § 1. LAW OF DESCENTS. 13 
 
 cant; (for In either of thefe cafes it ftiall 
 be defcendiblc;) but If a remainder be li- 
 mited fo as to be contingent as to the per- 
 son to whom it is limited, here, while 
 there is a want of capacity in fiich person 
 to receive it, during fuch contingency, 
 the remainder cannot pofslbly be inherit- 
 able; for as there is no perfon who can 
 take, there is no perfon from whom it can 
 be derived (72). 
 
 [5] 
 
 So alfo with refpect to executory de- Executory 
 vlfes: if, or fo foon as, there is a perfon 
 
 reverfionary fee during the continuance of the eftate- 
 tallj there being no tenant to the lord entitled to the 
 poflefTion. Yet, qucere\ as by this mean, the lord 
 may be defrauded of his relief. See Keiliv. 83. b. 
 84. a. & b. & N. (i) to Co. Lift. 91. b. 
 
 As a tenant in tail fhall hold of the donor as the 
 donor holds over, it fliould feem that the donor fhould 
 pay his accuftomed dues and fervices, and that the 
 donee fhould reimburfe him, to the end that the lord 
 of the feigniory fhould not lofe his rights. SeeMoore^ 
 890. pi. 1253. Rivet's cafe. GilL Ten. 173. 
 
 And we may here remark, that a pofleilion in laui 
 only, is fufficient to entitle the lord to his relief, 3ee 
 pojt, 26. N. (f). 
 
 {n) See i Fcarrie^ 534. 545= (4th edit.) 
 
 4 capable
 
 14 ESSAY ON THE Ch. 1. 
 
 capable of taking the expe6tant fee, fliould 
 the anterior one happen to determine; 
 then, or lo foon, it is fo far vefted or 
 Mxed (f)) in fuch perlon as to become tranf- 
 miisible to his heirs in a regular courfe of 
 defccnt(/;). 
 
 Poffibilities. So, alfo, as to mere pofsibilities; they 
 are delcendible to the heirs of the perfons 
 entitled to them, in the lame manner as 
 rcmaindcrii or executory devifes (</). 
 
 And 
 
 [o) Lord Chancellor Talbot j when fpeaking of an 
 intereft of this nature, faid, " It does not indeed ab- 
 folutcly vej}^ becaufe the contingency may never arife: 
 but it is carrying it too far to fay that it does not vejl 
 at ally And, accordingly, he decreed that it did vest 
 In fiich manner as to hfcornc traiifintljihlc to the rcprejen- 
 tatives of the perfon entitled. Cajes Temp. Talo. 123. 
 King V. Withers; and fee 2 Vejey^ 119. note f . and 
 Fearne^ 160. (p. 341. vol. i. 4th edic.) 
 
 (/.) Fcarnc^ 444. ^^3d edit.) See i Vcf. 411. 
 Wright V. Wright. 2 />/". 119. and note •{■. For- 
 refier^ ill. King v. "Withers. , PoJIj ch. iii. fee. 2. 
 See 3 Durnf. ^ Eaji. 88. Jones h al. v. Roe, leflee 
 of Perry, and 2 Bnrr, 1134- Selwyn v. Selwyn. 5 
 Brown's Cafes in Pari. 388. Wilfon v. Bayly h Ux. 
 
 (q) See 1 Strange, 131 — 6. Marks v. Marks. 2 
 JtkiHSj 618, Ch:'.uiicey v, GrdydQii, Forr. 123 — 4. 
 
 King
 
 § 1. LAW OF DESCENTS. 15 
 
 And therefore, in the cafe of a pur- [6] 
 CHASER, the qiieftion is, Whether the ^^'^rj"""" 
 property intended to be conveyed, Hmited, 
 or transferred, of, or in, fuch hcrcdita- pj^p'^jj.^j^^ 
 ments, was legally vested or fixed 
 in fuch purchafer; or whether he was ever 
 capable of taking fuch future intereft dur- 
 ing the continuance of the particular ef- 
 tate or anterior fee, ihould it chance to- 
 have determined or fallen? And not^ 
 Whether he ever had the corporeal 
 possession of thofe which are corporeal, 
 
 or WHAT IS TANTAMOUNT THERETO in 
 
 incorporeal hereditaments? (as receipt of 
 rent, prefentation to advowfon, &c.) For 
 in many cafes, if fuch property be fixed 
 BY PURCHASE, tliougli the anccilor fo pur- 
 chafing had never gained any actual Ici- 
 lin(?"), yet his heir may inherit. 
 
 King V. Withers. 2 Blackjf. Conim. 290. ch. xix. 
 Fearnc^ 444. (3d edit.) 3 Diirnf. ^ EaJ}^ 88. Jones 
 & al. V. Roe, leflee of Perry; and 2 Bzirr. 1134. 
 Selwyn v. Sel\v'yn. 
 
 (r) In fa<St; See the cafe of Geary v. Bearcroft, 
 CarUfj SJ. and /)«/?. 18. 52. in mi. 
 
 By
 
 1^ ESSAY ON TFIE Ch. 1. 
 
 Livery of By the feoclal law, indeed, an a6tual 
 
 feifin and at- , , . ^ . . . . 
 
 tornment. ^"d corporeal mveltiture or leilin, or a re- 
 gular atlornment, was clfeniial to give 
 completion to a transfer of property; 
 but, at this day, by the introduction of 
 conveyances unknown to that inftitution^ 
 at lead when that inftitution had attained 
 its maturity ; for devifes of lands were cer- 
 f7] tainly known in countries where, and at 
 times when, that fyllem was received, 
 though that fyftem was as certainly then 
 in its youth (/): At this day, I fay, fuch 
 
 a6lual 
 
 (/) That devifes were known in this kingdom in 
 the time of the Saxons, fee Bacon on Eng. Gov. b. i. 
 ch. xli. p. 68. fol. (edit, of 1739.) Sullivan*s Le6f. 
 Itdi.'ii.y. p. 145. 75t.h Law of Canute^ Tyrr. Hiji^ 
 Eng. b. 6. p. 60. vol. i. fol. Lamharde's Peramb. 
 Kent^ 441. 492. Sojnner cf Gavel k. 84. Appendix, 
 197. 211. (edit. 1726.) Rohlnjon on Gavelk. b. I. 
 ch. ii. p. 30. b. 2. ch. v. p. 234. 242, 2 Blackji. 
 Conim. 373. ch. xxiii. See Hale's Comrn. LaWj 251— 
 2. ch. xi. (Runnington's edit.) Co. Litt. ill. b. and 
 note (ij. Powell on Devifes y i. 
 
 Of the orl- Laborious have been the refearches into the origin 
 
 gin of the of feuds, and many and difcordant have been the hy- 
 
 feudal iyl- pothefes advanced ; while fome prepoftcrouily deny 
 
 their eftablifhment till the iyik^m had attained its per-
 
 [9] 
 
 ^ 1. LAW OF DESCENTS. 17 
 
 a6lual or corporeal fcifin is, in many cafes, [8] 
 not indifpenfably neccflary to the vefling 
 or fixing fuch a property in hereditaments 
 
 as 
 
 fe6lion, others, from the analogy which feveral of 
 the cuftoms of barbarous nations bear to thofe of feudal 
 ufage, imagine they difcover traces of this fyftem 
 in almoft every ftate upon earth. 
 
 The polity of rude nations muft have been fimple, 
 and fuch as their fituation and neceffities prompted, ra- 
 ther than the refult of philofophical enquiry. All na- 
 tions were originally rude : all nations had external 
 enemies, and internal conneilions and dependencies. 
 When population increafed, they endeavoured to en- 
 large their borders. The wants and conftitution of 
 man urged him to fociety ; fociety, as it conferred 
 mutual benefits, required mutual aids. The idea of 
 A PUBLIC or A STATE at length prevailed. Subor- 
 dination and rule were found abfolutely neceffary to 
 the defence and well-being of fociety. When they 
 had acquired new territories, they muft have defended 
 them J hence thofe who fhared in the conquered lands, 
 contributed to the general defence. Men, fecure un- 
 der the fliadow of fociety, cultivated their polity, and 
 ripened the fuggeftions of the moment into a regular 
 fyftem. Among a nation of favages there muft have 
 been freedom : " The chief of a petty plundering na- 
 tion can never be defpotic ; the fpoil is fliared in com- 
 mon, and each individual defends his liberty as his 
 own peculiar treafure. The firft kings of Rome (fays 
 c Voltaire,)
 
 18 ESSAY ON THE Ch. 1. 
 
 as to make them defcendible to the heks 
 
 of A PURCHASER. 
 
 Thus 
 
 Voltaire,) " were like the captains of the Bucca- 
 neers." (i). 
 
 From circumflances thus rimllar, can we be fur- 
 ^ prized at fimilar ufages ? Hence the analogy between 
 
 the cuftoms of barbarous nations (2). 
 
 To illuftrate this, let us advert to the dec'imal di- 
 vifion of ftates. The celebrated divifion of this king- 
 dom into counties, hundreds, and tythings, and the 
 making each perfon in fuch tything anfwerable for his 
 fellows, has been much and defervedly extolled for its 
 wifdom, and generally attributed to Alfred. But fuch 
 divifion feems to have been (at leaft in fome meafure, 
 though, perhaps, not in its perfect eftablifhment) prior 
 to that immortal man. 
 
 The divifion of a ftate into lefs diftrifls would be one 
 of the earlieft efforts of its civil polity (3). And we 
 fhall prefently fee the caufe of fuch divifions being de- 
 citnally made. 
 
 Some 
 
 (i) See I Voltaire's Spirit of Nat.— Pr elm. 'Difc—Philo- 
 fophy ofHiJi. 428. and Mall. North JrJiq. vol. J. ch. 8. 
 p. 163-- 4. 
 
 (2) See Pref. to Mall. North. Antiq. p. ix. Fergufon on 
 Civil Society, part i.ch. 1. and part 2^ f. 1. and z Robert foti' s 
 Amer. B. 4. N. Ixii. Squire's Anglo Sax. Go-v. S. 7. II. 13. 
 N. (6), 19.20.21. N. (3). 26. 27. 31. 32. 35. 5fC. Mac- 
 fherf. DiJJert. on the Caledon. Dijftrt. xii. 
 
 (3) See Whit. Hijl. Manch. b. i. ch. 8. fee. 4. p, ^6<^. 
 Nor.Aniij. vol. U cU. 8. p. 174. 181.
 
 § 1. LAW OF DESCENTS. 19 
 
 Thus livery of feifin was, by the com- FeofFment. 
 mon hiw, and ftill is, abfolutcly eflential L^^J 
 
 to 
 
 Some have fuppofed the origin of counties to have 
 been from the government of the nations remaining 
 in the conquered countries of Europe, v;rho retained 
 their lands in allodlo (4). However, counties, and 
 hundreds, and tythings alfo, feem much more ancient 
 than the time of Alfred, and to have been common to 
 the northern nation ('5). 
 
 That they, or fomething very analogous to them, 
 were known to the Britifh and Celtic nations, is alfo 
 clear (6). The Romans had, in very ancient days, 
 their centuilans, deans, &c. The Hebrews alfo had 
 their rulers overthoufands, over hundreds, over fifties, 
 and over tens (7J. The Germans and other gothic 
 nations fcem to have been acquainted with hundreds (8). 
 
 In 
 
 (4) See Dahymple on Feud. Prop. 9. SulIivan^s LeB. 5 1. 
 197. 245. Spirit of Lwvcs, b. 30. ch. 17, 18. 
 
 (5) S)te Mill. I'iew of Etig. Gov. h. l. ch. 6. p. 1 1 8. 
 b. I. ch. 9. p. 177. Fortcfc2ie on Mon. pref. xxxii. and p. 
 112. Sidli'-van, 245. Spirit of Lai.vs, b. 30. ch. 17. vol. 
 ii. p. 376 — 7. Biikn. Alf 204. note. Pref. to 3 Co. 7. 
 b, and to 9 Co. 9. b. Co. Litt. 168. a. & b. and note (6). 
 Stuart'' s Dijf. on the Efigl. Ccnft. part 4. fee. 3. p. 250. & 
 N. 5. Squire, S. 81. & N. (4). 83. 87. 2 Rapi7T, 154, &C. 
 {^^so. edit.). 
 
 (6) Whit. Manchefer, b. I. ch. 8. f. 4. p. 370. and 
 I Warr. Wales, b. 3. p. 185 — 6. (8vo. edit.) See -S^a.-'/Y, 
 ubi. fup, 
 
 (7) See ZowOTflT?, c. 9. p. 162. andi Squire, f. 20. 
 
 (8) Whit. Manch. b. I.e. 8. f. 4. p. 370. I BlackJ}. 
 Cctnm. 116. Bacon on Eng. Gov. h. I. c. 25. See Jdair's 
 Hijl. Jmer. Ind. 15. and note. Stuart's Diff. on Eng. Conji. 
 pt. 4. f, 2. p. 229. 
 
 c 2
 
 50 ESSAY ON THE Ch. 1. 
 
 fl l] to the completion of a feoffment; without 
 it the deed was a mere nullity, and con- 
 veyed no property whatever to the feoffee; 
 
 infomuch 
 
 In China a praiSlice prevails nearly fimilar to our own 
 divifion of hundreds and tythings : their towns arc 
 divided into four parts, (this, I prefume, follows from 
 the form of their towns, which is fquare) (9) ; and thefe 
 into fmaller divifions of ten houfes each, &c. &c. (lO). 
 In Japan, they eftablifh one out of every five heads 
 of families as a magiftratc over the refl:(ii). But 
 what comes neareft to our own mode of divifion 
 feems to have been that of Mexico and Peru, Peru 
 was divided into fmall diftridls containing ten families 
 each: five of thefe compofed a higher clafs of fifty 
 families j and two of thefe lafl: compofed another 
 called an hundred: ten hundreds conftituted the 
 
 largeft 
 
 (9) See Mem. Jcad. Scien. Paris, vol. v. p. 296. HiJ}. 
 1718. art. vii. and fee the Code of Gcntoo La^Sy -ch. 14. 
 p. 172 — 3. (8vo. edit.) and Numb. ch. xxxv. 5. 
 
 This form of towns was common In the Eaft. Babylon 
 and Damafcus werefquares: Nineveh a parallelogram. 
 
 And note; the Welch had a quadruple di'vijion: thus, 4 
 £riv made l Tyzyn; 4 Tyzyn I Rhandir', 4 Rhandir I 
 Gavael; 4 Gavael i Trenj ; 4 ^re'v I Maenaivr ; 12 Maena-ivr 
 fl 2 Dre-u I C^wfnmivd ; 2 G-ivfnmivd l Cantre'v. — O'wens 
 Vfelch DiSl. voce Cantre'v. and fee Taylor on Ga'velk, c. vi. 
 p. 96. Sec. 
 
 Though, perhaps, this proceeded only from the general 
 cuftom of dividing things into halves, and thofe halves 
 into quarters. 
 
 (10) See Le Compi's Hift. of China ^ 291. See alfo z 
 itapin's Hiji. 157. 
 
 (.11) SpiuLa'Wh b. 14. ch. 15.
 
 §1- 
 
 LAW OF DESCENTS. 21 
 
 infomuch that if the feoffee had died be- [12] 
 fore livery, fuch livery could not be made 
 
 to 
 
 largeft divifion, confifting of a thoufand families, 
 &c. (12). 
 
 Moft nations reckon by tens (13). The Athenians 
 divided their city into ten parts or tribes, &c. The 
 tithes or tenths were paid to kings, &c. by many an- 
 cient nations befide the Jews (14). 
 
 An 
 
 (12) See Mod. Univ. HiJI. vol. xxxviii. p. 469. and 
 vol. xxxix. p. 14. 3 Blackji. Comm. ch, 4. p. 31. And 
 fee Of the Hindoo Divifions, Code of Gentoo La^vs, Pref. 
 p. 115. & c. 17. f. 6. p. 230. 
 
 (13) The ancient Scandina<vians, indeed, had a great 
 refpect for the number t^vehe; and from them feems the 
 number of our jury to have been derived. It is obferva- 
 ble, that we, to this day, reckon to twelve; but then we 
 return to ten: we do not iay one and twelve, but thirteen, 
 and continue by tetis. It is obfervablc alfo, that oar /core 
 confifts of t^o tens — t-zventy — t--wi ten. And to our Saxon 
 anceftors are we to attribute the cuftom of numbering to 
 twelve. vSeefurther, A^or. ^^z/-. vol. i.ch. 4. p. 61 — 65.ch. 7. 
 P- ^33—133- ch. 8. p. 169. ch. 13. p. 356. (note), and vol. 
 ii. p. 7. Edda, Fab, I. & note (A), and p. 41. & N. (C). 
 Fah. vii. 3 Blackji. Comm. 349. ch. 23. and p. 365. and 
 note (^). aee alio 3 Roll. 4nc. Hift. b. 5. art. iv. and 
 compare withM«/. c. 4. p. 58, and Pref. to ibid. 
 
 The Welch reckon to ten; and then they iay one and 
 ten, and not eleven; and lo continue till /'-w and ten, 
 which anfwers to o\xx fifteen. They then fay one ^ind fifteen, 
 or one, fi-ve, and ten; and fo on to/o;<r d^v^di fifteen ; and then 
 twenty, or a fcore ; and fo on till /tv/ and /ivf/r/j ; one, ten, 
 and /zw/i/y, &c. X.O tavo i^ve?ities : and continue hy tiventies 
 or fores. It is obfervablc, that their term for a hundred, 
 or ten tens, is cant, which fignifies, a complete fries of num- 
 bers. See O-iven's if'elch Diil. 'voce Cant. 
 
 (14) ?it&Clayt. Chron. of Hebre^jj Bible, 102. Roll. ^nc. 
 I-Iiji. b. z. part. 2. ch. 1. b. 6. ch. 2. art. ix. Patrick on 
 Ctn. xiv. V. 21. xxviii. v. 22. See \Samuel» ch.8. v, 17. 
 
 c 3
 
 22 ESSAY ON THE Ch. 1. 
 
 [13] to his heir; nor could he inherit without 
 it (^). As the ancestor had no properly 
 
 in 
 
 An efFe£l fo general muft have had as general a 
 caufe. The divifion of our own kingdom feems ne- 
 ceffarily to have flowed from the then ftate of fociety 
 prevailing among us j the hiftory of which affociations 
 in this ifland is deduced with great ability by Profeflbr 
 Millar (15). Yet the decimal arrangement of thofa 
 divifions is fuppofed by many to have been derived 
 from the ecclefiaftical polity, and that from the Mofaic 
 inftitutions (16). But that fuch decimal arrangement 
 was not from the Mofaic inftitution is clear, in that 
 we find it among nations who were wholly unac- 
 quainted with either the Jewifh or the Chriftian polity. 
 
 As the method of reckoning by tens was thus com- 
 mon to moft nations, we muPc feek a caufe which was 
 equally common to them : and this caufe, moft pro- 
 bably, was the number of thofe natural inftruments of 
 notation which every one carries about him, the fin- 
 gers. This was a caufe common to all, and which, 
 therefore, all might have followed ( 17 ). This method 
 
 of 
 
 (t) See Co. Lift. 52. b. See alfo BiiUer's N'lfi Prltis, 
 1S^ — /• See I Burr. 92. Taylor d. Atkins, v. Horde 
 Seal. 
 
 (15) See his lle-Tv cf Engl. Goz'. and alfo Squire on Aiigl. 
 Sax. Goz;, 
 
 (16) See Millar, b. i. c. 6. p. 114. Bacon on Eng. Gov. 
 part. 1. c. 26. (fol. edit. 1739.) 
 
 (17) See Millar's Fienv of. Eng. Gov. b. i. ch. 6. p. 1 15. 
 and note |. Jaair's Amer. Ind. arg. vi. p. 74. d:c. 1 36, 
 and fee Capt. Cooke's \ft Voy. Dc/cript. cf Otabeite,
 
 § 1. LAW OF DESCENTS. 23 
 
 in the hereditaments intended to be con- [14-] 
 veyed, he could communicate none to his 
 
 pofteiity; 
 
 of reckoning was fimple ; and fimple muft have been 
 the method of early times, when people were yet 
 rude. The American Indians are yet favage, and 
 they continue to make ufe of this method to this 
 day (iB). More examples of general congruity might 
 be fele6led, (as the trial by ordeal, for inflance :) but 
 when we find a caufe to be general, fhall we be fur- 
 prized at a general efFeil ? * 
 
 From the fame fource are we to trace the analogy be- 
 tween the ufages of barbarous ftates and thofe of the 
 feudal fyftem. But yet the caufes of the irruption of 
 the northern invaders of the empire, and their views 
 of conquefl:, and more efpecially the condition of thofe 
 among whom they fettled, were almoft peculiar to 
 themfelves, and efientially diiierent from thofe of moft, 
 if not all, others, who thus went conquering and to 
 conquer J and therefore their fyftem of government" 
 muft have been, in fome degree, fmgular(i9j. 
 
 But ftill this originally fimple, though latterly To 
 complicated, yet well-concerted fyftem, fo generally 
 eftabliflied in Europe, feemed calculated only for a na- 
 tion of warriors, in their progrefs from an horde of 
 favages to a fettled ftate. Ill-adapted to a refined or 
 refining age, its corruption, its decline, gave birth to 
 » conftitution, more fitted for a community of men. 
 
 Our 
 
 (i8) See Adair as above. 
 
 (19) ^et Dalrjmplis Feud. Prop. ch. 1. And Millar, b, 
 I. ch. 4. p. 71. 
 
 C4
 
 24* ESSAY ON THE Ch. 1. 
 
 [15] pofterity; in the fame manner as if a de^ 
 dcvhlehe-^^'^^^^ had died before the devifor, his heir 
 
 forethatof COuM 
 
 tiie devil or. 
 
 Our Britifli anceflors were once favages like the 
 rude natives of America; and were the Britons our 
 contemporaries, and not our progenitors, we ihculd 
 regard them iefs partially, and more readily allow the 
 equality. Our Germanic forefathers were alfp fa^ 
 vage: the northern nations were addiiled to rapine and 
 war, were rude and uncultivated ; they even placed 
 the happinefs of a future (late in cutting each other to 
 pieces, and drinking beer from the fcuU of an ene- 
 my! (20). 
 
 When an horde of thefe warriors fettled in a coun- 
 try, they were yet a people^ and required. the affiftance 
 of each other, while thus furrounded by foes. Though 
 ^ the country was portioned out among the feveral indi- 
 
 viduals entitled, yet each could not have defended his 
 property by his own arm. The individuals were 
 united, and formed a frate. Hence were provifions of 
 a military nature referved. And as the caufes of early 
 nations were, in general, very fimilar, the cfFeils were 
 very fimilar alfo. Thus we difcover ufages analogous 
 to thofe of the feudal fyftem in various ftates. We 
 defcry the rudiments of it among the Scythians (21), 
 
 and 
 
 {20) See the Eitt/a; Fab. xx. Ode of Regner Lodbrog. Nor. 
 Antiq. V. i. c. 6. p. I20. C. 12. p. 310. v. ii. p. 105 — 1 1 1. 
 & p. 252 — 3. and compare with Adair, 65. 135. and 
 Robert/. Amer. B. 4. N. Ixix. vSee alfo Millar s Vie^v, b. I. 
 c. 5. f. 2. p. 107. Falc. on Clim. b. 6. c. 2. p. 347. and 
 Jioll.Anc. Hift. b. 6. c. 1. f. 3. 
 
 (21) Hor. lib. iii. ode 24, and fee Roll. Jnc. Hijl, b. 6v 
 ch. I. f. 3. Mail, N. A. pref. and ch. 2. 4. &c,
 
 § I. LAW OF DESCENTS. 25 
 
 could not have fucceeded. The death of [l6] 
 the devifor is as elfential to the completion 
 
 of 
 
 and we trace it through the countries which they over- 
 ran (22). In the feveral ftates of Europe which they 
 invaded, we find it eftablifhed in a greater or a lefs 
 degree : we obferve the fame cuftonis in their progrefs 
 in Afia (23) : and we obferve too, at leaft its refem- 
 blance, even in the remote ifland of Japan (24). In 
 feveral parts of Europe a fyftem very limilar, if not, 
 Qriginally, the fame, feems to have prevailed long be- 
 fore the invafion of the Gothic tribes. Whitacre 
 iinds it in the Britifh polity, and thinks it coeval with 
 the hrft government of our ifland ; and thence extends 
 it to other Celtic nations (^S). Lowman points out 
 a great fimilarity between the Hebrew and feudal 
 fyftems (26 j. An analogous ufage prevailed alio, it 
 is faid, in the New World; in Mexico, Peru, &c. (27)5 
 and even in the iflands of the Pacific Sea (28 j. 
 
 That 
 
 (22) See FoU. Sjiir. Nat. v. ii. c. 91. p. 248. and Mall. 
 N. J. ubi flip, 
 
 (23) Volt, ubi flip, and I Robert/. Charles V. f. 3. p. 228- 
 &470. Note (YY). 
 
 (24) See Lin/cboten, b. i. c. 26. p. 46. 
 
 (25) Hi/. Manch. b. I. c. 8. f. 3. and fee 1 Wnvr, 
 Wales, b. 3. p. 186. 195. 246. andiZaj/. onGa'velk.tnfllm, 
 and Wright's Ten. 48. N. (e). 
 
 (26) Lo^Mm. on the Ci'vil Gov. of the Htbr. c. 4. and fee 
 Ainfvj. on the tentateuch. 
 
 (27) See Volt. Spir. Nat. v. 3. c. 147. p. 216. and 
 Robertf. A?ner. b. 7. 
 
 (28) See Cookers Vojt Defcription of the Friendly a»d 
 Society Iflands.
 
 25 ESSAY ON THE Ch. I. 
 
 of the devife, as the livery of feifm is to 
 the completion of the feoffment. In both 
 
 cafes. 
 
 That this fyilem was known, however, to our Ger- 
 man anceftors, is clear ; and by them eftablifhed in the 
 countries through which they pafTed, or in which they 
 fettled. By them was it planted, or at leaft improved, 
 In our ifland ; though it did not receive its completion 
 till the arrival of the Norman race (29). 
 
 To argue that it was not known to the Saxons, be- 
 caufe it was not matured till the Norman asra, is ab- 
 furd. Can nothing exift till it is perfect? As there.. 
 a^e caufes common to all, or almoft all, nations, there 
 will be fugp-eftions equally common : but the improve- 
 ment of what is thus fuggefted muft depend upon 
 the feveral ftates. When we feek into the ufages of 
 early times, let us be careful to attribute them to iim- 
 ple caufes (30J. 
 
 I well know that the feudal fyftem was not fully 
 completed till the Norman period 3 all I contend for 
 
 is, 
 
 (29) See Millar, b. I. c. 4. b. 2. c. 1. p. 259. and 
 note *. SuUh'an, ledl. ii. and iii. Laiv of Forfeiture, 
 45. Stuart's Vie-M of Soc. in Eur. b. I. c. 2. f. I. Fergifon 
 on Ci-u. Soc. part I. f. 2. Mall. Nor. Jnt. vol. i. c. 8. 
 p. 156. See Spir. of La^s, b. 11. c. 6. b. 30. c. i. 
 ilargrarue's Note to Co. Litt. 64. a. note (i). 2 Bla. Comm. 
 c. 4. Bac. on Lng. Gov, Dalrymp. Feud. Prop. ch. i. 
 Ruitn'rngton on Hale's Com. LaiM, c. 5. p. 107. note (/»), 
 2 Tyrr. Gen. Hift. Eng. Introd. p. 86. Stuart's Dijf. Antiq. 
 Engl. Coiijl. part 2. f I. and part 2. f. 4. Squire, pajfftm. 
 
 (30) See Stuart's Fiei.v of Soc. in Eur. b. l. c. 2. f. 4. 
 p. 54. (4to edit.) Dalrymple on Feudal Prop. ch. 1. p. 7 — 8. 
 Stuart's Dijf. Jnt. Eno. Conjl. part 2. f. 4. p. 1 23. N. part 
 4. f. 2. p. 222. and f. 3. p. 247. 2 Robertf. Amer. b. 7. 
 p. 299. (4to. edit.)
 
 § 1. LAW OF DESCENTS. ' 27 
 
 cafes, as they could not operate before 
 their confimimation, there was nothing 
 conveyed ; and confequently nothing 
 could be inherited (ii). 
 
 Here the feoffment was not perfec^led till r 17'] 
 the livery of feifm given, and fo nothing Conveyance 
 
 -,, - I <^ 1 ^ ^ 1 r incomplete 
 
 pafled to the anccltor; but there are cales^n the life of 
 where the purchafe may be fo far com-^^^^'^*^^^^^^- 
 plete in the life of the anceftor, who dies 
 before the perfection or ultimate eiiential 
 
 is, that it was known, (however imperfe£llyj to the 
 Saxons, and that they permitted the devifing of lands. 
 " The feudal fyftem, (fays Sir John Dalrymple,) 
 was not eftablifhed at once in England, but by degrees ; 
 the fame was its progrefs in every other country in 
 Europe (31).'* 
 
 Some acquaintance with the feudal laws feems abfo- 
 ' lutely eflential to the elucidation of our own, as they 
 are relative to property, &c. Yet neither Little- 
 ton nor Sir Edward Coke appears once to have 
 alluded intentionally to them; and ftill Baron Gil- 
 bert illuftrates the works of both of thofe celebrated 
 authors, by recurring to feudal principles ! 
 
 («) Scepojt, ch. 4. p. 135. 
 
 (30 Dalrymp. Feud. Prop. c. I. p. 17. and 23, and fee 
 Wright's Ten. c. 3. p. 135. &c. and N. (a), (b). Kami's 
 ^Jf.on Bvit. Aritiq. Eff, I. p. 23. 
 
 of
 
 28 ESSAY ON THE Ch. 1. 
 
 of fuch purchafe, as to fix an inheritable 
 property in him, fo as to enable Ids heirs 
 to Jucceed by descent to the heredita- 
 iTjents purchafed, notwithftanding fuch 
 Fine. deficiency of an abfolute perfection : as 
 
 Cognizor '' ... 
 
 dies before where a fine had been levied, fur cognU 
 zance de droit tajitum, Sec. to A. in fee ; 
 and afterwards, but before execution, A. 
 
 Yet the heir q]\q^]. yet his heir midit have entered: 
 
 jnbydeicent. •' ^ ^ , 
 
 and though he were the iirfl who entered, 
 yet he Ihould have been in by descent, 
 and a pollhumous nearer heir might have 
 entered on him; it being a rule (r), that 
 where the heir takes any thing which 
 
 (x) See I Co. 98. a. and b. Moore, 140 — i. ca. 281. 
 (Sbellie's Cafe.) Of this rule fee Douglas^ 506, note. 
 1 Fearne, I02. (4th edit.) 1 Burro%u^ 1 106. Longv. 
 Laming. i Margrave's Law TraSls, 497. 551. 2 
 Bla. Comm. ch. 15. p. 242. Butl. N. (i). to Co. 
 Liu. 376. b. I Bro. Chaiic. Ca. 206. Jones v. Mor- 
 gan. 
 
 Si terre foit done a un home a term de fon vie, le 
 rem. a un auter a terme de vie, le rem. al. iij. en le 
 tail, le rem. en fee as drt. heirs le primer tent, en le 
 rem. fi touts fuer. morts, le droit heire celuy en le 
 primer rem. ferra adjudge eins per Difc. de Heritage, 
 ■purr ceo q. fon Aunc. per poJJibiUty purr, aver ewe Eri" 
 hcrlt, Trin. 11. Hen. iv. pi. 14. fol. 74. b. 
 
 might
 
 § 1. LAW OF DESCENTS. 2d 
 
 might have verted in the anceftor, the heir 
 iliall be in by descent. 
 
 Here, by the levying of tlie fine, the 
 right was acknowledged on an adverfe 
 fuit(j/), tohavebeenin theanceflor; and, [18] 
 confequently, Ids right was ellabliflied ; 
 and the delivery of poflefsion, on the writ 
 of habere facias fdfinam^ was only to irveft 
 him with the adtial feilin of that wliich 
 was confcfled to have been in him of rijht, 
 by a matter of record, and of which he had 
 already a fcifin in law(;:). And here thisselfmin kw, 
 
 :afe 
 
 {y) See Mr. Margrave's note {r) to Co. L'ltt, I2i.a. 
 and I Criiife on Fines, 25. 
 
 (z) Co. Litt. 266. b. 
 
 And obferve, that, fmce the /laiute 27 Htn. 8. the 
 cejiuy que ufe has the actual pofleflion of the land: by 
 virtue of that a6l; for as, on a fine, an ufe muftne- 
 ceflTarily arife, fo now that ufe is immediately executed,. 
 See 13 Fin. 266. Fine (X. 3). />/. 3. i Cruife, 5b. 
 &c. ch. 4. Touch]}. 4. and notes. 
 
 Yet the cognizee cannot bring trefpafs before afi 
 adual entry. 2 Leon. 147. pi. 182. Berry v. Good- 
 man, but fee Cro. Eliz. 46. Anon. 
 
 So in the cafe of a bargain and fale, the bargainee 
 is in the adual poffcffion by virtue of the ftatute, (^ 
 
 4 a^
 
 30: ESSAY ON THE Ch. 1. 
 
 \igl cafe differs from the cafe before put of a 
 feoffment: in this, the right and property- 
 were 
 
 as to fix the property in him; and alfo as to theaflign- 
 ment or transfer of fuch property overj but he cannot 
 bring trefpafs before his adlual entry. Carter, 57. Sec, 
 Gearj' v. Bearcroft. 
 
 Bu; note : a common recovery vefts no freehold, either 
 in deed or in law, nor does any ufe arife on fuch reco- 
 very, before execution ferved. See Moore, 141. cafe 
 281. Shellie's cafe. Jenk. Cent. 249. pi. 40. Co, 
 Litt. 266. b. note (2). 2 Crttife, 134. 
 
 So that if an elder brother fuffer a recovery, but no 
 execition be fued, it will not make a filter to inherit 
 in exclufion of the half-blood. See Plowd. 43. b. 
 
 Yet, if the perfon fufFering a recovery die before 
 execution, execution (hall, in many cafes, be fued out 
 agaiiifi: his heirs: fo than when ferved it fhall have ,re- 
 latioi to the aft of the anceftor, and the heir be in by 
 defceit : as where A. fufFered a recovery with the ufe 
 (amcng other ufes) to the heirs male of his body, and 
 diedbefore execution; on execution ferved, his heir 
 was adjudged in by defcent. Shelly's cafe, i Co. 93. 
 b. 106. b. See Co. Litt. 361. b. 7 Co. 38. a. See 
 al/b 5 Burr. 2786 — 7. 
 
 If a man recover an advowfon, and the bifhop col- 
 late by reafon of lapfe, it fhall be a fufficient execution 
 of the recovery to caufe zpoffeffio fratris. See i Leon. 
 234. 
 
 See further, of Execution: Oi Fines, i Cruife, c. i, 
 p. 3. c. 4. p. 57. Shep. Touchjt. c. 2. p. 4. Coke's 
 
 Readings y
 
 § K LAW OF DESCENTS. 31 
 
 were fixed in the anceftor before execu- 
 tion; in the other, the hvery of feifin was 
 necciliiry to the fixture of fuch property : 
 as the feifin was not given, the property 
 was not fixed. 
 
 But yet it muft be obfcrvcd, that though 
 the heir thus took hy dcfcait from the an- 
 ceftor to whom the fine was fo levied, ftill 
 was he confidered in a hght which ditlered 
 from that in which the common heir was 
 taken : he fliould not have been in ward; 
 neither fhould he have had his age; nor 
 would he have tolled the entry of him who 
 had right («); (which are the character-* 
 iftics, in fomc meafure, of an eftate by 
 purchafe.) Thus was he a being of a 
 mongrel kind ; fomething, as it were, be- 
 tween an heir and a purchafer ; partaking 
 of the nature of both, though more nearly 
 agreeing to the defcription of the former 
 than of the latter. 
 
 Readings^ Read. 2. Trails. 230. 3 Corny ?is^s Dig. 
 Execution (A. 6.) and Fines, ('£. 9.) 
 
 Oi Recoveries : 2 Cruife^ c. 6. p. 134. See i^y^r, 
 35. pi. 28. Ibid. 373 — 4. pi. 15. Cymynsi as above. 
 
 (^) See 1 Co. 98. b. 106, b, 
 
 Again, 
 
 [20]
 
 52 
 
 Copyholds. 
 
 ESSAY ONT THE 
 
 Ch. 1, 
 
 Exchange. 
 
 Devife* 
 
 Again, with refpe6l to copyholds; if a 
 furrender be made to the ufe of A. in fee, 
 and A. die before admittance, yet the 
 heir of A. ihail be admitted; and upon 
 fuch his admifsion, he fliall be in by de- 
 scent from the funender, to which the 
 admittance rehites(/y). 
 
 So alfo in the cafe of an exchange: If 
 both parties die before e^V/^t7• enter, the ex- 
 change is void : but if oiie enter, and the 
 other die before entry, yet his heir may 
 enter, and ihall be in by descent (c). 
 
 So, in cafe of a devifc to A. in fee, and 
 A. die after the devifor, without having 
 ever made any a6tual entry himfelf ; yet 
 his heir may enter, and ihall take by de- 
 scent (a?), (though tlie devifee had but a 
 
 {b) See 5 Burrow. 2786 — 7. Vaughan d. Atkins, 
 V, Atkins; and fee Giib. Ten. p. 288. Rohitifon on 
 Gavelk. b. I. c. 6. p. 98. 6 Finer'' s Ahr. Copyhi 
 (B. e.) I Com. Dig. 615. Borough Englifh. Car- 
 thewy 275 — 6. Benfon, v. Scott, i JVatk. Copyh, 
 J03. 
 
 [c) See Perkins^ f. 285, 286. and i Rep. 98. b. 
 
 (<r/) See Cro. Car, 200. Hulm, v. Keylock. 
 
 fcifin
 
 §1. LAW OF DESCENTS. 3 
 
 feifin In law(c). So alfo, on a devife by [21] 
 cuftom before tbe ftatutcs of Hen. VIII, 
 the beir of tbe devifee migbt have had a: 
 writ oi ex gravi quenila, if the devifee had 
 died after the devifor, and before entry (/)* 
 
 If a perfon takes a remainder at the time Remainder. 
 of its creation, othervvife than by way of 
 life or devife, the feifm is delivered to the 
 particular tenant of the freehold ; which 
 feifm fhall enure and give effe6l to all the 
 remainders limited thereon (g). In cafe a 
 
 remainder 
 
 {e) See Co. L'ltt. iti. a. 240. b. ; and fee Jenk. 
 Rep. 227. pi. 92. and Dyer, ill. pi. i6. Biftiop v. 
 BIfliop. Dr. & Stud. Dial. 2. c. 33. Touchjl. 455. 
 Bull. N. P. 103. 2 Mod. 7. Co. Litt. 214. 236^ 
 Flowd. 412, 413. 10 Co. 40. b. I Leon. 290. cai 
 293. Mathefon v. Tret. 3 Bl. Comm. 168. ch. 10. 
 
 (/) See F. N. B. 199. B. 200. B. and compare 
 with Co. Litt. III. and F. N. B.. 200. B. and note 
 (tf), p. 463. of 8th edit. 1755, 4to. 
 
 {g) See Litt. f. 60. 450. See alfo i Vent. 260—1^ 
 and 2 Bl. Comm. 167* ch. 11. 
 
 So the admifllon of the particular tenant for life or 
 years of copyhold premifes, is the admifliori of him in 
 remainder ; but fo as not to prejudice the lord of his 
 fine, where, by cuftom, fuch fine is due. See 4 Co. 
 23,3. Fitche's cafe. 2 Levinzy 107. Blackborne ■:;, 
 © Greaves,
 
 ^4 ESSAY ON THE Ch. 1. 
 
 [22] remainder be limited by way of ufe or by 
 devife, as thefe modes were introduced, 
 (the latter, perhaps, revived ; fee ante, p. 
 7. and note (^), fmce the decline of the 
 feudal fyflem, there needs no livery to be 
 given at all; yet the remainders fo limited 
 become equally tranfmifsible to the heirs 
 of the devifee, ov ceftuy que ufe. And it is 
 the fame with refpedl to executory devifes, 
 contingencies, and pofsibilities (Ji). 
 
 Attornment, jf a perfon took a remainder by a mefne 
 grant, fuch grant was anciently attended 
 with attornment; but now attornment is 
 not necefl'ary(z). 
 
 In 
 
 Greaves. iVent.lbo — i. Batmorez;. Graves. Moore^ 
 358. ca. 488. Dell V. Higden. 465. ca. 658. Tiping 
 V. Benning. i Mod. 102. and 120 — I. Blackbornei;. 
 Greaves. Lex Cujlumar'ia^ ch. I7. p. 152. ch. 18^ 
 p. 166. Gilh. Ten, 163. 194. Co. Compl. Copyh. f. 
 56. p. 130. and Supplement J f. 7. p. 162. See 2 
 Comyns's Dig. 391. Copyhold, (G. 9.) t Finer* s Mr, 
 Copyh. (P. b.) and (C. e.) pi. 15. K'ltch. Courts., 122. 
 a. Cro.Jac, 31, pi. i. Auncelme v. Auncelme. 3 
 Lev. 308. Barnes v. Corke. 
 
 {h) Ante., p. 4. and po/i. ch. 3. fedt. 2. p. 122. 
 
 (/) See Glib. Ten. Co. Lift. &c. under Attornment. 
 And fee the ftatuies 4 & 5 Ann, c, 16. and 1 1 Geo. II. 
 
 c. 19.
 
 § 1. LAW OF DESCENTS. 55 
 
 In the cafe alfo of equitable relations ; f^^l^^^ 
 if the anccftor executes articles of pur- 
 chafe, and dies before fucli purchafe be 
 completed, a court of equity will 
 compel fuch completion in favour of the 
 heir of the purchafer; the vendor being 
 confidered as a truftee for the vendee; and 
 the eftate fhall, in the contemplation 
 OF SUCH COURT, be deemed in fuch pur* 
 chafer from the time of the execution of [23] 
 the articles, fo as to be capable of being 
 devifed by fuch anceftor, or inheritable by 
 his heir (k), 
 
 c. 19. and Co. Litt. 309. a. note (i), (Harg. & Butl. 
 edit.) znADoug. 283. 
 
 {k) Preced. Chanc. 320. Greenhill v. Greenhill & 
 al. I Vefey^ 437, Potter t;. Potter. 1 Kef. 631. Hinton 
 V, Hinton. Shep. Touchjl. 429, note (2), (edit, of 
 1 791 J 2 Pr. Wnu. 629. Langford z/. Pitt, i Atk^ 
 $11. Green v. Smith. 
 
 But we muft not confound thefe equitable interefts 
 with eftates at common-law ; for fuch an intereft a8 
 mentioned above is incapable of an adual feifm. It is 
 fiated from its analogy to the cafes preceding it, and 
 not as furnifhing a rule for common-law eftates. For 
 on the completion of the agreement hy conveyance to 
 the heir, fuch heir would undoubtedly talce by purchafe 
 at common-law ; however, he may be confidered as 
 being In by a court of equity. See pofl. c. 5. and 
 Dougl. 771. Goodright d. Alfton-y, Wells &«/. 
 
 D 2 Thus,
 
 35 ESSAY ON THE Ch. 1. 
 
 Adual feifm Thus, ID cafe the anceflcM- takes by pur- 
 a^defcem°" CHASE, he may be capable of tranfmltting 
 the property lo taken to his own heirs, 
 without any adual pofl'cfsion in himfelf ; 
 but if the ancedor himfelf takes by de- 
 scent, it is abfolutely neceffary, in order 
 to make him the flock or tcniimus from 
 whom tlic defcent fliould now run, and fo 
 enable him to tranfmit fuch hereditaments 
 to his oxvn heirs, that he acquire an actual 
 SEISIN of fuch as are corporeal, orwhatis 
 equivalent thereto in fuch as are incorpo- 
 [24] real (/) ; or that he exert fome a6l of 
 
 (/) See 2 Bla. Comm. loc^. ch. 14. Glib. Ten. I2. 
 Co. Litt. II. b. 15. a. 40. a. 239. b. Hale's Hlji. of 
 the Comm. Law, ^67. ch. 11. Wright's Tenures, 183. 
 and note (9), ch. 3. 3 Rep. 41. b. 42. a. & b. Rat- 
 clifF's cafe. 8 Rep. 36. a. in Pain's cafe. Noy's 
 Maxims, 22 — 3. (h, 4. Kitchen of Courts, 109. See 
 3 JFilfon, 526. Newman v. Newman. But note: 
 though it be neceffary that the anceftor be feifed, yet it 
 is by no means required that fuch feifm continue till 
 the death of fuch anceftor: for if he had been feifed at 
 any time during his life, and afterwards difleifed, flill, 
 if he had not parted with his right or property, his 
 heir (hall inherit. See pojl. f. 3. See Coke on Finesy 
 Read. 19. Tra£is, 270. Co. Litt. 237. b. And 
 note, if a feifin be pleaded, it Ihall be intended a 
 dyitig feized. See 4 Leon, 97. Pafton v. Townfend. 
 
 owncrfliip
 
 § 1. LAW OF Di;SCENTS. 37 
 
 ownerfliip over fucli as are in reverfion or 
 remainder expedlant upon an eftate of free- 
 hold (m). 
 
 For though the heir of the perfon to. 
 whom the tine fur cogn. de droit tcmliim, 
 &c. was levied, or to whom the furrender 
 was made: though the heir of the party 
 to the exchange who died before entry, 
 of the devifce, of the remainder-man, or 
 of the purchafer, fliall fucceed to the he- 
 reditaments of their refpedive anceftors by [25] 
 defcent, though thofe anceftors had never 
 had any actual i^'i^m ; yet, in order to enable 
 tJiem to turn the defcent, and tranfmit 
 fuch hereditaments io their ow7i heirs, it is 
 indifpcnfably neceffary that fuch pcrfons, 
 who fo fucceed by descenTj gain an 
 ACTUAL POSSESSION, or what is equiva- 
 lent thereto, in the refpective premifes; 
 otherwife they Ihall defcend, not to their 
 heirs, (as fuch,) but to thofe who fliall be 
 able to fhew themfelves the right heirs of 
 fuch hrft purchafer; without any regard 
 to any intermediate perfon who was never 
 
 (m) See poji. ch. 3. fee I, 
 
 D 3 in
 
 58 ESSAY ON THE Ch. 1. 
 
 in the adlual pofTefsion of fiich heredita- 
 ments, 
 
 Scifminlawj Immediately on the death of the ancef- 
 tor, (whether fuch anceftor had taken by 
 defcent or by purchafe,) or the intermedi- 
 ate perfon to whom the eltate devolved, 
 (whether fuch perfon had an a6tual feifin 
 or not,) the law cafts the eftate upon th^ 
 heir(?i): And as he has thus the right, it 
 gives him alfo a prefumed poilefsion or 
 I ** J felfm; (for I fpeak now of eltates in pof- 
 
 ^J/^^^J';^"^P-fefsion). On the death of the anceftor, 
 as the pofTefsion would be otherwife vacant, 
 the law fuppofes or prefumes it to be in the 
 heir; and this prefumptive poffefsion or 
 
 (n) See 2 Bla. Comm. 201. ch. 14. 3 Ihld. 168. 
 ch. 10. Co. Litt. 15. b. 237. a. and b. See 4 Co. 
 58. a, and b. Cafe of Sadlers, Gilb. Ten. 18. See 
 alfo Carthew^ 260. Symonds v. Cudmore. and 3 
 IVilf. 526. Newman v. Newman. 
 
 And fuch heir immediately becomes tenant' to the 
 lord : inafmuch, that if he die before entry, yet a 
 relief fliall be paid on his death. See Kltch. 146. a. 
 Fitzh. Mr, Relief. 12. and 2 Co?n. Dig. 402. Copyh. 
 (K. II.) Co. Litt. 239. b. note (i). See Gilb. Ten, 
 24. and Watk. N. xxiii, p. 372. and N. xxiv". p< 
 377. Brooke^ Relief 2. 
 
 feifu)
 
 § 1. LAW OF DESCENTS. 39 
 
 feifin is what is termed a pofTefsion or 
 feifin IN LAW. 
 
 And we muft be careful to remark, thatAaualfeifm, 
 this poflefsion or feifin in laiv in the heir, Jvron|, re- 
 is, as we have ftated it, no more than/«p-^"" ^^^ P^*- 
 
 ' ' "^ ' fumption. 
 
 pofed or prefwned; for if there be an actual 
 polfefsion or feifin, either by right or by 
 wrong, in any other perfon, fuch actual 
 poflefsion or feifin rebuts the prefumption 
 of a feifin in the heir(o). 
 
 If, on the death of fuch anceflor, the [^7] 
 hereditaments defcending were in lease ^^^'^ ^^ 
 FOR YEARS to any, then the poifefsion ofLgfl-gefoy 
 the leffee for years gives, not a feilin or^^*"* 
 poflefsion in law, but a feifin or poflefsion 
 IN DEED to fuch heir(jy). 
 
 (o) See Gilh. Ten. 22. 4 Rep. 58. a. and b. Co, 
 Litt. 266 b. note (ij, 277. a. Brooke^ tit, Dowery 
 66. 75. Seifm^ 13. See Plowd. 137. b. 3 Bacon's 
 Jbr, Leafe, (I. 5.) 
 
 (/>) See the next fedion; and ch. 3. f. i. 
 
 And the reverfioner may, in pleading, fay, that he 
 was feifed in his demefne. See Plowden.^ I^l, and Co, 
 Litt, 15. a. and noti (3). 
 
 D 4 If
 
 4b .ESSAY ON THE Cli. 1. 
 
 Tenant of If fucli hereditaments were leafed orli-j 
 
 the freehold, ^^^j^^^l ^^^ ^^^^^ ^^ ^^ TAIL, fo that an 
 
 eflate of freehold was created, then the 
 feifin or pofTefsion in deed is infiich par- 
 No feifm of TicuLAR TENANT (<^'). And thougli a 
 
 TeverfionAc. p^^fon js faid to be feifed of fuch rcverfion 
 on a freehold, i" -' •' 
 
 or remainder thus expectant upon an eftate 
 of freehold, and fuch feifin is often flyled 
 a feifin in law; and fo a feifin in. deed and 
 a feifin in law be fuppofed to exill together 
 of the fame eliate ; yet this contufiou 
 feems to have arifcn from the different ac- 
 ceptations in which the word feifin has 
 been taken; and from ufing it in a general 
 fenfe, when it fliould be taken in a ftricl 
 or confined one ; or in a confined one, 
 when it fhoukl be ufed in a general fenfe, 
 
 By the feifin of fuch reverfioner or re- 
 mainder-man is meant, in reality, no more 
 than' that fuch reverfioner continues, or 
 that fuch.rcpainder-man is placed, in the 
 tenancy, and that the property, is fixed in 
 him. The particular eflates and the re- 
 yerfion or re^iainders over form, in law, 
 
 {q) St& poji ch. 3. fee. I. 
 
 . but
 
 § 1. LAW OF DESCENTS. 41 
 
 but one cjiate-, and, confcquenUy, by de- 
 livering the poilefsion to the perfon firft 
 taking, it extends to all. All, therefore, 
 may be faid to be feized; as they are all 
 placed in the tenancy, and as the property 
 is fixed in all. 
 
 If the tenant for life furrender to him 
 immediately in remainder, and the re- 
 mainder-man agree to luch furrender, the 
 frank-tcncmcnt is immediately in him, 
 and a prcucipc quod reddat lies againll him 
 before entry; but before entry he Ihall not 
 have trefpafs (r). 
 
 But, on the other hand, when the feifm 
 is divided into a feifin in deed and a feifin 
 in law, we confine it merely to the prefent 
 corporeal pojj}Jsion of the premifes; not ex- 
 tending it to the fixture of an intereft 
 which is to come into a6lual enjoyment 
 on a future event. The feifin, not ftri6lly 
 in its technical fenfe, but in its primitive 
 and vulgar acceptation, L e. the corporeal 
 Of vifible poffefsion, mufi, in the lalt cafe, 
 
 (r) Bro, Surrendsr^ pi. 50. 
 
 be
 
 42 ESSAY ON THE Ch. 1. 
 
 be really expe^lant upon, and poflponed 
 to, the determination of the particular 
 eftate. And in this fenfe the reverfioner 
 or remainder-man cannot be feized either 
 in deed or in law. 
 
 Words frequently convey an idea in one 
 age very different from that which they 
 were deiigncd to excite in another. The 
 tiling is often forgotten, while the term 
 remains. The ufage and cuftoms vary ; 
 they dwindle into mere form, or they die 
 of a gradual decay; while the word con- 
 tinues in its original ftate. Thus the term 
 vejiure has experienced a fimilar mutation 
 with that of feifin, and is, as frequently, 
 extended to things to which it was not in- 
 tended to apply. We now fay that a 
 remainder is vejicd, as we fay that the re- 
 mainder-man is feized. We have feen 
 that the term feizure is thus applied in a 
 peculiar fenfe — in a fenfe in which it was 
 not originally dcfigned to apply; and 
 when we fay that fucli remainder is vejied, 
 we mend the matter but little; we only 
 mean, that the property is fixed in him 
 and not contingent. 
 
 The
 
 § 1. LAW OF DESCENTS. 43 
 
 The term vefted is allufive to the im- 
 proper inveftiture of antiquity, which 
 required a fubfequent a6tual feifin to com- 
 plete it; and it is fo ufed, from the ana- 
 logy fuch fixture of property in the re- 
 mainder-man bears to that of the perfon 
 fo invefted, and not from any abfolute 
 propriety of exprefsion. Thus, improper 
 inveftiture appears to have been an incho- 
 ate form of dehvering feifjn, and required, 
 as we have faid, an a6lual hvery to com- 
 plete the transfer; and to have arifen from 
 a particular mode of fuch livery— that of 
 invejiing the tenant, or clotJii?ig him with a 
 robe or veji{f). The verting, therefore, 
 of an edate was originally and properly 
 applicable to that of the particular tenant 
 (or tenant in polFefsion) to whom the ac- 
 tual feifin was given, fince xi was clearly 
 no other than a fymbolicai livery. 
 
 When we fpeak, then, of a feifin In 
 deed, or in law, it is allufive to the a6lual 
 
 (/) See SuUiiMn. L. vi. p. 59. &c. 2 Bl. 
 Com. c. 22. p. 366. Kahm's LawTra^s^ Tr. iii. p. 
 106 — 8. Robins. Gavelk. B. 2. e. 2. p. 172, I Burr* 
 109. I Walk, on Ccpyh. 260. 
 
 pofifefsion
 
 44 ESSAY ON THE Ch. 1. 
 
 poflefsion of the premifcs; and not with 
 reference to the intereil of the reverfioner 
 or remainder-man, or their being placed- 
 in the tenancy. 
 
 Again; the great diftinction between 
 
 Inch reverfion or remainder expe^lantiipon 
 
 a freehold, and an ellate of which a per- 
 
 fon may have a feifm in deed or in law, 
 
 or to which he has only a right, is this: 
 
 The perfon in the corporeal pqfcjsion of the 
 
 freehold, who is in the perception of the 
 
 profits, who has the actual poifcfsion, has 
 
 /Ae j^z/zTzm deed:- the perfon who has a 
 
 right of property in the premifes, and alfo 
 
 a title to enter immediately into them when 
 
 the poffefsion is vacant, has a feijin in 
 
 LAW. In the former cafe, the poflefsion is 
 
 already f nil, s. and, titer ef ore, excludes a pre-- 
 
 fumption ; but in the latter, it being vacant, 
 
 the law prcfumes it to he in Jiiui who Jias 
 
 right. But if the actual pofTefsion he in one 
 
 peifon, and another has a title to alter during 
 
 fuch poflfsion, he has hut a right; by reafon 
 
 of the ac'tual poflefsion being in fuch per- 
 
 L^^J fon. But, in the cafe of a reverficner or 
 
 remainder-man, his title to enter does not 
 
 arife
 
 § 1. LAW OF DESCENTS. 45 
 
 arife till after the pqffefsion of a right- 
 ful (0 tenajit is expired, and not while [-291 
 the pollcfsion is in any one elfc. During 
 the particular eftate, the poflefsion is in 
 the particular tenant; but it is not till his 
 poffefbion be determined that the rever- 
 fioner's title to enter accrues. Now when 
 his intereft is determined, the law fup- 
 pofes the premifes to be vacant; (for ifj^gfoj-^e^ 
 the particular tenant continues the polfef- ment. 
 fion after the eftate ended, it would be a 
 deforcement of the revcrfioner; which 
 being a wrong in the tenant, the law will 
 not prefume:) and upon the determina- 
 tion, therefore, of the particular eftate, 
 does the title of entry of the reverfioner 
 arife; and the polfefsion being thus fup- 
 pofed vacant, the law prefumes it to be 
 in him who has title to enter: and thus 
 has he a feifin in law ; for fo is his feifin 
 
 (/) For though the reverfioner, &c. may enter on 
 him who intrudes <m the death of the particular tenant, 
 and fo acquires the wrongful pofTeflion; yet, on the 
 expiration of the eftate of the tenant, his intereft 
 ceafes to be a reverfion or remainder, and therefore not 
 within our aflertion. 
 
 3 now.
 
 40 ESSAY ON THE Ch. L 
 
 now, and now very properly, called (ii). 
 But then this feifin in law is never in the 
 reverfioner or remainder-man as Juch; for 
 as fooii as the particular eftate is deter- 
 [30j mined, it ceafes to be a reverlion or re- 
 mainder, and becomes an eftate in pos- 
 session(2'): and, confequently, a remain- 
 der-man or reverfioner cannot flri6i:ly be 
 fald to be feifed as Juch, though it is fo faid 
 in common parlance. And though it is fo 
 faid, (that he has a feifin in law, even 
 during the continuance of the particular 
 eftate,) yet this ideal feifin is not put upon 
 a level with the flri6l legal feifin in the per- 
 ^foaower offon entitled, when the pofiefsion is abfo- 
 areverfion i^^^cly vacaut : for notwithftandiu^ it ap- 
 
 on a freehold. -^ a r 
 
 pears, that of a feifin in law a widow may 
 have her dower, yet fhe ihall not have 
 dower of the feifin we now mention; but 
 fliall wait for that firicl feifin in law which 
 takes place on the determination of the par- 
 ticular eftate, in order not only to be en- 
 dowed, but even to be endowable (^y"), 
 
 {u) Plcwd, 29. 
 
 {x) Pbwd. 153—155. 
 
 {y) See poji. di. 3. fee. I. 
 
 5 But
 
 § 1, LAW OF DESCENTS. 47 
 
 But to return : If, on the death of the Abator, 
 anceflor, a ftranger enters before the heir, 
 and, in legal language, abates, then the 
 a6tual polfefsion of the abator, though by 
 wrong, fhall rebut the feilin or poilefsion 
 hi law of the heh'(z). So, had the ancef- r^.n 
 tor himfelf been disseised, and died be- 
 fore a fubfequent entry, the actual feifin 
 would be in fuch difl'eifee, and the heir 
 have but a right (r/j. 
 
 But when hereditaments defcend, and Releafe of 
 a ftranger abates, yet, though the heir has hc^r. ^ 
 but A RIGHT remaining, lie may releafe 
 it to fuch abator (/^). So, alfo, if fuch he-By aCopy- 
 reditaments be copyhold, and another be °^ ^^* 
 
 (z) Brooh^ Doiver^ 66. 75. Selfin. 13. Co. Litt. 
 277. a. Plowd. 137. b. 3 Bac. Abr. 400, 401. Leafe, 
 &C. (T. 5.) Ante^ p. 26. {g). 
 
 (fl) This is implied in the very term dijfeifin. And 
 fee Perkins, fee. 280. and l Burrow, 106. Taylor^* 
 Atkins V. Horde, and poji. (ec. 3. Gilb. Ten. 48. 
 Hob. 322. Elvis V. Archbifhop of York, & al. 
 
 {J}) Brooke, Defcent, 27. See Lht. fee. 448. Co. 
 Lift. 275. 266. a. and b. 5 Com. Dig. 370. Releafe, 
 (B. 2.) Touch/?, 321.331. 10 Cs. 48. Lampett's 
 calfe. 
 
 Wrongfully
 
 48 ESSAY ON THE Ch. 1. 
 
 wrongfully admitted, the heir may releafe 
 _ L ^y to the perfon fo admitted tenant Cr}. So,' 
 
 By tenant in ^ ^ ' ' 
 
 gavelkind, alfo, an Infant of fifteen may releafe his 
 
 gavelkind lands to one in poiTefsion of thd 
 
 Aright not freehold (fl?), &c. &c. But though the 
 grantable. ^j^j,^ ^^ ^j^^ j^^-^. ^^^^ ^^ ^j^^^^ releafed to 
 
 the per/on in poffcfiiG7i, yet it cannot be given 
 or granted to any othei\ it not being in its 
 nature grantable(^). 
 
 (<:) Co. Lift. 59. a. and note (2), 60. a. 4 Rep. 25* 
 Kite & Qiiienton. See F. N'. B. 98, A. See further 
 2 Com. Dig. 395. Copyh. (I. i.) 6 f^iner's Abr. 74, 
 Copyh. (Z, a.) C?. Copyh. fee. 36. 
 
 And note ; that the releafe of a copyholder can only 
 operate by way of extinguijhment. See It^atk. N. Ixix^ 
 to Gilb. Ten. 41 — II. 
 
 So the perfon having right may enter, notwlthftand- 
 ing the admiiTion of the perfon who is become tenant 
 by wrong. See IFatL Gilb. 191. N. (m.) 457. N. 
 cxxix. 
 
 [d) See Robinf. of Gavels, b. 2. c. 3. p. 197. 
 
 (e) Co. Litt. 214. a. 265. a. & N. 266. a. 267. a; 
 10 Co. 48. a. Lampett's cafe. Perkins, fee. 280. Sec; 
 Tcuchji. 231. 
 
 But if the releafce have only a poffeflion in laiv, it 
 will be fufficlent. See Litt. S. 447. Gilb. Ten. 49. 
 Co. Litt. 265. a. N. (i). 
 
 If
 
 § 1. LAW OF DESCENTS. 49 
 
 If the heir has fuch right together with Dower of a 
 
 - . - . . . , 1 • 1 feiiin in law. 
 
 a feifin in law, his widow may claim her 
 dower, though he die before entry (/); 
 and though that feifin in law abide in him 
 but for a fingle moment (^). As where 
 lands defcend to an heir who is married at [33] 
 the time of the defcent caji, and a ftranger 
 abates on the death of the anceftor, and, 
 
 during the pofTefsion of the Itranger, the 
 heir dies, his widow fliall be endowed (^). 
 For as the law, immediately on the death 
 of the anceftor, cafts the eftate on the 
 heir (z j, and as the ftranger cannot abate 
 till after the death of the anceftor, (for had 
 he entered before, he would not have been 
 
 (f) Litt. f. 448. 681. Co. Lkt. 31. a. 266. b. 
 358. b. F. N. B. 149. D. Doa. and Stud. dial. ii. 
 ch. 15. Perk. fee. 304. Brooke, Dower, ^6. 75. 
 Fitz. Ah. Dower, pi. 15. 
 
 {g) 2 Bla. Comm. 132. ch. 8. Cro. Eliz. 503. 
 Broughton v. Randall. Bull. N. P. 118. Fitz. Abr, 
 Dower, 34. 42. 
 
 {h) See Perk. fee. 371—2. GUb. Ten. 31. See 
 alfo Prejlon on EJlates, 546. ch. 7, j and Brooke, tit. 
 Dower, 75. 
 
 (/) See GUb. Ten. 3t. 2 Blackjl. Comm. 132. ch. 
 8. Litt, fee. 448. 4nte, p. 25. (/). 
 
 £ the 
 
 [3*1
 
 50 ESSAY ON tHE Ch. 1, 
 
 the abator of the heir, but the diileifor of 
 the anceftor,) the feifin, in contemplation 
 of law, is in fuch heir before the abate- 
 ment of the Granger. For fiippofmg that 
 [35] the flranger had entered the very inftant 
 that the anceftor died, yet, as the pofTef- 
 iion was neceffarily vacant before he could 
 have abated, the pofTefsion during fuch 
 vacancy, was prefumed by the law to have 
 Inftant, been in the heir : and the law frequently 
 permits an inftant to be cleft afunder; for 
 it tells us, that " in things of an inftant 
 there is a priority of time; and the 
 one fhall be faid to precede the other, al- 
 though both fliall be faid to happen at one 
 inftant', for every inftant, fays the law, 
 contains the end of one time and the com- 
 mencement of another," &c. (y^). But we 
 muft not forget, that though it thus 
 cleaves an inftant into two parts, it gravely 
 informs us that it does not carry its preten- 
 lions fo far as to be able to carve it into 
 three (/). 
 
 {k) See Co. Litt. 185, b. 298. a. X Co, 76, b. 174. 
 b. Plowd. 258. 
 
 (/) See 6 Co, 33, a, b. 
 
 But
 
 § 1. LAW OF DESCENTS. 51 
 
 But if the heir had not been married atSeifmre- 
 the time of the defcent caft, and a Granger ""^ * 
 had abated, and afterwards the heir had 
 married, and died before a fubfequent 
 feifin, his wife fliould not be endowed. 
 For, by the entry of the ftranger, his r^gi 
 feifin in law is rebutted-, and, therefore, 
 as he has no feifin either in deed or law, 
 (and feifed he muft be, fays Sir Edward 
 Coke(??i), either the one way or the other, 
 during the coverture,) he has only a right 
 remaining in him. And as a feifm, either 
 in deed or in law, is thus effential to give 
 title of dower to the widow, and as the 
 heir has now neither of thofe feifms, by 
 confequence his widow [cannot be dow- 
 able(?i) : as a widow can no more have No dower or 
 dower of a right (o), than an hufband can^^g^^^^°^ * 
 have his curtefy (/?) 
 
 There 
 
 [m] On Litt. 31. a. and fee P<?ri. fee. 366. 
 
 («) See ante, p. 26. 30. Brooke, Dower^ 66. 75. 
 Leafe, 57. Seifin, 13. Co. Litt. 277. a. Ploivd. 
 137. b. Perk. fee. 367. 
 
 (0) Note an error in Wood's Injl. b. 2. ch, i. f. 5. 
 p. 123. (edit, of 1738.) where it is faid, that the wi- 
 dow Ihall be endowed where the hufband has only a 
 £ 2 right.
 
 52 ESSAY ON THE Ch. J. 
 
 [37] There muft be a feifin in deed or in law 
 
 in the hufband during the coverture to en- 
 title the widow to dower; and therefore, 
 
 I 
 
 as in the cafe immediately before put, if 
 the flranger had entered before the marri- 
 
 right. He feems to cite i Inji. 31. a. and b. in fup- 
 port of fuch afTertion. But Lord Coke, neither there, 
 nor elfewhere that I can find, fays that (he Ihall be 
 endowed of aright. Indeed, in the very place referred 
 to, he fays pofitively, (as quoted as above,) that the 
 hufband muft ht feifed^ either in deed or in law, during 
 the coverture ; and, therefore, in efFefl, directly con- 
 tradicts fuch pofition : for to fay that a perfon can be 
 SEISED even in LAW, of A RIGHT, is a contradiQ. 
 tion in terms. 
 
 In the very next page to that now quoted, Wood tells 
 us from the fame author, (i InJl. 32. a.j that the wi- 
 dow (hall not be endowed of a reverfion on an eftate 
 for life, *' BECAUSE the hufband had neither a feifin in 
 deed or in laiv.'" Now if this be a reafon why fhe fhall 
 not be endowed of fuch reverfion, it will be a reafon 
 alfo why fhe fhall not be endowed of fuch right ; fmce 
 of that alfo, " the hufband had neither a feifin in deed or 
 in law." But Wood's opinion. alone is not authority; 
 " though (as C. J. Reeves obferves) he generally 
 quotes very fair." See C. J. Reeves's Infiruiiions for 
 the Study cf the LaiUy in the Collectanea Juri- 
 DICA, vol. i. p. 80. 
 
 (p) See Per kins J f. 457. Co. Lift, 29, 3. and 2 
 Co. 59. b. 
 
 ' age
 
 § 1. LAW OF DESCENTS. 53 
 
 age of the heir, and the heir had died 
 during the abatement, his wife could not 
 be entitled to dower, becaufc the heir had 
 no feifin during the coverture. So had 
 the heir entered on the death of his an- 
 ceflor, and gained an a61ual feifin, and rggT 
 then, during his cehbacy, had been dif' 
 feifed; and, after fuch dijfcifin, liad married, 
 and died before a fubfequent recovery of 
 feifm, his widow ihould nut be endowed (9). 
 But had he, in the firft cafe, been married 
 at the time of the defccnt, and fo had a 
 feifm in law during the coverture; or had 
 he had an a6lual feifm after marriage , and 
 then been diileiled (r), or had aliened his 
 lands (/), his widow would be certainly 
 dowable (^). 
 
 But 
 
 {q) Perk. fee. 366. Nor fhould the hufband, in 
 fuch cafe, have his curtefy^ Perk. f. 458. 
 
 (r) F. N. B. 147. (E.) So of curtefy. Perk, 
 f. 472. and Co. Litt. 30. a. 
 
 (/) Co. Litt. 32. a. F. N. B. 147. (E.) 
 
 (t) For it is not neceflary that the feifin continue 
 
 during the whole of the coverture: for though the 
 
 diflolution of the marriage will deftroy dower, yet the 
 
 difcontinuance of feifin will not. See Co. Litt, 32. a. 
 
 E 3 an4
 
 S4f ESSAY ON THE Ch. 1. 
 
 Nocurtefyof But if the hereditaments defcend to a 
 
 law! ^^^ daughter or other heirefs, and fuch helrcfs 
 
 has a feifin in law unrebiitted by another 
 
 [39] feifin, yet fuch feifin in law will ?iot intitle 
 
 Exception, her hufband to THE curtesy(2^); unlefs 
 
 it be in fpecial cafes, as of rents, advow- 
 
 fons, Sec. where the wife dies before the 
 
 rent becomes payable, or the advowfon 
 
 void ; and this only from the necefsity of 
 
 the cafe (x). 
 
 If 
 
 and b. (But as to free-bench of copyholds, the cuftoms 
 generally require a dyin^ feifed either in deed or in law. 
 See Co. Li tt. 239. b, Carth. 275. Benfon ^'. Scott. 
 2 f^ef. 633. Hinton v. Hinton. 2 Jtk. 526. Godwin 
 V. Winfmore. Cowp. 48 1. Salifbury d. Cooke v. 
 Hurd. 2 IFatk. Copyh. ch. 3. p. 73. But note; a 
 dying feifed is noteflential to entitle a v/idow to dower 
 of lands in gavelkind, according to the cuftom of Kent. 
 See Robinf. Gavelk. b. 2. c. 2. p. 172 — 3. 
 
 (a) Co. Lin. 29. a. and n. (3). 40. a. 2 Blackji. 
 Comm. 127. ch, 8. 8 Rep. 34. b. 36. a. Paine's cafe. 
 F. N. B. 143, (O.) 149. (D.) I Co. 97. b. Doa. 
 and Stud. b. i. ch. 7. and b. 2. ch. 15. Perk. Ten. 
 p. le Curiejie^ f. 457. 458. 464. 470. Brooke Ten. p. 
 le Curtcfie, J znd i^. Dower, 75. Kitch. Courts, 159. 
 b. Pinchers L. b. 2. ch. 3. p. 129. See 3 Atkins^ 
 469. De Grey & al. v. Richardfon & al. aad i 
 t^efey, 307. Hearle v. Greenbank. 
 
 {x) F. N. B. 149. (D.) Co. Litt. 29. a. and n. 
 (5.} PerkA.^bZ.kc, 2Siderfn,il0.iiT. Dethick 
 
 t/» Bradburne.
 
 § I. LAW OF DESCENTS. 55 
 
 If lands defcend to the heir, they fhall be Afiets before 
 ASSETS in his hands before entry (j/). ^' 
 
 So a feifin in law only is fiifficient to Avowance. 
 AVOW upon (.:;); but in order to maintain r.^^-j 
 ASSIZE, or any ancestral writ, an 
 ACTUAL SEISIN is neceffary (a). But //^^ Writ of 
 heir^ who has had only a feifni in law (Z>), 
 or no feifin at all in himfelF, may maintain 
 a writ of right, and allege an adual feilin ^^"° 
 in his anceflor(c). 
 
 V. Bradburne. Brooke^ Ten. p. le Ciiriefie^ 5. 9. 
 
 Do£l. and Stud. b. 2. ch. 15. Kitch. 159. b. i Co. 
 
 97. b. 2 Cornm. 127, c. 8. See Prejion on Ejiates^ 
 
 484 — 9, and Bacor/s Abr. tit. Curtejy of Eng. (C) 
 fee. 2. pi. 1. 
 
 (_y) Brooke^ AJfeti p. Dejc. 8. i Com* Dig. 422, 
 (AfTets, A.) 3 r^n. Abr. (Affets, A.) pi. 3. Dalton's 
 Sheriffs 126. ch. 26. 
 
 (2) See 4 Co. 9. 10. in Bevil*s cafe; 
 
 {a) See 4 Co. 9. 10. Litt. f. 681. And fee Com. 
 Dig. Affize (B. 5.) Seifin, (C.) and Finer, tit. 
 Affize. 
 
 {b) So zpractpe quod reddat will lie againjl him on a 
 /^//?« /« law. Bro. Seifin, 13. Pracipe quod reddat, 
 5. & 38. Siderfin. 58. Wheeler i/. Honour. 3 Cb, 
 26. 
 
 (0 See F, N, B, 3 5/^^/^, Comm, 5fc. &c. of writ - ' 
 
 of right. 
 
 E 4' But
 
 56 ESSAY ON THE Ch. I. 
 
 Alleging of But this prlvilesfe of allegine a feifin in 
 
 feifinbythc o • ,. 
 
 heir. the anceitor is pecuhar to an heir, or 
 
 one who takes by descent (<f): As in 
 maintaining a writ of right, an actual 
 
 (Efpkcs.) SEISIN, hy taking efplees, is neceflary to 
 be alleged ; and as the heir, in the cafe 
 now under confideration, has not fuch 
 feifin in himfelf before entry, the law al- 
 lows him to take advantage of, and plead, 
 
 By a pur- the feifin of his ancefior. But as a pur- 
 
 ^ ^^^' chafer takes immediately, by his own adt", 
 he can have no fuch anceftor in whom to 
 allege fuch feifin ; for the alleging of fuch 
 L*^J feifin is confined to an ancestor, and 
 has nothing to do with a feoffor, donor, 
 &c. Such purchafcr, therefore, in order 
 to maintain fuch writ, mufi: count upon 
 HIS own actual feifin; and if he has had 
 no a(5fual feifin, he cannot maintain it. 
 So if an eftate be devifed to A. for life. 
 
 Remainder. ^^'^^^^ remainder to B, in fee, and B. die in 
 the life-time of A. : here the remainder 
 being vcfled in intereft in B. his heir fhall 
 inherit, and take it when it falls: but the 
 
 (d) See Co. L'lti. 293. a. i Blackji. Term Rep. C,B, 
 Saji, ;i8 Geo. 3. j— 6, Dally v. King. 
 
 remaindei-^
 
 § 1. LAW OF DESCENTS. 57 
 
 remainder-man cannot maintain a writ of 
 right during the continuance of a prior ef- 
 tate of freehold in pofTefslon (e), having 
 then only an eftate in remainder: but 
 the method by which he muft recover is 
 by A formedon(/); and in bringing FormedoiH 
 which, it is necelfary that he allege ef- 
 plees in the particular tenant (^). 
 
 But although the eftate defcending to Aaualfeifin. 
 the heir be fufficiently veiled in him be- 
 fore his own a6tual entry or feilin, as to L'^^J 
 the purpofes already mentioned, yet it is 
 abfolutely and indifpenfably requifite that 
 he be actually seised of tli,e heredita- 
 ments fo defcended, in order to make 
 HIMSELF the flock of defcent or termi- 
 
 (e) Nor afUr the determination of that eftate till he 
 gain an a^ual feifm by entry, or otherwife. F, N. B, 
 217. b. 
 
 {f) See Fitz.herbert*s Nat. Brev. li"]. Form, en 
 Remaind. 3 Blackjl. Comm, 191. ch. 10. 
 
 {g) See Dyer^ 140. pi. ^i. Brooke^ EJplees^ I. 3, lO. 
 Hale on F. N. B. 200. (B.) note (a), page 463. and 
 214. (A.) note (c), p. 492. and 6 Co. 3. Markali's ' 
 
 cafe, and Kiuh, laO. b. 
 
 NUS
 
 58 ESSAY ON THE Ch. I. 
 
 Nus (A), and make fuch hereditaments 
 tranfmifsible to his own heirs. For if he 
 
 die BEFORE ENTRY OR OTHER ACTUAL 
 SEISIN OR POSSESSION OBTAINED, the 
 
 brother of the half blood fhall fucceed 
 to the inheritance, in exclufion of the 
 fifter of the whole (/): as the perfon now 
 claiming muft make himfelf heir to him 
 who was LAST ACTUALLY SEISED by en- 
 try, receipt of rent, prefentation to ad- 
 vovvfon, &c. or to the original pur^ 
 chaser, or mesne grantor, as the cafe 
 may require. 
 
 (h) See ante^ p. 25. 
 
 [i) Non Jus^ fed fe'ifina faclt Jiipitem. See 2 Bl, 
 Comm, 312. ch. 20. who refers to Fleta. lib. 6. c. 2, 
 / 2. and fee Bra<^. lib. 2. c. 30. /. 65. b. Hale's 
 Com, Lawy ch. 11. p. 267. and fee Ibid. 261. (fourth 
 edit.) 2 BlackJ}. Comm. 228. ch. 14. & 312. 
 ch. 20. Litt. f. 8. Co. Litt. 14, 15. &c. Brooke^ 
 Defcent, 27. & 51. Jenk, Cent. 242. pi. 25. Carth, 
 87—8. 
 
 SECT,
 
 §2, 
 
 LAW OF DESCENTS, $9 
 
 SECT. ir. 
 
 Hozv an actual Seijin may he obtained. l.'^^l 
 
 aftual i'eilin 
 on a defcent. 
 
 In the preceding fedion we have ob- obtaining 
 ferved that anceftors, from whom an inhe^ 
 ritance can be derived, may be divided 
 into thofe who have taken by purchafe, 
 and thofe who have themfelves fucceeded 
 by defcent to the hereditaments claimed; 
 and as to thofe who have taken by pur- 
 chafe, that the fixing of the property in 
 the premifes conveyed in the perfon fo 
 taking, is fufficient to render them tranf- 
 milsible to the right heirs of the perfon in 
 whom the property is fo fixed. When a 
 perfon, therefore, claims by defcent from 
 fuch FIRST PURCHASER, he need only al- 
 lege SUCH FIXTURE OF PROPERTY; and is 
 by no means obliged to ihew an actual 
 SEISIN in the perfon iVom whom he 
 claims: but as the requiiites to fuch iix- 
 5 ture
 
 60 ESSAY ON THE Ch. K 
 
 ture of property are thus relative to a 
 PURCHASE, and eflential to its completion, 
 I think it unneceflary, and befide the pur- 
 [44] port of thefe pages, to fay any thing fur- 
 ther on this head. 
 
 I fhall, therefore, when fpeaking of 
 
 THE MEANS OF OBTAINING AN ACTUAL 
 
 SEISIN, confine myfelf merely (or at leaft 
 in general) to the means of obtaining fuch 
 feifin ON A DESCENT: or, in other terms, 
 of the means of acquiring fuch feifin by a 
 perfon who himfelf takes by defcent, as to 
 enable him to tranfmit the hereditaments 
 defcending to his own right heirs. 
 
 By entry. The moft common and direct method, 
 
 then, of obtaining an actual seisin, 
 when hereditaments descend to a perfon, 
 and fuch hereditaments are of a corporeal 
 nature, is to make an actual entry in 
 the lands fo defcended : but as the manner 
 of making fuch entry is fo generally un- 
 derfiood, and already fo plainly fet forth, 
 and as the intent of the following fheets 
 is only to explain what is conceived to be 
 obfcure, or to colle6t into a concife view 
 
 what
 
 § 2. LAW OF DESCENTS. ^1 
 
 what is fcattered through the pages of 
 proUxity; and not to th-e the reader with 
 the needlefs repetition of that which he 
 may find better arranged and elucidated 
 elfewhere; I ihall content myfelf with 
 jull tracing the outhnes of this doctrine, [4,^1 
 and (hall then refer to thofe authors who 
 have treated of it more at large. 
 
 When an anceftor, therefore, dies, the Sufficient. 
 heir is to enter acftuaily in the lands ;^^^" 
 and fuch entry may be into any part of 
 fuch lands, and by any part of the perfon, 
 (as where one entering into an houfe by 
 the window, and when half out and half 
 in, was pulled out again by the heels, the 
 entry was adjudged fuflicient («) — ). And 
 fuch entry fhall give him an actual 
 SEISIN of all fuch lands whereof fuch an- 
 ceftor died feifed, within the fame county, 
 and into which he had a right to enter at 
 
 {a) Et pur ceo qu'il ne purra entrer per le huis, il 
 entra per le feneftre, et quant Tun moitie de fon corps 
 fuit deins la meafon & I'autre de hers, il fuit treit ' 
 hors ; per q. il port aflife : & fuit agarde q. le pit. re- 
 covera. 8 y^Jf. pi. 25. f. 17. b. and vide BreoJte, Seif, 
 20. and 23. and Entrs Cong. 57. and 6x. 
 
 4 the
 
 62 ESSAY ON THE Ch. 1. 
 
 the time of fuch entry made, or which were 
 in the pofTefsion of the fame abator: but en- 
 try into lands in one county, or into which 
 he might then enter, or which were in the 
 poffefsion of one abator, will not give him 
 feifin of lands in another county, or to 
 [46] which his right of entry did not till after- 
 wards accrue, or which were in the pof- 
 fefsion of other abators (^). 
 
 Claim. But however this entry be made, it mufl 
 
 be peaceable, and not " with ftrong 
 hand." For if the heir cannot go peace- 
 ably on the lands, he may go as near to 
 them as he fafely may, and there make 
 claim, which will amount to an actual 
 entry (^). 
 
 {b) See further Filzh. Jbr. Brooke. Littleton. Co, 
 on Litt. Comyns's Dig. Finer'' s Abridgment. Gilb. Ten, 
 3 Com. tit. Entry and Continual Claim j and Co. Read. 
 Fines., Readings 15, 16, 17. Tra^^s., 263. i Leon. 
 
 If two acres defcend, and a ftranger abate into one 
 of them, the heir fhould enter into bothj or, at leaft, 
 into that acre in which the abatement was made, in the 
 natne of both ; for if he {hould enter into the other in 
 the name of both, it might be doubtful whether it 
 would fufEce. See Phwd. ^laries^ qu. 142, 
 
 But
 
 § 2. LAW OF DESCENTS. ^3 
 
 But here it may not be improper to ob- Infufficient. 
 
 What ? 
 
 ferve that it is not the mere a6t of going 
 on the lands that will conftitiite a legal 
 entry fufficient to veft the a6lual pofTef- 
 fion in the perfon who has right. Thus 
 when the diffeifor requefted the dilTeifee to 
 go into his cellar to fee the antiquity of it, 
 which he did ; yet this was adjudged to 
 have been no entry in the diffeiice: fo if 
 the difleifor had afked the difieifee to go 
 to the houfe whereof the dlffeiiin was 
 made, to his daughter's wedding, or to 
 dine with him, or the like : So where the 
 plaintiff went into the houfe to the jury r^^.-j 
 on a view to Ihew evidence, it was ad- 
 judged not to have been an entry in him ; - 
 but, in order to conftitute a legal entry, 
 the perfon fo entering mufl enter with 
 that intent (c), and exprefs his intent to 
 be fuch (^d). For otherwife, where could 
 be that notoriety of poflefsion which the 
 
 {c) See Plowcl, Comm gij 93. See alfo Co. Litt. 
 245. b. 368. a. I Mod. Rep. 10. Clerk v. Rowell 
 & al. 6 Mod. 44. Ford v. Lord Grey. 
 
 {d) Or manifeft fuch intention by feme overt a«3;* 
 See Robinf. Law of Inherit, ch, 4. p. 33. note (/'), 
 edit. 1755, 
 
 law
 
 cr lord. 
 
 64, ESSAY ON THE Ch. 1. 
 
 law fo juftly requires in cafes of this na- 
 ture? How could an accidental, or unin- 
 tentional, or fecret entry be any evidence 
 to the neighbouring tenants of the right 
 or pofl'efsion of the perfons fo entering (e)? 
 
 But it is not abfolutely neceffary that 
 the poffefsion be gained by the a6tual en- 
 try of the very perfon to whom the lands 
 35y guardian defcend : It may be gained by the entry 
 or poffefsion of the guardian or lord 
 - ^J OF THE INFANT heir(J); oy by the pof- 
 
 fefsion 
 
 {e) See 2 Bla. Comm. 209. ch. 14. Gilb. Ten. 83. 
 I18. and notes. See alfo Kalms's Law Tra6ls^ ii. & 
 iii. SuUlvan^s Le£I. left. 6. p. 58. Dalrym. F. P. 
 224. &c. 
 
 (/) Fitzh. Jbr. Defc. 12, Brooke., tit. Defcenty 
 19. Entre Cong. 37. Seljin, 18. Dyer^ 291 — 2. pi, 
 69. Co. Litt. 15. a. and note (4). 29, a. and note (3). 
 Kitch. of Courts^ no. a. 130. b. 131. a. &c, 
 3 Co. 42. a. 9 Co. ic6. a, i Comyns's Dig. 433. 
 Aflize, (B. 4.) Co. Compl. Copyh. fee. 41. p. 95. 
 TraSls. Noy's Max. 23. ch. 4. 2 Inji. 134. See 
 further, 3 Wilf. 516. Cafe of Newman v. Newman; 
 and 3 Finer' s Abr. AlTize, (D.) F. N. B. 179. F. 
 
 And note; the guardian need not be formally af- 
 figned. See 3 IFilJ. 528. Newman v. Newman. 9 
 Co. io6» a. 
 
 So
 
 § 2. LAW OF DESCENTS. 65 
 
 fefslon of THE ancestor's lessee FOR'^^"^"^°^ ^ 
 
 chattel inte- 
 
 YEARS, tenant by elegit, STATUTE-reft. 
 MERCHANT, Or STATUTE-STAPLE (g). 
 
 And 
 
 So if a ftranger enter into the lands of an infant and 
 take the profits, he (hall be confidered, both at law 
 and in equity, as entering as guardian, and Ihall be 
 accountable as fuch. See F. N. B. ii8, B. Noy*5 
 Max. 38. Co, Lift. 89. a. & b. Sullivan, ledl. 13. 
 p. 128 — 9. I j^tk. 489. Morgan v. Morgan, and 3 
 Jtk. 130. Dormer v. Fortefque. 
 
 And the entry of fuch perfon will make a pojjejp,^ 
 fratrls in the infant. See 7 Durnf. is Eajl. 386. & 
 390. Doe V. Keen. 3 Wilf. 516. &c. and Precede 
 Chanc. 280. Whitcombe v. Whitcombe. 
 
 (g) Co. Lift. 15. a. 243. a. 3 Co. 42. a, Kltch, 
 109. b. I Fent. 261. Batmore v. Graves, i Comyns's 
 ^ig-A-33' Afllze, (B.4.) 5/^/^.443. Seifin,(A. 2.) 
 and (C.) 9 Rep. 105. b. Margaret Podger's cafe. 
 Gilb. Ten. p. 158. Co. Copyb. [f. 41. Tra^s, 95, 
 and Supplem. f. 5. p. 157 — 8. Noy^s Max. 23. 
 ch. 4. Moore, 125. <:^. 272. Brooke, Selfin, 18. 36. 
 See 3 y^//f. 469. De Grey & (2/. v. Richardfon & «?/, 
 3 ^z^ 516 — 528. Newman v. Newman. Jenk^ 
 Cent. 242. pi. 25. See 2 /«/?. 688 — 9. 6 <^^^. 57, 
 b. F. N. B. 179. F. 
 
 And this, though the heir dies before the day of 
 payment of rent. See the above references, and par- 
 ticularly Moore, 126. ca. 272. Co, Litt. 15. a. and 
 3 M, 469. 
 
 F But
 
 66 ESSAY ON THE Ch. 1. 
 
 [49] And as the possession of the lessee 
 
 FOR YEARS OR AT WILL IS THAT OF 
 
 hefr before ^ THE LESSOR (/?), (o it fecmS that the 
 entry. J^gj^ 
 
 But if the ancellor had made a leafe for life, re- 
 ferving rent, and the heir receive the rent fo referved j 
 yet fuch receipt will not make possessio fratris 
 in the heir ©f fuch reverfion; it being upon an eftate 
 of FREEHOLD. See Co. Lin, 15. a. and note (5)5 
 and^£/?. ch. 3. f. i. 
 
 And note ; If a common recovery be fuffered of 
 lands which are let on leafes for years, the recoveror 
 will not have the reverfion prefently by the judgment, 
 (t. e. will not be in the adiual pofTeffion by reafon of 
 fuch leafes for years), but the recovery mufl be exe- 
 cuted by writ, entry, or claim. 2 Cruife, 135. ch. 6, 
 cites 1 Co. 94. b. 106. b. and fee Moore, 137. 141. 
 pi. 281= Shellie's cafe. See alfo 2 Lord Raym. 853. 
 Weft V. Sutton. 
 
 If a man recover an advowfon, and 'after the bifhop 
 collate for lapfe, »^he fame is an execution of the judg- 
 ment, and will make :^ pojpjfto fratris, P. Moyle, 
 22 Hen. 6. cited by Anderfon, C. J. i Leon, 234. 
 
 See further next note (^), and 3 Viner^ Aflize, (D). 
 
 (/») See before note {g), and ante, {tc. i. p. 27. 
 I Com. Dig. 433. Affize, CB.4.) 5 Ihid. 443. Seifin, 
 CA. 2.) 6 Ihid. 298. Defcent, (C. 9.) Kitch. 62. 
 See 3 Wilf. 516—28. BuUer'i N. P. J 04. And fee 
 alfo I Wilf. 176. and 6 Co. 57. a. 59. a. Brediman's 
 cafe. Co. Litt, 290. b. note 1^1^, 330. b. note^i). 
 
 So 
 
 M
 
 § 2. LAW OF DESCENTS. 67 
 
 heir may make fuch leafes for years or at r^Q*] 
 will BEFORE HIS OWN ENTRY, and fo ac- 
 quire an a6tual feifin by them; for it ap- 
 pears, upon the whole, pretty clear, that 
 tlie^pofTefsion in law only of the heir 
 is fufficient to enable him to make fuch 
 leafes, without any a(?tual entry by him- 
 felf; as where the lands defcend to fuch 
 heir, and his poffefsion be unrebutted by 
 
 So if a REMAINDER be limited on an eftate for 
 years, the poffeffion of the particular tenant is the pol^ 
 feflion of the remainder-man. See (of Freeholds) Lltt^ 
 fee. 60. and Co. Lift. 49. a. and b. and 239. b. and 
 note (2). 2 Bla. Comm. 167. ch. ii. And fee alfo 
 poj}. ch. 3. f. I.J ZTi'i ante^ p. 2i. 
 
 Of Copyholds t 2 Levinz^ 107. I Vent. 260 — I. 
 Batmore v. Graves. 6 Vin. Copyh. (P. b.) (C. e.) 
 />/. 15. 2 Com. Dig. 391. Copyh. (G. 9.) and antCy 
 p. 21. note (w). 
 
 So the entry of a devisee for years will make 
 POSSESSio FRATRis. Sqc Jenk. Cent. 242. />/. 25, 
 See it alfo in 7 Fin. Abr. 585. Defcent, (K). fl. 34. 
 and 36. and in Co. Litt. 15. a. note (4). See alfa 
 Dyer^ 342. pi. 54. Towers v. Burrov/S. and Brooke^ 
 Feoffrn. al Ufes, 33. and Defcent, 36. Fitzh. Abr, 
 Subpoena, 3. 3 Leon. 25. c^. 53. 
 
 Devife to executors to pay debts, they have a chattel 
 intereji. See 8 Co. 96. a. Co. Lltt, 42. a. Cro. Eliz. 
 316. Cordai's cafe. 2 Fern. 403. Hilchins v. Hilchin«. 
 
 F 2 the
 
 6^ ESSAY ON THE Ch. 1. 
 
 the aclual feifin of any other perfon : but 
 if another abates, fo as to 7'ebut fuch pre- 
 fiimed or legal feifin, the heir having now 
 neither a feifin in law or deed, and, con- 
 [51] fequently, no poffefsion at all, cannot 
 pofsibly be able to make any leafes of 
 fuch lands (/). 
 
 Tenant by ACTUAL SEISIN may alfo be gained by 
 
 *^°^^* the poffefsion of a tenant by copy of 
 
 COURT-ROLL, whether fuch tenant be for 
 
 YEARS, LIFE, OR IN FEE (^). For COpy- 
 
 holds were originally, and yet are in the 
 eye of the law, only tenancies at will; 
 the freehold remaining in the lord (/) : and 
 
 of 
 
 (z) See Nofs Max. ch. 34. Plowd. 87. 137. 142. 
 5 Com. Dig. 443. Seifin, (A. 2.) Bacon's Abr. 
 Leafe, (I. 5.) Brooke^ Leafe^ 57. Touchji. 269. 2 
 Strange^ 1086. Berrington v. Parkhurft & al. and fee 
 Cilb. Ten. 1 59 — 60. 
 
 SeepoJ}. 57. a. N. (/), of an Entry by Attorney. 
 
 (>f) See 9 Rep. 105. b. 106. a. 
 
 (/) See 3 Levinz. 94. See it alfo in 6 Finer' s Jbr, 
 Copyh. {h.)pl. 9. Gilb. Ten. 160. 4 Co. 22. a. Brown's 
 cafe. 23, b. Clarke 7;. Pennyfather. llnji. 325. Co, 
 Copyh. fee. 14. Tra^s, II. See 3 Burr, 1273 — 9. 
 Stephenfon v. Hill. 
 
 See
 
 §2. LAW OF DESCENTS. 69 
 
 of copyholds there may be a possessio [52] 
 FRATRis before acimifsion(m). 
 
 So the entry of one coparcener. Coparceners, 
 
 &c. 
 JOINT-TENANT, Or TENANT IN COM- 
 MON, is fufficient to make possessio 
 
 See I Blackft. Tra£is^ Confid. on Copy, and 2 Com, 
 147. ch. 9. who fays, that fome copyholders have a 
 freehold intereft, but not a freehold tenure : (for if 
 they had a freehold tenure, how could they be confi- 
 dered as copyholders?) But thefe are ufually denomi- 
 nated cuftomary freeholders, and not merely copyhold 
 tenants who hold " at the will of the lord.'* See Co. 
 Lift. Sg.b. and note (I). 9 C?. 76. b. Combe's cafe. 
 Garth. 432. Gale v. Noble. 3 Salk. 100. Page v. 
 Smith, and in Dig. Ca. K. B. 433. Eftates. 2 Lord 
 Raym, 1225. 1232. Crowther v. Oldfield. And fee 
 3 Burr. 1273 — 8. Stephenfon v. Hill, where it is faid, 
 that the freehold, even of thefe eftates, is in the lord 
 of whom held. See alfo Calth. Read. 51. 54. edit. 
 
 {rh) Dyer^ 29 1, pi. 69. Lex Cujlitmaria^ ch. 17. 
 p. 154—6. Cro. Car. ^11. Reeve v. Malfter. 4 Co, 
 22. b. Brown's cafe. 23. b. Clarke v. Pennyfather. 
 Gilb. Ten. 159. 2 Com. Dig. 379. Copyh. (D. I.) 
 388. (G. I.) 6 Fin. Mr. Copyh. (D.b.) and (C. e.) 
 Co. Copyh. f. 41. TraSfs^ g^.. (fee it.) Sitpplem. f. 
 5. p. 157. Kitch. Courts, 60. a, 81. b, Moore^ 
 125—6. ca. 272. Calth. 64. 87—8. 
 
 For it is the entry and not the admittance which 
 makes a poffejjio fratris of copyholds. See i Freem. 
 45» Foxc V.Smith, zndpoji. p. 63. N. 
 
 F 3 FRATRIS
 
 [53] 
 
 70 'ESSAY ON THE Ch. 1, 
 
 FRATRis in the others who did not enter, 
 to the excldfion of tlie half-blood (?i). So 
 
 the 
 
 («) Hoh. 120. Smales and Dale. Moore^ 868. p/. 
 J 20 1. S. C. and fee Moore ^ 546. ca, 729. Hemley 
 7;. B rice. See alfo Dyer^ \^%. pi. 58. Ballard v. 
 Ballard. Who quaries^ *' Si I'entre del elgn? Fitz, 
 (en Gavelkinde Terre) done feifm a les autres ou nemy? 
 ^od (he adds) eji difficile a fejirangery ut credo" And 
 fee Robinf: on Gavelk. b. I. c. 6. p. 113. who ob. 
 ferves on this cafe in Dyer^ that the ftranger holds in 
 common with the heirs, and muft plead and be im- 
 pleaded by a feveral/>r<^a'/»^; And it is a general rule^ 
 he adds, that, where there are feveral aftions, there 
 ^ll^ft be feveral entries, and, therefore, the entry of 
 the heir will not give feifm to a ftranger. But quare 
 as to this: For, though all tenants in common muft 
 be impleaded by feveral pracipes, {Co. Litt. 195. b.) 
 yet it appears, from the cafes cited from Moore and 
 Hohart^ that where the heir and devifee were tenants 
 in cornmon, the one by defcent, and the other by pur-r 
 chafe, the entry of one alone caufed a pojjejjio fratris 
 in the other. 
 
 See further i Lord Raym. 622. Fiflier Sf Wigg. 
 Co. Litt. 373. b. 5 Burr. 2607. Fairclaim d. EmpfoA 
 V. Shackleton. ^enk. Cent. 42, pi. 75. 
 
 |f there are feveral coparceners, and one o;iIy pre? 
 fent to an advowfon, it will not put the others out of 
 pofleilion ; but the pofl'eflion of one, by her clerk, 
 fhall be the pofleffion of all j fo that the others may 
 brin^ a ^are Impedit. Dyer^ 259, ph 20. 2 Injf, 
 
 3^5.
 
 § f. LAAV OF DESCENTS. 71 
 
 the poflefsion of one is the poflefsion of [54] 
 the others to feveral other purpofes((;). 
 But the entry of one will not veil the ef- [55J 
 tate and poflefsion in the others if it would 
 be for their difadvantage^p). 
 
 365. F. N. B. 34. I. U. Bro. ^uare Imp, 52. 
 108.139. Co.Litt.iitZ'^' 17 ^?«. 405- Pi^efentm, 
 (K. c.) 
 
 And fuch alfo feems the law as to joint-tenants. 2 
 Jnjl. 365. Bro. ^are Imp. 3. Co. Litt. 186. b, 
 17 f^in. 404. Prefentm, (K. c.) pL i. 
 
 But fee contra ; Bro. ^are Imp, 52^ F. N. B, 
 35. W. and f^in. uhi. fup. Yet the law and the rea- 
 ion of the thing feem in their favour. 
 
 And it is faid to be the fame as to tenants in com- 
 mon. See I Anderj. 63. But qutcre as to this: and 
 fee 17 V'ln. 405. Prefentm. (K. c.) pl.i. 2x1^ Bro, 
 Prefent. al EJgliJe^ pi. i. 
 
 ((?) See Brooke^ Reinittery 16. ScifiTiy 44. Gilb,, 
 Ten, 29. Lltt, f. 398. Co, Litt. 243. b. 373. b. 
 Hob. 120. Smale & Dale. Robin/. Gave Ik, b. 1. ch. 
 6. p. 113. 
 
 " To feveral purpofes," but not to all. See Brooke.^ 
 Coparcener, 8. Dyer^ 128. pi. 58. Ballard v. Ballard. 
 Gilb. Ten. 28. and next note (/>). 
 
 f/)) Brooke, Coparcen. i . . Entre Cong, 9. Voucher^ 
 23. See Finche'i L. b. 2. ch. 3. p. Ii8 — 19. and 
 Cq. Litt, 253. b. 
 
 F ^ So
 
 72 ESSAY ON THE Ch. 1. 
 
 Brother or So THE ENTRY OF A YOUKGER BRO- 
 
 fifter. i- 1 1 11 1 
 
 THER OR SISTER, (although they are but 
 
 of tlie HALF-BLOOD,) is the poirefsiou of 
 
 the eldell brother, or other f]fters(^). 
 
 [5^ J And it feems that fuch entry will make 
 
 POSSESSIO FRATRIS VEL SORORIS in thC 
 
 heir at law, even though it be to the ex- 
 clufion of the very perfon who enters (r). 
 
 By^flranger. ^^^ ^s a pofTefsion may, in many cafes, 
 be gained by the entry of an indif- 
 ferent PERSON IN HIS name, AND TO 
 
 HIS USE, WHO HAS right; and this often 
 by mere oral authority, and fometimcs even 
 without any expreffed authority at all(/); 
 
 fo 
 
 (q) See Gilberfs Tenures, 28. 158. Lltt. fee. 396, 
 Co. Lltt. 242. a. & b. Plowd. 306. a. See Hale on 
 Fit-z. Nat. Bnv. 166. (L.) p. 455. note {a). Bull. 
 Nifi Prius, 102. JenL Cent. 242. pi. 25. See it 
 alfo in 7 Finer's Abr. 585. Defcent (K.) pi. 34. and 
 36. and in Co. Litt. 15. a. note (4). See alfo Jenk. 
 Cent. 42. pi. 79. And the books cited ante, N. («). 
 
 (r) See y.','..f. Cent. 242. pi. 25. JbU. 42. pi. 79. 
 phwd. 306. And fee notes {n) and {q) before, and 
 -' the authors there referred to. 
 
 (/) Thus an hufband may defire any perfon who 
 lives near wh^re the Unds lie, to enter in the name 
 
 of
 
 § 2. LAW OF DESCENTS. T3: 
 
 fo it feems that the entry of a person Attorney. 
 PROPERLY DEPUTED wlll bc fufficieilt tO r^^-j 
 
 give 
 
 of himfelf and wife ; and the entry of fuch perfon will, 
 it feems, be fufficient to entitle the hufband to hiscur- 
 tefy(i). So if a perfon enter, without any previous 
 authority, in the name of him who (hould enter for 
 condition broken, it will veft the eftate in him to 
 whom it was limited on the breach of fuch condition, 
 fo as to maintain an ejeftment ; if it be afTented to be- 
 fore the day of the demife laid in the declaration (2). 
 So a ftranger may enter, and it fliail avoid a fine, 
 though levied with proclamations, if the entry be by 
 precedent command, or be afterwards alTented to •, but 
 not otherwife (3). So if a perfon enter for a forfeiture 
 in the name of him in reverfion, though without ex- 
 ,prefs authority (4). So, generally, if a perfon enter in 
 the name of him who has right, even though it he 
 without a precedent command or fubfequent aflent; 
 and whether he who has right be an infant or of full 
 age, it (hall veft the freehold in him who has fuch 
 
 right. 
 
 (i) Perkins, f. 470. and fee f. 464. And i^c Preji. en 
 Bj}ates, 485. 
 
 {z) Stee z Strange, 1 1 28 — 9. Fitchett «i;. Adams. And 
 a "Uf;-^^/ aflent is fufficient, (Fitchett S< Adam) ; But it is 
 ablblutely neceflary that an ajjent be given- See Cro. Jac, 
 56. Curties i/. Wolverfton. 
 
 [^l^ Brooke, Entre Cong. 1 23. 9 Co. 106. a. See Co. 
 hitt. 258. a, 1 Cruife, 307. 2 Com. Dig. Claim, (B. 2.) 
 
 (4) Brooke, Seijin, 21. and fee 2 Strange, 1 1 28— 9c 
 ^Xi.^ Brooke, Entre Cong. 123. and Co. Zi//. 245.3.
 
 W ESSAY ON THE Ch. I. 
 
 give an a6lual feifin, and make a posses- 
 
 sio FRATRis in him by whom he is fo de- 
 
 [58] puted(^). But we may obferve that pos- 
 
 SESSIO 
 
 right (5). So the pofTeffion of the hufband is the pof* 
 feilion of the wife, and e converfo (6), &c. &c. &c. &c. 
 
 (/) See Litt. fee. 432. Co. Liti. 257. b. 258. a. 
 
 9 Co. 75. Combes's cafe. Gilb. Ten. 37. Ploiud, 
 
 93. I Cruifey 307. See F. N. B. 179. G. p. 414. 
 4to edit. 1755, 
 
 Et pur ceo fi tielx heires ifli fcifis par eux, ou par 
 procuratours, ou par baillyfs, ou autres, que en lour 
 jiofme ferrount mys e. feifine, foient engettes par autres 
 que p. nous de quel age que ils foient, fi volons que lis 
 fecoverount par cefte aflife, &c. l^ide Britt, cap. 42. 
 De D'ljeifmey 107. a. (232). 
 
 And, indeed, when we confider that an actual 
 SEISIN is neceflary to be given and received by the 
 refpedtive parties, in order to give effeit and confum- 
 mation to Zl feoffment y and that fuch feifin may be taken 
 BY ATTORNEY (i), (conftituted by deed) (2), as 
 
 well 
 
 (5) Perk. f. 48. Brooket Seijiny 50. Co. Litt. 245. a. 258. a. 
 
 (6) 8 Co. 44. a. See Bro. Seijin, 1 7. Perkins, f. 46. 
 470. 464. I Roll. Abr. 314. J'vo^-wrie, (D.) pi 6. ^ Com. 
 Dig. 444. Seifm, (C.) sC<""-Big- 167. Pleader, (z A. i.) 
 Co. Litt. zg. z.. NoyjMax.Sz. Po/. (cd. $. 
 
 (i) See Co. Litt. 48. b. 49. b. 52. zComm. 315. ch- 
 JO. 3 Com. Dig. 341. FeofFment, (B. 3.) Kitcb. 137. 
 Brooke, Fecffmente, 67. And fee 5 Co. 94. b. 95. a, 
 
 (2) See Co. Litt. 52. a. and note (1.); 48. b. and note 
 (2). Kitih. 137.
 
 § 2. LAW OF DESCENTS. 75 
 
 SESsio FRATRis IS not mucli favoured (z/) ; 
 and a ftrider feifin is requUite to make 
 
 fuch 
 
 well as in perfon, fo as to fix the a£lual pofleflion in 
 the feofFee; may it not be alked, Why fhould not 
 the entry by a perfon lawfully authorized fix the a£lual 
 pofleflion in the heir ? Why may he not thus receive 
 the feifin neceflary on a defcent^ as well as that which 
 is requifite on a purchafe F Or as well as recover 
 the a£tual pofleflion of lands of which he had been 
 dlffeifed^l)? Or as make a continual claim y which 
 will amount, in many cafes, to an adlual entry (4) f 
 If he can recover the actual possession of lands 
 of which he has been disseised, by attorney, 
 why may he not obtain actual pofleflion, by attorney, 
 of lands whereon a Jl ranger has abated? In either 
 cafe he has a right and title to enter (5^. And if he 
 can thus recover an adlual feifin of lands, when fuch 
 jidlual feifin is in another, why may he not enter 
 
 by 
 
 («) Per Gould and Blackjione, Jujiices. 3 Wllf. 
 520. See 3 Jtkinsy /^ji. De Grey v, Richardfon. 
 I Fef. 177. Cunningham v. Moody. 2 P. IVms. 
 735 — 6. Cowper v. Earl Cowper. 
 
 And note: It is always intended or prefumed, that a 
 perfon claiming is ot the whole-bloody till the contrary 
 be fliewn. Kitch. 225. a. and Plowd. 77. a. Trin, 
 ;9 Hen. 8. pi. b. fol. 1 1 , b. 
 
 (3) See Co. Lift. 48. b. and note (6), 
 
 (4) See Litt. f. 432. Co. Litt. 257. 
 
 (5) Co. Litt. 258. a. and fee ll^id, 237. b. 238. Bla. 
 ^emm, 175, ch, lo.
 
 7^' ESSAY ON THE Ch. 1. 
 
 l59] fuch PossEssio fratris than even to 
 maintain a writ of right (z). 
 
 Aa of However, Mr. Robinfon conceives that, 
 
 ownerftup. -j^ ^j| ^afes, WHERE THE HEIR EXERCISES 
 ANY ACT OF DOJMINION OVER THE INHE- 
 RITANCE, (as by repairing houfes, fences, 
 Sec, or by receiving rents, fee ante^ p. 48.) 
 it will amount to an actual entry (3/). 
 
 r^Ol ^^^ ^^^^ before obferved (z), that if an 
 Recovery, elder brother suffer a recovery, and 
 
 by attorney where the pofTeflion is vacant, and fo 
 no one to fufFer? If another enter in the name of the 
 heir, is not there an equal notoriety as if he had entered 
 himfelf ? It has been repeatedly faid, that an actual 
 ENTRY is necelTary to avoid a fine levied with pro- 
 clamations (6) ; and yet we have feen (7) that fuch 
 entry may be by attorney. 
 
 (x) See Co. Litt. 281. a. 
 
 {y) Law of Inheritances in Fee-Simple, Sic. 33. 
 «ote(/), ch. 4. cites i Leon. 265. and Co. Litt. 15. 
 
 (25) Ante^ fee. i. p. 18. note (/>). 
 
 (6) See 2 Com. Dig. 302 — 3. Claim, (B. i.) 6 Ibid. 260. 
 Cruife on Finely 304. 2 Strange, 1086. Berington v. 
 Parkhurft & a). Douglas, 483. Goodright -y, Cator, 
 B.N. P. 103. 1 Mod. 10. Gierke -y. Rowell. 3 Burroiuy 
 1897. Dates ^. Wigfall 1/. Brydon&«/, ; and poft. 113. 
 N. (y). Jenkins d. Harris & Vk. v, Prichard & ah 
 
 (7) Seep. 57. note (3). 
 
 die
 
 § 2. • LAW OF DESCENTS. 77 
 
 die, AND NO EXECUTION BE SERVED, it 
 
 will NOT make a possessio fratris in 
 him to caufe the fifter to inherit, to the 
 exclufion of the half-blood; for till exe- 
 cution ferved, the recovery does not 
 operate. 
 
 If the hereditaments claimed be iN-0^j"^°rp°/ 
 
 real hereoi- 
 
 corporeal, it is requisite, in ordertaments. 
 to give feifm of them to the heir, fo as 
 to make him the ftock of defcent, 
 
 THAT he actually RECEIVE THE 
 RENT, PRESENT TO THE ADVOW- 
 
 SON, &c. (a), (unlefs fuch advow- 
 
 [a) See ante, fee. i. p. 23. And feealfo Co, Litt. 
 15. b. F.N. B. 36. (E.) Kitch. 109. It was faid 
 by the Mafter of the Rolls, (Sir Jofeph Jekyll), in 
 the cafe of Penville v. Lufcomb, (Mojley's Rep. Temp. 
 King. 72.) that, in order to make a poJp£lo fratris of 
 an equity of redemption on a mortgage in fee, the 
 elder brother Ihould have brought his bill againft the 
 mortgagee j or the mortgagee fhould have paid him 
 the rents and profits. And, therefore, where the fa- 
 ther made a mortgage in fee, and died after forfeiture, 
 leaving a fon and a daughter by one wife, and a fon 
 by another, and the eldeft fon died without bringing 
 his bill, his Honour decreed the equity of redemption 
 to the younger brother, 
 
 fon.
 
 n ESSAY ON THE Ch. 1. 
 
 fon, &C. BE iiPPENDANT Or APPURTE- 
 NANT TO A MANOR, &C. of Vvll'ich h6 
 
 has already obtained an actual seisin). 
 For tliougb, as we have feen (/»), a feifin 
 in lata in incorporeal hereditaments will, 
 in fome cafes, entitle an hufband to his 
 f6] 1 ciirtefy, yet it will 7wt be fufficient to turn 
 the defcent, but an actual seisin muft 
 be acquired, 
 
 Appendaii- If an advowfon be appendant or 
 
 cies and inci- .1 
 
 dents. APPURTENANT JO A MANOR, then AC- 
 
 TUAL SEISIN OF THE MANOR WILL (aS 
 
 before hinted) give actual seisin also 
 OF such advowson as its appendant 
 CY (c). But if a perfon be dilTeifed of a 
 manor whereto an advowfon is appendant, 
 lie may, notwithflanding, prefent to the 
 a^ivowfon before he regain the feiiin of 
 
 {h) Ante^ fee. I. p. 39. 
 
 (<:) See Co. Lht. 15. b. note (i)\ 29. a. note (4); 
 49. a. Gilb, Ten. 18. and F.N. B. 36. (E.andF.) 
 Ca. Lift. 333. b. 349. b. 363. b. Hobart, lit — 7. 
 Char.cellor of Cambridge v. Walgrave. See I Strange, 
 54. Newman v. Holdmyfaft. 2 Strange^ lOii — 12. 
 Rex V. Epifc. LandafF. Moore^ 9c. pi. 223. Playre v. 
 Crouch & aL See poji. fee. 4.. 
 
 4 tbe
 
 m 
 
 § 2. LAW OF DESCENTS. 79 
 
 the manor (fi^). And as feifin of the prin- 
 cipal is feifin of tlie accefTory, fo the re- 
 covery of, or remitter to, the principal, 
 is the recovery of, or remitter to, the ac- 
 cefTory alfo; but not e converfo{e). And, 
 therefore, if another, during fuch difleifin, 
 ufurp fuch prefentation, yet, on his re- 
 mitter to the manor, fuch ufurpation is 
 purged, and he fhall be remitted to the 
 advowfon alfo(/). But though recovery 
 of the principal will reflore him to the 
 feifin of the acceflbry, yet the exerciflng 
 any a6t over the acceflbry will not give 
 him feifin of the principal : and, confe- 
 quently, if A. be difTeifed of a manor to 
 which an advowfon is appendant, and dies 
 before recovery, leaving a fon and a 
 daughter by one ventre, and a fon by 
 
 {d) See Co. L'ttt. 122. b. 307. a. 333. b. P. N. B. 
 33. Q. Bro. Prefent. al Efglife. 30. Fitz, Abr. 
 Prefent. al Efglife. 13. 
 
 {e) See Co. L'ttt. 151. b. 152. a. N. (3). 349. 
 Bro. Prefent. al Efgife^ 30. and fee alfo Co. Litt. 15, 
 a. aad N. {5). and ante^ fee. I. p. 49. (f). 
 
 (f) See Brooke J Prefentemente al Efglife, 31^ 32. 
 I Lord Raym. 302* Kex v. Bifli, of Chefter. 
 
 another,
 
 80 ESSAY ON TF!E Ch. 1. 
 
 another, the eldeft fon (g") prefent to the 
 advowfon, but betbrc he recover the ma- 
 nor die, after whofc death the younger 
 fon enter into the manor, as the now heir 
 of his father, he ihall be entitled alfo to 
 the advowfon (fubje6t to his brother's 
 clerk); and the prefentation of his elder 
 brother fhall not fever fuch advowfon from 
 the manor, fo as to render it an advowfon 
 in grofs; nor, confequently, make a pos- 
 SESsio FRATRis to caufe the filter to in- 
 herit: but the younger fon, on recovering 
 the manor, ihall recover alfo fuch advow- 
 fon as its accellory (A). 
 
 [63J 
 
 As to the methods of gaining feifm of 
 
 Rents and RENTS AND SERVICES, I muft Content 
 
 myfelf with referring to the oooks cited 
 in the margin ; as the whole would be too 
 much to tranfcribe, fo the infertiou of one 
 
 {g) See Fitzb. Jbr. ^are Impedlt, 179. Co. Litt» 
 333- ^- 17 ^^^' 34^- Prefentation. (R. a.) pi. 9. 
 
 {h) See Brooke^ Prefent. al EfgUfe^ 30. Co. Lift. 
 29. a. and note (4). 306. b. 307. a. 349. b. 363, 
 And fee //-///. 151, 152. and 3 IFilf, 526 — 7. and 
 Triri. 9 Hen, 6. 25. a. 
 
 part,
 
 $2. LAW OF DESCENTS. 81 
 
 part, relative to the matter iti hand, would 
 be doing inJLifticc to theother(?;. 
 
 If the hereditaments defcending be i n Reverfions 
 
 REVERSION OR REMAINDER EXPECTANT ^'^ ^^"^°^'^-° 
 UPON AN ESTATE OF FREEHOLD, thc 
 
 heir may obtain what will be equivalent to 
 AN ACTUAL SEISIN of them fo as to turn 
 the defccnt and caufe a possessio fra- 
 
 TRIS, BY GRANTING THEM OVER FOR 
 
 LIFE OR IN TAIL. But of tliis morc will 
 be faid in a future chapter(A-). 
 
 (/) See 4 Co. B, 9. Bevll's cafe. Co. Litt. 68. a. 
 153- a. 315. a. Litt. Sec. 235. Jenk. Cent. 284. 
 pi. 14. Cfo. jfnc. 142, /)/. 20. Brediman v. Bromley. 
 6 Co. 57. F. N. B. 177. Brooke and Fitzh. JJftzd 
 2 Browfilcw, 99. 5 Com. Dig. Seifin, (C). 3 Finer-y 
 Aflize. 
 
 (k) ScQ po/h ch. 3. fee. i. 
 
 If A. dies, leaving a fon by one wife and a fon and 
 a dau2;hter by another, and the widow be endowed of 
 a moiety by the cuftcni, fthe lands being copyhold,) 
 and the two fons be admitted to the reverfion of the 
 moiety of which the widow was endowed, and the fon 
 by the fecond wife dicj the admittance Ihall not caufe 
 a pojfejfio fratris in him, fo as to make his fifter take. 
 See I Freem. 45. FoXe v. Smith. So note ; it is the 
 entry, and not admittance, which makes a pojj'ejjio 
 fratrii in copyholds. 
 
 G SECT
 
 82 ESSAY ON THE Ch. i 
 
 [64] 
 
 SECT. IIL 
 Hoxio an actual Seifin may be defeated. 
 
 W HEN a perfon has obtained an a6lual 
 feifin of lands, &c. he may again be 
 
 DifTeifin. OUSTED OF THE FREEHOLD (fl'), by the 
 
 wrongful act of another individual; and 
 this is termed a disseisin. By fuch 
 diffeifin the atlual p©fl'efsion is in the dif- 
 feifor, and the diflfeifee has but a right. 
 A right de- ^^^ fuch right would regularly dcfcend to 
 icendmg. ^ns heir at law in the fame manner as if 
 clothed with the poffefsion: but if the 
 diffeifee had died, and the right defcended 
 to his heir, and fuch heir had died alfo. 
 
 [a) See i Burr. 107. Taylor d Atkyns v. Horde 
 h al. Coivp. y 01. S. C Co. Lit t. 181. a. Terms de 
 la Ley. Difleifin. 3 Bla. Com?n. 169. ch. 10. 
 
 And the dilTeilbr gains the fee. See ante, fee. i. 
 p. 2. N. (0. 
 
 leaving 
 
 Half-blood.
 
 § 3. LAW OF DESCENTS. 83 
 
 leaving a brother of the half, and a fifter 
 of tlie whole-blood, and without having 
 ever recovered the poiTefsion of the pre- 
 mifes; the brother of the half-blood would 
 fucceed to the inheritance, and not the 
 fifter of the whole. For fuch heir having 
 had only a right, and no aclual poiFefsion 
 or fcifm, he could not have turned the 
 dcfcent: So that, on his death, the perfon ^ 
 Ihould faccecd who could make himfclf 
 lieir, not to fuch heir of the difieifee, 
 but to the difieifee himfelf; he being the 
 perfon who was laft a6lually feifed. For 
 though the difleifin deprived him of the 
 a6tual polfefsion or feiiin, yet it only re- 
 lated to the time of fuch difleifin made; 
 and would not have relation to any 
 prior event : fo that as he was once aclu- 
 ally feifed, that adual feifin fhall not be 
 ab initio defeated ; but the pedigree fhall 
 run, and the claim be made from, him, as 
 being fo feifed. 
 
 But there is yet a mean by which the Seifm defeat- 
 
 - to. ab initio* 
 
 actual feifm or poflefsion of hmi who has 
 
 fucceeded to an inheritance may, as to 
 
 the portion to which fuch mean ihall ex« 
 
 G 2 tendj
 
 H* ESSAY ON THE Ch. I, 
 
 tend, be not only taken out of him from 
 the time of the operation of fiich mean, 
 but fhall be abfolutely, and ab initio^ de- 
 flroyed; and fo as to have relation to the 
 eftate of a precedent poffefTor, and ut- 
 terly defeat the feifin or poflbfsion of the 
 Bydowcr. perfon fo feifed: and this is by the en- 
 dowment OF THE WIDOW of fuch pre- 
 cedent poffeflor. 
 
 Dowager in For by the endowment of fuch widow, 
 
 W^'^"^" (^^^ inflance, the mother of the heir,) 
 
 [66'] ihe is in from her hulband, and not from 
 
 the heir; and her eflate is, as it were, 
 
 the continuance of that of her huf- 
 
 band (Ji), So that, during her poiTef* 
 
 {b) And by reafon of this relation to the eftate of 
 her huftjand, it is, that a remainder limited on an ef^ 
 rate in dower, (as where the heir endows his mother, 
 and, at the fame time, limits a remainder over to an- 
 other,J is void : for as the particular eftate, and the 
 remainders limited thereon, muft form together but 
 one eftate, the remainder limited on an eftate in dower 
 cannot be good : as the eftate in dower arifes from, 
 ind has relation to, that of the huftjand, and reference 
 to his death j and the remainder proceeds from the heir, 
 and arifes from the grant made by him : fo that fuch 
 heterogeneous portions can never form one eftate. See 
 Plovjd. 25. Flnche'i Z,. b. i, c. 3. p. 13, 
 
 fion
 
 § 3. LAW OF DESCENTS. 85 
 
 iion(c) of the third * part of fucb lands Reverfion. 
 as her d<>wcr, the heir can have no ac- 
 tual SEISIN" OF SUCH THIRD, fo as tO 
 
 make a possessio fratris. His entry 
 being thus deftroyed, and the widow iti 
 from her Ijufband, he has only the rever- 
 fion of fuch third ; and fuch reverfion 
 being on an eilate of freehold, he can [67j 
 have no aaual feiiin of it, as we fhall pre- J^°' J^^J"^ 
 fently evince. So that if the elder brotherA^'"'' 
 enters, and then endows his mother, and 
 dies, the brother of the half-blood fhall 
 have the third fo given in dower (f/). So Dower. 
 
 {c) The freehold is not in the widow till (he enter 
 into the lands affigned, or the feifin be aBua'lly delivered 
 by the Jherijf. See Co. Litt. 32. b. 37. a. N. (i), 
 Hale's MS. Litt. f. 393. Alaintenant apres ceo que 
 la Feme enter et ad le possession de mefnie la 
 Tierce part ^ isfc. Dyer^ 278. a. pi. 4. Perk, S. 423. 
 Dr. & Stud. b. 2. ch. 13. Jnte^ 50. N. (f). and pojh 
 80. 83. 
 
 * Note; the third part of the lands is mentioned 
 here only by way of example j for what is faid is 
 equally applicable to whatever portion the widow 
 takes. 
 
 {d) Co. Litt. 15. a. 31. a. 240. b. 241. a. Litt. 
 f* 393- Brooke^ Defcent, 19. Doiuer, 87. iQQ. 
 Mordancejf. 3. 6. 
 
 (3 3 if
 
 86 ESSAY ON THE Ch. 1. 
 
 if IiQ enter, endow her, and die, his own 
 wife fhall not be endowed of fuch third (e), 
 
 Orcurtefy. Or if the heir be a daughter, and fhe enter, 
 and endow her mother, and die, her huf- 
 band fhall not be tenant by the curtefy of 
 it(/). So where there are grandfather, 
 father, and fon, and the grandfather dies; 
 the father dies, (either before or after 
 
 ^ entry,) and the fon enters and endows his 
 
 grandmother; his and his father's fcifin is 
 deftroyed ; (and if there had been twenty 
 defcents, alienations, or diffeifuis, they 
 [^8] would all be defeated;) and the fon has 
 only a reverfion on an eftate of freehold, 
 
 ((?) See Co. Lift. 31. a. and b. Brooke, Seifiriy 18. 
 4 Rep. 1:^2. a. Paine'scafe, cited. F. N. B. 149. H. 
 Perkins, f. 301. 315. And fee Fitz. Abr. Dower, 49. 
 166. 170. 
 
 See Fitz. Mr. Dozver, 130. contra, which cites 
 M. 23. Ed. 3. But there is no fuch cafe in the 
 printed Yearbook of that term. 
 
 But fee M. 24, Ed. 3. pi. 18. fol. 32. b. 33. a, 
 and pi, 80. fol. 70. b. 71. a. where it appears that 
 the opinion of the court was, that the widow of the 
 father was iu by her baron, and fo the feiiia of the fon, 
 is to fuch third, defeated. 
 
 (/) Kiich. Ccuris, 159. Brookr, Ten. par le €i!r^ 
 iefte, JO, 
 
 3 as
 
 § 3. LAW OF DESCENTS. 87 
 
 as has been faid : for by the endowment ofMefnefeifm 
 the grandmother, every mefne eitate was 
 defeated (g). 
 
 But we muft be mindful to obferve, that widow pof- 
 it is the poffefsion of the widow of fuch ^f ^"S ^^'^ 
 
 A third as 
 
 third AS HER DOWER (A), that thus de-^owfr. 
 
 feats 
 
 (g) " Et 7ion alloc.'" Car mefq. xx. fuer. ffis. pu: 
 laMort le Bar. unc. I'cntr, la Fee. ferr. fup. p. le Bar. 
 qnt. ele eft ciiis in Eftat. de Dow. Ad. 24. Ed. 3. pi. 
 18. /. 33. a. 
 
 Bro. Moy'danceJI. 3. Co, Lift. 31. a. and b. Sec 
 2 Injl. 154. Per^. l\ 315,316. 4 Co. 122. 
 
 Yet this {hall not defeat the eftate of a baftard eigne ; 
 and, therefore, if the baftard die feized, and his ifllie 
 endow the widow of the baftard, or the widow of ihe 
 baftard's father, yet the eftatc in dower (hall not have 
 relation fo as to defeat the eftate of the iflue as to fuch 
 third J for the dying feifed of the baftard, and the de- 
 fceiit to his ifi'ue, eftabliftied his title to the whole; 
 and, being once hxed in the ifllie, the law will not 
 permit it to be afterwards defeated j or the legitimacy 
 of the baftard called in queftion after his deceafe. 8 
 Co. loi. b. Co. Litt. 244. a. and vide Gilb. Ten. 29. 
 &c. and IVatk. N. xxvi. and i Salk. i^Q. Pride v. 
 Earls of Bath and Montague. 
 
 {h) But note : If the heir affigns dower of lands of 
 
 which the huft^and was feifed, but of which the wife 
 
 was not dowable, yet ftie is tenant in dower of the 
 
 Q 4 lands
 
 S8 ESSAY ON THE Ch. 1, 
 
 feats the felfin of the heir, For when fhe 
 
 poirefles it as her doivei\ flie is ?/z, as we 
 
 have faid, from her hufband, and her ef- 
 
 tate is, as it were, the continuance of his: 
 
 Not as her But if flic pofleffcs it (either by itfeif, or 
 
 dower. ^^.j^l^ ^.j^^ Other parts) in any other manner 
 
 than as her dower, the feifin of the heir 
 
 will not be thereby deftroyed : as if, after 
 
 L^^J the death of her hufband (z), and before 
 
 Acceptance endc'^vmcnt, Ihe accepts a leafe for life, or 
 
 of leale by ' n • 
 
 thedowrefs. years, of the heir (a). For i\\Q is now in 
 
 of 
 
 lands afligned. Finche^ Z. b. i. ch. 3. p. 36. Co. 
 Lift. 34. b. note (9). Hale's AISS, 
 
 So if the widov/ be endowed, and afterwards ex- 
 changes with the heir for other lands, yet {he is tenant 
 in dower of the lands fo taken in exchange, and fhall be 
 in of them by her hufband. HaUs M&S. as above. 
 
 (/) For if fhe accepts fuch leafe during the life of 
 the hufband^ it will be no bar of her dower; as, while 
 he is living fhe can have only a title to dower, and not 
 an immediate right. Befide, fhe being under cover- 
 ture, her acceptance is not conclufive, but waivable 
 after his death. See Jenk, 15, 16. pi. 27. 
 
 {k) Perkins, Dj-iver, {. 350. F. N. B. 149. (E.) 
 JCitch. 160. See Brooke, Dower, 27. jfenk. Cent. 73. 
 f' 38. 
 
 So if fhe accepted the guardianfhip of the heir in 
 ^hivalry, fhe was barred during his non-.ige; i. e. 
 
 while
 
 § 3. LAW OF DESCENTS. 
 
 of her oicn eftate, which can liave no re- 
 lation to that of her hufband, io as to co- 
 alefce with, and conttitute a continuance 
 of, his eftate. And as the heir had gained 
 an aftual fcifin of the whole, thcfe eitates 
 (for life or years) are portions of his inte- 
 reil, and not derived from an intercll 
 which was anterior or paramount to his 
 own: fo that his leifin will not be thereby 
 defeated; but the perfon claiming on his 
 death mud make himfclf heir to him, as 
 of the perfon laft fcifed. 
 
 If the leafc fo accepted by the widow [70] 
 be for her life, it will be an abfolute and po^ life, 
 effe^lual bar of her dower for ever: for as 
 flie is already podefled of the lands, how 
 can fhe demand them? She cannot de- 
 mand them againft herfelf(/). Befides, 
 as flie voluntarily accepted fuch leafe, fhe 
 ihall be eftopped ai^d concluded by her 
 own a6l. If the leafe he for years only, For years. 
 
 while the guardlanfliip continued. See Brooke^ Doivcr^ 
 27. and 42. Hale on F. A''. B. p. 350. note (b). See 
 further JenL Cent. 15, 16. pi. 27. and 73. pi. 38. 
 
 (/) Perkins., f. 350. 
 
 it 
 
 S5
 
 <^0 ESSAY ON THE Ch. 1, 
 
 it feems that ihe may again demand her 
 dower when fuch term is expired (7?z); for 
 between the expiration of the term and 
 her own death, (for when we fay that the 
 widow may demand her dower after the 
 expiration of the term, it muft neceflariJy 
 be fuppofed, that flie be then Uving; for 
 otherwife fhe could not demand it at all,) 
 there mu ft have been a time when the heir 
 polTeiTed the lands from which fhe was not 
 then excluded from demanding her dower. 
 If, therefore, the widow recovers her 
 dower after the expiration of the term, it 
 feems to follow, from the principles already 
 laid down, that the eflate then obtained 
 iliall have immediate relation to that of 
 licr hufband ; fo that fuch her eftate will 
 be paramount to the title of the heir, and 
 defeat tlie feifm he at firft gained, and 
 which continued during the term, and 
 put him in the fame fituation, with rcfpe6t 
 to fuch third, as if he had never being 
 feifed at all. And in cafe the immediate 
 
 (w) See Fltz. Nat. Brev. 149. E. and Kltch. Courts^ 
 160. b. And fee alfo Perk. f. 350. Brooke^ Dower ^ 
 27. and 42, and ante^ p. 69. note (/), 
 
 heir 
 
 [7ij
 
 § 3. LAW OF DESCENTS. 91 
 
 heir of the hiifband had died during tlie 
 continuance of the term, and the hinds 
 had defcended to his heir, and if he 
 had left a fon and a daughter by one 
 wife, and a fon by another, tlic fon by 
 the firfl wife, being bis heir when he 
 died, would, of courfc, liave fucceeded to 
 the inheritance. And in cafe this firft fon 
 had died alfo, during the continuance of 
 the term, without iffue, the daughter 
 would have inherited the lands: for, as 
 the term exifted, the fon by tlie lirit 
 ventre had a feifin fufficient to make a 
 possESsio FRATRis(?z); for as the widow 
 could not yet have recovered her dower, 
 his feifm could not yet have been defeated. 
 But had the lands thus defcended to the 
 daughter, and, during the eftate of fuch [72] 
 daughter, the term had expired, and the 
 widow had recovered her dower, and died 
 in the daughter's hfe-time; or, during the 
 continuance of the term, the daughter 
 had died, leaving a fon; and, in his life, 
 the widow had recovered her dower ; now, 
 though the daughter was, at the death of 
 
 («) See antey fee. 2, p. 48. 
 
 her
 
 9i ESSAY ON THE Ch. 1. 
 
 her eldefl brother, and during the conti- 
 nuance of the term, (while flie lived,) the 
 perfon entitled by law to the ellate, and 
 in the actual pofiefslon of it ; yet, by the 
 recovery of dower by the widow, the feifin 
 of her eldeft brother and herfelf in the one 
 cafe, and of her brother, fclf, and fon, in 
 the other, (hall be deftroyed: fo that, in 
 the firfi: cafe, flie herfelf, and in the fe- 
 cond, her fon, fliall be excluded from the 
 inheritance of the third io recovered; 
 and the brother (or uncle) of the half- 
 blood fliall be heir to it(«). 
 
 Leafe to a But if the hcir enter on the death of his 
 life"b^^'th°'^ ancellor, and, before endowmeni, he leafe 
 heir, againft the wholc lauds to a ftraugcr /or life, 
 
 Avhom dower • o i i 
 
 is recovered, agamft whom the widow recovers her 
 
 dower, and afterwards the heir dies, the 
 
 fifter of the whole-blood ihall ha^•e the 
 
 [73] revcrfion in fee, and not the brother of 
 
 the half-blood : becaufe the heir (or cldelt 
 
 trf['^' '^^' ^on) had altered the reverfion by his leafe 
 for life; and the tenant in dower left the 
 
 (0) See poj}. ch 3. fee. i, 
 
 reverfion
 
 § 3. LAW OF DESCENTS. 03 
 
 reverfion in the lefleeC/^}. So had the heir 
 made fuch leafe after the recovery of the 
 widow, though there remained but a re- 
 verfion on a ireehold in the lieir, (as to 
 fuch third,) yet, on his leafe of the whole 
 lands, fuch reverfion would pafs(</); and, 
 confequcntly, by fuch leafe for life of the 
 reverfion, a possessio fratris would be 
 madeC?). 
 
 But when it is faid, that the feifin ofHeirappa- 
 the fon is detlroycd by the endowment of J^'J^^^.^'J^^y^? 
 
 againftwhom 
 the widow 
 
 (/)) See 8 Co. 35. b. Co, Litt. 15. a. and the books recovers 
 , dower, 
 
 cited. 
 
 {q) See Plowd. 155. 161. 433. 10 Co. 107. a. and 
 b. Pafmer s cafe, cited. i Leon. 180. Howe & 
 Coniiey. 
 
 (r) ?)tQpoJl. fee. 4. and ch. 3. fee. i. 
 But had he leafed them for the life of the leflee, and 
 died before him j ©r had he leafed them for his own life, 
 his widow would wo/, by reafon of fuch alienation^ 
 be entitled to dower on the death of the firft widow, 
 who recovered againft him, of the third afligned to 
 her. For, notwithftanding the alienation, it would 
 ftili continue a reverfion on a freehold; and, confe- 
 quently, not fubje(5l to the dower of his wife. See 
 Bro. Defc. 19. and SeiftHj 18. cites 19 Ed. 2, (Fidi^ 
 Pafch. 19 Ed. 2. p. 662. M(iyn.) and Fitz. Air. 
 Dower ^ 166, 
 
 the
 
 9i^ ESSAY ON THE Ch. E 
 
 the widow, it mufl be underftooci that 
 the foil took the eftate by descent: And 
 ns to the fubje6l of defcents, this is fuffi- 
 cient to our purpofe. But as there is a 
 difference in this rcfpe(5l with regard to 
 dower, between a defcent and purchafe, 
 and as we have already fpoken fo much 
 on that head, it may not be improper to 
 notice it here. Thus, if the grandfather 
 ^=^4r] had ENFEOFFED the father, or made A 
 GIFT IN TAIL to him, the wife of the 
 father, after the deceafe of the wife of 
 the grandfather, fhould have been en- 
 dowed of the part afsigned to the grand- 
 mother equally ^s of the other two-thirds; 
 becaufe the purchase or gift that took 
 effe6i: in the life of the grandfather 
 (before the title of the grandmother was 
 confummated) is not defeated ah initio, but 
 only quoad the grandmother, as to fuch 
 third. But had the father taken by de- 
 scent, he could not have been entitled 
 till riiF. death of the grandfather; 
 at which time the title of the grandmother 
 re'fi'^ confummated; and fo, on the reco- 
 very of it, formed one citato with his. But 
 as the purchafe took effect in the life-time 
 
 of
 
 § 3. LAW OF DESCENTS. 95 
 
 of the grandfather, there was a time when 
 the father was feifed of the premifes fo as 
 not to be defeatable by the grandmother, 
 of which feifm his wife might have been 
 endowed ; as the grandmother's recovery 
 of her dower would only relate to the 
 death of thegrandtather; fo that when Ihe 
 recovered it, it umdd diveft or defeat the 
 felfin gained by descent, but ?iot that 
 gained by purchase, faving only as to [75] 
 her own eftate (y). 
 
 And ac^ain: If the wife of the father be Mother en- 
 
 "^ 1 T r- L dowed before 
 
 endowed by the fon before the wife oi the thegiand- 
 grandmother, and then the grandmother "^°^ ^^* 
 recover again ft the mother, yet it is faid 
 that the mother ihall enter again on the 
 death of the grandmother : for the eftate 
 for the life of the grandmother was lefs, in 
 the eye of the law, than the eftate for her 
 own life (/). But if, on the recovery of 
 the grandmother, her eftate fo recovered 
 Ihall have relation to that of her hufband, 
 and, confequently, defeat the feifin of the 
 
 (/)SeeC(!'. Z;V/. 31. a. andb. znd^-Co. 122. a. andb. 
 (t) SsQ Co. Lift. 31. b, Perkinsy fee. 3 1 6. 
 
 father.
 
 96 ESSAY ON THE Ch. 1. 
 
 father, will it not deftroy alfo the dower 
 of his wife? As dower is only of fuch 
 eltate of which the hufliand was seised (?/), 
 does not the dower of the wife depend 
 upon the feifin of the hufband? And if 
 the feifm of the hufband be defeated by 
 the endowment of the grandmother, is it 
 not the fame as if he had never been feifed 
 at ail? And if he had never been feifed at 
 -• ail, how could his widow recover or claim 
 her dower? If the father had been feifed, 
 and then the grandmother had been en- 
 dowed, it would certainly have defeated 
 his feifin as to the third aisigned; and, if 
 the fiither had died in the lifetime of the 
 grandmother, he could have had no feifin 
 . at all of the third fo recovered, his firft 
 feifin being tluis deftroyed; and, confe- 
 quentlv, his widow could not have been- 
 endowed (.r). 
 
 The reafon given by Perkins (3/) for 
 the mother's re-entry on the grandmother^s 
 
 («) Jnte, fee. I. p. 36. 37. 
 
 (;«■) See Co. Litt. 31. a. and note(6j; 241. b, 
 4 Co. 122. F. N. B. 149. H. 
 
 [y) See Pcrkhis., fee. 316. " Pur ceo que el fuit 
 endowed de ceo par luy." 
 
 deatli;
 
 §3. LAW OF DESCENTS. ^ 
 
 deatli is, becaiife being endowed by, or 
 Iiaving recovered againil, the fon, fhe 
 Ihall now hold againft him; for, by his 
 endowing her, he acknowledged her right, 
 and therefore ihall not be permitted to 
 claim againfl his own ^€t. But as the 
 mother could not be endowed before the 
 father's death, and the grandmother reco- 
 vered againll her afterwards, her eftate fo 
 recovered had relation to that of the grands 
 father, and fo defeated the father's feilin: [77] 
 fo that he having had his feilin deflroyed, 
 her holding this as Iter dower muil be con- 
 fidercd in a hght very limilar to that in 
 wliich ihe is faid to hold in dower where 
 the heir afsigns her a third of lands to 
 which fhe had no title (z). Brooke, when 
 fpeaking of this matter, fays, {a\ that the 
 mother may re-enter on the death of the 
 grandmother, becaufe ihe was attendant 
 on her. But this attendancy feems rather 
 the confequence than the caufe of the ex- 
 iilence of the right of the mother in the 
 third afsigned to the grandmother. 
 
 (2) See ante^ p. 68. note {h). 
 
 [o) Dower^ 'j^. " Car I'ayies fuit attendaunt a luy." 
 
 H If
 
 [78] 
 
 aS: ESSAY ON THE Ch. 1. 
 
 If the mother be endowed by the heir 
 of the third of the whole premifes, and 
 the grandmother recover againfl the mo- 
 tlier fuch third; and the mother recover 
 againft the heir the third of the two re- 
 maining parts, and the grandmother die; 
 now the widow of the father mull: re-enter 
 into the whole of the third fo recovered by 
 the grandmother; for if it be a third of 
 fuch third, the third of fuch third is un- 
 certain, and fo fhe could not enter without 
 afsignment. I fuppofe, therefore, that her 
 eftate in the third of the two remaining 
 thirds becomes, on her re-entry into the 
 third recovered by the grandmother, ipfo 
 facto void. And this feems to be what is 
 meaned by Brooke, when he notes, that 
 " the heir may then enter into the fecond 
 dower; for the mother fhall not have 
 both (b)r 
 
 The reafon then of this cafe may, per- 
 haps, be as follows: Though the endow- 
 
 {b) Dcwer^ 79. ** L'heire poet entrer donque en 
 le feconde dower; car ^1 (la feme le pere) navera 
 ambideux." 
 
 ment
 
 § 5. LAW OF DESCENTS. $9: 
 
 ment of the grandmother defeated the 
 fcifin of the father, and fo, in theoretic 
 flri6tnefs, in like manner defeated alfo the 
 dower of his wife, yet this ftridlnefs may, 
 periiaps, cfpecially in cafe of dower, 
 which the law much favours, be deemed 
 too refined, and fo difregardcd that the 
 eflate, being, on the firrt endowment of 
 the mother, vefted in her by the law, or 
 the a6t of the heir, fliall not be abfolutely 
 develled in point of intereil; but the ef* 
 tate for the life of the grandmother being, 
 in legal confideration, lefs than the eftate 
 for her own life, flie Ihall be confidered as 
 having yet a right, an intereft, in con- [791 
 templation of law; fo that during the life 
 of the grandmother, the grandmother 
 fhall be attendant on her, and not on the 
 heir (as a proof of the continuance of her 
 eftate): and, having thus a fubfifting in* 
 tereft, and the poliefsion only being de» 
 tained, flie may be allowed, on the death 
 of the grandmother (and in order to pre- 
 vent the expence, Ike, of a new endow- 
 ment, her title being already proved or 
 acknowledged) to re-enter into the third 
 fo recovered ; when her eftate and intereft 
 
 u 2 in
 
 100 ESSAY ON THE Ch. 1. 
 
 in the third of the two remaining thirds 
 ihall become abfolutely and ipfo facto \oid; 
 being only given her in coniideration of 
 her being deprived of her enjoyment or 
 poffefsion of fuch the third of the whole, 
 and for her fupport during fuch depriva- 
 tion: and thus the aflferttons of Coke, 
 Brooke, and Perkins be reconciled: 
 but if we maintain the ftriclnefs before 
 fpecified, (which feems to me to be well- 
 founded, and inevitably to follow from the 
 principles before laid down, though per- 
 haps too nice for pra6fice,) I do not per- 
 ceive how the doctrine mentioned, of the 
 [80] mother's re-entry, can be fupported as 
 law. But, whatever be the true reafon of 
 fuch re-entry, fuch re-entry is, according 
 to thefe authors, (bicHy legal: and the 
 law is always ready to take advantage of 
 the moft trifling circumftance which can 
 tend to the benefit of widows (c), whom 
 it much favours (</), 
 
 (f) See ante, fee. i, p. 32. ■^c. 
 
 {d) See Co. Litt. 33- 37. 2 P. IVms. 703—4. 
 Banks V. Sutton. Jtnk. Cent. 9. pi. 15. 50. pL 95. 
 72. pi. 35. Cro. Jac. III. pi. 8. Smith v. Smiri^, 
 393* P^' 5* Herbert v, Binion. 
 
 But
 
 § 3. LAW OF DESCENTS. 101 
 
 But to return; Thus, by the endow- Curtefy, 
 Ment of the widow of a precedent 
 poUeiibr, when the heir takes the heredi- 
 taments by defcent, will the feifin of fuch 
 heir be defeated: curtesy will not admit Admits of no 
 of any mefne feifm at all(0; otherwife, "^'^"" ^"^^"• 
 the confequences of it, as to this point, 
 would have been the fame ; it being equally 
 an ertate of freehold, and taking effedt in 
 reality, as dower does by relation, before 
 any intereft be vefted in the heir (/). The L^O 
 law does not caft the poflefsion of the ef- 
 
 Dowrefs 
 
 tate in dower, {i. e. or dower at common cannot enter 
 law; for with refpe6t to free-bench ofj^gj^j^g^^^" 
 COPYHOLDS it is otherwile(^)— ), on tlie 
 
 widow 
 
 {e) See 8 Co. 35. a. and b. Paine's cafe. Co. Lift. 
 2g. b. 30. a. Litt. i'. 394. and Co. Litt. 241. b. 2 
 /«/?. 154. Ttr?nes de la Lcy^ tit. Curtefic d* Etigleterre. 
 Glib. Jen. 173. 2 Bla. Comm. l^'] — 8. ch. 8, 
 
 (/) See Co. Litt. 29. b. 30. a. 241. b. 8 kep, 
 36. a. 2 Bla. Comm. 127, ch. 8. See F. N. B. 
 194. D. 'lermes de la Ley^ tit. Curt. d'Englet. 
 
 {g) See Hob. 181. Howard & BartJett. and 6 riner's 
 Jbr. 77. Copyh. "(B. b.) Bac. Aor. 470. Copyh„ 
 (G ) and 5 Burr, 2787. Vaugban^. Atkins <!;. Atkins. 
 
 But it {hould feem that if the cuftom be that the 
 . widow Ihall have a portion only (as the half or third — 
 
 H 3 See
 
 iOi ESSAY ON THE Ch. I. 
 
 widow (/i): nor can fhe enter without af* 
 fignmcnt by the Sheriff, or the agreement 
 of the heir(i): (o that, in this cafe, the 
 
 heir 
 
 See C>7. Litt. 33. b. Kltch. 105.) and not the whole 
 of a copyhold, as her dower or free-bench, the pofTef- 
 Jion is not caft upon her any more than at common- 
 law. And an affignment in fuch cafe would be equally 
 receflary. See below, note (/), and poj}^ 83, note 
 {0). Kltch. 103. b. 3 Leon. 227. Ca. 303. 2 Show. 
 184. Chapman v. Sharpe. 
 
 So, of gavelkind-lands, of which the widow fhall 
 have a moiety, fhe muft demand her dower of the heir, 
 and {hall have it afligned by metes and bounds. See 
 Robinf. GavAk. b. 2. c. 2. p. 175. &c. 
 
 See 2 Watk. m Ccpyh. 89, 90. 
 {h) See Gilb. Ten. 26. 
 
 (/) See Litt. f. 43. Co. Litt. 32. b. 34. b. 37. a. 
 
 and b. Brooke.^ Doxver^ 16. Scire Fac. -pi. 36. 
 Pkwd. 529. Kitch. Courts^ 161 — 2. 2 Bla. Com. 
 J35. ch, 8. See Dyer., 278. pi. 4. and Perk. f. 393. 
 
 But it fhould be obferved, that when it is faid that 
 the widow cannot enter without aflignment, it is 
 meaned of dower at common law, as contradif- 
 tinguiflied, not only from dower BY custom, butalfo 
 from dower ad ostium ECCLESiAand ex assenso 
 PATRis. YoT^sdowtx at common-law i^ oi f\. third 
 PART, it is not left to the widow to determine luhat 
 jV a third. But if the dower had been ad ostium 
 ecctESiA or £X assensu patris, of lands /*•- 
 
 prefslj
 
 § 3. LAW OF DESCENTS. 103 
 
 heir may firfl enter and acquire feifin; but [82] 
 the law vefts the eftate by curtefy in the fj^^^;;^^/' 
 hufband without any afsignment, and even 
 without entry, if the wife were already in 
 pofrcrsion(^-), but not othervvife(/), imme- 
 diately on iilue had; (by which circum- 
 ftance he becomes tenant initiate^ though 
 his eftate is not confummate till the death 
 of the wife (m) — ). So that there being 
 
 prefsly afcertained at the time, the dowrefs might by 
 law have entered on the death of her hufband, without 
 any aflignment. But fuch methods of endowment are 
 now obfolete. See Litt. f. 39. 43. Co. Litt. 34. b. 
 37. a. and note (i). Dyer^ 278. pi. 4. 
 
 But it fliould feem that, even in thefe cafes, the 
 freehold is not in the widow till a£iual entry. N. (i ). 
 to Co. Litt. 37. a. Hale's MSS. and fee Dyer^ 278, 
 a. pi. 4. and ante., 66. N. (^). 
 
 {k) Bro. Pracipe quod reddat. 88. Dr. l^ Stud, 
 Dial. 2. c. 4. See 2 Bla. Comm. 127. ch. 8. 2 Inji. 
 154. And fee alio ante., fee. 2. p. 57. note (6). 
 
 (/) See ante., fee. i. p. 38 — 9. 
 
 (m) See D06I. Cff Siud. b. 2. ch. 4. and 2 InjL 
 154. Co. Litt. 30. a. and 40. a. and b. note (2). 
 2 Bla. Comm. 128. ch. 8. Plowd. 264. Note to 
 Englifh edit, and compare with Co. Litt. 32. 241. b. 
 Kitch. 159. b. Brooke^ Ten. par le Curtefie., 14, and 
 iee Hid. Villenage^ 67. and A'joiurie^ 27. 132, 
 
 H 4 no
 
 104. ESSAY ON THE Ch. 1. 
 
 no chafm or intermifsion from the death of 
 the wife to the poirefsion of the hufband. 
 
 Tenant by ^ ' • r n ^ ^ 1 
 
 the curtefy. as there IS, m caie or dower, between the 
 
 dcalh of the hufband and the poflefsion of 
 
 rg3l the widow, no mefne feifin can here take 
 
 place. Befide, the tenant by the curtefy 
 
 lord:^ ° holds immediately of the lord, and is 
 
 tenant to him(^7i); whereas the dowager 
 
 onhrJiein holds of the heir (o), and is attendant on 
 
 fuch heir for the third of the fervices(/?). 
 
 But, 
 
 («) 2 hjl. 301. F. N. B. 258. A. See 2 Comm, 
 126 ch. 8. 8 Co. 36. a. Paine's cafe. 
 
 {0) F. N. B. 8. F. G. 258. B. 265. A. Cc 
 Litt. 31. b. 241. a. and note (i). 2 Bla. Comm. 
 125 — 6. ch. 8. 8 Rep. 36. a, Paine's cafe. Brooke^ 
 Tenures^ 84. Khch. 2C9. b. 
 
 The widow fhall hold as the heir holds, and not as 
 the baron held. Kielvoay. 124. a. />/. 80. and 129,3. 
 f. 98. 
 
 If a woman be endowed of a manor, flie fhall pay 
 all fervices to the heir as he pays over. Plowd. ^. 90, 
 
 (p) See note (o), and Perk. f. 424. F. N. B. 8. F. 
 7 Co. 9. a. 8 Co. 36. a. 9 Co. 135. a. and b. Termes 
 de la Lcyy tit. Attendante. 
 
 If there be m heir, and the lord or donor enter for 
 fuch default, the widow fhall hold by the third part 
 of the fervices of fuch lord or donor: but if the lord 
 or donor determine the eflate of the hufband hy his own
 
 § 3. LAW OF DESCENTS. 105 
 
 But, though the feifin of the heir may rg^^j 
 be defeated, as we have obferved, yet, 
 where feifin of an inheritance is once al- Continuance 
 Icged, it fliall always be intended to con- of feifin. 
 tinue till the contrary be ihewn(^). 
 
 aB^ as by purchafe, (he (hall not render any fervices 
 to him. See Brooke^ Tenure^ pi. 33. 82. and Extin- 
 guijhm. 31. Fiiz. Abr. Dower, pi. 130. Perkhn, f. 
 429. Kitch. 209. b. and fee The Cujiomesof Wejljheen^ 
 &c. art. iv. in 2 Collect. Jiirid. 382. 
 
 (^) Sir Thomas Jones, 1 82. cafe of Cocbnan v. 
 Farrer. And fee Plozvd. 193. a. 431. a. 
 
 Seifin is alfo favoured in equity. See Gr. andRudim. 
 of Law and Equity, 66. rule 96, 
 
 SECT.
 
 106 ESSAY ON THE Ch. 1. 
 
 SECT. IV. 
 
 Of what Hereditaments a Pqffeffio Frattis* 
 may be. 
 
 xx PossEssio FRATRis may, generally 
 fpeaking, be of all hereditaments, 
 corporeal or incorporeal; as lands, rents, 
 
 &C.(fl). So of GAVELKIND-l,ANDS(^); 
 
 of lands in borough English (c); and 
 
 * It is frequently faid in thefe pages that a pojfejjio 
 fratris may be of an ufe, truft, &c. of which, ftridtiy 
 fpeaking, there can be no feifin or pofTeflion; and 
 confequently it feems a contradiilion : yet it is fo faid, 
 not only in compliance with the ufual mode of ex- 
 preflion, but for want of a better term, and to prevent 
 a prolixity. All that is meaned is, that the property 
 is fo fixed in a mefne perfon as to make him the flock 
 of defcent. 
 
 [a) See Co. Lift. 14. b. F. N. B. 36. £. And 
 ante, f. i. and 2, 
 
 {h) See Robinf. on Gavelk. b. I. ch. 6. p. lOQ. 
 (f) 1 Com. Dig. 615. Borough Englifh. 
 
 of
 
 § 4. LAW OF DESCENTS. 107 
 
 of COPYHOLDS (fl?). OfANusE(e): {i.e. r^^i 
 of ufes not executed by the Itatute; for 
 ufes executed arc legal ellates(/) — ). Of 
 
 A TRUST^^). Of AN EQUITY OF RE- 
 DEMPTION, (as feemingly by the better 
 opinion (A) — ). And although a posses- 
 sio FRATRis CANNOT properly be of A 
 
 REMAINDER OR REVERSION EXPECTANT 
 
 (d) Gilt. Ten. l6l. 4. Co. 2i, 22. Lex CuJ!. 
 ch. 17. p. 153. 157. Kitch. 8r. b. 1 Brownl. 43. 
 Reyner -y. Poell. Coke's Copyh. f. 50. Tra^s, 116. 
 And fee ante.^ f. 2, p. 5 1 — 2. 
 
 {e) See Fltzh. Abr. tit. Subpcena^ pi. 3. i Co. 88. 
 a. and 121. b. ^ Co. 22. Brooke, tit. Defcenty 36. 
 ZJj'^r. 10 — II. /»/. 40. 274. /»/. 43. Plowd. S^. Co. 
 Litt. 14, b. 19. b. 2 P. /F;7zj. 736. But fee 2 
 Anderf. 146 — 7. contra. Note: See Sanders on Ufes 
 and Trujisy 104 — 5. 
 
 (/) Co. Litt. 14. b. note (5), and fee 2 ^/i. 583. 
 and I Ibid. 593. 
 
 (^) See I Co. 111. b. 2 P. ^F;«j. 713. Hardr^s^ 
 488 — 91. in 2 Comyns's Dig. Chancery, (4. W. I.) 
 Mojeley^ "jl, Penville v. Lufcomb. 
 
 {h) See I Atkins, 604. 607. Cafborne v. Scarf 
 & al. and Co. L/V/. 205. a. note (i). and 
 Mofely. 72. Penville i', Lufcombe. and ante, 60. 
 N. C^). 
 
 UPON
 
 108 ESSAY ON THE Ch. L 
 
 UPON AN ESTATE OF FREEHOLD (?), yet, 
 
 by the exertion of certain a6ls of owner- 
 fhip, (as by granting them over for term 
 [86] of hfe,) a possessio fratris of them 
 may be made (A). There can be no pos- 
 sessio FRATRIS of an estate tail(/); 
 nor of honorary DiGNiTiEs(m); but of 
 
 A FEUDAL TITLE OF HONOR there MAY; 
 
 for the title follows the lancl(?i). So of 
 
 AN OFFICE OF DIGNITY (o). But of the 
 
 defccnt of the cr.o\vn and its pos- 
 
 (/) Glib. Ten. 15. See Co. Lltt. 14. a. and note (6). 
 II. b. Kitch. Courts^ 109. b. Sec. 3 Co. 42. a. and 
 b. Go. Car. 411— 12. Reeve h Malfter. 8 Co, 88. 
 b. Buckmere's cafe. And poji. ch. 3. f. i. 
 
 (k) 8 Rep. 35. b. Co. Litt. 15. a. 191. b. and pojl. 
 ' ch. 3. f. I. 
 
 (/) Fkz. Abr. tit. Dlfcent, 8. Plowd. 57. 3 Co. 
 42. a. Co. Lilt. 14. b. 15. b. AWsMax.2^.ch.^, 
 Brooke., Difcenty 56. Kitch. 109. b. See CcMb. 
 Copyh. 88.' 
 
 {m) 3 Co. 42. a. Co. Lltt. 15. b. And fee Shoixjer*5 
 Pari. Cafes y 9, 10. rife. Purbeck's cafe. 
 
 {n) Co. Litt. 15. b. note (3). - Ante, fee, 2. p. 61. 
 
 {0) Co. Litt. 15. b. note (3}. . 
 
 " . :. SESSIONS
 
 § 4. LAW OF DESCENTS. 109 
 
 SESSIONS there can be no possessio 
 FRATRis (/?). Neither can there be a pos- 
 sessio FRATRIS of A RIGHT ONLY(^); 
 nor of AN INCIDENT OR APPENDANCY, 
 
 diftin(5lly from its principal (r). 
 
 (p) Phivd. 245. Co. Utt. 15. b. 2BlackJi, Comm, 
 233. ch. 14, 
 
 (^) See ante, fee. 3. p. 64. 
 (r) See anie^ fee. 2. p. 62. 
 
 CHAP.
 
 110 ESSAY ON THE Ch. 2, 
 
 [87] 
 
 CHAP. II. 
 
 THE RULES OR CANONS OF DESCENT. 
 
 VV HEN the property is vefled or fixed 
 in a perfon fo as to be tranfmlfsible to the 
 heirs of fuch perfon, whether he himfelf 
 took by defcent and acquired an a6lual 
 feiiin of the hereditaments defcending, or 
 whether he took as firfl purchafer, fuch 
 hereditaments ihall defcend to the right 
 heirs of the perfon fo actually feifed of an 
 eftate of inheritance in pofTefsion or ia 
 whom they are fo fixed by purchafe ; ofj 
 if they are in levcrfion or remainder ex- 
 pe6tant upon an eilate of freehold, to the 
 right heirs of the perfon creating the par- 
 ticular eflate, on wbich fuch reverfion is 
 expedant; or of the perfon to whom fuch 
 5 remainder
 
 Ch. 2. LAW OF DESCENTS. HI 
 
 remainder is limited; or of him who, 
 being an intermediate perfon, has acquired 
 a Icifin (if we may call it fuch) of fuch 
 reverfion or remainder by the exertion of 
 any a6l of ownerfliip, which is tantamount 
 or equivalent to an a6lual feifin of here- 
 ditaments in pofTefsion, according to the [8S] 
 following 
 
 CANONS: 
 
 1. Hereditaments fhall lineally defcend 
 to the iflue of fuch perfon in infinitum^ 
 but fhall never lineally afcend («). 
 
 2. The 
 
 [a) As if a fon purchafe land, and die without iflue, 
 3nd his father or mother be then living ; his father or 
 mother (hall not (as fuch) inherit fuch lands immedi-. 
 ately from the fon. But if the father or mother be alfo 
 COUSIN to the fon, they may (as fuch"^, fucceed to the 
 inheritance. See 2 P. Wms. 614. Eaftwood v. Vinke, 
 or Styles. And fee Prejl. Tr. Tr. vi. p. 78. 
 
 And if there be father and two fons, and one pur- 
 chafe lands and die; the brother fhall take the inhe- 
 ritance as heir to him, although the father be living. 
 For though the father feems the fource of the inherit- 
 able blood, yet, as the fon held the defcending f;ud ut 
 antiquumy it is fuppofed to have already pafled him (the 
 father); and, therefore, the defcent between brother 
 
 and
 
 112 ESSAY ON THE Ch. 2. 
 
 2. The male ifTue fhall be admitted be- 
 fore the female. 
 
 [89] 3. Where there are two or more males 
 
 in equal degree, the eldeft only Ihall in- 
 herit, but the females all together. 
 
 4-. The Hneal defcendants, in infinitum.) 
 of any perfon deceafed fliall reprefent their 
 anceftor : that is, fhall ftand in the fame 
 place as the perfon himfelf would have 
 done had he been living (Z>). 
 
 5. On 
 
 and brother is confidered as immediate ; and in making 
 out their title to each other.^ the common father need 
 not be named : but the defcent between them fhall be, 
 if he be living, exaftly the fame as though he were de- 
 ceafed. See i Vent. 423. 2 Blackjl. Cornm. 212. and 
 226. ch. 14. Hale's Com. Law. 258 and 270. cb. 11. 
 L'ltt. f. 2 and 3. Co. Litt. 10. a. and b. 11. a. 
 Wright's Ten. 180 — 6. ch. 3. Gilb, Ten. 14.1 and 
 fee Godb. 275. ca. 388. 
 
 [b) This right of reprefentation takes place alfo in 
 defcents of gavelkind and borough English 
 LAND J as alfo of COPYHOLDS in the nature of thofe 
 tenures. See i Mod. 102. Blackburne & Graves, 
 2 Lord Raym. 1024. Clements v. Scudamore. and 
 Robin/, on Gavelk. b, i. ch. 6. p. 91 — 98. and Jp-> 
 
 pendix^
 
 Ch. 2. LAW OF DESCENTS. 113 
 
 5. On failufe of lineal dcfcendants, or 
 iffue, of fuch perfon, the inheritance fhall 
 defcend to his collateral relations, being of 
 the blood of the firfi: purchafer; fubject to 
 the three preceding rules (c). 
 
 6, The 
 
 pmdix^ p. II. to the end. Kitch. 86. a. and fee i Roll. 
 Ahr. 623. D'lfc. (A.) pi 3. 
 
 But where the cuftom of a manor was cxprefsly 
 flated to be, that the copyhold lands of every tenant 
 dying fe'iUcd fhould defcend to the yoUngeft fon, it was 
 adjudged that it would not extend fb the cafe of a fur- 
 renderee dying before admittance ; for he was not a 
 tenant ; nor could he have died feized. See Hale's 
 cafe cited by Holt^ C. J. I P. JVms. 65. in the cafe 
 of Clements v. Scudamore. and fee Rohinf. Gavelk. 98, 
 
 (f) The cuftom of gavelkind extends to collaterals j 
 fo that if one brother die without ifTue, all the other 
 brothers fhall fucceed. See Rob> Gav. b. i. c. 6. p. 
 92—3. 
 
 But the cuftom of Borough-Englifh does not extend 
 to collaterals; and, therefore, lands of that tenure 
 fhall not go to the youngeft brother without a fpecial 
 cuflom. See Ibid. 93. Cofnyns'i Dig. Boro' Engl. 
 14 P^in. Heir, (F. 5.) and i Durnf. '^ Eafl. 466. 
 Denn d. Goodwin v. Spray. 
 
 So if a cuftom be fpecially found that the lands of a 
 tenant (hall defcend to, and be partible between, all 
 his fons^ it fhould fccm that it would not extend to all 
 
 I hii ■
 
 114 ESSAY ON TH£ Cli. 2, 
 
 6. The collateral heir of fuch perfon 
 muft be his next collateral kinfman of the 
 whole-blood. 
 
 7. In collateral inheritances, the male 
 flock ihall be preferred to the female ; fi. e. 
 kindred derived from the blood of the male 
 anceftors, however remote, fliall be ad- 
 mitted before thofe from the blood of the 
 
 r()Qi female, however near;) unlefs where the 
 lands have, in fact, defcended from a fe- 
 male. 
 
 Thefe canons are already fa ably de- 
 duced and fo fully illuflrated, particularly 
 by Mr. J. Blackstone and Lord Hale, 
 that it would be equally prefumptuous as 
 needlefs for me to attempt faying any 
 thing further on the fubjecl. I fliall there- 
 fore content myfelf with thus inferting 
 thefe canons, for preferving the concate- 
 
 his brothers If he die without ifTue: for the cuflom is 
 not that lands fhall defcend " after the manner of ga- 
 velkind^** but merely that they fhall defcend to the fons. 
 See above, Hale's cafe, and Rob, Gav. 38. &Cr 
 Wright's Ten. 212. N. (nj. 
 
 nation
 
 Ch. 2. LAW OF DESCENTS. 113 
 
 nation of the work ; and ihall refer to 
 Hales Hiji. of the Couimon-Law, ch. 11. 
 and Blackjlone on Defcents ; and his Comment, 
 vol. ii. ch. 14. Bobinfon on the Laxv of 
 inheritances in Fee-Simple may alfo be 
 here confulted, with Dalrymple, F, P. 
 ch. 5. p. 188. Sullivan, le6l. xiv. p. 135; 
 and Wright's Ten. pafsim. and EJat/s on 
 Brit, Antiq, EJf, iv. 
 
 I 2 CHAP.
 
 n<t ESSAY ON THE Ch. 
 
 [51] 
 
 CHAP. in. 
 
 OF THE DESCENT OF REVERSIONS AND RE- 
 MAINDERS EXPECTANT UPON ESTATES OF 
 FREEHOLD. 
 
 SECT. I. 
 
 Of a Mefne Sei/m, S^^c: of Juch Eftates. 
 
 JjUT before I fpeak immediately to this 
 point, I will make a few hiftorical remarks 
 prefatory to the fubje6t; — they may elu- 
 cidate the dodtrines which will be prefently 
 deduced. And without wearying myfelf 
 or wearying my readers, with looking into 
 the pages of antiquity, I ^hall juft give a 
 deckiclion of facts, as they occur to my 
 memory, and refer to a few writers, and 
 thofe chiefly of a recent date; not for the 
 purpofe of eitabiifliing luch facts, (for 
 then perhaps more proper authorities 
 
 might
 
 § 1. LAW OF DESCENTS. ilT 
 
 might be vouched,) as I think the reader's 
 own recolle6tion will confirm and bear 
 teftimony to what he finds; but becaufe 
 he may, in the books referred to, meet 
 with obfervations more ilkiftrative of the [92] 
 fubjedl, and more worthy of his attention 
 and trouble. 
 
 At an early age, at the dawn of the The </.m,WwK 
 feudal fyftem, the ultimate property, or '^[^^^'J'".°'^^^ 
 dom'mmm directum of the lands, feems toi^ate. 
 have been in the nation or fociety at 
 large. Indeed it mufl: have required a 
 length of time to have arrived at this 
 ftate of refinement; yet it certainly is no 
 more than what we find many ftates which • 
 we deem barbarous, and even favage, have 
 attained to (ji). However, at the age I 
 fpeak of, and in fevcral countries of Eu- 
 rope, the abllrad; idea of fociety, or the 
 
 {a) See Sullivan^ Left. iv. p. 36. Stuarfs Dljf. 
 Ant. Eng. Conjl. pt. i. f. 3. and riezu of Soc. in Eur, 
 24. 151. 201. 213. 4to edit. De Lohne on the ConJl. 
 sf Eng. b. i. c. i. p. lo — 11. edit. 1789, See 
 Linfchoten, b. 2. p. 219. 221. La?nb. Obfciv. Aj. Af, 
 and Am. vol. i. ch. 20. p, 205. Fcrgnfon en Civ, Soc, 
 part 2. f. 2. p. 124. ^nd Arijictle. PoK 
 
 I 3 pubUcs
 
 im ESSAY ON THE Ch. $. 
 
 public, prevailed, and the abfolute pro- 
 perty of the foil was fuppofed to belong 
 to fuch fociety at large. Among the an- 
 cient Germans we find the cuftom of di- 
 193"] viding the lands annually among the free- 
 men, while the ultimate property therein 
 feems to have been lodged in the tribe. 
 As fociety, therefore, was an abrtra6l idea, 
 it was requifite to have a corporeal repre- 
 fentative, in whom certain properties at- 
 tributed to fuch fociety (hould be veiled, 
 Hence arofe the chief political perfon of 
 the ftate, 
 
 Several fmall In thofe early times a flate ccnfifted of 
 Lotion. ^ a number of petty clans or hordes, the in- 
 dividuals of each of which were more im- 
 mediately fubject to a particular chief, 
 who led them to war, and who prefided 
 over them in peace, in a civil capacity, 
 as their magiftrate. But when a caufe 
 arofe between the chieftains, or any of the 
 individuals of the feveral clans, they mufl; 
 have had recourfe (when the contention 
 was not decided by the fword j to an higher 
 tribunal, which had authority over each. 
 As feveral of thefe petty diftricls formed a 
 
 Itate^
 
 § 1. LAW OF DESCENTS. UP 
 
 Ttate, each was fubjc(5l to the general con- 
 trol: but as every freeman was thus 
 amenable to the acts of fuch fociety, 
 every freeman had a feat in the fupreme 
 aflembiy. Thcfe aifembhes met at cer- 
 tahi flated times, or upon fome prefsing [94r'] 
 emergency, and framed rules, &:c. for 
 the direction of the ftate. Thus was the 
 fupreme authority veiled in the aggregate 
 of freemen ; and thus was jt to continue. 
 
 But it was necefl'ary, on many occa- And eka a 
 
 r- 11 • i- r 1 general mo* 
 
 lions, to delegate a portion or lucn power narch or 
 to particular individuals: and therefore, 
 we find that over thefe rude flates a mo- 
 narch or king was generally eledled to pre- 
 fide, though with very limited authority. 
 And when a war v/as determined on, or 
 an invafion impended, as a leader or chief 
 was requifite to condu6l the united clans, 
 fuch king led them to battle : or, in cafe 
 the caufe was not a general one, and only 
 a particular clan, or a few of fuch difiri(5ts 
 were concerned in the enterprize, or the 
 monarch declined leading them hiinfelf, 
 or in cafe feveral flates united in a general 
 war, they elected a chief for the purpofe 
 
 I 4 pf
 
 120 ESSAY ON THE Ch. 3. 
 
 Tro tempore, of conducling them : but, as that purpofe 
 
 was frequently the only one for which he 
 
 was elected, when the war determined, 
 
 [95] his authority ceafed, and he defcended to 
 
 his priftine ftation {])). 
 
 trates. 
 
 Civil magif- Asfain, as to the civil government, a 
 certain portion of authority was delegated 
 to magiftrates, who, deriving their power 
 from the fociety at large, were not con- 
 fined to a particular clan or family, but 
 enabled to decide thofe caufes which arofe 
 
 {h) See l^erjleg. Rejl. Dec. Intel, c, 3. p. 68. See 
 it alfo in Speeders Chron. b. 7. c. 3. f. iQ. p. 290. and 
 in I Tyrr. Gen. Hiji. Eng. Introd. xxxix. See Nor, 
 Ant. vol. i. c. 4. p. 61. c. 8. p. 158. 168. Bick.Alf. 
 I. II. 41. I Tyrr. Hijl. Eng. h. 2. p. 33. b. 3. 
 p. 116. b. '5. p. 254. Camd, Brit. Introd. (Engl. 
 Saxons.) Mod. Unlverf. Hiji. vol. xlii. p. 2. See 
 Hottom. F. G. ch. I. 6. 10. Verjf. c. 10. p. 349. 
 Speede^ b. 5. c. 6. p. 173. b. 7. c. i. p. 282. See 
 Loc.on Gov. b. 2. f. 102. I0<5, 108. &c. Adair^s Am. 
 Ind. 428. 435. And Le»*s Afric. Falc. on Climate^ 
 he. b. 4. c. 2. p. 228, Sullivan^ ledl. iv. p. 30. 
 And Fergufon on Civil Soc. part 2. f. 3. p. 152. i 
 JFar, IVales^ b. I. p. 4. 42. b. 2. p. 119. b. 3. p. 
 132. 136. b. 4. p. 246. Stuart's Dijf. Eng. Conji. 
 part 3. f. 2. p. 132. Robertf. America, vol. ii. b. 4. 
 
 between
 
 § 1. LAW OF DESCENTS. 1«1 
 
 between the Individuals of feparate dif- 
 tiids, or between the lord or chief and the 
 particular perfons who were immediately 
 fubjea to him, in order to fecure to the 
 individual that impartial adminiftration of 
 juftice which fociety was inrtituted to 
 confer. Thcfe magi Urates, thus chofen, [pg] 
 were generally fuch men whom experience 
 had taught wifdom, and whofe under- 
 ftanding was ripened by age. Hence the 
 titles of them, in moft ancient nations, 
 were thofe of the elders, aldermen, fena- 
 tors, fathers, ancients (c), &c. which were 
 exprefsive of this qualification. The 
 number of thefe magiltrates was different 
 in different ffatcs: But we may remark, 
 that they continued eleaive by the people 
 long after the chieftainry became heredi- 
 tary ; and many continue fo among us to 
 this day. 
 
 Thus were the chiefs and the civil ma- 
 o-l{!rates eleaed by the fociety, while the 
 
 (0 So the title of Sheikh, among the Arabs, figni- 
 fies an old man. See Journal from Akppo to Damajais, 
 p. 6. note (/). 
 
 4. ' freemen,
 
 IS2 ESSAY ON THE Ch, 3. 
 
 freemen, conilituting the nation, referved 
 the fupreme power to themfelves. AVhen 
 a war threatened, when magiftrates were 
 to be chofen, or when the lands were to 
 be apportioned out to the individuals en- 
 titled, the fubjecl was debated and deter- 
 Generai mined on in the general council or aflem- 
 affemWy. |^|y^ r^j^^ council or afiembly appointed 
 
 the portion of ground to the fubje6t; they 
 [97] chofe their magiftrates; and, when unity 
 of action was more immediately requi^te, 
 wiicn the all'embled army was to be con- 
 dueled, they nominated an individual to 
 prcfide and to direct the belligerent clans. 
 This, or fomething very fmiilar to this, 
 fccms to have been the manner of govern^ 
 ment among our German anceitors(^/), 
 from very early times, and to have conti^ 
 nued among them till their leaving their 
 natal dwellings, with very fmall alteration, 
 Saxon go- yj^^ eoverrunent of the Saxons, while on 
 
 verument. ^ _ ' 
 
 the continent, is thus defcribed: "They 
 " ordained twelve noblemen, chofen from 
 " among others, for their worthincfs and 
 " fufficieiicy. Thefe, in the times of 
 
 (d) See Tacitus J Of the Alanners sf the Germans. 
 
 " peace, 
 
 \
 
 § i, LAW OF DESCENTS. 123 
 
 '« peace, rode their feveral circuits, to fee 
 *' juftice and good cudoms obferved; and 
 *' they often, of courfe, at appointed 
 ^' times, met all together, to conlult and 
 «* give order in public affairs. But ever 
 ^' in time of vi^ar, one of thefc twelve was 
 " chofen to be king, and fo to remain fo 
 " Ion"- only as the war lalted; and that 
 " being ended, his name and dignity of 
 " kino- alfo ceafcd, and he became as be- [-^^^J 
 " fore. And this cuitom continued among 
 ^' them till the time of their wars with the 
 ^' emperor Charles the Great;" when "the 
 ♦' mutable title of king" became heredi- 
 tary (e), 
 
 jV every freeman that was not incapa- Armies dea. 
 
 "^ , , ing chiefs or 
 
 citated by ficknefs, age, or other corporal kings, 
 or mental difability, was a Jhldier, and 
 their armies thus confifted of their whole 
 people, we often find their armies electing 
 their kings. Indeed, as their general 
 affemblies were compofed of the fame 
 
 {e) See Verjlcgan's Refit, of Da; Intcll. ch. 3. 
 p. 68 — 9. and i Rapln. H'ljl. Engl. 76. Svo. edit, 
 and V. 2. p. 140. 
 
 perfons,
 
 124 ESSAY ON THE Ch. 3. 
 
 perfons, (for the mofl part at leaft,) and 
 each attended in his armour, they may be 
 confidered in the fame light. Hence 
 their cuftom, upon the election of a king, 
 of placing him upon a shield, and car- 
 rying him around the army; and amid the 
 general fhouts and acclamations of the 
 people, proclaiming him their leader or 
 [■99"! king(/). When, indeed, they had chofen 
 out their individual, we fometimes find 
 them fetting him up upon a great stone 
 in the view of the people, and thus hailing 
 him their king (^). We have yet the 
 reliques of thefe cufioms : we chair our 
 reprefentatives in parliament, &c. And 
 the ftone which Edward the firll brought 
 with him out of Scotland, and to which 
 the Scots paid the highefl veneration, and 
 
 (/) See Hottom. F. G. ch. 4. and 6,; and fee 
 Volt. Sptr. of Nat. vol. i. ch. 13. p. 124. (8vo. edit.) 
 Stuart's VieWy 283. DtJJ'. part 3. f. 2. p. 152. note 
 (27). and fee i North. Jnt. c. 8. p. 170. St. Remy. 
 Mem. liv. t. an. 418. p. 32. liv. ii. an. 510. p. 154. 
 torn. I. 
 
 {g) See North. Ant. vol. i. ch. 8. p. 168. vol. ii. 
 p. 45. N. (c). Camh. Brit. Cuftoms of the Irifh. 
 And the references in next note (^}. 
 
 is
 
 § 1 LAW OF DESCENTS. 125 
 
 is now placed in our coronation chair, 
 feems a veftige alfo of the latter ufage; it 
 having been appropriated for that purpofe; 
 their kings being feated on it, fronci very 
 remote times, when they received their 
 inauguration (/O.— But to return. 
 
 When thefe northern warriors ruihed 
 forth to conqucft, and poured out their 
 forces over the branches of the empire; 
 
 ic When Rome, with heavieft found, a giant ftitue 
 «fell(/)," 
 
 they neceffarily had their particular leaders [ 1 00] 
 or captains. And when they had fettled The kingly 
 
 ^ ,1 -J -r.,». office* be- 
 
 in the countries they thus acquired, lur-^^^^^ f^^ 
 
 rounded by enemies yet unfubdued, and life. 
 
 intermixed with the native inhabitants,,^,,^. ^^ays .;. 
 
 who were generally formidable enough toM^.^^s.p.'ss. 
 
 preferve their fears, and often to endanger /^->;/- 3- 
 
 their fafety, a permanent captain, general, 
 
 or king, oyer the particular clans which 
 
 {h) See 3 Tyrr. Hijl. Eng. b. 9. p. 96. ^««« 1^96. 
 Supplem. toMod.Univ. Hijl. vol. xli. c I. p. i6.and 
 85. vol. xxxix. p. 204. Camb. Brit. tit. Scone. 
 
 (i) See Collins' Ode to Liberty. 
 
 fettled,
 
 I2€f • ESSAY ON THE Ch. 1 
 
 fettled, was requifite. In the Saxon period, 
 there were fevcn feveral ftates or kingdoms 
 eflabl idled in this ifland, which had their 
 refpeclive perpetual chieftains or kings* 
 but as thefe feven ftates formed alfo one 
 general fociety, a general monarch was 
 alfo chofen (/r). 
 
 The king re- Whcn the chicf reprefcutative of the 
 
 preients the _ r i • i 
 
 nation as to itatc, or ot the particular kingdom, be- 
 power/^^'^^ came permanent, and when the military 
 capacity and returns were, from the con- 
 tinual wars which in thofe times pre- 
 vailed, ultimately concentred in him as 
 And as to the |.j^gj^, chief, it was an eafy tranfition to fup- 
 
 property in ' •' ^ 
 
 lands. pofe that the individual held his lands of 
 
 [101 J Imyi to whom he owed his fervices ; and^ 
 
 more efpecially, as the idea of hereditary 
 
 » fuccefsion was then partly received, and, 
 
 confequently, the chief feemed more felf- 
 
 Jfubfiflent than when elecled for a tranficnt 
 
 (/•) See Camb. Brit. Introi. p. cxxx — i. Speed, 
 b. 7. c. 4. p. 293. I Tyrr. b. 5. p, 254. Bick. Jlfi 
 41. Mill, y'tevj Eng. Gov. b. i. c. 3. p. 52. Bac, 
 onGov, b. I. c. 16, Squire^ f. 28. and N. (i). f. 2g, 
 andN. (i). f. 66. N. (2). f. 75. andN. (i). i Rap, 
 Eng. Hiji. 149. 8vo. edit* and voL 2, p. 140. &c. 
 
 caufe.
 
 § 1. LAW OF DESCENTS. 127 
 
 caufe (/). As he thus rcprcfentcd fociety 
 as to the miUtary power, it was imagined 
 that he reprefentcd it alfo as to the pro- 
 perty of the lands. Hence was it faid, that 
 the ultimate property was vefted in him, 
 and that the fuhjedl held his feud of tlve 
 king. Not, indeed, that the knig then, 
 or ever fmce, could he fuppofed, indivi- 
 dually, the ultimate proprietor of tlie foil 
 any further than as the reprefentative of 
 the fociety at Jarge : this is evident, were 
 it needful to urge any proof other than 
 that it carries in itfelf, from the ^emefne Jj'^^^^"^*'' 
 lands of the king: thefe, in the times of 
 the Saxons, were confidered as the lands 
 of the nation, and unalienable by him 
 without its exprcfs confent (w). 
 
 Among 
 
 (/) See Stuart's Dljf. on the Englijh Con. pt. 2. f. i. 
 p, 77. and note; and pt. 3. f. 2. p. 132. The author 
 had not read this valuable work when he wrote the text 
 of the prefent pages ; though he has fince made fre- 
 quent references to it in the notes. 
 
 (ot) When the king had a power of granting feuds, 
 the demefnes were neceflarily alienable, as they were 
 the fund which fupplied thofe grants ; but yet, when 
 the demesnes were reduced fo far as to be fcarcely i\^i- 
 flclent for his fupport, the natisjn interfered, and pre- 
 3 vented
 
 128 ESSAY ON THE Ch. 3. 
 
 [I0f2] Among the ancient Germans, we have 
 Wdal^nu-'^^'^" that the lands were portioned out to 
 a"y- the 
 
 vented any furtjier redufllon. See Mill. Vlcw^ &c» 
 b. I. c. 7. p. 14B. and 157. Stuart's Flew of Soc. in. 
 Eur. b. I. c. 2. f. I. p. 26 — 8. I Tyrr. Introd, p. 
 Ixviii. and p. 257. S7ib. An. 836. And fee 2 Spir. 
 of Laivs., b. 31. c. 7. p. 430. F. N. B. 14. D. and 
 Stuart's Diff. part 3. f. 2. p. 144. 
 
 Thefe demefne lands formed the chief part of the 
 revenue of our ancient kings. William the Firft had, 
 it is faid, 1422 manors, befide other lands. His an-r 
 nual revenue, nearly four (fome fay nine or ten) mil- 
 lions of our prefent money. Henry VL had nearly 
 one-fifth of the kingdom in value. See Sulllv. 172, 
 Mod. Univ. Hifl. vol. xxxix. p. 61. Fortefq. on Mon. 
 ch. II. p. 82. ; and fee E[fay on the Polity of Eng. 8vo, 
 p. 459. note (z). JVeJl on Peers^ 24. 
 
 De Lolme conceives that it is in confequence of the 
 king's being confidered as THE universal propri- 
 etor OF THE KINGDOM that hc is deemed diredlly 
 concerned m all offences ; and that for that reafon^ 
 
 PROSECUTIONS ARE TO BE CARRIED ON IN HIS 
 NAME IN COURTS OF LAV/. Conjl. of Eng, b. 1. 
 
 C. 5. p. 72. (edit. 1789.) 
 
 But, with great rcfpeil to Id. De Lolmc, I niufl beg 
 leave to fay, that the circumflance of profecutions for 
 criminal offences being carried on in the name of the 
 king does not appear to be the confequence of his being 
 •* looked upon us the univerjal proprioior of the king- 
 dom." For ^' the fj^lion" of his being fo confidered 
 
 is
 
 § 1. LAW OF DESCENTS. 129 
 
 the individual every year; when they re- [103] 
 turned again to the flatc. To have given 
 
 them 
 
 is founded xx^on feudal principles relative to the idea of 
 PROPERTY, and not to that o^ crimes: forwhathas 
 the univerfal proprietorfhip of this kingdom (for we are 
 not fpcaking of Japan. See Spir. of Laws, b. 6. c. 13. 
 p. 124. 8vo. ed.) to do with the puniihment of criminal 
 offences ? But that it is in confequence of his being the 
 reprefcntative of fociety AS TO THE execution of 
 
 ITS LAWS, Cr HIM IN WHOM THE EXECUTIVE 
 
 POWER IS LODGED, that fuch profecutions are car- 
 ried on in HIS name. All offences of fuch a nature 
 are injurious to fociety j fociety therefore muft punifli 
 them : but as fociety is a mere ens rationis, an abftradl 
 idea, it muft be reprefented in order to punifh : And, 
 as to the EXECUTIVE POWER of fociety, the king 
 is, in this nation, the reprefentative of it ; and, there- 
 fore, all profecutions for crimes are carried on in his 
 name. . , 
 
 This idea feems neceffary to fociety, and to have 
 been well underflood in mofl, if not all ftates; even 
 in thofe which are rude — as among the natives of 
 Africa, Afia, and America: we find it among the 
 ancient Britilh, Irifh, Germans, &c. &c. See Leo's 
 Afric. b. 3. p. 162. fol. Adair's Amer, Ind. 145, 
 Lamh. Obf. Af. Af and Am. vol. i. ch. 11. p. 117, 
 118. Zpir. of Laws, b. 6. c. 5. and c. 13. See 
 Lord Kaimi's Tra^s, tr. i. p. 40. Stuart's Fiew of 
 Soc. in Eur. b. i. c. 2. f. 3. p. 27. and 254. 39, and 
 256. Falc. Clim. b. I. c. 18. f. 4. and N. Nor. 
 Antiq. vol. i. c. 8. p. 187, fFhit. Manch. vol. i. 
 
 K. c, 8.
 
 130 ESSAY ON THE Ch. 3. 
 
 [104-] tliem for a longer time would have been 
 dangerous to their mihtary avocations; 
 
 would 
 
 €. 8. p. 378. Bnconon Eng. Gov. part I. c. 40. fol. 
 I Tjrr. Hiji. of Eng. Introd. p. 126. C^mh. Brit. 
 p. 1043 — 4- note. See Eunomus, vol.iii. p. 289, and 
 vol. iv. p. 193. Law of Forf 102. iii. and note. 
 And fee Beccariaen Crimes, and Eden^s Princ. of Penal 
 Laws, 
 
 Solofiy to the queftion, *' Which is the moft perfe£l 
 popular government ?" anfwered, " That, where an 
 *' injury done to any private citizen is fuch to the whole 
 *' body." The whole body therefore fhould puliifh ; 
 but it fhould punifh by the representative of 
 
 ITS PUNITORY POWER. 
 
 Among our Saxon anceflors, a fne was impofed on 
 all criminal offences, even down to that of ederbrece^ 
 or, as we now term it, " breaking the clofe or fence j" 
 (quare claufum f regit \ fee 3 Bla. Conim. c. 12. p. 209 — 
 » 210.) The fine for which was, by a law of Alfred, 
 
 fixed at five (hillings. 
 
 And with us, at this day, all offences denominated 
 crimes are confidered as offences againft the public or 
 fociety, and profecuted by the crown: and for all fuch 
 crimes, down to the loweft trefpafs vi et armis to the 
 Individual, a y?w^ or forfeiture is, in ftridtnefs, due. 
 See I Blackjl. Cortun. c. 7. p. 268. 3 Ibid. c. 8. p. 
 118. 138. 2 Hawk. Pleas cf the Crown, c. 2. f. 3. 
 Sir Tho. Smith's Com. Wealth of Eng. b. 2. c. lO. and 
 14. '^Co. 12. a. Burton's Excheq. vol. i. p. 407. and 
 vol ii. p. 277. 8 Rep, 59. be 60. a. 
 
 Sa
 
 § 1. LAW OF DESCENTS. 13) 
 
 would have diverted their thoughts and [105] 
 care too much to agriculture and the A^gj^^l^j;"^!^^^^^^^^ 
 
 arts. 
 
 So whatever afFe^ls the public; as nuifances, 
 reftraints of trade, Sec. Thus a dyer was bound that 
 he fhould not ufe " his craft" for two years ; and Hu l l 
 held, that the bond was againft the common-law : — 
 « And, by G— d, (faid the old Judge,j if the plaintiff 
 " were here, he fhould go to prifon //// he had paid a 
 ^^ fine to the king." See II Rep. 53. b. Tear-book^ 
 Pajch. 2 Hen. 5. /. 5. b. pi. 26. Fltzh. Abr. Imprif. 
 pi. 14. 
 
 All crimes or offences of a public nature are therefore 
 idi£lable at the fuit of the king, as the king is the re- 
 prefentative of the public as to the execution of the 
 laws J and an indi^ment is faid to be n is fuit : but for 
 whatever is of a private nature, the offender is only 
 punifhable at the fuit of the perfon injured. See 2 Hawk. 
 P.C. c. 25. f. 3, 4. 4 Comm. c. 15. p. 218.; and 
 3 Com. Dig. 504—6. Indictment, (D.) and (E.) In- 
 formation, (B.) p. 520.; and fee 4 Bla, Comm. c. I. 
 p. 2. 2 Strange, 788—92. Rex 'u. Curl. 3 Burr. 
 1698. Rex V. Storr. Ibid. 1706. Rex v. Atkins. 
 Ibid. 173 1. Rex V. Bake & al. 
 
 Though THE KING is, in this nation, confidered as 
 its chief magiflrate ; (fee 2 Haiuk. P. C. ch. i. f. I.) 
 yet he has delegated his judicial power wholly to 
 his Judges (unlefs it be when he is confidered as pre- 
 fiding in his fupreme court of parliament, (See 12 Co. 
 63. Cafe of Prohibitions del Roy.) or upon appeals). 
 To fuppofe him to be at once the profecutor and judge 
 would be abfufd : (See i Spir. Laws., b. 6. c. 5- ; and 
 K 2 2 Hawk.
 
 
 13J2 ESSAY ON THE Ch. 3. 
 
 ri06l ai^ts (??). But yet agriculture was ne- 
 cefTary; and therefore they were annu- 
 ally 
 
 zHawL P. C. ch. I. f. 2.) And was he to be a 
 
 Judge in any other fuit, it would preclude an appeal : 
 for to whom can we appeal from fupremacy itfelf ? 
 *' But (fays the celebrated Father Paul) appeals 
 are neceflary ; as it would be tyranny to fubjeft any 
 one to the opinion of a fingle judge, who might thereby 
 opprefs him at will. Sovereign princes, therefore, 
 (he adds,) do not pafs fentence themfelves, that the 
 perfons condemned may have the benefit of appeals.'* 
 (See his Rights of Sovereigns, c. 3. p. 45 — 5I-) 
 
 And although the court of king's bench be con- 
 fidered as peculiarly the king's court, he being fup- 
 pofed to fit there in perfon, as he once actually did; 
 (See 2 Burr. 851—2. Stdliv. 300. leS:. 32. Dal- 
 rymple, 275. See Squire, p. 182. N. (i). I Rob, 
 Cha. V. f. I. p. 370. (z). In Scotland the king fat in 
 perfon fo lately as the reign of James VI. Dalrympky 
 F. P. 284. SeeKaims's TraSis, 299. 300.) and the 
 ftyle of the court ftill htmgcoram ipfo rege: (See 3 Bla, 
 Comm. c. 4. p. 41.) yet the judges of " the court" give 
 the judgment, and not the king. And therefore a writ 
 of error lies ; from this court into that of parliament : 
 yet this does not involve in it the abfurdity of an appeal 
 to a fuperior power than that of the king himfelf; for 
 ftill it is to HIM in parliament : and not under an idea 
 that the houfe of lords is, in foch judicial capacity, fu- 
 perior to the monarch, who is himfelf the fountain of 
 juftice. (See 12 Rep. 64 — 5.) 
 
 («) Vide Ccef. de Bella Gall. lib. vi. c. 20. See 
 iowman on the Civil Gov, of th? Hahnivs^ c. 4. p. 5<5. 
 
 2 Bla.
 
 § I. LAW OF DESCENTS. ISSi 
 
 ally afslgned (o). To give them for a lefs 
 time would not have afforded them an op- 
 portunity to have gathered the fruits bf 
 their labours — to have reaped what they 
 had fown. But when they had acquired 
 lands in the ftates they had conquered; 
 when they had obtained the habitations 
 fhey were compelled to feek; when the L^'J 
 turbulency of the times permitted, and 
 the blefsings of agriculture, and of the rem- 
 nants of the arts which they difcovered 
 among the people they had fubdued, had 
 excited them to feek more permanent 
 dwellings, they required interells of a 
 
 2 Bla. Comm. 55. c. 4. and Stuart's D'lJJ. part. i. fee. 
 3^. Falc. Cllm. b. 6. c, i. f. i. p. 272. and N. *. 
 Squire^ T. 14, 15, 16. Davysy 34. a. 49. b. 
 
 ((?) Among the ancient Irijh the di vifion of lands was 
 ufually made on the death of each tenant. See Davys' s 
 Rep. 49. &c. Stuart's Dijf. part i. f. 3. p. 35. K, 
 {11), znd View of Soc. in Eur. b, I. c. I. f. I. p. 152. 
 N.(i). 
 
 So that they were continually changing their fitu- 
 ation. See Davy's^ 34. a. 49. &c. Stuart's DiJf. 32. 
 N. (8). View^ 24. 251. 
 
 In Peru the lands were allotted annually. 2 Rok, 
 Amer,' b.' 7. p. 312. (4to. ed.) 
 
 ic 3 longer
 
 U* ESSAY ON THE Cli. 3- 
 
 lo?ige?' duration; and the reafon for their 
 amiual change of fituation had now, in a 
 manner, ceafed. 
 
 Mates at j^ jg j^^^ ^^ ^^ fuppofed, that perfons 
 
 ufed to annual ^o{(q{sioi-\s would have been 
 contented with ejiates at will (/?). And as 
 they came over with a view of obtaining 
 " a local habitation," it is mod probable 
 that the Saxons, &c. who then fhared the 
 conquered lands, had each an interefl of 
 a longer, and not of a Jliorter duration. 
 Thofe, indeed, who then fo obtained 
 lands, might have dealed them out again 
 to their followers or relatives, &c. for a 
 
 Feuds be-^ /^ eftate — for a year or at will. But, 
 
 come for life. - . 
 
 however, it leems pretty clear, that loon 
 after their fettlement in the conquered 
 flates, feuds became for the life of the 
 feoffee or donee. And, fince the comple- 
 tion of that celebrated fyftem in this ifland 
 flOSl ^y ^^il^i^^"^ the Firft, if not long prior to 
 that event, an eftate for life, either of 
 the donee or of fome other perfon, feems 
 to have been thought the leaji eftate which 
 
 ip) See Sullivan's L(£t, \^di. 5, p. 50. (2d edit.) 
 
 a foldier,
 
 § 1. LAW OF DESCKNTS. t^5 
 
 a foldier, or freeman, could accept of, as 
 fuch, in a feudal or militajy capacity. 
 
 But thoudi the tenant had an cllatc for /)«/»/«/«« 
 
 ■" ^ . utile, 
 
 life, or in fee, ftill the ultimate property 
 was confidered as veiled in the king, and 
 the tenant had hut the dominiitm utile, or 
 the right of poflefsing or enjoying the lands 
 fo eiven. The possession of the land Selfin in the 
 
 o^ . n freeholder. 
 
 was in him who had fuch mterelt for life, 
 or fome greater estate, but could not 
 be in him who had a less intcreft. Hence Livery of 
 LIVERY OF SEISIN was ncccflary at the 
 creation or transfer of an eftate of free- 
 hold; but was 7io^ given on the creation 
 of a LESS eftate. The Freeholder had 
 the feudal possession; and if he hadG;7^.r^«. 13. 
 granted his eftate for years or at will, yet his 
 poffefslon was ftill confidered as exifting; 
 and the enjoyment of the leifee was that of L^^^^^^f^/ 
 theleflbr: the leffec being confidered inbaiiiiFof the 
 
 , -i-n- r , freeholaer, 
 
 no other light than as the bailift or iervant 
 of the freeholder, and accountable to him 
 for the profits of the lands at a certain and 
 (lated fum(</). Ai]d hence alfo is it, that [109] 
 
 no 
 
 {q) See^////. View of Eng, Gov. b, i. C 5. p. 86. 
 
 i^ilb. Ten, 30—49. Co. Lift. 239. b. note U)', and 
 
 K4 33^
 
 IM ESSAY ON THE Ch. 3. 
 
 no other is faid to be seised of property 
 in lands but he who has a freehold 
 eftate. He who is a lessee is only faid 
 to be possessed; and that not properly of 
 the landy but of the ter^m of years (^r).. He,. 
 therefore, who has a freehold is faid to 
 be seised, and to have the feudal pos- 
 session; and, e conve?fo, he who has the 
 SEISIN, or feudal possession, has the 
 freehold; for fuch is the definition of 
 
 A FREEHOLD ESTATE (/). 
 
 Freehold and ^j^fj hence arifes the di-ftinclion in our 
 
 chattel mte- 
 
 reii. law between A freehold and a chattel 
 
 interest: As the pofTefsion of the leffee 
 is that of the leflbr, the feudal seisin 
 remains in the tenant of the FREEf- 
 HOLD ; and if he has a defcendible eftate, 
 it will devolve on his death to his own 
 heirs, as of the perfon last seised: but 
 [llO] if the defcendible eH^ite be expectant 
 
 331. a. N. ^i). 2 Black/}. Comm. 141. ch.9. GUb, 
 H'lji. Feud. MS. p. 49—50. 
 
 (r) See 1 Bla. Comm. 144. c. 9. 
 
 (/) See Ibid. 104. c. 7. and the authors their quoted 
 and referred toj and Co. Lift. 230. b. note (i), 
 
 UPO^
 
 § 1. LAW OF DESCENTS. 137 
 
 UPON A PRECEDENT FREEHOLD, the 
 FEUDAL SEISIN is ill fucll PRECEDENT 
 
 tenant; and, confequently. 
 
 There can be no mesne seisin ^ a Reverfion or 
 
 a freehold, 
 REMAINDER OR REVERSION expectuilt UpOU ^^^ ^^^.^^ 
 
 an ejiaie of freehold, fo as to make 2ito pofe/jio 
 possESSio fratris (0, while fiich y^-^"'^"'' 
 mainder or reveriion continues in a regular 
 courfe of descent {ii). 
 
 But as fuch remainder or reverfion may- 
 he fold, devifed, or charged, by the per- 
 fon entitled to it(.r), the defcent of i€ 
 
 may 
 
 {t) Sec ante, c. i. H 4. p. 85. 
 
 Nor fhall the defcent of fuch remainder or reverfionr 
 take away an entry, or put him who has right to his 
 adion. Co. Lttt. 239. b. 243. a. 244, a. Noy's Max. 
 35, ch. 16. Fmche's L. h. 2. c. 3. p. I20. 1 Co. 
 134. b. 8 Co. 10 1, b. Glib, Ten. 22. 
 
 (k) For if it be granted over, it vefts immediately 
 in the grantee ; and makes him- the ftock of defcent : 
 and, in fuch cafe, the perfon afterwards claiming by 
 defcent, muft make himfelf heir to fuch purchafer. See 
 Hale's Comm. Law, 269. ch. 11. 
 
 (x) Brooke, Dlfc. 30. Ejiates, 24. 40. Scire 
 Facias, 126. Co. Litt. 14. b. and N. (4). 309. a. 
 
 2 Bla.
 
 138 ESSAY ON THE Ch. 3. 
 
 maybe changed by the exertion of certain 
 a(5ls of ovvnerfhip ; as by granting it over 
 for term of life, or in tail (y). 
 
 For the exertion of fuch a6ls of owner- 
 ship is equivalent to the actual feifin of 
 an efi:ate which is capable of being re- 
 duced into poflefsion by entry. For, as 
 an actual entry is not practicable in the 
 cafe of fuch reverfion or remainder, the 
 alienation of them for a certain eftate is 
 fufficient to turn the defcent: fuch grants 
 being (before the llatutes 4 & 5 Anne, c, 
 16.) always attended with attornment, 
 the notoriety of them and the confequent 
 alteration of the tenant, were deemed 
 equal to the actual entry on a defcent, or 
 Jivery of feifin on a gift or fale of an eftate 
 in poflefsion; fuch attornment being ori- 
 ginally corani paribus, and in later days 
 
 2 Bla. Comm. lys. iCo.bi.z. Peri. S. SS. Kitch. 
 153. a. Touchji. 238. 242. 253. i Vef. 175. 177. 
 Cunningham v. Moody. 2 ^tk. 206. Kinafton v. 
 Clarke. Gilb. Rents, 23. 
 
 (y) See ante, ch. i. f. 3. p. 73. and f. 4. p. 85. 
 
 fufficiently
 
 § 1. LAW OF DESCENTS- 139 
 
 fufficiently attefted (z). And for this 
 reafon, a reverfion could not be granted 
 over to take efte6l infuturo any more than 
 an eftate in poflefsion {a). 
 
 Thus where A. was tenant for life, with 
 remainder to truftees for preferving con- 
 tingent remainders, with remainder to the 
 firft and other fons of A. in tail, with re- 
 mainder to the heirs of the body of A., 
 with remainder to the right heirs of the 
 father of A. (who was the devifor); and 
 A. made a leafe and releafe to B. in truft 
 for the payment of his debts, &c. and 
 levied a fine of the lands but fuffered no 
 recovery ; it was held by Lord Hard- 
 wicKE, that A., by fuch conveyance, 
 had altered the courfe of the. defcent of 
 the reverfion, fo that it fhould go to the 
 heir of A. of the whole-blood (Jb), 
 
 (z) SeePIowd, 25. 152. Gilb. Ten. 8i. Co. Lift. 
 309. a. Touchji. 253. Siilliv. Le£i: 119. 1 Bla. 
 Comm. ^i']. 
 
 {a) Ploivd. 155.483., 8 Co. 74. • Brooke^ Grants^ 
 60. 2 Bla. Comm. 165. 
 
 (/>) 9 Mod. 363. Stringer v. New. 
 
 And
 
 140 ESSAY ON THE Ch. 3. 
 
 And this principle, that a remainder or 
 reverfion on a freehold will admit of no 
 mefne feifin, while it continues in a coiirfe 
 of defcent, and fuch acts of ownership 
 have not been exerted, prefents a folution 
 of the queilion, Whether a remainder or 
 reverfion on a freehold fhall be fubjeft to 
 the debts of the mefne remainder-man or 
 reverfioner? 
 
 In Roblnfon v. Tonge (c), it is faid of 
 an advovvfon, that " as it may be fold, 
 and comes to the heir by defcent, it is 
 reafonable it ihould be afTetts." 
 
 Now, though a remainder or reverfion 
 on a freehold may be fold, yet it may not 
 come to the heir by defcent from the very 
 perfon who contracted the debt: And 
 therefore, a diflindlion ihould be madb 
 between extending it in the debtor's life- 
 time (as he has power over it), or in the 
 hands of his devifee (as the- remainder or 
 reverfion is devifable, and the devifee 
 claims under him who contracts the debt). 
 
 (c) 3 Pr, JVms. 401. 
 
 4f And
 
 § 1. LAW OF DESCENTS. 141 
 
 And it ftiould feem that, if judgment be 
 had in the debtor's life-time, it will bind 
 the property, though no execution be 
 taken out till the property defcend to 
 others: But where no judgment be had in 
 the debtor's life-time, and the ftock of 
 defcent be not changed by fuch mefne, it 
 ihould feem that the perfon taking fuch 
 remainder by defcent would 7iot be fubjcdt 
 to the debts of a mefne remainder-man or 
 reverfioner ; as he would not take by de- 
 fcent from hi7?i, but from the original 
 donor; and fo paramount the mefne's 
 charges (fi?). 
 
 But if no fuch aft of ownerfliip be ex^. 
 erted by the mefne remainder-man or 
 reverfioner; or if fuch remainder or 
 reverfion be not taken in execution for 
 the debt or other aft of the mefne owner ; 
 fuch remainder or reverfion cannot be 
 
 {d) See Bro. Afets, pi. 19. and fee alfo I Braw- 
 C. a 240. Marchionefsof Tweedale.^. Earlof Coven- 
 try & al. 
 
 fubjecl
 
 U2 ESSAY ON THE Ch. 
 
 J. 
 
 fubjecl to pojjefsio fratris^ dower (e), or 
 curtefy (/). 
 
 Reverfionon And, therefore, if land be given in tail, 
 an eftate tail. ^j^(j the reverfion in fee-fimple defcend or 
 ril2l come to the tenant in tail, yet, during the 
 eftate-tail, he cannot be feifed of fuch re- 
 verfion fo as to make a possessio fra- 
 TRis: As where a perfon, having iiTue a 
 ion and a daughter by one wife, and a 
 fon by another, gave his land to his eldefi; 
 fon in tail : the father died, and the fee 
 defcended to the eldefi: fon, who after- 
 wards died without iffue: and it was held, 
 that the youngeft fon fiiould have the 
 land, and not the daughter, by reafon that 
 it v/as in reverfion, and not vefi:ed in pof- 
 
 {e) Bro. Ejiates^ 67. Fltz. Jbr. Dozver, 55. 166. 
 8 Co. 96. a. PerL S. 315. 317. 330. 340. 445. 
 F. N. B. 150. A. Pinchers Law, b. 2. c. 3. p. 125. 
 Cro. Eliz. 316. Cordal's cafe. Co. Litt. 31. a. 32.3. 
 and b. 35. a. and b. Kitch. 160. b. 
 
 (/) Bro. Ten. par le Curtefy^ 4. 10. Perk. S. 467. 
 I>yer, 357. pi. 44, Co. Litt. 29. a. and b. Finche's 
 L, b. 2. c. 3. p. 125. Kitch. 159 — 160. 
 
 fefsion
 
 § I. LAW OF DESCENTS. 145 
 
 fefsion in the eldeft fon, during the eftate- 
 tail: as it is a possessio fratris which 
 makes the fiiler to inherit, and not a [113] 
 
 REVERSIO FRATRIS(^). 
 
 Thus, 
 
 {g) Broohy Dcfcent, pf. 13. 30. Scire Facias, 126. 
 Efatesy 6. Garde, 87. Fitz. Jbr. Defcent, pi 5. 9, 
 
 10, II. JJftze. 327. Dyer, 89 — 9c. pi. i — 6. and 
 325. pi. 38. Kitch. 109. a. no. a. 153. See 3 Co. 
 t\.2. a. Dyer, 325. pi. 38. Plowd. 230. Co. Litt. 
 
 11, b. 14. a. and b. 15. a. 191. b. Perlk. f. 88. 
 F^N. B. 196. K. 220. D. Nofs Max. 23. ch. 4. 
 Carth. 126. Kellow & Rowden. Gilb. Ten. 13. 
 I Fefey, 1 74. Cunningham v. Moody. And fee the 
 cafe of 'Jenkins on detnife of Harris and wife againfi 
 Prichard and others, in 2 IVilf. 45. And note, that 
 that cafe is mif-reported in JVilfon : as it was really de» 
 termined, it direilly fupports the dodrine here laid 
 down. It was determined in favour of the daughter hy 
 the fccond ventre. 
 
 Indeed, the fa£ls as ftated in Wilfon, (and which 
 are there truly dated,) together with the reafoning of 
 the court, muft have led to this conclufion j and the 
 judgment is moft evidently miftated or wrongly printed. 
 
 In a note of this cafe, as taken by Mr. Serjeant 
 Hewitt when in court on the argument, the adjudica- 
 tion is thus given: 
 Jenkins on demife of Harris an<J wife, "j In this Cafe it WaS 
 
 "^'""-^ i-clcarly agreed, that by 
 
 Prichatd and others. I ^u r ^.1 r c. 
 
 J the fettlement of 17 IP 
 
 David Smith was tenant for life j his wife was tenant 
 ;« ♦all ,v.;^l. ->,> xevprf.'^n in Da.vid Smith. 
 
 And
 
 144f ESSAY ON THE Ch. 3. 
 
 Thus, while the eftate-tail eonthiued, 
 he could not be actually seised of the 
 
 reverfioii 
 
 And thereupon two points were made. 
 
 ift. Whether that reverfion in fee defcended upon 
 the two daughters of David, viz. Elizabeth by his 
 firft wife, and Ann by his fecond wife, in fuch manner 
 as that upon the determination of the eftate-tail, which 
 defcended upon Elizabeth, and from her upon her fon, 
 and expired by his death without iflue, it fhould go in 
 moieties, viz. one moiety to Ann, and the other to 
 the heirs of Elizabeth ? or, whether it fhould not go 
 all to Ann as heir to her father, who was laft adlually 
 feized of the reverfion ? 
 
 2dly. Whether an a£lual entry was not neceflary to 
 have been made by the leffors of the plaintiff" before 
 the bringing of this eje<ft:ment, in order to avoid the 
 fine levied by Job Gilbert and his wife? 
 
 As to thefe two points, upon full argument, the 
 Judges were of opinion : 
 
 I ft. That though the reverfion defcended upon the 
 two daughters of David on his death, yet they were 
 not actually feized of that reverfion during the conti- 
 nuance of the eftate-tail, but the fame was expectant 
 thereon. And as whoever takes by defcent muft take 
 as heir to him who was laft adlually feifed, therefore 
 Ann took the reverfion wholly as heir to her father. 
 "And as to this, \ Injl. 14,15. and Ke How and Rowden 
 in Carthew and Shower^ were held to be authorities in 
 point, 
 
 2dly. The
 
 § I. LAW OF DESCENTS. 145 
 
 reverfion In fcc-fimple, fo as to turn the 
 defccnt; for he could not be feifed of both 
 in poflefsion at one and the fame time; and 
 an eftate-taii will not merge in a fee(^). 
 But had he become tenant after pos--;^^.'"" ^^-^^''' 
 
 niis. 
 
 sibility of issue extinct, it would 
 have been otherwife. For though, as to 
 fome refpe^ls, the eftate-tall may be faid to 
 have continued after pofsibility, &c. in the 
 tenant during his life; yet, in other re- [ll4j 
 fpe6fs, it in a manner ceafed, and the te- 
 
 2(lly. The Judges held that as this fine was ftated 
 in the cafe to be a fine without proclamations, an ac- 
 tual entry was not neceffary to avoid it; and that they 
 would not carry the neceility of an a6lual entry to 
 avoid a fine one jot further than it had been carried in 
 the cafe of Dormer and Fortefcue, which was on a 
 fine with proclamations, and not on a fine merely at 
 common-lav/ without proclamations, as this was : 
 
 Wherefore the pojiea was delivered to the plaintiff. 
 
 And that fuch was the judgment in this cafe the 
 Author of this Eflay was alfo afTured by a fon of the 
 perfon under whom the defendants claimed, and who, 
 in confequence of fuch decifion, refunded the mefne 
 profits of the eftate in quefl:ion. 
 
 {h) Plowd. 230. 296. 2 Co. 61. a. 8 Co. 74. b. 
 75. a. Kitch. 1S3. Sec. PerLLii^. 2 Bla. Comm, 
 177. ch. II, 
 
 L nant
 
 145 ESSAY ON THE Ch. 3. 
 
 nant or donee would have been qiiafi 
 tenant for life only; when fuch his eftate 
 Merger. would merge in the fee, which would then 
 become executed in possession, and, 
 confequently, be fubje6l to possessio 
 
 FRATRIS, DOWER, AND CURTESY ; aS in 
 
 the following cafes: 
 Sabjea to Lands devifable by cuftom were given 
 
 pojpjinfratris. . ' . - . . 
 
 to hufband and wjfe m fpecial tail, the 
 remainder to the hufband in fee; the huf- 
 band devifed fuch remainder to the wife, 
 and died without iffue: the heir of the 
 hufband entered, and was oufled, and then 
 brought afsize, and was barred, in that 
 
 THE FEE WAS VESTED IN THE WIFE, 
 AND HER FRANK-TENEMENT MERGED; 
 
 for fhe was tenant in tail after pofsibilit]/, 
 
 &C.(2). 
 
 To dower. So where lands were given to hufband 
 and wife in fpecial tail, with remainder to 
 the heirs of the body of the hufband; 
 
 (i) Brooke, tit. Dev'tfe, 42. Co. Litt. 28. a. 11 Co, 
 80. b. in Lewis Bowles's cafe, and the books referred 
 to in {k) and (/) in the two following pages, 
 
 5 the
 
 § 1. LAW OF DESCENTS. 147 
 
 the wife died without iffue had between 
 Ihcm, and the hufband took another wife, L^^^J 
 and died; and it was held that the se- 
 cond WIFE SHOULD BE ENDOWEd(^). 
 
 So where lands were given to hufband To cunefy. 
 and wife in fpccial tail ; remainder to I. in 
 tail; remainder to the right heirs of f. 
 The hufband died without iilue, his wife 
 furviving, who was now become tenant 
 after pofsibi.lity, &:c. and afterwards flie 
 took another hufband, and had ifTue, 
 when I. died without ifllie, the wife being 
 his right heir, who afterwards died: and 
 it was held that the second husband 
 
 SHOULD be tenant BY THE CURTESY; 
 
 for when the fee defcended to the wife, 
 fhe was tenant after pofsibility of ifTue ex- 
 
 (k) Tide Hi/. 50. Ed. III. /. 4- p^' 9- 
 And fee alfo F:tz. Jb. Dower^ 52. Bro. Dower^ 
 25. Perk. 6". 338, and Kiuh. 161. b. where the 
 fame cafe Is cited. And note, that in the French edi- 
 tion of the latter writer of 1592, it is corredly ftated. 
 But in many of the Englijh editions^ (p. 322. of 1675. 
 317. of 1656, &c.) it is erroneoufly faid that the fe- 
 cond wife fnall not be endowed ; which error I find 
 alfo in fome of the French editions. 
 
 L 2 tin«5t,
 
 I4S ESSAY ON THE Ch. 3. 
 
 tlncl, and the freehold was merged or ab- 
 forbed in the fee ; and fo the wife had the 
 
 fee IN POSSESSION (/). 
 [116] jf the lieir enter, and his entry be 
 
 Rev erfion on DEFEATED bv THE ENDOWMENT OF HIS 
 
 cftate in 
 
 dower. MOTHER, he Can have NO ACTUAL SEISIN 
 
 of the REVERSION OF THE THIRD PART, 
 
 while fuch part continues in dower (??2). 
 In curtefy. Nor Can he have any actual seisin of 
 
 lands of which his father is tenant by 
 For life. THE curtesy(?i); nor of fuch as are 
 
 expectant upon a lease, or other 
 
 estate, for life(o). 
 
 Thus 
 
 (/) Brooke^ EJiates^ 25. Tenant par le Curtefte^ 4.; 
 
 and Kitchen^ 159. b. 
 
 (rn) See ante^ ch. i. f. 3. p. 66. Brooke^ Defcenf^ 
 19. Kitch. 109. a. 159. b. Brooke^ Ten. par le Cur^ 
 tefie^ 10. G'llh. Ten. I"]. Co. Litt. 241. b. 
 
 («) See ante^ g. i. f. 3. p. 80. See Litt. f. 394. 
 Co. Litt. 241. b. F. N. B. 194. D. and E. and fee 
 2 Injt. 301. and 3 Co. 23. b. 
 
 {0) Brooke^ Defcent^ 28. Done^ 55. Ejiates, 67. 
 Kitchen^ 109. b. Cro. Car. 411 — 12. Reeve & 
 Malfter. Cro. Eliz. 315—16. 8 Co. 96. a. Co. 
 Litt. 239. b. 241. b. Gilh. Ten. p. 15 — 19. 
 Co. Litt, II. b. 14. a. note (6). 17. b. and note (4). 
 
 3CV.
 
 § 1. LAW OF DESCENTS. 1-^^ 
 
 Thus when there is an anterior eftate of [117] 
 FREEHOLD, the aaual feifin is in the pof- 
 feffor of fuch eftate; and, confequently, 
 the perfon entitled to an interell expeftant 
 thereon cannot pofsibly be faid to be ac- 
 tually feifed thereof on a mefne defcentQ'?). 
 
 When ONE estate in fee-simple, Executory 
 
 1 devife. 
 
 therefore, is limited on another, by 
 way of executory devife, it muft fall 
 under the fame rule; and the descent 
 
 of the contingent fee cannot allow of Contingent 
 
 ANY mesne seisin which might turn 
 fuch dcfcent (</). 
 
 " Thus the principles which apply toEftatesin re: 
 
 -/,/-,, , verfion and 
 
 the defcent of an eftate in possession, p^fl-g^^^on. 
 do not apply to the defcent of an elfate in 
 
 3 Co. 6. b. See Ibid. 42. a. See i JncL 31. 
 pL 74. and i Jnd. 353. pi. 322. F. N. B. 197. 
 b. and 9. b. Robifif. on Gavelk. b. i. c 6. p. 
 105. Moore, 868. pi. 1201. Smales & Dale. Nofs 
 Max. 23. c. 4. Carth. 128. Kellow & Rowden. 
 Jenk. 242. pL 25. i and i Vef. 176. Cunningham v. 
 Moody. 
 
 (/») See ante, c. i. f. i. p. 27. 
 
 {q) See the next feftion, p. 122. 
 
 L 3 remainder
 
 130 ESSAY ON THE Ch, 3. 
 
 remainder or reverfion expectant on an 
 ESTATE OF FREEHOLD: but they apply 
 when the particular eftate is only for 
 years; a tenant for years being confi- 
 dered merely as the bailiff of the freeholder, 
 and to hold the poffefsion for him(r).'* 
 
 (r) Note (2) to Co. Litt. 239. b. (Hargrave and 
 Butler's edit.) See zMoante^ ch. !. f. 2. p. 48.5 and 
 this fe£l. p. 108. 
 
 SECl
 
 §2. LAW OF DESCENTS, 151 
 
 SECT. 11. 
 
 [lis] 
 
 To whom he muji make himfelf Heir, 'who 
 claims zvhere there has been no Mefiie Seiji/h 
 
 In the laft fedion we have feen that there ^^ niefne 
 can be no mefne felfin of any eftate ex-^^^^^"* 
 pe6tant upon a freehold, when fuch eftate 
 conthiues to defcend, and the particular 
 a<5ls of ownerfhip have not been exerted ; 
 and, therefore, it mufl inevitably follow, 
 that there can be no mefne heir (as fuch) 
 capable of turning the defcent. He whoFh-ftpur. 
 claims, muft, confeqviently, make him- 
 felf heir to him in whom fuch eftate firfi: 
 vefted by purchafe ; or, in cafe fuch acts 
 of ownerfhip have been exerted, to the 
 perfon who laft exerted them: thus, as in 
 a cafe before put (a), if a gift in tail be 
 made, and the reverfion defcend to the 
 
 («) See the laft fedion, p. ii2. 
 
 L 4 eldell
 
 152 ESSAY ON THE Ch. 3, 
 
 Half-blood, eldeft fon (by a firft ventre) of the donor; 
 which eldeft fon, being alfo tenant in tail, 
 die, leaving a fifter of the whole, and a 
 brother of the half-blood; the brother of 
 Tlig'] the half-blood ihall fucceed to the rever- 
 fion, and not the fifter of the whole. The 
 reafon of this is evident: the reverfion 
 defccnds, on the death of the eldeft fon, 
 not 10 the right heirs of fuch eldeft fon, 
 (for fuch eldeft fon was never adually 
 feifed of the reverfion, but of the eftate- 
 tail on which it was expectant,) but to the 
 right heirs of the father, or of the perfon 
 who made the gift, or of him to whom 
 limited, given, &c. And therefore, as 
 the younger fon (by the fecond ventre) 
 was, on the death of the eldeft (by the 
 firft ventre) the right heir of their common 
 father, the donor (for he was of the whole- 
 blood to him, and, being a male, fliali be 
 preferred to an elder temale, and fo take 
 place of his fifter (/^) — ) fuch younger fori 
 
 (/') See ante, c. 2. p. 88. canon ii. 2 Bla. Comm, 
 212. ch. 14. and On Defcents, 11. Hale's Com. Lau>^ 
 262. ch, II. Robin/on on the Law of Inheritances in 
 Fee-/mple, 38. ch. 5. See Lift. f. 8. and />o/?, next 
 fed. p. 124, 
 
 fkali
 
 § 2. LAAV OF DESCENTS. 153 
 
 fhall fucceed to tlie reverfion as well as to 
 the crtate-tail(r). 
 
 When, therefore, a reverfion or remani- Heir of the 
 der expectant upon an edatiC of freehold charr""^' 
 continues in a courfe of defcent, without [l!^0] 
 fuch a^ls of ownerfhip exerted, fuch rever- 
 fion, &c. ftill continually devolves, on the 
 death of each particular heir, to the perfon 
 who can then make himfelf heir to the 
 donor or purchafer, without any regard to 
 the very heir of the precedent perfon who 
 fucceeded to it bj/ defcent \ till, when the 
 particular eftate is determined, it ulti- 
 mately veils in pofflfsion in him, who, at 
 fuch detenniiiation, is the right heir of fuch 
 donor, purchafer, or original remainder- 
 man. For as there was no intermediate 
 perfon adually feifed of fuch reverfion or 
 remainder, no one could, as we have faid, 
 be the mean of turning its defcent, and 
 becoming a new llock or terminus-, but 
 fuch flock muit yet be the donor, pur- 
 chafer, or remainder-man, and mufi: fo 
 
 (i) See anU^ €h. i, f, 4. p. 86. (/}. 
 
 continue
 
 154 ESSAY ON THE Cli. 3. 
 
 continue (if no alienation be made) till 
 fuch eftate ihalj become vested in pos- 
 session ; and, confequently, it will be 
 abfolutely neceffary to prove on every de- 
 volution a defcent, not from tbe immedi- 
 ate predeceffor wbo took by defcent^ (for 
 with him, as fuch, we have now nothing 
 to do,) but from the donor, purchafer, or 
 original remainder-man. Whoever, there- 
 ri2ll fr>^'^5 ^^^^ make himfelf heir to fuch do- 
 nor, &c. will be entitled to the inherit- 
 ance in reverfion or remainder, though 
 expectant, but yet not fo as to be capable 
 of tranfmitting it to his own right heirs, 
 (as fuch,) except by granting it over (f/), 
 till it becomes vefted in poflefsion, by the 
 determination of the particular eftate 
 which fupported it, or whereon it was ex- 
 pectant, (when it would ceafe to be a re- 
 verfion or remainder,) in him who fliould 
 be, at that time, the right heir of the 
 donor, &c. which perfon would then be- 
 come the ftock of defcent, and him from 
 
 [d) See ante^ laft fed. p. IIO. 
 
 whom
 
 §2. LAW OF DESCENTS. 155 
 
 whom the future pedigree mull run (e), on 
 his obtauiing an actual feiiin of it(y'). 
 
 So alfo with refpea to contingencies and [ 122] 
 
 J T + O Contingpn- 
 
 executorv devifes: thus on a devile to <j. des and exe- 
 in fee ; but if he happened to die under the ^^J ^'^ 
 age of twenty-one years, leaving no iflue, 
 then to P. in fee: after the deceafe of the 
 tcllator, P. died in the life-time of G. 
 who afterwards died finder the age of 
 twenty-one, and without ilTue: it was 
 held, that the lands vefted in P/s heir at 
 law, upon the happening of the contin- 
 gency, (viz. on the death of G. iTnder age, 
 and without ilTue,) but that the intereli, 
 while it was contingent, did not fo attach 
 
 (e) SeeFe^rne's Contlng. Rem. 449- (3^ edit.) Co. 
 L!tt. II. b. 14. a. ?.ndN. (6). 14. b. i5- ■^- 3 <^^- 
 j^2.z. Cr^.C^r. 41 1- 12. Reeve &Malftcr. H Co. 
 
 96. a. I Co. 95. 99- ^^^^-'^- 5^- '^3- 485- 489- 
 Brooi-e, D^fcent, 2. and 58. Done, 5- ^'"d 21. Scire 
 Fac. 126. Cro. Eliz. 334— 5- Frederick "y. Frederick. 
 Dyer, 129. pi. 63. Bouvil v. Payne. See 2 Com. Dig. 
 402. Copyh. (K. II.) 3 ^^^■^- 51. Defcent, (C. 2.) 
 Robinfon on Gavelkind, Jppendlx, (laft page but two.) 
 Kitch. 109. b. I Vef. 174. Cunningham v. Moody. 
 
 (/) See ch. I. fee. i. p. 23, and 42. 
 
 in
 
 ESSAY ON THE Ch. 3. 
 
 in G. who was heir at law to P. on her de- 
 ceafe, as to carry it on his death to his heir 
 at law, who was not heir at law to P. but 
 that it vefted in that perfon who was 
 HEIR AT law to P. (the firft purchafer) 
 
 AT THE TIME OF THE CONTINGENCY 
 HAPPENING (^). ^ 
 
 - (_§•) See 2 TVllf. 29. Goodright and Searle; and 
 cited alfo in Fearne on Contingent Rem. 448. ('3d edit.) 
 And fee Cro. Car.\io — 13. Reeve & Malfter. Hobart. 
 33. Counden & Gierke. Plowd. 485. 489. 3 Com. 
 Dig. 51. Defcent, (C. 2). 2 Hughes's Mr. 1484. 
 tit. Pojfejfto Fratrls ; and compare with Brooke, Done^ 
 8.; and Co. Litt. 298. a. 
 
 SECTo
 
 h 
 
 T,vniJ^, OF »F.sc:e>t.s 
 
 ol'nn Etrair m ihl'selhoti 
 
 :")
 
 § 5. LAW OF DESCENTS. 157 
 
 SECT. III. [123] 
 
 Explanation of the Table of Defcents. 
 
 For the more fully elucidating the 
 do6lrines inculcated, and in order to iliew 
 at one view the different manner in which 
 an eftate vested in possession and one 
 
 IN REMAINDER OR REVERSION EXPECT- 
 ANT UPON A FREEHOLD WOllld dcfccnd, 
 
 I have fubjoined a table or calendar, which 
 I will now proceed to explain. 
 
 Suppofe then an eftate given to Henry Defcent of a 
 
 , . ., . , . T . r, remainder on 
 
 Warden m tail, with remainder over in tee ^ freehold, 
 to Benjamin Brown. 
 
 On tlie death of Benjamin Brown, the 
 remainder would defcend, 1 ft, to his eldefl 
 fon, (by Anne Lee,) William Brown ; and 
 from him, 2dly, to Ids eldefl fon, (by Sarah 
 Watts,) Ifaac Brown, Ifaac dying without 
 
 illue,
 
 158 ESSAY ON THE Ch. 3, 
 
 ifTiie, we miift again feek the riglit heir of 
 his father Wilham, as the reprefentative of 
 his grandfather Benjamin ; for Ifaac, 
 having never been actually feifed, could 
 not tranfmit it to his own heirs (as fuch). 
 [124] Now we find that Wilham Brown left a 
 daughter by his firfc wife, and a fon by his 
 fecond ; thefe his children are both in the 
 fame degree ; but the younger being a fon, 
 and fo moreworthy of blood, he (George) 
 iliall (3dly) fucceed to the inheritance in 
 exclufion of his elder filler («). George 
 dying without ifiue, we muft again feek 
 the heir of his grandfather, which now 
 undeniably is (4thly) Lucy. Lucy dying 
 likewife without iffue, whereby her fa- 
 ther's iifue are extin6t, we muft ftill en- 
 quire for the heirs of the remainder-man, 
 whom we now find to be (5thly) John 
 Brown (his fon by his fecond wife). The 
 remainder then defcends from John to 
 (6thly) his eldefl fon Edmund; and from 
 him to (7thly) Ids only fon James. James 
 dying without iflue, we mufl once more 
 feek the heir of the remainder-man ; 
 
 {a) See the laft fed. p. 119. [b). 
 
 whom
 
 § 3. LAW OF DESCENTS. 150 
 
 whom we find among the yet Uving Ifrue 
 of John. John leaving a daughter hy 
 one wife, and a fon and daughter by an- 
 other, the remainder defcends (Sthly) to 
 Henry his fon by Frances Wilfon, as of 
 the worthielt fex : but he dying without [l25l 
 iffue, we again feek the heir of Benjamin, 
 and find that John left two daughters alfo 
 by different wives; thcfe daughters being 
 in the fame degree, and both equally the 
 children of their common father, through 
 whom they derive their title to inherit (/?), 
 
 fliali 
 
 {!>) Sisters of the half-blood cannot fuc- 
 ceed as heirs to each other ; but they may fucceed as the 
 heirs of their cornmon father^ being equally ZvV children. 
 
 Si vero habuerit quis plures uxore?, & ex qualibet 
 earum filiam vel filias, omnes filioe erunt pares ad here- 
 ditatem patris, eodein modo ac fi omnes eflenc ex eadeni 
 matre. Glanvill. Lib. 7. c. 3. 
 
 Poterit etiam quis haberes plures filias de una rnatre, 
 et plures de alia, et fit fint omnes participes, etcapaces 
 haereditatis paternae defcendendis, quantum ad hasredita- 
 tempaternam defcendentem, non erunt tamen participes 
 et capaces quantum ad perquifitum fratris vel fororis 
 qui fuerintde eadem matre. Braci. Tr, i. ///>». 2. cav. 
 30. /. 3. foL 66. b. 
 
 Si titius plures fiiias reliquerit de una matre vel dl- 
 vcrfis genitas, omnss pariter vocandae funt ad {ucceC- 
 
 fionem
 
 160 ESSAY ON THE Ch. 3, 
 
 fhall (Pthly) fiicceed as parceners. One 
 of thefe daughters dying without iffue in 
 the Hfe-time of the other, the other fliall 
 then fucceed to the whole; for ihe does 
 not claim as heir to her deceafed fitter, 
 but as the now only heir of her father. 
 
 lionem & ad capacitatem haereditatis paternae, & erunt 
 pro uno haerede quamvis animae diverf?e. I[leta. lib. 
 6. cap. I. f, 17. 
 
 Pluralites de femes, ficome eft de foers parceners, 1. 
 ql. q. eles foiet. engedres d. une mere, ou d. plufurs, q. 
 fe profert. toutes en leu de un heir, & nule ne eft plus 
 receyvable d. autr. ne nule nc purra eftr. autry heir. 
 Brit. Cap. 119. J)e Succefs. 
 
 See alfo M. 19. Ed. II. p. 628. Mayn. Fitzh. 
 Mr. D'lfc. 13. ^lare Imped. 177. Bro. Dijc. 20. 
 27. Mordanc. 43. Se'ifm., 42. F. N. B. 36. E. 197. 
 G. Dyer^ 291. b. pi. 69. 325. pi. 38. Kitch. 109. 
 
 b. lie. a. Hales* $ Comm. Law^ 264. N. (x). 266. 
 ch. II. Roblnf. on Inherit. 36. c, 5. 2 Bl. Comm. 
 231. ch. 14. Calth. 87 — 8. and the cafe of Jenkins 
 d. Harris and wife-y. Prichard Sial. ante, 113. N. {g). 
 
 The fame law as to fons or dausihters in o-avelkind. 
 8 Mod. 208. Turner v. Turner. Robtnf. Gavelk. b. i. 
 
 c. 6, p. 100 — 105. i Freem. 4.S. Foxe v. Smith. 
 And fee alfo Roblnf. b. i. c. 3, p. 37. where a cuf- 
 
 torn is noticed for lands to defcend to, and be partible 
 among, brothers by the firft ventre only, to the ex- 
 clufion of thofc by a fecond. See too Co. Litt. 140, b. 
 
 But
 
 § 3. LAW OF DESCENTJ3. -1^1 
 
 But the furvivlng filter dying alfo without 
 ifTue, we purfue our old enquiry, and aik 
 again for the heir of Benjamin the re- 
 mainder-man : and as his male iifue is now 
 extin6^, and as he left two daughters, (by 
 different wives,) we find that they or their 
 iffue Ihall next inherit (lOthly) as heirs to 
 him. On their death, or that of their [126] 
 iffue, whereby the defcendants of the re- 
 mainder-man are become extincft, we muft 
 yet feek his right heir; and this we find 
 to be (1 Ithly) Bridget Brown, his filler ojf 
 the whole-'blood. For though the h'alf-i^^if.bjjjod, 
 blood fucceed equally with the whole 
 among the descendants of Benjamin ^ 
 according to the worthinefs of fex^ ar f)ri^ 
 ority of birth ; yetj fuch remalndei* being 
 legally veiled in Benjamin, he alone is the 
 perfon from whom it mufl be claimed, 
 and to whom the perfon claiming mull 
 make himfelf heir: for thofe whom we 
 have called the half-^blood among his de- 
 fcendants, are only of the half-blood to 
 each other) but are equally derived from 
 himfelf. But thofe of the half-blood above 
 him, being not (by the terms) derived from 
 the fame couple of anceftors as he himfelf 
 
 M iSj
 
 [127] 
 
 1^2 ESSAY ON THE Ch. th 
 
 is, cannot pofslbly fucceed as heirs to him. 
 And, therefore, though Timothy Brown 
 is the riglit heir (on the deatii of Benjamin 
 and his iffue) to Jofeph Brown, their com- 
 mon father; yet it is not his heir that we 
 feek, but the heir of Benjamin; and as he 
 is not the heir of Benjamin, (being but of 
 the half-blood to hu?i,J he Ihall not fuc- 
 ceed to the remainder; but fuch remainder 
 flrall defcend to Bridget, his fifter of the 
 whole-blood : but in cafe fhe die without 
 iflue, it fliall then go (12thly) to Thomas 
 Brown, her uncle; and the iflhe of Jofeph, 
 by Emma Atkins, be excluded, as they 
 can never be the right heirs of Benjamin, 
 the firft purchafer, from whom it mud 
 flill be claimed. On the death of Thomas 
 without iffue, the remainder fliall (1 3thly) 
 go to his uncle, Daniel Brown; and not 
 to his brother, Jofeph Brown; becaufe 
 Thomas having been never feized, it would 
 not on his death go to his heir, but to the 
 heir of Benjamin; and Jofeph being the 
 father of Benjamin could never be (as 
 fuch) his heir(c): And Stephen, not being 
 
 (r) Sec Show. 246. 
 
 ^erived
 
 § 3. LAW OF DESCENTS. 1<53 
 
 derived from the fame couple of anccftors 
 as Benjamin, fliail not fucceed. From 
 Daniel it iliall (Uthly) go to Abraham, 
 the fon of Edward and Barbara Brown. 
 
 But had it been an eftate in possession, Defcent ofan 
 it would have defcended very differently, (eifion. 
 It would then have gone from Benjamin to 
 (I.) William ; then to (II.) Ifaac; and from 
 Ifaac to (III.) Lucy Brown ; who being the 
 perfon now last actually seised, 
 (fuppoficig the perfons entitled continually 
 to have gained an actual feifm,) is be- 
 come THE STOCK OF DESCENT; and 
 therefore we muft now feek for the heir 
 of //cr, and not of Benjamin. Her father, [1{>8J 
 William Brown, left ifliie a fon, (George,) 
 by his fecond wife; but this fon being but 
 o( tJie HALF-BLOOD TO LucY, fhall never 
 inherit as heir to her, though the land 
 ihould efcheat to the lord {d). We then 
 muft go one ftep higher ; and here we find 
 (IV.) her aunt Sufannah to be her heir of 
 the whole-blood : Sufannah dying without 
 ilfue, the eftate again devolves ; and as we 
 
 {d) Vide Mich. $ Ed. II. p. 147—8. Mayn. 
 
 M Si fuppofe
 
 164 ESSAY ON THE Ch. 5t 
 
 fuppofe her to have been actually 
 SEISED, we mufl: iind out who is now heir 
 to HER : and this we difcover to be (V.) 
 George Brown, the fon of her brother 
 "U'ilham, who, though of the half-blood 
 to Lucy, is of the whole-blood to Sufannah, 
 and,- therefore, ihall inherit to her (f). 
 And now ail the ifiue of his grandfather 
 Benjamin, by his firft wife Anne Lee, 
 being extinct, we mufl go to (VI.) Bridget, 
 the daughter of Jofeph and Elizabeth 
 Brown ; for the iffue of Benjamin by Jane 
 Smith, being of the half-blood to 
 George, fnall never inherit as heirs to 
 HIM. But Bridget fucceeding, and having 
 been actually seised, we mufl now 
 [129] have recourfe to her heir; and this we 
 find to be (VH.) John Brown, the fon of 
 Benjamin by Jane Smith ; for, though of 
 the half-blood to George, he is lineally de- 
 fcended from tliC only brother of the 
 whole-blood to Bridget, and fliall, there- 
 fore, (as the elder iffue of Benjamin arc 
 nowcxtindl,) fuceeed to her (/). From 
 John it defcends to (VIII.) Edmund; and 
 
 {e) See Litt. fee. 8. 
 (/) Ibid, 
 
 from
 
 § 3. LAW OF DESCENTS. 16^ 
 
 from Edmund to (fX.) James; and from 
 James to (X.) his aunt Penelope ; and from 
 Penelope to (XI.) her aunt Catherine: for 
 though the ilTue of her father, John Brown, 
 hy Frances Wilfon, are hut of the half- 
 blood to Penelope, yet they are the 
 now-only reprcfentatives of John, who 
 was the hrother of the whole-blood to 
 Catherine; and, therefore, the eflate 
 fliall defcend from her to (XII.) Henry 
 Brown; and from him to (XIII.) Felicia; 
 and flie heing the lafl of the ilfue of her 
 grandfather Benjamin, we find Thomas, 
 the fon of Philip and Efther, to he (XIV.) 
 HER heir: for as to Bridget, the daughter 
 of Jofeph and Elizaheth, it has already 
 pafled her; and • Timothy, the fon of 
 Jofeph and Emma, is but of the half- 
 blood to Felicia, and therefore ihali 
 not fucceed to her; but hcJJuill fucceed [130] 
 as heir to Thomas, being the now-only 
 fon of his brother Jofeph (his brother of 
 the whole-blood). From Timothy (XV.) 
 it goes to (XVI.) Daniel ; and from Daniel 
 to (XVII.) Stephen; and from Stephen to 
 (XVHI.) Abraham Brown and hi* illue, 
 
 M 3 As
 
 166 ' ESSAY ON THE Ch. 3. 
 
 As it was the principal intention of the 
 Author, when he compiled this work, to 
 conne6t what other writers had incidentally 
 treated of, or to explain what they had 
 left in obfcurity, he contented himfelf 
 with tracing, in the annexed table, the 
 defcent of a reverfion or remainder on a 
 freehold, and that of an efrate in poflef- 
 fion, in the paternal line only of the pur- 
 chafer. The fuccefsion as to the makrnal 
 line he conceived as fufficiently marked 
 out in the learned pages of our elegant 
 commentator; and, therefore, thought it 
 unneceffary to detail what he has ad- 
 vanced. But, as it has been fuggefted 
 that it woi. Id render his fcheme more com^ 
 plete by tracing fuch defcent through the 
 maternal line alfo, he has been induced to 
 add the following remarks. 
 
 On the extin6lion of the ifTue, and alfo 
 of the paternal heirs, of Benjamin Brown, 
 the remainder or eftate in polfefsion, for 
 the defcent oi either muft, in this refpe6l, 
 be perfe6lly the fame, would go to the 
 L.. right heirs of (XIX. & 15.) Barbara Finch ; 
 
 on their failure, to thofe of (XX. & 16.) 
 1 Margaret
 
 § 3. LAW OF DESCENTS. 167 
 
 Margaret Pain; and, on default of he?' 
 heirs, to thofe of (XXI. & 17.) Efther 
 Pitt; and, for want of fach, to thofe of 
 (XXII. & 1 8.) Elizabeth Webb, the mother 
 of Benjamin. The rule always being to 
 give the preference to the paternal line, 
 and not to have recourfe to the maternal 
 till the paternal be exhaufted. 
 
 In tracing the paternal line we begin 
 with the father of the perfon lalt feifed, 
 or firfl purchafer, and proceed upzvards 
 through the grandfather, great-grand- 
 father, &c. as far as the line can be pur- 
 fued. When the heirs on this part can be 
 no longer difcovered, we begin with thofe 
 of tlie zvife of that paternal ancejlor with 
 zvhoni our difcoveries ended, and continue, 
 in a contrary direjSlion, proceeding dozvn- 
 tvards to the heirs of the mother; Thus it 
 firfl goes to (11.) Bridget; then to (12.) 
 Thomas; then to (13.) Daniel; then to 
 (ll-.) Abraham, &c. ; but if we feck the 
 heir of Benjamin in the maternal line, we 
 begin with (15.) Barbara; then proceed to 
 (16\) Margaret; then to(17.) Efther; and 
 then to (18.) Elizabeth. 
 
 M 4 As
 
 (58 ESSAY ON THE Ch. 3. 
 
 As a purchafer takes his feud ut anti- 
 quum, it is prefumed to have def c ended pa- 
 ternally {g)', and, therefore, it has been 
 determined that the brother of the grand" 
 iliother (hall fucceed before that of the 
 mother(/i). So, if no heir can be found 
 to his great-grandfather, and the cftate 
 in queftion cannot he proved to have ftri6lly 
 defcended from the great-grandmother, 
 the law will not prefume that it defcended 
 from her, but that it came from the great- 
 grandfather's father; but if his iffue be 
 extind, it will ftill feek for the paternal 
 heir, and fuppofe that it caine from the 
 father of the latter; but when it can 
 trace fuch paternal heir no further, it 
 Diuli, necelTariiy, have recourfe to the 
 female lipe: And as it is with Edward 
 Brown (fee the table) that its prefumptiou 
 ceafes, it mull there begin with the ma^ 
 ternal heirs. It uniformly preferred the 
 male line to the female ; the father tp the 
 mother; the grandfather to the grand- 
 
 (g) See pi>/y ch. 5. 
 
 (/;) Plowd. 444. Dyer, 314. a. pi. 95- Clere -*;. 
 
 inothcr,
 
 § 3, LAW OF DESCENTS. 169 
 
 mother, Sec; {o here in Barbara Finch 
 fucli preference ends. It prcfumed it to 
 have defcended to Edward, paternalli/ ; I ut 
 it can trace his paternal line 710 furthei- ; 
 it, therelorc, coniidcrs it as coming Ironi 
 Barbara. In other terms, as tl:e eliatc 
 cannot be proved to have come to Benjamin 
 Brown from his mother Elizabeth, it ts 
 prefiimed to have defcended from his fa- 
 titer, Jofejjh. To Jofeph, indeed, it might 
 have come from his mother, Efther; but 
 as it cannot hcfiewn to have done fo, it is 
 fuppofed to have come from Philip. To 
 Ijim it might pofsibly have defcended from 
 Margaret; but this not appearing, it is 
 fuppofed to have been derived from Robert, 
 To Robert it might have defcended from 
 /«'^ mother, Barbara; yet the prefumption 
 i^ in favour of his father, Edward Brown. 
 But as the pedigree or line of the Browns 
 can be no further traced, it is prefumed to 
 have come from Barbara Finch ; and, con- 
 fcquently, as there is no one to carry the 
 prefumption from her, her heir fliall be 
 confidered as having title to the premifes. 
 If no heir of Barbara can be found, the 
 prefumption is in favour of, and remains 
 
 with.
 
 170 ESSAY ON THE Ch. 3» 
 
 with, Margaret Pain : if /zer heir cannot be 
 difcovered, it is then in favour of Eliher 
 Pitt; (for Dinah Ward was not an anceftor 
 of Benjamin Brown tlie remainder-man, 
 or perfon laft feifed ; and, therefore, it 
 could not have defcended to him from 
 her). If no heir can be found to Efther, 
 it iliall go to that of Elizabeth Webb; as 
 no other perfon can Ihew the probabiUty 
 to preponderate in his behah'; (Emma 
 Atkins being in the fame predicament 
 with Dinah Ward). 
 
 The qiieflion, however, whether the 
 line of tlie father's mother, or that of the 
 father's paternal grandmother, fhould 
 fn-ft fuccced to the inheritance of the fon? 
 has been a matter of much controverfy; 
 and, therefore, calls for a more particular 
 invcftigation, 
 
 Wc are informed by Plowacn({)y in his 
 report of the cafe of Clere v. Brook, that 
 Mr. Juftice Mamvoode affirmed that the 
 former line /hould be preferred ; and in ^ 
 
 (/) Comm, 450» 
 
 1 PQ te
 
 §3. LAW OF DESCENTS. Hi 
 
 note which is fubjoincd to his report of 
 that cafe, he alfo tells us that he after- 
 wards put the queltion to Mr. Julticc 
 Mamvoode in the prefcnce of Mr. Juftice 
 Harper ; and again, feverally, to Mr. Jul- 
 tice Mounfon and Sir James Dyer ; and that 
 they were all of opinion, that the brother 
 of the fiither's mother Ihould firll take: 
 though the reporter has, at the fame time, 
 taken care to add that many were of a 
 contrary opinion ; namely, that the brother 
 of the father's paternal grandmother ought 
 to have been preferred. 
 
 The doctrine, however, of Mr. Juftice 
 Mamvoodc has been adopted by Lord 
 Bacon {k\ by Sir Matthew Hale (/), and 
 by the Lord Chief Baron Gilbert {i7i)\ 
 while the contrary pofition has been main- 
 tained by xVIr. Robin/on Qi), and Mr. Juf- 
 lice Blackjioneio), 
 
 {k) Elements, I. p. 3. TraSfs^ 37. edit. i-JZI- 
 (/) Hl/i. Comm. LaWy *68, &c. edit, 1779. 
 {ni) Ten. 1 9. 
 
 (n) Law of Inherit, in Fee-fmfle^ ch. 6. &c. 
 {0) 2 Co7n7n. 238. ch. 14. 
 
 The
 
 ESSAY ON THE Cli. 5. 
 
 The arguments of the latter writer were, 
 however, controverted by an anonymous 
 author, in a pamphlet, which appeared in 
 the year 177.9, entitled, " Remarks on 
 the Laws of Defccnt; and on the Reafons 
 afsigned by ^Ir. Juftice Black/ionc for re- 
 jecting, in his Table of Defcent, a point of 
 do(5trine laid down in Ploxvdcn, Lord Bacon, 
 and Hale (/))." In a note to a late edition 
 of the Commentaries, Mr. Juftice Black- 
 Jfmic was vindicated by Mr. Profeffor 
 Chrijliau', and Mr. Profellbr Chrijiian has, 
 in his turn, been charged with inconfif- 
 tency in his defence; and the tenets, both 
 of the author of the Commentaries and 
 his annotator, have been again denied by 
 tlie fame anonymous writer, in another 
 pamphlet, which has recently made its 
 appearance under the title of " Remarks 
 on the Inconfiflcncy of the Table of De- 
 fcents, proje61ed by Mr. Profeflbr Chriftiaiiy 
 in the twelfth edition of the Commenta- 
 ries, with the do6trine laid down by Sir 
 William BlacJifto?ie, and by every writer on 
 the Law of Defcents." 
 
 (/») This will be referred to as the <* Firjl Pamphlet:' 
 
 Now
 
 § 3. hA\V OF DESCENTS. 173 
 
 Now it is, indifputably, laid down as 
 law, That, in the cafe of a purchafe, (and, . 
 in our inftance, Benjamin Brown took the 
 remainder by purchafc,) the paternal line 
 Jhall always be preferred to the maternal', and 
 that the heirs on the part of the mother fhall 
 never fncceed till thofe on the part of the fa- 
 ther be exhaiiftcd (</) ; 
 
 That the father lias two immediate bloods 
 in him ; viz. the blood of his father, and the 
 blood of his mother {r'): And 
 
 That a perfon taking lands by purchafe in 
 fee-fimple, fliall take them as a feud of inde- 
 finite antiquity (J'). 
 
 Thcfc principles prefcnt a folution of 
 this quefiion onwhich there has been fiich 
 a contrariety of opinion; and, if the 
 confequences of thefe principles be im- 
 partially and deliberately purfued, we 
 fhall, I think, be foon led to certainty on 
 
 (q) Lift. f. 4. and Co. Litt. 12. a. and b. 
 (r) Co. Litt. 12. a. -Side Remarks, (Firft Pamph- 
 let,) 8. 
 
 (/) Wright's Ten, 17. 180. 2 Bl Comm. 220, &c. 
 
 a point
 
 ESSAY ON TltE Ch. 3. 
 
 a point as to which, one would have fup- 
 pofcd, even ingenuity itfelf could not 
 have fuggefied a doubt. 
 
 If a purchafer, therefore, die without 
 iffue, we are to feek for his heir among 
 the iiilie of his father: if none of thofe re- 
 main, we afk for thofe of his grandfa* 
 ther: if none of thofe are to be found, we 
 purfue our enquiries among the ifllie of 
 the great-grandfather; and fo on ad infi^ 
 nitwn; or, according to the annexed table, 
 the ililie of Jofeph and Elizabeth Brown 
 iliall firll take; then the iflue of Philip 
 and Efther; then thofe of Robert and 
 Margaret ; and, laftly, the ilfue of Edward 
 and Barbara Brown (t). And we will fup- 
 
 (/) For the more eafily confulting the Tahle of Mr. 
 Juftice Blackjione^ the following lift of correfponding 
 names Is fubjoined : 
 
 Benjamin Brown, - - John Stiles, 
 
 Jofeph and Elizabeth Brown, - Geofferey and Lucy Stiles, 
 Philip and Efther Brown, - George and Cecilia Stiles, 
 
 Robert and Margaret Br^wn, - Walter and Chriftian Stiles, 
 
 (Their ilfue, Clafs No 8.) 
 Edward and Barbara Brown, - - Richard and Ann Stiles, 
 
 (Their iffue, Clafs Ko. 9 ) 
 David and Grace Pain, - - William and Jane Smith, 
 
 (Their ifTue, Clafs No. 10.) 
 "f'alter and Sarah Pitt, - - Lulce and Frances Kempe, 
 
 (Their ilTue, Clafs No. ii.) 
 
 pofe
 
 § 3. LAW OF DESCENTS. 175 
 
 pofc, tliat we can trace the male paternal 
 line of Benjamin Brown, the purchafer, 
 no further than to Edward, his paternal 
 grandfather's paternal grandfather. 
 
 The queftion, therefore, will now be, 
 "Who is the next heir of Benjamin Brown? 
 — The brother of Barbara Finch, (the pa- 
 ternal grandfather's paternal grandmo- 
 ther); the ifTue of David and Grace Fain, 
 (the brother of the paternal great-grand- 
 mother, or Mr. JuHice Biackjione\ Clafs 
 No. 10.); or the ifllie of Walter and Sarah 
 Pitt, (the brother of the paternal grand- 
 mother, or Mr. Juilice BlackJione\ Clafs 
 No. U.)? 
 
 But, in order to come immediately to 
 the queftion, we will fuppofe our enqui- 
 ries, as to the male paternal line, to end 
 in Philip Brown, the paternal grand- 
 father; rather than in Robert Brown, the 
 paternal grandfather's father, or in Ed- 
 ward, the paternal grandfather's paternal 
 grandfather. 
 
 Now,
 
 116 ESSAY ON THE Ch. 3. 
 
 Now, we find, according to the pofition 
 we have noticed, that Philip Bfown was 
 compofed of the bloods both of his father 
 and mother; that of his father we fuppofc 
 exhaufted ; but that of his mother remains 
 in the ifihe of David and Grace Pain, (or 
 in the Clafs, No. lO). It appears, there- 
 fore, mofl evidently, from the authorities 
 cited, that the blood of Robert is not ex- 
 haufted; and, confequently, we mufl 
 feek for his heir in his unexhaufted blood, 
 or in the ifTue of David and Grace Pain, 
 (or in the Clafs, No. lO). Lord Co^e fays, 
 exprefsly, that " the father has ttco im- 
 mediate bloods in him — the blood of his 
 father and the blood of his mother. Both 
 tliefc bloods are of the part of the fa- 
 ther: aJid BOTH tJtefc bloods of the part of 
 his father must be spent, before the heir 
 of the blood of the part of the motlier JJiall in^ 
 herit (w)." And it is acknowledged by- 
 Lord Hale (.r), that the collaterals of the 
 father's mother, of the father's grand- 
 
 {u) Co. Litt. 12. a. and b'. 
 (jf) Com. Laiu» '2.']i. 
 
 mother,
 
 § 3. LAW OF DESCENTS. 177 
 
 mother, and of the father's great-grand- 
 mother, are of the blood of the fa- 
 ther. 
 
 If, then, the paternal grcat-grand-mo- 
 ther be of the blood of the father, Ihe 
 mufl:, of confequence, be of the blood of 
 the paternal grandfather, or of Philip 
 Brown ; and confequently, alfo, as the 
 pate?'7ial line of Philip is fnppofed extincl, v 
 
 it fliould feem that the next heir muft be 
 found in his viaternal blood, or in that of 
 Margaret Pain, or in the Clafs, No. 10, 
 
 Again : As the feud is held ut antiqimm, 
 it is fuppofed to have defcended to the pur- 
 chafer from his ancellors ; and, as the pa- 
 ternal blood is always preferred, to have 
 defcended to him paternally. Now, if it 
 had actually defcended in the paternal line, 
 (and an actual defcent is, by the very 
 terms, prefmned (y) — ), it may be confi- 
 dered as having been once actually vefted 
 in the purchafer's paternal anceftors; and, 
 confequently, it may be fuppofed to have 
 
 C>') And fee Wright, i8o. 2 Bl Comm, 212. 
 
 N actually
 
 178 ESSAY ON THE Ch. 3. 
 
 actually defcended from the moft remote. 
 Now, if we fuppofe it to have a6liially de- 
 fcended from PhiHp Brown ; that we can 
 trace the paternal line no higher than 
 Phihp ; that the blood of Philip was com- 
 pofed of the bloods both of his father and 
 mother ; and that his father's blood is ex- 
 haufted ; the brother of his mother, (or 
 the Clafs, No. lO), muft certainly be the 
 heir to the premifes : and the brother of 
 Eflher Pitt, (or the Clafs, No. 11), can- 
 not pofsibly be entitled, while any of the 
 former Clafs, (No. lO), be in exiftence. 
 
 If the prefiimed defcent is not to be con- 
 fidered as an actual one, when comp ^tibie 
 with the end of the prefumption, there is 
 no meaning in terms. As the law, there- 
 fere, prefumes, that the feud defcended 
 paternally^ fuch feud muft be confidered 
 as havmg a6iually done fo, while the con- 
 fideration will anfwer the end for which 
 fuch prefumption was adopted. If it will 
 not anfwer that end, the prefumption, as 
 to its paternal defcent, ceafes; and the 
 law wiii deem the feud to have defcended 
 maternally^ rather than it ihould efcheat 
 
 to
 
 § 3. LAW OF DESCENt^S. 179 
 
 to the lord of the fee(z)» Hence it admits 
 the heirs of the mother of the purchafer, 
 when thofe of the father are no longer to 
 be found. 
 
 As the heirs on the part of the father 
 are to be preferred, or, in other terms, as 
 the feud is prefumed to have defcended to 
 the purchafer from his father, the law en- 
 quires (in cafe of the death of the pur- 
 chafer without iffue) for the heir of the 
 father; as he who ought to inherit to the 
 father, ought, purfuant to an ancient 
 axiom (^;), to inherit alfo to the fon; for, 
 in the confideration of the prefent quef- 
 tion, we have nothing to do with the half- 
 blood. 
 
 Now, if the feud be prefumed to have 
 defcended to the purchafer from his father, 
 and his father has left no iffue, the next 
 enquiry is, How did the father inherit it? 
 If he inherited it fram his mother; it muft 
 
 (z) Pafch. 49 Ed. III. pL S' fol' II. b. I2. a. 
 {a) Mich. 12 Ed. IV. pi. 12. fol. 14. a. and fee 
 2 Bl, Comm. 220. and 239 — 240. 
 
 N 2 be
 
 180 ESSAY ON THE Ch. 3, 
 
 be fo proved', and if it be not fo proved^ it 
 will be prefumed to have defcended to him 
 frmn his father; as the prefumption is in. 
 favour of the male line. 
 
 On the prefumption that it defcended 
 from the grandfather, and that the grand- 
 father has left no iffue, the queftion will 
 then be. From whom did he inherit it? 
 Here the prefumption again returns, That 
 /^e inherited it from his father, or Robert 
 Brown. But, according to our fuppofi- 
 tion, the male paternal line, or that of 
 Brozv7i, can be no further traced than to 
 Philip; the law theji will prefumethat the 
 feud defcended to Philip inaternally, and, 
 confequently, from Margaret Pain; and, 
 confequently, the next heir to the pre- 
 mifes muft be her brother, or the Clafe, 
 No. 10. 
 
 Again : As the antiquity of the feud is 
 merely prefumed, no particular anceftor 
 can be abfolutely precluded from being the 
 flock of the defcent. The firft prefump- 
 tion, indeed, is that the feud had de- 
 fcended from the male anccftor; but it 
 
 might,
 
 §3. LAW OF DESCENTS. 181 
 
 might, by pofsibility, have defcended from 
 a female: it might liave defcended from 
 the motlier, or grandmother; the great- 
 grandmother, or great-great-grandmother: 
 All thefe lines, therefore, ihall, in their 
 turn, fucceed to the inheritance of the 
 fon, on the extin61ion of the line which 
 the law firft enables to fucceed. 
 
 Now the fon might, by pofsibility, have 
 inherited the feud from his mother, his 
 grandmother, great-grandmother, &:c. as 
 well as from his father, his grandfather, 
 his great-grandtather, &:c. but the prc- 
 fumption will be that it had defcended in 
 the paternal line, We can, however, trace 
 that line no further tlian the paternal 
 grandfather, Philip Brown ; but jo far we 
 can trace it; and Jo far the prcfumption 
 will carry us. If then we fuppofe that the 
 fon took the feud by defcent from Margaret 
 Pain, his paternal grandfather's mother, 
 this prcfumption that he took it by de- 
 fcent from his father Jofeph Brown, and 
 that Jofeph Brown took it by defcent from 
 his father Philip Brown, will be preferved ; 
 llnce both Jofeph and Philip might have 
 N 3 taken
 
 182 ESSAY ON THE Ch. 3. 
 
 taken it by defcent from her: and, confe- 
 quently, Aer brother, or the Clafs, No. 10, 
 muft be entitled. Whereas fliould we 
 deem the feud to have defcended from 
 Efther Pitt, the purchafer's grandmother, 
 and fo firll admit the Clafs, No. 11.; fliould 
 we not immediately contradi6t our firfi; 
 prefumption, that it had defcended from 
 the paternal line ; ?*. c. from Philip Brown, 
 to whom we could have traced it, pre- 
 fumptively? If, inflead of confidering it 
 as defcended from the purchafer's paternal 
 grandmother, we regard it as coming from 
 his mother, Elizabeth Webb, furely we 
 muft contradict our prefumption ftill more 
 grofsly, fince we muft then exclude not 
 only Philip Brown, but Jofeph alfo. But, 
 as it is agreed on all fides, that the brother 
 of Efther Pitt, or of the paternal grand- 
 mother, fliall take before the brother of 
 Elizabeth Webb, or of the mother (Z>), 
 muft not the brother of Margaret Pain, 
 or of the paternal great-grandmother, be 
 preferred to Efther Pitt ? Will not every 
 reafon that can carry us to the line of the 
 
 {h) Clere h Brook. Pkivd. 444. Dyer, 314, a. S. C, 
 
 ^rand-
 
 § 3. LAW OF DESCENTS. 183 
 
 grandmother in preference to that of the 
 mother, carry us alfo to that of the great- 
 grandmother in preference to that of the 
 grandmother? And, asthe purcliafer, his 
 father, and his paternal grandfather, might 
 have taken the feud from the paternal 
 great-grandmother, Margaret Pain, while 
 the purchafer, and his father only, could 
 have taken it from the paternal grand- 
 mother, Eflhcr Pitt, mufl not the chance 
 or probability, and, confequently, the 
 prefumption, be in favour of the former, 
 or of the Clafs, No. 10? And, if vvc 
 could have traced the male paternal line 
 higher than Philip Brown, the chance or 
 probability, and, confequently, the pre- 
 fumption, would, from the very nature 
 of the thing, beproportionably encreafed, 
 according to the remotenefs of the female 
 paternal anceftor. 
 
 Again : A wife (as a wife) is not an 
 anceftor. Now, if we^ can trace the feud 
 prefumptivcly to the purchafer's paternal 
 grandfather, Philip Brown, and fuppofe 
 his paternal line exhaufted, then Philip 
 Brown mull: be fuppofed to have had the 
 N 4? feud
 
 ESSAY ON THE Ch. 3. 
 
 feud from his mother, Margaret Pain, and 
 not from his wife, Efther Pitt ; fmce the 
 prefumption will be that he alfo had taken 
 it by defcent; and, confequently, the 
 brother of his mother, or the Clafs, No. 
 10, muft be entitled to the inheritance. 
 
 As, therefore, the law gives the prefer- 
 ence to the heirs of the male rather than 
 to thofe of the female, and to the heirs of 
 the mother rather than to thofe of the 
 wife ; if the feud can be traced prefump- 
 tively to the paternal grandfather, mufl 
 not his mother's heirs be firft entitled, if 
 thofe of his father are no longer to be 
 found? If we prefer the blood of the 
 grandmother to that of the great-grand- 
 mother, do not we contradict the very 
 axioms we fet out with? Do not we give 
 the preference to the grandmother rather 
 than to the grandfather? To the wife than 
 to the huiband? To the female than to 
 the male ? Can we be faid to prefer the 
 grandfather, when we fhut out Jiis mater- 
 nal heirs from the fuccefsion ? If a per- 
 fon's blood be compofed of that of both of 
 his anccftors, mud not his blood be confi- 
 
 dered
 
 § 3. LAW OF DESCENTS. 185 
 
 dered as exifting till that of both of his 
 anceftors be no more ? If the blood of the 
 -mother (the mother of an anceftor, how- 
 ever remote,) continue, mult it not be a 
 continuance of the blood of the fon ? Can 
 Aw blood be confidered as exhauftcd, while 
 one-half of it remains ? Can we deem it 
 wholly extindt when one-half is not taken 
 into confideration (c) ? 
 
 From what has been advanced, there- 
 fore, it fhould feem to follow inevitably 
 that the brother of the paternal great- 
 grandmother ought to be preferred, in the 
 fuccefsion, to the brother of the paternal 
 grandmother. But, before the fubje6l be 
 difmifled, it may be proper to confider 
 more particularly what has been urged in 
 favour of the contrary pofition. 
 
 And, in the firfl place, it is obfervable 
 that it is not noticed by Ploxvden that Mr. 
 Juftice Majiwoode cited any authority in 
 fupport of what he advanced : nor is either 
 of the other Juftices noticed as having 
 
 {c) Watk. N. XVII. to Glih. Ten. 19. e. p. 336, &c. 
 
 cited
 
 nS ESSAY ON THE ^ Cli. 3. 
 
 cited any: nor does the reporter liimfelf, 
 either In the cafe or the fubjolned note^ 
 refer to any authority : neither does Lord 
 Bacon: neither ciocs Si?' Matthew Hale: 
 neltlier does the Chief Baron Gilbert cite 
 
 anv. 
 
 •I 
 
 The author of the Jiemarks, Indeed, 
 i^y^ {c') ih^t \he Yearbooks, Mich. 12. Ed. 
 IV. V2,{cl) might be juftly cited In fup- 
 port of his own fyftem: " For the quef- 
 tlon," fays he, " between Manwoode and 
 Mr. Juftfce Blackfione Is this, When all 
 the reprefentatives of the male ftock of 
 the paternal line are extinct, who fhall 
 fucceed? The former fays the heir of the 
 - Ailes\ the latter the heir of the Befailes\ 
 but, what Is mod fmgular, to fupport his 
 (Mr. Juftlce Blackfione s) argument, an 
 authority Is brought which, upon the fame 
 queftion, gives the fuccefslon to the Ailes: 
 " The heir of the fon, on the part of the 
 Ailesy ought to inherit." 
 
 {c) Firjl Pamphlet^ 39. 
 \d) Fol. 14. a. 
 
 Now
 
 §3. LAW OF DESCENTS. 1 87 
 
 Now it fliould be obferved, that there is 
 not one word in tliis cafe in the Vear^ 
 book^f) which fays that tlic heir of the 
 Ailes fhould exclude the heir of theJSe- 
 failes; but only that the heirof tlie Ailes 
 ihould take, and not the heir of the mo- 
 ther; which is not difputed. Could the 
 iflue have been fuppofed to have left an 
 heir on the part of the Befailes, no inti- 
 mation is given in the cafe that fuch heir 
 fhould not have fucceeded in preference 
 to the heir on the part of the Ailes. This 
 cafe, therefore, does not appear to be a 
 cafe which might be juftly cited in fup- 
 
 (y) Nota q. fu'it ten. p. touts les 'Jujl'ic. de Comen 
 Bank^ q. lou home p.chaf. terre l^ devy fans ijfue ^ fans 
 heir de pt. le pere, q. fori prochein heir de pt. le mere ava, 
 le terr. ^ fi hoe. p.chafe. tr. iff ad iJfue & devy, Vijfue 
 ent. & devy fans ijfue^ &" fans heir de pt. s. pier. s. de 
 pt. aile s. pere^ q. en ceji cafe I' heir de pt. le mer. s. pere. 
 s. de pt. fon aielles dolt enherit^ car cejfty q. doit enherit. 
 al pere doit enheriter al fits. — Fuit \auxy.^ ten. f horns 
 purch. terr. ^ ad ijfue^ q. ad le terr. per difc. iff puis 
 i'lffue devy fans iJfue i^ fans heir de part le pere, q. l'i:eir 
 de pt. le jncre le fts ne doit enheriter ^ car il ri'ejl de fank 
 ccjluy en q. f original pofjeff. commence, s. il n'ejl de fank 
 Ic pere, iffc. jnes Pheir le fits de part l' aielles, s. de part 
 h mere fon pere doit enherit, iffc. 
 
 4 port
 
 ESSAY ON THE Ch. 3. 
 
 port of the pofition that the brother of the 
 paternal A lies ought to be preferred to the 
 brother of the paternal Befailes. 
 
 Seeing then that there is no authority re- 
 ferred to which can eftabhfli the contrary 
 poiition, it remains only to examine into 
 the reafons alleged in its fupport. 
 
 Mr. Juftice Manwoode fays (^) that the 
 brother or fifter of the purchafer's paternal 
 grandmother fhail be preferred before the 
 brother or fifler of the purchafer's paternal 
 great-grandmother, because thei/ are 
 equally worthy in blood (for fuch heirs come 
 from the blood of the female fex, from 
 which the purchafer's father iffued); and, 
 xohere they are all equally loorthy, the next of 
 blood JJiall always be preferred as heir. 
 
 And Plowden, in his note, when fpeak- 
 ing of his putting the queftion to Ilan- 
 xvoode, in the prefence of Harper, J. aflerts 
 the reafon to be — " Becaufe the former 
 (i. e, the brother of the paternal grand- 
 
 {g) Plowd. 450. 
 
 mother)
 
 §3. LAW OF DESCENTS. 189 
 
 mother) is nearer in blood to the purchafer 
 on the part of his father; which proximity 
 holds place on the part of females con- 
 joined by marriage to males, where fuch 
 blood is once derived by a male to the firft 
 purchafer.'* 
 
 Lord Bacon (Jt) fays, If a man purchafe 
 land in fec-hmplc, and die without ilTue, 
 in the firil degree the law refpedeth dig- 
 nity of fex and not proximity ; and, there- 
 fore, the remote heir, on the part of the 
 father, ihall have it before the near heir 
 on the part of the mother; but, in any 
 degree paramount the firft, the law re- 
 fpeaeth not [What? (i) ] and, therefore, 
 the near heir by the grandmother, on the 
 part of the father, fliall have it before the 
 
 {h) Elements^ I. p. 3. Traas^ 37. edit. 1737. 
 
 (?) If dignity of fex, the pofition is indifputably 
 erroneous ; and if dignity of blood, then there muft 
 be dignity of blood to refpea; and, confequently, 
 there muft be an inequality of dignity; and, if there 
 be an inequality of dignity, the rule of proximity 
 cannot apply j as it can only apply where the dignity 
 IS equal. 
 
 remote
 
 190 £SSAY ON THE Ch. 3s 
 
 remote heir of the grandfather, on the part 
 of the father. 
 
 Lord Hale, thougli he acknowledges 
 that the hrothcr of the father's grandmo- 
 ther and the brother of the father's great- 
 grandmother, are of the blood of the fa- 
 ther ; and that the great-grandmother's 
 blood has pafled through more males of 
 the father's blood than the grandmother's, 
 yet fays (A) The father's mother's fiftec 
 ilial! be preferred before the father's grand- 
 mother's, or the purchafer's great-grand- 
 mother's, brother, because they are all 
 Cognati, and not Agnail , and the father's 
 mother's lilier Is the neareji ; and, there- 
 forCj fhall have the preference. 
 
 Chief Baron Gilbert, after noticing the 
 preference given to the paternal line, 
 fays (/), " If the father's male line failed, 
 it (the feud) went to the female blood of 
 the father ; for the Lords were prefumed 
 rather to refpedl the female blood of their 
 
 {k) Com. Lawy 271—2. 
 (/) jfV«. 19. 
 
 former
 
 § 3. LAW OF DESCENTS. 191. 
 
 former tenants than the blood of the mo- 
 ther, who was newly introduced into the 
 family of fuch their feudary : Becaufe the 
 feud was given as an ancient one: and, by 
 confequcnce, the blood of the precedent 
 tenant was preferred to any other. But 
 the blood of the father's mother was pre- 
 ferred to the blood of his grandmother, 
 being both female bloods ; .^nd both 
 coming under the confideration of ancient 
 tenants, the nearer tenant's blood was pre- 
 ferred to the more remote." 
 
 In fhort, the rule affumed appears to be 
 this, " AVhere the dignity is equal, there 
 the proximity fliall prevail." And, con- 
 fequently, the firli thing to be enquired 
 into is, AVhether, in the prefent cafe, the 
 dignity of the blood of the paternal grand- 
 mother and that of the paternal great- 
 grandmother be abfolutely equal ? 
 
 The brother of the paternal grandmother 
 and tlie brother of the paternal great- 
 grandmother claim, it is true, as the heir 
 of a female ; and, fo favy they may be 
 confidered as equal in dignity ; but the 
 
 former,
 
 192 ESSAY ON THE Ch. 3. 
 
 former, In making out his title to the firft 
 purchafer, can only claim through Jofeph 
 Brown, the father; whereas the latter can 
 claim through Philip Brown alfo : he, 
 therefore, derives his title through more 
 males of the paternal line (w) ; and, con- 
 fequently, fliould feem the more worthy. 
 
 And, as the equality of dignity may be 
 thus queftioned, fo the proximity itfelf 
 may be doubted as applicable to the pre- 
 fent cafe. For, though the fon be the 
 firfl purchafer, yet he takes his feud ut 
 antiquum ; and, confequently, as fuch feud 
 is fuppofed of indefinite antiquity, and as 
 we can trace it, in prefumption, up to his 
 paternal grandfather, we muft prove that 
 his paternal grandfather's blood be ex- 
 hauited, before we can have recourfe to 
 any other blood ; and, confequently, ac- 
 cording to principles already noticed, and 
 acknowledged by Lord Hale, Lord Coke, 
 &CC. as the paternal grandfather was com- 
 pofed of two bloods — thofe of his father 
 
 {m) See Ploivd. 451 Note. Hales* Cm. Law, 271 
 — 2. and 2 Bl. Co?nm. 238 — 9. 
 
 and
 
 § 3. LAW OF DESCENTS* 193 
 
 and his mother; and, as his father''^ is 
 extin6l, his heir (and, by confequence, 
 the heir of the grandfon) mufl remain 
 in the blood of Jus (the grandfather's) 
 mother; as one of his bloods is exhaufted, 
 and the other 7iot exhaufted : and if the 
 other be 7iot exhauflcd, his blood can- 
 not be extin6l; and if his blood be 7iot 
 extinct, in that other blood mull: his 
 heir be found; and, confequcntly, 
 the brother of the paternal grandfather's 
 mother muft be nearer to the paternal 
 grandfather, at leafi:, than the brother of 
 a woman whofe blood (as fuch) could pof- 
 fibly form no part of his. And it can be 
 no anfwer to this mode of argument to 
 fay that the grandfon \V'c\sfeized(?i\ fince, 
 though it is admitted that the grandfon 
 took as firft purchafer, yet he took the 
 feud as a feud OF indefinite antiquity; 
 and, confequcntly, as a feud which is pre- 
 fumed to have defccnded from the father 
 and grandfather, and, confequcntly, which 
 mult be confidered as having acSlually de- 
 fcended from them, while any of their 
 
 («) See Hak's Com. Lavj^ ibc). 
 
 Q blood
 
 1^4 ESSAY ON THE Ch. 3. 
 
 blood (and their mothers, refpe6lively, 
 were of their blood (o) — ), be remaining; 
 for otherwife there is no meaning in the 
 terms. ^ 
 
 And as to the reafoning of the Lord 
 Chief Baron Gilbert., it does not appear 
 fatisfactory : For if the lords were pre- 
 fumed to refpe6l the female blood of their 
 former tenants rather than the blood of 
 the mother who was newly introduced 
 into the family of their feudary, and the 
 blood of the precedent tenant was pre- 
 ferred to any other, it fliould feem to 
 follow that the more remote tenant's blood 
 fhould have been preferred to the nearer, 
 rather than that the nearer Ihould have 
 been preferred to the more remote. 
 
 And as to Lord Bacoii's do6trine it feems 
 equally unfatisfa6tory, and, by far, more 
 unintelligible. And when it is confidered 
 that the author of the Remarks {])) obferves, 
 that one at Icalt of the pofitions of his 
 
 {o) See Hale, 271 — 2. Co. L'ltt. 12. a. and b. &c. 
 (/») FirJ} Pjfnphlet, 31. 33. 
 
 5 Lordfliip
 
 § 3- LAW OF DESCENTS. 19^ 
 
 Lord Hi Ip " is totally repugnant to the 
 fpirit of thofe laws whence the do6lrhie of 
 defcent originates,'* and that " it lias been 
 contradicted by every writer on the fub- 
 jeft, and is, therefore, inadmifslble,'* any 
 further obfcrvation on the palFage cited 
 would furely be deemed unnecelTary. 
 
 But, even granting that the blood of 
 the paternal grandmother and the blood of 
 the paternal great-grandmother are equal 
 in dignity, and that the proximity is in 
 favour of the former, yet the application 
 of the rule — " That where the dignity is 
 equal the proximity fhall prevail" — may 
 be, at leaft, queftionable in the prefent 
 inflance. 
 
 Now it is acknowledged by the author 
 of the Remarks {(j\ that proximity can 
 only prevail where the dignity is equal : 
 and he cites from Mr. Juftice BlackJione{i')^ 
 that " the object of the common-law is 
 proximity merely: not indeed an abso- 
 
 {q) Firji Pamphlet, 30. 
 (r) FirJi Pamphlet^ ii— 12. 
 
 O 2 LUTE
 
 196' ESSAY ON THE Ch. 3. 
 
 T>UTE PROXIMITY, bllt a PROXIMITY SUB 
 
 MODO.'* And he goes on with faying, 
 " On th®fe two principles, dignity of blood 
 and proriviit]/ of blood, do the laws of in- 
 heritance depend. The first of them is 
 ABSOLUTE^ and operates on all occafions% 
 the SECOND admits of some modifica- 
 tion, whereby it differs from the ftri^l 
 idea of proximity." For, " in fomc in- 
 llances,'* fay he, " the term by legal con- 
 llrucfion is ufed in a fenfe different from 
 its common acceptation : for a term of 
 fciencc," he adds, " is not to be taken in 
 its abfolute fenfe, but as modified by the 
 fcience which adopts it." 
 
 If tlien the proximity which is the ob- 
 jecft of the law be not an abfolute proxi- 
 mity, but a proximity sub modo ; if that 
 proximity will admit of any modiJication% 
 ought not the rule of proximity to be so 
 viodificd as to render it compatible with 
 the exiftence of axioms which have been 
 never denied? Or ought we to facrifice to 
 this rule, rules which were never quef- 
 tioned, or dcdu6lions which feem inevit- 
 ably and indifputably to flow from thofe 
 
 rules ?
 
 § 3. LAW OF DESCENTS. 197 
 
 rules? If the brother of the paternal 
 grandmother is to be preferred to the 
 brother of the paternal great-grandmother, 
 merely hi compliance with this rule of 
 proximity, what is to become of the rules 
 — That the preference is due to the pater* 
 nal line — That a feudiun novum is to be 
 held ut antiquum — That a perfon*s blood is 
 compofed of that of hotli of liis anceftors ? 
 And what is to become of that principle 
 of common-fenfe which teaches us that 
 
 T]ie WHOLE CANNOT BE EXHAUSTED 
 WHILE ONE-HALF OF IT REMAINS? 
 
 o 3 CHAP,
 
 198 
 
 ESSAY ON THE 
 
 Ch. 4. 
 
 [131] CHAP. IV. 
 
 OF THE ENTRY OF A POSTHUMOUS HEIR. 
 
 Abeyance. 
 
 Tenant of 
 the freehold. 
 
 Infant ?'« 
 njentre/amere. 
 
 Entry of the 
 
 then-born 
 
 heir. 
 
 Entry on him 
 bv the infant. 
 
 JlSy the feudal law the freehold could 
 not be vacant, or, as it was termed, in 
 abeyance: there muft have been a tenant 
 who was capable of fulfilling the feudal 
 duties, and againft whom the right of 
 others might be maintained. An infant 
 in ventre fa mere was not, on thefe occa- 
 fions, confidered as in ejfe^ and, confe- 
 quently, could not be confidered as a 
 tenant. On the devolution, therefore, of 
 an eftate, the tlien-horn perfon who was, 
 at fuch devolution, entitled, (as, for in- 
 ftance, the brother of the deceafed,) was 
 permitted to fucceed: and though the 
 ilTue, while in ventre fa mere, was not re- 
 garded as in ejfe, yet (when afterwards 
 born) as it was the perfon whom the law 
 would have pointed out to enjoy the in- 
 heritance
 
 [132] 
 
 Guardiau; 
 
 Ch. 4. LAW OF DESCENTS. JQ9 
 
 heritance of his father, had it been in effc 
 when he died ; and as the reafon for th^ 
 entry of the uncle had now ceafed, fnice 
 Ihe iflue became capable of holding thg 
 hereditaments defcended, and of fulfillins: 
 thofe duties by bis guardian, fuch ifftie 
 was permitted to enter upon the uncle^ 
 and to enjoy the eftate. 
 
 But though the law refpecSling the fub- 
 jecl of this chapter, fnice the time of the 
 ftatute 10& 11 Will. 3. c, \6. does not Stat, of Willi 
 appear fulhciently clear and determined, ^' 
 yet it certainly is conlincd within very 
 narrow limits, when compared with the 
 law as it Hood before the pafsing of that a(5l. 
 Several nice diftindions then exifted, which 
 ai*e now, as to this point, apparently done 
 away. However, they feemed to have 
 been founded upon principles which can- 
 not be ihaken, without Ihaking the whole 
 law, Thofe prmciplesexiil, though their 
 application to thefe cafes, and their confe- 
 quences with refpect to them, may, per- 
 haps, be now no more. Thofe principles, 
 and the dedu6tions which may yet be 
 drawn from them, ftili deferve our atten- 
 o 4? tion,
 
 200 ESSAY ON THE Ch. 4. 
 
 tion, and may be confidered as extending 
 to certain points and purpofes to which 
 that ftatute does not reach. And as tlie 
 particular points to which that ilatute does 
 [133] extend are by no means, I think, fatisfac- 
 torily determined, it may not be improper 
 to confidcr the ancient as well as the mo- 
 dern law as to this head. 
 
 \\l>crtthe When, therefore, a perfon fucceeded 
 
 after-born tO an cftatC by DESCENT, Or PER FORMAM 
 
 nearei heir ,•./•, /» r » i ^ i 
 
 might have DONi, fuch eitate Jliould have been de- 
 entere . veftcd by the fubfequent birth and entry 
 of a nearer heir; but if the perfon who fo 
 fucceeded had claimed bi/ purchase (a), 
 an after-born nearer heir could not have 
 devefled it. So in the cafe of a remainder 
 or reverfion expectant upon an eftate-taii, 
 the after-born ilfue might have entered 
 and devefled the possession of the rc- 
 verfioner or remainder-man, but could not 
 have affe6led the vesting in interest 
 
 {a) Or entered on condition broken, or on fulfilling 
 fuch condition. Sed ^tare. and vide Pafch. 9 Hen, 
 7. pi. II. fol. 25. a. I ^0. 95. a. 99. b. Cro. Car. 
 87. Kirton's cafe. An^ pq/i, 173. {a). 
 
 of
 
 Ch. 4. LAW OF DESCENTS. 201 
 
 of any remainder. So alfo in cafe of ef- 
 cheat; if the lord had entered for default 
 of heirs, and a podliumous heir was born, 
 fach polihumous heir might have entered, 
 (as he Hill may enter,) upon the lord, and 
 revived the eftate. 
 
 But in order to illuflrate this matter the [134] 
 more clearly, and to point out the princi- 
 ples on which this doctrine depended, it 
 will be necelTary to obferve, that he to 
 whom a remainder is limited muft take at 
 the time when fugh remainder ought to 
 
 veil IN INTEREST. 
 
 It is fufficiently eflablifiacd that a ^Q- wheu a coa- 
 mainder muft veft during the particular ""?^"^ "- . 
 eitate, or eo injianti that it determine ; /. e. veft. 
 that no chafm or period can be admitted 
 between the expiration of the particular 
 eflate, and the veiling of the remain- 
 der (/^). 
 
 1^0 
 
 [1] Fcarne^ 233. Plovud. 25. 33, 155. 485. 489. 
 I Co. 66. b. 8 Co. 75. a. iBla. Comm. 168. ch. 11. 
 See Dou^lasy 337. Hodgfon Si. Ux. v. Amhrofe & a!. 
 
 And
 
 202 ESSAY ON THE Ch. 4. 
 
 When the So it is equally clear that he who takes 
 fake/^ "^^ ^ remainder, (z. e. at its creation, and not 
 
 And the cafe of Reeve and Long^ in Salkeld, Carthew^ 
 Lev'inz^ Sec. 
 
 And the reafon why fuch a chafm is not permitted 
 is, that the freehold may not be in abeyance. But on 
 a feoffment to ufes, before the fiatute 27 Hen. 8. c. 
 io. the legal eftate was vefted in the feoffees ; and, 
 therefore, as the intereil: of the ce/iuy que life was not 
 within the reafon, it v/as not within the rule. And 
 fo of a z^r«/? at this day. I Atk. 590. Hopkins ah 
 Dare v. Hopkins, i Fearne^ 427. 449. Cas. Temp. 
 Talb. 151. Chapman -y. Bliflett. And fee Afcor^, 720, 
 pl. 1006. 
 
 But this rule extends to remainders created by iv'ill^ 
 as well as to thofe created by deed\ though it cannot 
 extend to an executory devije; for an executory devife 
 is not a remainder, the very nature of an executory 
 devife requiring that there be no particular ejlate : for 
 if there be a particular eftate, the limitation over fhall 
 be confidered as a remainder^ and mt as an executory 
 deviie. And a limitation ihall never be confidered as 
 an executory devife where it can, in any wife, be fup- 
 ported as a remainder. See Purefoy & Rogers, 2 
 Sound, 
 
 In the cafe of an executory devife, the freehold fhall 
 dcfccnd to the heir till the contingency happen. 
 Lutivirb. 798. Clarke & Smith. 
 
 That the rule extends to copyholds, See i Watl, 
 Copyh. ch. 5. 
 
 on
 
 Ch. 4. LAW OF DESCENTS. il05 
 
 on a mefne grant,) miiit take at the time 
 of its verting an intereft: thus, one 
 Jobfon devifed certain lands in tail, re- 
 mainder to the next of his kin of his name ; 
 and, at the time of the devife, the next of 
 his kin was his brother's daughter, who 
 was then married to I. S. The devifor 
 died. The tenant in tail died afterwards [135] 
 without ififue. And the qucftion, on a 
 fpecial verdi(?t, was. Whether the daughter 
 fliould have the land? And it was ad- 
 judged, without- argument, that Ihe 
 Ihould 7iot: " For Ihe was not the?i of the 
 name of the devifor, but of her hufl3and's 
 name. But if Oic had been unmarried at 
 
 THE TIME OF THE DEVISE AND DEATH 
 
 OF THE DONOR, altJiougJi JJie HAD bceu 
 married at the time of the death of the 
 
 TENANT IN TAIL WITHOUT ISSUE, yetJllC 
 
 JliGuld have Jtad the land{c). 
 
 And 
 
 ■{c) Jobjhn's cafe, Cro. E/iz, 576. See Ibid. 532. 
 Bon ■:;. Smith. S. P. And fee i Fef. 335. 359. Pyot 
 
 V. Pyot ; and Powell on Devifes^ 347. 3 Cofn. Dig. 
 37. Devife, (N. 21.) i Strange, 30. Goodrigjit -y. 
 
 Wright.
 
 204; ESSAY ON THE Ch. 4. 
 
 When the And as the devife is confummated on 
 devifee. ^j^^ ^^^^^ ^^ ^^^ dcvifor, and the eftate 
 
 devifcd (fuppofing it not executory or 
 contingent) mull; vcft in interell: at fuch 
 his deatli in the perfon to whom given, 
 [136] or not at all; fo there muft, by the terms, 
 be a perfon then i?i e/fe who is capable of 
 taking it, agreeably to the laft-cited cafe. 
 Thus, on a devife to A. in tail, with re- 
 mainder to B. in tail, with remainder to 
 the right heirs of A. in fee: A. died with- 
 out ifllie, living teflator: B. after making 
 of the will, had iffue C. (who was alfo 
 heir at law to A.) and died in the life-time 
 of the teftator alfo: and it was refolved, 
 tliat C. could not chum, either as the ifTue 
 of B. nor as heir to A. as both died in the 
 
 Wright. I Fi;f. 114. N. Ellifon v. Alrey. 2 Fff, 
 210. Lord Teynham v. Webb. 10 Mod. (Lucas) 
 376. Goodright v. Wright. I Fent. 229. See Cro, 
 Car. 410—13. Reeve & Malfter ; and Robin/, on 
 Gavelk. Appendix. Cro. Eliz. 334 — 5. Dyetj I2g. 
 pi. 63. Bonvyll V. Payne. Hobart^ 33. And 30 Ajf. 
 47. 30 Ed. 3. f. 27. cited there. Brooke, Defcent^ 
 24. Done, 21. Co. Litt. lo. b. and note (2). 8 C?. 
 75. a. Lord Stafford's cafe. 
 
 teflator's
 
 Ch. 4. LAW OF DESCENTS. 20» 
 
 teftator's life-time ; but that the te/lators 
 heir at law Ihould have the land {d). 
 
 So, when a remainder was contingent, An after- 
 
 f born neaxer 
 
 as being limited to an uncertam perlon, ^eir could 
 and afterwards vefted in any one anfwering ;'°^^]'^^;\^''- 
 the defcription required at the time itpurchafer. 
 oucht to have veiled in intereft, in them 
 it fhould have remained; and could not 
 have been afterwards deveftcd : as if lands 
 were given to A. for life, with remainder 
 to the heirs of B. and on the death of B. 
 his daughter was heir, his wife being [137] 
 enfcint with a fon: in this cafe, immedi- 
 ately on the death of B. the remainder 
 veiled in intereft in the perfon who was 
 theii his heir; and as B. took no cftatq 
 himfelf, his heir took the remainder 
 BY purchase: the remainder, therefore, 
 verting by purchafe in the daughter, 
 the after-born fon could not have de- 
 
 {d) See 10 A4od. (Lucas) 370. Goodright -c;. Wright. 
 Ploivd. 341. Brett v. Rigden ; and the books referred 
 to in the margin of the Englifh edition. 3 Com. Dig. 
 16. Devife, (K.) i C^. 105. b. 7^oz/c/y?. 414. 452. 
 (N. 2.) Dougl. 337. Hodgfon v. Ambrofe. 
 
 vefled
 
 20(5 ESSAY ON THE Ch. 4. 
 
 vefted it(^). For as a contingent remain- 
 der muft veft during the particular ellate, 
 or CO inftanti that it determines, it muft at 
 that time veft in fuch perfon who is then 
 capable of taking it, or not at all; and 
 when it once i'o veiled in any, in them 
 ihould it have remained, and could not 
 liave been afterwards devefted: fo here it 
 muft have veiled, on B.'s death, in his 
 daughter, who was at that timehis heir ; and, 
 confequently, fhould the pofthumous fon 
 have been permitted to deveft it, the de- 
 vefting of it could not have been till after 
 the period defcribed ; and, therefore, fhould 
 fl 3Sl not have been permitted at all : for fo foon 
 
 (e) See I Strange, 30. Goodright ^'. Wright. Kitch. 
 108, b. Brooke, Defcent, 2. 24. 58. Entre Cong. 92. 
 I Co. 95. a. 137. b. 3 Co. 61. a. Plcivd. 51. 56. 
 485. 489. Hob. 31, and 33. Counden & Gierke. 3 
 Com. Dig. 51. Defcent, (C. 2.) Dyer, 129. />/. 63. 
 Bonvyll v. Payne. Cro. Eliz. 334 — 5. Frederick v. 
 Frederick, i Tef. 85 — 6. Miller -y. Turner. Dougl, 
 499. and note (i). Doe v. Fonnereau. 2 Lev. 408. 
 And I S alk. 22\i. fccond refolution in the cafe of 
 Reeve and Long. 
 
 Nor fhould he have devefted an eftate to which a 
 perfon had been remitted. See Co. Lift. 357. a. 3 
 Leon. 2. ca. 5. I Andcrf. 31. ca, 76. 
 
 as
 
 Ch. 4. LAW OF DESCENTS. 207 
 
 as B. died, fo foon had he an hen*; and fo 
 foon as he had an heir, (for he could not 
 have had one before his death, fmce nemo 
 eft hceres viventisj fo foon did it become 
 vefted ; and fo foon as it became veftcd, 
 fo foon was it immutably fixed in fuch 
 heir. 
 
 When a daughter, therefore, took by^^^^^^^.^j^^ 
 PURCHASE, as being the-then heir of her have entered 
 
 r 1 r •^ ix °'^ ^ perfon 
 
 father or of the perfon delcnbed, a poit- taking by 
 humous fon was not permitted to deveft^^"^^^^^"^^^^'" 
 the lands; but when flie took as heir by «'<'«'• 
 
 DESCENT, or PER FORMAM DONI, fucll 
 
 after-born fon ftwuld have devefted the 
 cfi:ate(/). And in this point lay the dif- 
 
 (/) Brooke^ Defcent^ 24. and 58. Kltch. ic8 — 9. 
 Doa. and Stud. Dial. i. ch. 7. See Plozud. 56. b. 
 Co. Lift. II. b. 2 Bla. Comm. 208. ch. 14. Dyer^ 
 2y3 — ^, pi, 15. Hob. 2^. Counden & Cleke. 
 
 . If Ihe recovered in value, before the birth of the 
 fon, by rcafon of the warranty of the anceftor, the foa 
 might have entered on her, for fhe recovered as heir, 
 Plowd. ^{a/'ies, ^i.ii^. 
 
 So aifo of lands in Borough Englifti, a poP:humous 
 fon fhall enter on his elder brother. See Roblnf. Ga- 
 velk. Appendix, 14. 
 
 tinclion :
 
 J 
 
 oner. 
 
 208 ESSAY ON THE Cli. 4. 
 
 lindion : though this dlftiniftion fccms now 
 jio more(o-). 
 
 [139] Again, a neaily-fimihir dillin6i:ion feeins 
 Ious^iffue"'to have exiltcd with regard to the right of 
 might have entry of a pofthumous fon on the revcr- 
 
 entered on •' ^ . • r r- i • 
 
 the reverfi- fioner or remaindcr-man, in cale or their 
 having poffeflfed themfelves of the eftatc 
 on faikire of iflue living at the death of the 
 tenant in tail whom the pofthumous fon 
 claimed to fucceed to in the inheritance: 
 As if an eftate was given to A. in tail, and 
 A. died without ilfue born at his death, 
 but leaving his wife enfeint with a fon who 
 was afterwards born; on A.*s death, as 
 there was then no iifue of his body hi effe, 
 ■ the reverfioner migiit have entered ; but 
 the after-born fon might again have entered 
 on fuch revciTioner, and revived the entail ; 
 fo til at his enjoyment of the land Ihould 
 be conlidered as a continuance of the ef- 
 tate fo given in tail : and, confequently, 
 
 \ {g) See the Stat. lo & ii JFlll. 3. c. 16. And 
 I VeJ'cy, 85—6. Millers. Turner. 2 Fef. 230. Ro- 
 binfon "j. Robinfon. i Durnford (J Ea/I, 633—4. 
 Roe V. Quartley. 
 
 if
 
 Ch. 4. LAW OF DESCENTS. 209 
 
 if A. had made any leafes which he might 
 have lawfully made, they would, when 
 the rcverfioner entered, and during his 
 polTcfsion, have been void as to him ; yet, 
 on the birth of fuch pofthumous fon, as 
 the eftate-tail revived, they would have 
 revived alfo, and bound fuch fon and his 
 ilTue as tenants in tail (A). — And fuch is [uo] 
 the prefent law. 
 
 And analogous to this feems the cafe of 
 a bafe-fee : As to I. S. in fee fo long as 
 A. B. have ilTue of his body: and A. B. 
 die without illlie born, but leaving his 
 wife enfeint: it fhould feem that, on the 
 iffue been a6tually born, I. S. might enter 
 on the perfon entitled in reverter, for the 
 fame reafons as before noticed with refpecl 
 to the reverfion on an eftate-tail. The 
 contrary, ^indeed, was affirmed by 
 Fejuier, J. (0> ^J'oi^ 1'^ Ed. III.; but 
 what was aftirmed by Fenner was denied 
 as law by Rhodes and Anderfon, Jufiices. 
 
 {h) 7 Co. S^ 9. Co. Lift. 46. a. 2 Anderf. 9, lo. 
 fl. 6. Se& I Strange^ 349, and 35 1. 
 
 (/) I Leon. 74. 
 
 p I cannot
 
 210 ESSAY ON THE Cli. 4. 
 
 I cannot find the cafe cited by Fenner re- 
 ported in the Year-book, but I prefume 
 the principle on which it went was, that 
 a condition once broken cannot be re- 
 vived. Yet even fuch pofltiou, as to this 
 point at Icafl:, feems queftionable (Ji), 
 And, however the law might formerly 
 have been taken, there can be, I conceive, 
 but little doubt that the child in ventre fa 
 mere would now be confidered as fo far, at 
 leaft, in exigence at the deceafe of A. B. 
 as to preclude the perfon claiming from 
 averring that A. B. died without ijfue. 
 
 Or on the So, alfo, whcn the lord entered in cafe 
 
 If'efcheTt!^ of efcheat for default of heirs of the te- 
 nant, an after-born heir might have en- 
 tered, as he ftill may enter, upon fuch 
 lord ; in the fame manner as the pofthu- 
 mous iffue of tenant in tail might have 
 entered on the reverrioner(/). 
 
 {k) Vide Pajch. 9 Hen. 7. pi. ii. fol. 25. a. And 
 ante^ 133. N. {a). 
 
 (/) See I Strange^ 349. Thornby v. Fleetwood. 
 Dyer^ 94. pi. 33, and 34. Chafyn and Lord Sturton. 
 3 Injl, 231. I Cc^ 98. b. 
 
 4 Again;
 
 Ch. 4. LAW OF DESCENTS. *ill 
 
 Aealn ; with refpe6i: to remainders: But not on 
 
 ^ . , Til r !• -x 1 i thercmiin- 
 
 If a remainder had been lo hmited as toder-manwho 
 have veiled in interest on fuch an ^°°J^/-^ ^'''■" 
 event, the perfon who was entitled at the 
 time it fhould fo have veiled Ihould have 
 held it again ft a pofthumous iillie, who 
 ihould not have been permitted to have de- 
 velted fuch remainder (;«)• But if a re- , 
 
 ^ ^ . . Jliteroilnm 
 
 mainder once became vefted in intereft, who took a 
 
 . , . .1 1 remainder ij 
 
 THE POSSESSION might again nave been^^^^^^. 
 devefted by fuch pofthumous perfon as well 
 as the cftate in poffefsion of the reverftoner: 
 As if lands were given to A. In tail, with fi4i] 
 remainder to B. in fee; and A. died with- 
 out iflue, (but leaving his wife enfemt,J ^ 
 on which B. had entered: the iffue after- 
 wards born might have entered on B. and 
 revived the ertate(?z). For the rule that a 
 remainder muft veft during the particular 
 cftate, or eo inflanti that it determines, 
 was already fatisfied ; ftnce fuch rule relates 
 only to its vefting in intereft. And the 
 pofttion, that when a remainder is once 
 vefted it ftiall not be afterwards devefted. 
 
 {m) See anti^ p. 136. 
 
 («) See Co. Litt. 28 1, a; 
 
 p 2 was
 
 5212 ESSAY ON THE Ch. 4. 
 
 was confined to its veiting in interefl alfo. 
 . As the cftate in intereft, therefore, is not 
 develled, or at all aflfe(5led, by the entry 
 of fuch pollhumous fon, any more than it 
 would be by the entry of the iffue born 
 during the particular eftate, there is no 
 reafon why the enjoyment of the pofTef- 
 iion ftiould not be ruled by the fame cir- 
 cumflances, fmce the principles of each 
 are the fame. 
 
 Statute of Such then appears to have been the law 
 ^'^^' 2* as to thefe fubjeds before the llatute of 
 10^ 11 Will. 3. c. 16.-, and we may 
 obferve, that where the pofthumous iffue 
 might have entered at common-law they 
 [142] are (till entitled to enter; as the law, where 
 altered, has been altered for their benefit, 
 and not for their difadvantage. And it 
 is now laid down, apparently as a fixed 
 principle, that a child in ventre fa 
 mere fliall be confidered as abfolutely 
 born (o). 
 
 The 
 
 (c) I V>'j\ 85—6. Miller ^;. Turner. And \ Durnf. 
 ^ Enji. 633—4. Roc V. Qiiartley. 
 
 An4
 
 Ch. 4'. LAW OF DESCENTS. 213 
 
 The flatute of 10 5c 11 Will. 3. c. 16. 
 has exprefsly provided for certain cafes 
 with refpe(fl to remainders; and the light 
 in which that ftatutehas been taken is very 
 favourable to the poilhumous iffue; inaf- 
 much that the difl:in6lion mentioned be- 
 tween a remainder's being vefted or not 
 vefted in intereft, before the birth of fuch 
 iffue, feems now, if not abfolutely, yet 
 certainly in a very great degree, to be done 
 away: fuch child being confidered as ex- 
 ifting, and the remainder allowed to veil 
 in him in his mother's womb(/^). 
 
 But with refpe6l to the ftatute of WilL 
 5. we may obferve, that it feems to be in 
 favour of fuch pofthumous children only 
 who take by way of remainder, and has 
 
 And fee alfo the cafe of Clarke v. Blake. 2 Bro. 
 Ch. Ca. 320. and 2 Fef. Jun. 673. and Baflett v. 
 BafTett. 3 Jd. 203. and that of Doe d. Lancafhire v. 
 Lancafliire. 5 Durnf. y Eajl. 49. and Doe d. Clark 
 v. Clark. 2 Hen. Blackjt. 399. and Bofanquet fj 
 Puller. 243. Whitelock v. Heddon. And 4 Fef. Jun, 
 227. Thellufon v. Woodford. 
 
 (/)) See 2 Bla. Comn. 169. ch. 11. Co. Litt. ii. b. 
 fiote (4) J and 298. a. note (3). 
 
 p 3 nothing
 
 2U' ESSAY ON THE Ch. .4 
 
 nothing to do with any remainders limited 
 to others dependant upon their birth. And 
 as it thus feems to relate only to fuch 
 poflhumous children who take the remain- 
 der over, fo it is exprefsly confined to the 
 1-imitation of a remainder^ and has nothing 
 to do with a defcent. The doctrine, there- 
 fore, relative to a pofthumous child taking 
 by defcent, remains as at common-law. 
 
 With refpecl, however, to remainders 
 limited to fuch pofthumous iffue, the fame 
 doctrine applies, whether fuch remainders 
 be created by deed or by will(</), 
 
 Pofihumous If an eftate be devifed to A. in fee, and, 
 on"dfe"perfon i^ ^^ die witliout leaving iffue, then to B. 
 taking a con- j^ fee; and A. die without iffue, but 
 
 tingent or ' ' 
 
 executory leaving his wife eyifeint^ and B. enter; it is 
 
 fee. . ' . ,, ^ 
 
 ri43l conceived that the pofthumous iffue of A. 
 may enter on B. and take the anterior fee, 
 And this, it is apprehended, would have 
 been the cafe even before the ftatutc of 
 Will. 3. (7). For though a fee thus li- 
 mited 
 {q) See But!. N. (3), to Co. Litt. 298. a. 
 (r) See i Fef. 85—6. Miller v. Turner. 2 Vef. 
 230. Robinfon v. Robinfon. i Durnf. & Eajl^ 634. 
 
 Roe
 
 Ch. 4. LAW OF DESCENTS. 215 
 
 .jnitcd after a fee cannot properly be faid 
 to be vefted during the exillenGC of tlie 
 iirft(/), "yet it is carrying it too far, 
 perbaps, to fay, that it is not vejled at 
 all (t);'' and we have feen that it is cer- 
 tainly fixed, as to the intereft or property, 
 in the perfon to whom limited, in, at lealt, 
 a qualified or fecondary fcnfe; as to be 
 tranfmifsible, &c. (zt). And as tliere is a 
 capacity in the latter fee to become vefted 
 in poff'efsion, fhould the anterior one 
 happen to determine, (which is the chief [14^4'J 
 chara6lerirticof ayf//tY/REMAiNDER(.r) — ), 
 it feems to follow, from the principles al- 
 ready noticed, that it W2is Jo fa?' fixed in 
 B. before the happening of the contin- 
 
 Roe V. Quartley. i P. IVms. 486 — 7. Burdett v. 
 Hopegood. See i Leon. 74. cafe 101. and cited in 
 Pre/Ion on Ejiates^ 21. ; and cafe of Buck worth and 
 ThirkwelJ, in Collet. Jiiricl. vol. i. p. 332. 
 
 (/) I Fearne on Conthig. Rem. 341. (4th edit.) 
 160. (3d edit.) Lord Raym. 203. Luddington v, 
 Kime. 
 
 {t) See ante^ ch. i. f. I. p. 5. and note [g). 
 
 (a) See ante^ ch. i. f. i. p. 5.5 ch. 3. f. 2. p. 122. 
 
 {x) I Fearne^ 328. (4th edit.) 148. (3d edit.) 
 
 p 4 gency.
 
 215 ESSAY ON THE Ch. 4, 
 
 gency, (of A.*s death without ifTue,) as to 
 have its pofl'efsion deveftable by the poll- 
 humous iffue of A. in hke manner as the 
 jpoffefsion of the remainder veiled in inte- 
 refl before that occurrence is fuffered to 
 be devefled ( j/). And as the fixture of 
 fuch an interefl is antecedent to fuch con- 
 tingent event, the enjoyment of fuch ex- 
 ecutory fee fliall be ruled by it. And as 
 to the difference with refped: to the re- 
 mainder and executory devife, as that the 
 poflefsion only of the firfl fliould be af- 
 fecled by the birth of a pofthumous perfon, 
 and, of the latter, that not only the pof- 
 fefsion, but the interefl alfo, fhall be de- 
 vefted, it is eafily accounted for from the 
 efTential difference in the nature of each 
 eftate. 
 
 If A. had made a feoffment, before the 
 flatute, to the ufesof his will, and declared 
 his will to have been, that his daughter 
 (he having no fon) Ihould have the lands 5 
 and died ; and after his death a fon ha^ 
 
 (y) 3ee ante^ p. 140. 
 
 beer.
 
 Ch. 4. LAW OF DESCENTS. 217 
 
 been bom, the feoffees fliould have en- 
 feoffed the fon(2). 
 
 As to baftard eign^ and muUer puifne.^J^^^^^^^ 
 we may obferve, that in order to bar the 
 muher and his iffue, there miift not only rj^^-i 
 be a dying feifed (either by a natural or 
 civil death, and that of lands \n fee-fimple) 
 by the baftard, but alfo a defcent caft; 
 and, confequently, where thefe two re- 
 quifites do not concur, the mulier or his 
 iflue may enter: and, therefore, if the 
 baftard die feifed without iftue, and the 
 Jord enter by efcheat, the mulier is not 
 barred: there being no defcent (r/). But 
 if the baftard had entered, and the mulier 
 died without iftue but leaving his wife 
 enfeint, and then the baftard had iffue and 
 died feifed, after whofe death the pofthu- 
 mous ifllie of the mulier was born, his 
 right was barred, and he was not permitted 
 to enter ; as there were both a dying feifed 
 3nd a defcent; and, confequently, the 
 
 (2) See Fit%h. Abr. Sukpoeno^ 23. 
 (a) Vide Mich. 37 Hen. VI. pi. I, 
 
 right
 
 218 ESSAY ON THE Ck 4. 
 
 right of the baftard eflablifhed. But had 
 the baftard died feifed without ilFu^, but 
 leaving his wife enfeint, and then the 
 niuher had entered, and afterwards the 
 fon of the bailard had been born, fuch fori 
 could not have entered on the muUer, he 
 not being barred ; there being no defcent 
 caft when the muUer entered. For though 
 the law gave the eftate to the iffue of the 
 baftard when both thefe requifites con- 
 curred, as a punifliment for the muHer's 
 [14^)] negligence, &c. yet when both thefe re- 
 quifites did not concur, the iffue of the 
 baftard had no title at all (6). 
 
 Upon the whole, therefore, we may 
 conclude, that wherever the pofthumous 
 iffue might have entered at common-law, 
 fuch iftue may ftill enter ; and that the aU 
 
 (b) See Co. Litt. 244, a. and 248. b. 8 Co. loi. 
 a. andb. Glib. Ten. 27. Brooke, Defcent, 41. 2 Bla. 
 Comin. 248. c. 15. Plowd. 57. a. 372. a. And 
 qiicere, as to the law at this day, with refpevS: to the 
 pofthumous ifluej for if the liberality of the times 
 ftiould confider fuch iffue as born, it would perhaps 
 deem io a fufEcient defcent, 
 
 terations
 
 Ch. 4.. LAW OF DESCENTS. 219 
 
 terations which have taken place, have 
 taken place in their favour. 
 
 As to the intermediate profits from theM^f^gprQ. 
 death of the anceftor to the hirth of a^^^- 
 pofthumous heir, it feems that fuch heir 
 is not entitled to them; but that they lliall 
 be enjoyed by the perfon feifed of the 
 eftate for the time being, to his own ufe: 
 as if the uncle enters on the death of the 
 father, and afterwards a fon be born, the 
 uncle iliall be entitled to the profits from 
 the father's death to the birth of the 
 fon(c). 
 
 (f) See Co. Litt. ii. b. note (4). 
 
 « Babington. Si home ad ifllie file & devie f. feme 
 enfeint la fille poit loialm. ent. & fi ele devie f. heirc 
 poit entre & prende le p.fts pur le temps ; & puis fi la 
 feme enfient p. I'aunc. p.amont. eft delivere du : fitz, 
 fon fitz poet entre non obftante q. I'heire de Ton foer 
 eft eins p. defc. mez il naver. ace. d'accompt. ne nul 
 [autre] remedie pur les iflues en le mefne temps de- 
 vaunt le neftr. pur. c. q. lour. ent. fuit cog. tanq. il 
 fuit nee." Trin. 9 Hen. VI. fol. 25. a. 
 
 And when we confider that the daughter and her 
 heir wfere juftly entitled to the freehold till the fon was 
 born, it feems to follow of neceiTity that they were 
 
 juftly
 
 220 ESSAY ON THE Ch. 4, 
 
 juftly entitled alfo to the profits, to enable them to 
 difcharge the fervlces of the lands. While they were 
 in the pofleffion of the feud they were certainly fubjcdt 
 to the fervices; and the peifon difcharging the fervices 
 by right was, as certainly, entitled to the profits. 
 See Gilb. Ten. 45—6. and 3 Blackji. Comm, 187—8; 
 ch. 10. 3 Atk. 203. Baflett v. Baflett. and JFatk, on 
 the King's claim as Guardian of the Duchy of CornwalL 
 
 CHAP.
 
 Ch. 5. LAW OF DESCENTS. 2^1 
 
 CHAP. V. [147 J 
 
 OF DESCENTS ^A' PARTE MJTERNJ; AND 
 WHAT SHALL CHANGE SUCH DESCENT, AND 
 GIVE THE PREFERENCE TO THE PATERNAL 
 LINE. 
 
 If a perfon fucceeds to an eflate as heir _ . 
 to his mother and dies without iffue, hispammaterna. 
 heirs on the part of his mother iliall inhe- 
 rit fuch eftate, and not his heirs on the 
 part of his father: and, e cojwerfo, if it 
 defcends from his father, it fhall devolve, 
 on the death of the fon, to his heirs of the 
 paternal iine(flf). 
 
 But if a perfon takes an eftatc by pur- Purchafer 
 CHASE, he takes it ut feudum antiquum', fi^^^t^^^ 
 and, confequently, it iliall defcend to his 
 
 {a) See ante, ch. 2. p. 89. Litt. f. 4. 2 Bla. 
 Cdmm. c, 14. p. 222, and 234. 
 
 heirs
 
 [US] 
 
 222 ESSAY ON THE Ch. 5. 
 
 heirs on the part of his father, as of 
 preferred, the worthiefl blood ; the law never calUng 
 in the heirs on the part of the mother to 
 the inheritance of the fon, unlefs fuch 
 inheritance had actually defcended from 
 the mother, or until the blood of the 
 father be exhauiled. And when the fon 
 takes BY PURCHASE, it could not pofsibly 
 (by the terms) have actually defcended to 
 him from the mother, or from any one 
 elfe; but, as he takes it ut antiquum, 
 the fuppofed or prefuvied defcent is from 
 the father, to whofe line the preference in 
 law is given; and, therefore, as it has 
 been faid, the ertate acquired by the fon 
 as a purchafcr ihall defcend to his heirs on 
 the part of his father (^). 
 
 For fliould a fon take an eftatc by pur- 
 chafe, and it be exprefsly limited to him 
 and his heirs of the part of his mother, 
 yet his heirs of the part of his father ihall 
 fucceed to the eftate : for it is not in the 
 power of an individual (nor even of the 
 
 {h) Litt. f. 4.^ Co. Litt, 12. J and fee <2«/^, ch. 2. 
 note Ctf), and art,; vii, 
 
 I king
 
 Ch. 5. LAW OF DESCENTS. S*25 
 
 king(c) — ) to inftitute a new kind of in- 
 heritance not allowed by the law(</). 
 
 Suppofing 
 
 (c) Bro. Patentes Cif Grantes le Roy^ 104. Hob. 224. 
 I Co. 43. b. Lord Level's cafe, cited ; and next 
 note [d). 
 
 {d) Co. L'ltt. 13.3. 27.3. Plowd. 2^1. 22S' 7 
 Co. 40. b. Beresford's cafe, i Brcwnl. 45. 2 Ibid, 
 334. 2 J. Blackjl. Rep. 1229. Roe d. Aiftrop v. 
 Aiftrop. 
 
 So if lands defcend differently from the courfe of the 
 common-law, as in Borough Englifh, for inftance, 
 the perfon feifed of fiich lands cannot alter the defcent : 
 as if one feifed in Borough Englifh make a feoffment i 
 
 to the ufe of himfelf and the heirs male of his body, 
 ** according- to the courfe of the common-law ;" the 
 words "• according to the courfe of the common-law/* 
 are void; and the youngeft, and not the eldeft Ton, 
 fliall take the entail. Dye?-^ ijc). pi. 45. Jenk.Cent. 
 220. pi. 70. S. C. ; and fee further, Of Gavelkind 
 and Borough Englifh, Robinj. on Gavelk. b. i. c. 5' 
 p. 52. 65. 74. c. 6. p. 94 — 5. and 2 Bl. Rep. 1228, 
 Roe d. Aiftrop v. Aiftrop. 
 
 But if A REMAINDER be Um'ited of lands in Bo- of a remain- 
 rough Englifh or gavelkind " to the right heirs" of a der in gavel- 
 particular perfon, the elde/l fon fhall take. For fuch ''^ * 
 cuftoms are that lands fhall descend to all the fons, 
 or to the youngeft of them ; and have nothing to do 
 with a PURCHASE, which fuch remainder evidently 
 is: and, confequently, being without the cuftom, it 
 is the province of the common-law to point out 
 
 the
 
 224? ESSAY ON THE Ch. 5. 
 
 [149] Suppofing tben an eftate defcending cv 
 parte jnaterna, we will enquire what will 
 
 be 
 
 the perfon who fhall now take as heir. See Bro. Difc. 
 59. Done^ 42. Co, Lift. iO. a. Hob. 31. i Co. 
 101. a. 103. a. and fee Roblnf. on Ga-velk. b. i. c. 6. 
 p. 117.; and I Atkins, 607. Roberts v. Dixwell ; 
 and Preced. in Chanc. 464. Brown v. Barkham. 
 Davfs Rep. 31. a. Kltch. 86, a. 
 
 And when the law afcertalns who fhall take a re- 
 mainder, we muft be careful to recolledl: that it is taken 
 BY PURCHASE. For though this is in itfelf fo evi- 
 dent, yet we may, perhaps, from want of fufficient 
 attention, be led to fuppofe that if there are more 
 than one who are heirs at law to the perfon defcribed, 
 they fhall take fuch remainder as they would have 
 fucceeded to an inheritance : for, notwithftanding we 
 muft thus have recourfe to the law (t/* descents to 
 afcertatn the perfons who are to take, yet, when they 
 are once afcertained, we have nothing further to do 
 with it; for the perfons then take AS purchasers. 
 And, therefore, if a remainder be limited to the right 
 heirs of A. and A. die during the particular eftate, 
 leaving feveral fons; as the law declares the eldeji only 
 to be his heir, the eldeft only fhall take fuch remain- 
 der. See Co-. Litt. 220. a. i Co. 104. ; and i Strange^ 
 42, Brown v. Barkham. 
 
 But in cafe A. had died, leaving two daughters, as 
 the law confiders them both as his heir, they fhall both 
 take; but as they take as pur chafers, they fhall not 
 have it /;/ parcenary, (for to do this they mufl have
 
 Ch. 5. LAW OF DESCENTS. 225 
 
 be fufficlent to break fuch defcent, and [l5o] 
 caufe the eftate to 2:0 in future to the heirs What fhaii 
 
 ° break the 
 
 €X defcent. 
 
 taken by defcent^ Lltt. fee. 254.) but as joint-tenants^ 
 or as tenants in common. See 3 Leon^ 14. cafe 32. 
 Stowell V. Earl of Hartford; and fee alfo Hoh. 33. 
 Counden & Gierke. Brooke^ Defcent^ 24. and Done^ 
 21. F. N. B. 219. b. Co. Litt. 163. b. 
 
 So if A. had had three daughters, and the eldeft of 
 them had died, leaving feveral fons ; the fecond leaving 
 two daughters; and the youngeft be living; znA. then 
 the remainder vejl : we muft enquire who were then 
 (for it matters not who were before, (at his death,) 
 or who might be thereafter. See f7«?^, ch. 4. p. 135.; 
 and Brooke^ Done., 21.) the right heirs of A.? And 
 thefc we find to have been the eldeft fon of the eldeft 
 daughter, the two daughters of the fecond, and the 
 youngeft daughter herfelf: thefe, therefore, fhould 
 take the remainder ; and they ihould take it in equal 
 portions as joint-tenants. For though had they fuc- 
 ceeded as to the inheritance of A. they would have 
 taken per J/ifpes, and not per capita (the eldeft fon 
 one-third part, the two daughters one other third part 
 between them, and the aunt the other third) ; yet fuch 
 would be the manner in which they would have taken 
 BY DESCENT, and not that in which they fhould take 
 BY purchase: for being then all equally the heirs 
 of A. they all equally anfwered the defcription given ; 
 and, confequently, all were equally entitled to takej , 
 
 and, where more than one take together, by purchafe^ 
 it muft be either in joint-tenancy or common. 
 
 Q^ And
 
 226 ESSAY ON THE Cli. 5. 
 
 FIdII ^^' P^f'^^ paterna. — And, in order to efFe6l 
 this purpofe, tlie ellate muft be made to 
 
 fix 
 
 And note: In bequefts of perfonal property to " the 
 relations" or " next of kin," of any one, the ftatute of 
 diftribution furnifhes the rule as to the objeds of the 
 bequeft, i. e, afcertains the perfons comprehended in 
 thofe terms ; but when they are afcertained, the flatute 
 ceafes to be a rule : And the perfons taking fliall take 
 per capita^ though the atl might, in a fimilar cafe, 
 order the diflribution of the effe£ls of an inteftate to 
 be made according to their ftocks or roots. See Caf. 
 Temp. Talb. 251. Tnomas v. Hole. Prec. Chanc^. 
 401. Roach V. Hammond, i Atk. 470. Harding v. 
 Glyn. I Pr. Wins. 327. anonymous; and fee Mr. 
 Coxe's N. (i) to 2 Pr. JVms. 385. Blackler v, Webb, 
 and the books by him cited. 
 
 " IJfue.^' 3 Vef. Jnn. 257. Davenport v. Hanbury, 
 And (eQ poji^ (Of perfons taking by devife.) 
 
 So if a gift be made in tail, or for life, to N. with 
 remainder over to the right heirs of P. and M. their 
 right heirs Tnall take as joint-tenants or as tenants ia 
 common. B}'o. Done^ 21. yoint-ten. 12. Formedone^ 
 30. See F. N. B. 219. B. Co. Litt. 188. a. i 
 Feanie^ 460. 
 
 When, therefore, a remainder is limited to the right 
 heirs of any one, (who takes no eftate himfelf,) the 
 words ^' the heirs" are only as a defcriptio perfdnee\ 
 and, confequently, the perfon taking muft anfwer 
 fuch defcripcion. If it be limited of lands in Ga- 
 velkind^ or Borough Englijh^ " to the right heirs of 
 
 A."
 
 CIi. 5. LAW OF DESCENTS. 227 
 
 fix in the perfon taki.ng by purchase; [152] 
 or, in other terms, tht^ eftate dcfcaiding 
 
 muft 
 
 A." without any thing farther; tbe heirs of A. at 
 COMMON-LAW (for we have now nothing to do with 
 the cuftom) ihall take. But if a devife be (though of 
 lands at common-law) to " the heirs of A. according to- 
 the cujlom of Borough EngUjh" or " of Gavelkhjd-^' 
 this being as a defcriptio perfona^ the perfon taking 
 muft anfwer it: and t\\Q youitgeji fon^ in the firft cafe, 
 and all the fans in the latter, {hall take : but ftill they 
 muft take as purchafers. See Preced. in Chanc. 464. 
 Brown v. Barkham. Robinf. on Gavelk, b. i, c. 6. 
 p. 117. and Co. Litt. 10. a. note(4). 
 
 And note alfo a difference between a limitation to j<[ext of 
 " the heirs of A." and to " the next of blood." For blood, 
 the latter limitation has nothing to do with the laws 
 of defcent: as the " heir of A." may be one perfon, 
 and " the next of his blood" another. 
 
 Thus where a remainder was limited " propinquio- 
 rihus de fanguine puerorum" of the devifor, who left 
 two fons and a daughter; the fons had no children, but 
 the daughter had two daughters; it was held, that 
 neither the fons nor the daughter ftiould take, for they 
 were pueri^ and not propinquioribiis de fanguine puero- 
 rum: but that the two daughters of the daughter 
 fliould take for their lives; and if there had been alfo 
 fons of fons or daughters, they Ihould all have taken 
 together y but that children born after the remainder 
 vefted Ihould take nothing. For that the nearefl of 
 degree in blood fhould take, and the worthie/i in order 
 (^2 of
 
 228 ESSAY ON THE Ch. 5. 
 
 [153] ^^^ ^^ DESTROYJiD Or EXTINGUISHED, 
 
 and the ertate which is to defcend to the 
 
 paternal 
 
 of defcent : the v/ords here importing no refpedl of 
 dignity^ but oi proximity of blood. 30 JJf. 47. and 
 30 Ed. 3. 27. Brooke^ Done., 21. Difcent, 24. Hob. 
 33. Co. Litt. 10. b. and note (2), 
 
 So if a remainder be limited to " the next of blood 
 of A." who has two fons, B. and C. and dies: B. has 
 two fons, D. and E. and dies: the eldeft fon of B. has 
 iflue and dies: E. fhall take, in exclufion of the ifTue 
 of D. though fuch iflue is the heir at law to A. Co. 
 Litt. 10. Kitch. 86. a. 
 
 So if A. had had two fons, and the eldeft had iflue 
 and died; the younger fon fhould have had the re- 
 mainder, and not the iflue of the eldeft: for the 
 youngeft was nearer of blood to A. than the grandfon. 
 Brooke, Done, 21. 
 
 So if A. had a father and uncle, and died without 
 iflTue, the father, and not the uncle, fhould take : for 
 the father is next of blood to the fon. Litt. f. 3. Co. 
 Litt. 10. b. u. a. note (i); and 3 Rep. 40. b. 
 
 So if he had had a father and a brother, the father 
 ftiould take : for the father is nearer in proximity than 
 a brother, i Vent. £fiSf. Collingwood v. Pace. 3 
 Co. 40. 
 
 So had he a brother of the half-blood, and an uncle 
 of the whole, the brother of the half-blood fhould 
 take ; for he is nearer in degree than the uncle. Sec 
 I Vent. 424, Collingwood v'. Face; and fee aifo 5/^oit;. 
 
 Caffs
 
 Ch. 5. LAW OF DESCENTS. 52.Q 
 
 paternal heirs, muft be an eflate entirely 
 
 new. 
 
 But to particularize the feveral cafes in [154] 
 which it has been determined when thepurchafeand 
 heirs {hall take by defcent, and when by °^^^"^^^*^^°"' 
 purchafe, would be befide the intention 
 of tlie prefent work. Nor fhall I 
 
 Cafes in Parltam. io8 — 10. Watts & al. v. Crooke; 
 and 2 Pr. Wms. 735. Cowper v. Earl Cowper. 
 
 But if a remainder descends, the defcent fhall be 
 according to the nature of the lands ; as if lands in Defcent of a 
 gavelkind or Borough Englifh be limited to A. for remainder, 
 life, with remainder to B. in fee; and B. die in ^^e • ^^ -^^^^1 j^^j^j^ 
 lifetime of A. : here, the remainder veiling in B. his 
 heirs take it, on his death, by defcent ; and all the fons, 
 (in the one cafe,) or the youngejl, (in the other,) fhall 
 fucceed to it. It is fcarcely neceflary to add, that it 
 is the fame as to a reverfion defcending. See Dyer^ 
 128. pi, 58. ; and Robinf on Gavelk. b. I. c. 5. p. 78. 
 and authors referred to by him ; and Co. Litt. 22. b. 
 23. a. 3 Pr. IVms. 63. Chefler v. Chefter; and fee 
 6 V'lner'i Abr. 194. Copyhold, (C. e.) /»/. 16. (cites 
 I Freem, /^S. fl-SS- Fox & Smith, which fee). Semb. 
 Contra, But qutrg as to that cafe. 
 
 Q 3 prefume
 
 250 ESSAY ON THE Ch. 5. 
 
 prefume to mark the precife liwe of dif- 
 tinction through all its meanders, 
 
 <* Hooks, angles, crooks, and involutions wHd,'* 
 
 which feparates the " words of purchaf^" 
 from " words of limitation;'* (but which, 
 it is remarked, have been very good clients 
 in Weflminfter-hall(€) — ). Yet, in order 
 to enable us more eafily to difcriminate 
 between thefe celebrated terms, and af- 
 certain the requifites to fix an eftate de^ 
 fcending ex parte inaterna in the heir, as a 
 purchafer, I will endeavour to lay down 
 fome certain rules or principles (/), which 
 [155] may ferve as guides in this purfuit, which 
 is certainly as important, as it fre-. 
 quently is difficult and arduous. And 
 inftead of crowding the margin with re- 
 ferences to the numerous cafes wherein 
 
 (f) 2 Eunomus, 41. 
 
 (f) Lord Mansfield, in the cafe of Long v. 
 Laming, {2 Burroiv^ 1106,) faid, "It is to be la- 
 mented that queftioiib v\ this kind have occafioned fo 
 much litigation and expence ; thebeji way to fettle them 
 is to reduce the mattery if pajfib/e, to feme certain 
 RULES.'* 
 
 ** words
 
 Ch. 5. LAW OF DESCENTS. 231 
 
 " words of purcliafe" and " words of li- 
 mitation" have been the ohjecls of dif- 
 cufsion, or defcending to the minutiae of 
 the fubje6l, I Ihall content myfeU' with 
 laying down a few fuch principles, and 
 citing a few fuch cafes, and then refer to 
 fuch authors as {hall appear to be fufficient 
 to eftablllh ^^'hat I affert. 
 
 Firft then, a per/on fiall take by pur- when a per- 
 CHASE wlien he takes an eftatc which never^?^^^^}^f^^ 
 
 •' by purcbajc, 
 
 vefted or attacJied, or might have vcfted or 
 attached, in the anceftor. 
 
 As if a fon bui/s (which is the vulgar 
 acceptation of the term purchafe) an ef- 
 tate to him and his heirs (^). 
 
 So if a remainder be limited by a Heirs gen?- 
 flranger to tJie right heirs of A. and A/^ * 
 have no eftate in the premifes himfelf: 
 thus, if there be baron and feme, who have 
 iffue a fon, and lands are letten for liie, 
 with remainder over to the heirs of the 
 feme; before which remainder falls^ the 
 
 (^) See Lltt. fee. 4. 
 
 Q 4- baron
 
 232 ESSAY ON THE Ch. 5. 
 
 [156] baron and feme die ; the fon lliall take as a 
 purchaser; and if he die without iffue, 
 his heirs on the part of the father (or 
 baron) fhall inherit, and not thofe on the 
 part of the mother (or feme) — (//). 
 
 Thus when an eftate is hmited by a 
 ftranger to the right heirs of a perfon ivho 
 takes no eftate himfelf, his heir necefTarily 
 takes by purchafe: as there is nothing in 
 the anceflor, there is nothing to defcend. 
 
 Heirs fpecial. But if the limitation had been to the 
 HEIRS special of a perfon who took no 
 eftate himfelf, and in whom fuch remain- 
 der could not even attach, yet, it is faid, 
 that the heirs fpecial Ihall not take abfo- 
 lutely by purchafe; but then it is as clear, 
 that they fhall not take abfolutely by de- 
 fcent. It is indeed a kind of neutral 
 eftate, which we fcarcely know how to 
 term. Sometimes the perfon taking this 
 uncouth non-defcript is faid to take by 
 purchafe ; at others by defcent ; then again 
 by neither, but in an intermediate manner 
 
 {h) Co, Liu, 13. a. and 298. a. 
 
 between
 
 Ch. 5. LAW OF DESCENTS. 233 
 
 between both; and by Sir M. Hale(i) it is 
 called — and called, fays Mr. Fearn{k\ 
 with emphatical accuracy — " a quafi en- 
 tali." 
 
 But where an eftate is limited to, or [157] 
 remains in, the anceflor, and another is ^^^^"^^^ PJ- 
 limited to his heirs general or fpecial, fuch hy dejant. 
 eftates fliall, in many cafes, coalcfce; or, 
 at leaft, the latter be confidered as fixed. 
 in the anceftor ; and the heirs fliall be in 
 
 BY DESCENT. 
 
 Asy " when the anceftor, hy any gift or Limitation 
 conveyance, takes an ejlate of freehold, ^"^iixin^ inthe 
 in the fame gift or conveyance an ejlate is //-anceftor; 
 
 vide poji* 
 
 tnitedy titJier mediately or immediately, to his 
 heirs, in fee or in tail, the words, " the 
 heirs,'' are words of limitation of Rule 1« 
 
 Shelly's cafe, 
 THE ESTATE, AND NOT WORDS OF 
 
 PURCHASE (/)." 
 
 (/) Hale's MSS. in Not. (6). Co. Lltt. 14. a. 
 {k) Canting. Rem. v. i. p. 108 — 113. 
 
 (/) Rule in Shelly's cafe ; i Co. 104.; and fee of 
 this rule, ante, ch. i, f. I. p. 17. and authors there 
 referred to. 
 
 And,
 
 2U ESSAY ON THE Ch. 5, 
 
 And, in order to illultrate this rule and 
 afsill us in determining when fuch words 
 (the heirs) Ihall be coniidered as w^ords 
 of purchafe, and when as words of limit- 
 ation, J ihall fpeak, firft, as to the creation 
 of fuch eftates; and, fecondly, as to the 
 cftates themfelves. 
 
 Mates CO- js^j^^ firil, as to the creation of fuch ef- 
 
 alelcmg. 
 
 tates :— 
 
 [158] Both ejlates 7nuft be limited by, or derive 
 conveyance. ^^^^^'' ^'^'^fi^Ti'i'Ce frovfi, THK SAME conveyance\ 
 or tJie ejiate in the ancejior be in him as a por- 
 tion undifpofed of, of the ejiate moving from 
 him, and by J dm fo limited. 
 
 For if an anceftor have an eftate for life, 
 and an eftate be limited of the fame lands 
 to his heirs by another co7iveyance,- the 
 heirs fliall, notwithftanding, take by pur- 
 chase, and NOT BY DESCENT (??z). 
 
 {m) See the rule in Shelly 's cafe, before ; and i Lord 
 Raym. 37. Moore and Parker 3 and fee Fearne^i 55. 
 (3d edit.) 95. (4th edit.) 
 
 So
 
 Ch. 5. LAW OF DESCENTS. 235 
 
 So if it be limited to A. for life, with 
 remainder to the heirs of B. and A. grant 
 his eftate to B. theeftates will not coalefce; 
 but the heirs- fliall be in BY purchase(70. 
 
 So where hufband and wife were feifcd 
 of a copyhold to them and the heirs of the 
 huiband ; the hufliand, after a furrender to 
 the ufe of his will, devifed it to the heirs of 
 tlie body of the wife, if tiiey fhoiild attain 
 to the age of fourteen years: The court 
 agreed, that the devife did not operate as 
 a remainder; for although the wife had an 
 eftate for life, yet this was a new devise 
 to take place after her death, and not a [159] 
 remainder joined to her eiiate((>). 
 
 So where the father /t'^//dY/ lands on his 
 fon for life, retaining the reverfion to him- 
 felf, and afterwards devifed them to the heirs 
 male of fuch ion ; the eftates did not unite ; 
 
 \n) See preceding page, note (w). 
 
 (a) I LevlntZy 135. Snow v. Cutler; and cited hi 
 Fearne^ 55. (3d edi;,) vol. i. p. 96. (4th edit.) 
 
 but
 
 f56 ESSAY ON THE Ch. 5. 
 
 but the heirs male took the entail by pur- 
 chase(/)). 
 
 Fowrer, ^^^t it fcems that if lands be limited to 
 
 A. for life, and, after A.*s deceafe, to fiich 
 7ifes as B.\ftiall appoint, and B. appoint to 
 the heirs of A. that thefe eftates JJiall 
 coalefce. For B. being merely an inflru- 
 ment, when he appoints the eftate the ap- 
 pointee is in from the grantor; and the 
 eflate fo appointed arifes, has its exig- 
 ence, and takes effe6t, from the deed by 
 which fuch power was created ; which, in 
 the cafe put, was tJie fame which limited 
 the eftate for life to A. (jq). 
 
 flGOl -^nd this, though the perfon executing 
 fuch power limit it fubje6t to the payment 
 
 {/)) Z)(7«^. 487—509, Doe v. Fonnereau. But fee 
 cnte^ p. 156. See alfo 2 Burr. 873. Goodman Seal, 
 V. Goodright. Ca. Temp. Talb. 262. Lady Lanef- 
 borough V. Fox. 
 
 { q) See Co. Litt. 299. b. note (i). (Harg. and 
 Butler's edit.) and FearfiCy vol. i. p. 99. (4th edit.) 
 2 JtL 565, and 568. Cook v. Duckenfield ; and fee 
 2 FeJ] 78. Duke of Marlborough v. Lord Godolphin. 
 
 of
 
 Ch. 5. LAW OF DESCENTS. 2^7 
 
 of debts (for if the quality of the eftate 
 be not changed, the charging it with in- 
 cumbrances vvill not alter the defcent, as 
 we Ihall prefently fee). 
 
 As where a mother fettled an eftate to 
 hcrfelf for life, remainder to truftees for a 
 term of years; remainder to her fon for 
 life; remainder to truftccs to prcfervc con- 
 tingent remainders; remainder to the fird 
 and other fons of fuch fon, in tail-male; 
 remainder to the heirs of his body gene- 
 rally; and in default of fuch ifllic, to fuch 
 ufes, &c. as ihe iliould appoint. The mo- 
 ther appointed to her faid fon (who was 
 her heir at law) In fee, fubjecT; to debts. 
 The fon afterwards died without iiliie : and 
 he was adjudged to have taken by de- 
 scent, and not hy purch(ife\ and confe- 
 quently, fuch eftate would defcend on hi> 
 death to his heirs e.v parte inaternaQ), 
 
 Secondly, as to the eflates themfelves: whateftate^ 
 
 (?) 2 Burr. 879. Hurft and apolher v. Earl of 
 Winchelfea and others i and Co, Litt. It. b. note (2). 
 
 4 Firil,
 
 ^38 ESSAY ON THE Cli. 5. 
 
 iii,Bothle- Firft, tJie cfiatcs muft he both legal, 
 
 gal, &c. T.J ? 
 
 or BOTH EQUITABLE. 
 
 [161] 
 
 And, therefore, if the cftate of thean- 
 ceftor be legal, and that to his heirs be 
 equitable, or vice verfa^ they cannot co- 
 alefce; for being of different natures they 
 cannot make one ertate(y'). 
 
 As, to the ufe of truftees during the life 
 of A. upon truft to permit hhn to take the 
 ]ij-ofits; remainder to the heirs of the 
 body of A.; the eftates will not unite; 
 but the heirs Ihall be in by purchase (/). 
 
 2dly, Both Secondly, They mufi be both free- 
 
 freehold. / , '. ^i ,, , r i 
 
 HOLD. (See the rule in Shelly s caie be- 
 fore.) 
 
 For if it be limited to the anceftor for 
 2/earSy with remainder to B. in tail; rc- 
 
 (/) See Feame on Cont'iKg. Rem. 34. Pi. (3d edit.) 
 68. 165. vol. i. (4tii edit.) In illuftrating this rale, 
 the references are chiefly made to this invaluable work ; 
 as moft of the cafes are there elaborately confidered 
 and referred to. 
 
 {t) Ibid. 34. (3d edit.) 68. (4th edit.) and fee 
 iDurnf. and Eaji^ 444—451. Silvefter -j. Wilfon. 
 
 mainder
 
 Ch. 5. LAW OF DESCENTS. 239 
 
 maindei' to the right lieirs of fuch ancef- 
 tor; the right heirs ihall take by pur- 
 chase, when the remainder veib(?^). 
 
 Thirdly, The fuhfequent limitation to the [l<52] 
 heirs muft be confined to thofe of the anceftorl^^^^^^^l 
 xcho takes a particular eftate. 
 
 For if it be to feme for life, witli re- 
 mainder to the heirs of the bodies of baron 
 a7id feme, the heirs of their bodies ihall be 
 
 in BY PURCHASE r/7Z^ NOT BY DESCENT ; 
 
 for the freehold was in the feme alone (r). 
 
 This neceffarily follows from what has 
 been faid : If the remainder be not confined 
 to the heirs of the pcrfon taking a parti- 
 cular ellate, then the remainder is, in fomc 
 degree, to the heirs of a pcrfon ivho cloca 
 
 {u) Co. Lift. 319. b. I Co. 104. a. Fearm^ 33. 
 ^53- (3^1 edit. J 65. 482. (4th edit.) vol. i. and pojf. 
 p. 165. 
 
 (at) See 2 B!a. Rep. 728. 731, 732; Frogmorton 
 d. Robinfon v. Wharrey ; and fee Fearne^y 29. 46, 83, 
 (3d edit.) and 44. 85. 177. (vol. i. 4th edit ) and fee 
 Co. Litt. 219. a. note (3); and 2 Durnf. b* EnJ}., 
 435. in the cafe of Denn v. Gillot, 
 
 5 NOT
 
 240 ESSAY ON THE Ch. 5. 
 
 NOT take a particular eftate; and confc- 
 quently not within our aflertion : for the 
 rule goes upon the fuppofition of the an- 
 ceftor's taking an eliate himfelf. And al- 
 though one ancertor docs (im the cafe 
 above) take fuch cllate, yet the remainder 
 is not merely to the heirs of fuch fmgle an- 
 cellor, but to the heirs of both ; and there- 
 fore cannot attach fingly in the particular 
 tenant. 
 
 [153] ;Biit if the heirs be confined to thofe of the 
 
 4thly, To r . 1- -in 
 
 theanceftors.jyf'70?^-? taking a particular cf late ^ it matters 
 not zcJiether the efiates of the anceftors he fc- 
 
 Joint and fe- rertf/ ffo thci/ ALL take) or joint; iwr 
 zvhether tJie remainder over be to the heirs of 
 all^ or only of fonie, or one, of fuch an- 
 ceftors. 
 
 As to baron for life, remainder to feme 
 for life, remainder to the heirs of the 
 bodies of baron and feme, it feems, 
 though the eftate tail is not executed in 
 them becaufe the limitations did not cor- 
 refpond with each other, that yet it vefts 
 in them as a rcmai?ider; (and it is faid, that 
 on the death of one, it fliall merge the 
 
 particular
 
 Cli.5. LAW OF iDESCENtS, S'tl 
 
 particular eilate of the furvivor, and then 
 become executed in poflefsion;) and, con- 
 fcquently, the heirs of their bodies fliall 
 take by defcent (y). 
 
 To baron and feme, and the heirs of tlie 
 h^^y of the baron, is an eftate tail, executed 
 fill) mo do {z)k 
 
 So to baron and ferae for their lives, 
 with remainder to the heirs of their bodies ; 
 the eftate-tail is executed, and the heirs are L^^'^] 
 
 in BY DESCENT(rt). 
 
 Nor is it of confequence luhether the eftate s^^^'^''^^^^^- 
 
 * , nunableor 
 
 to the anceftor be Jiich cs may poJsibLy deter- abfolute. 
 mine in the lifetime offuch anceftor or not. 
 
 {y) I Fearne^ 41. 43. 81. (4th edit.) and fee the 
 cafe of Webo v. Webb. 2 Vcrn. 668. 
 
 (z) I Fearne, 24. 26. {3d edit.) and 34. 38. 41. 
 (4dedit.) and poji. p. 166. See Dyer^ 9. pi. 22. Hale 
 en F. N. B. 142. B. N. (b). cites 28 Ed. III. f. 93. 
 
 {a) fee the cafe of Roe v. Aiftrop, 2 Blackji. Rep, 
 1228. ; and Fearne^ 28. 46. (3d edit.) and vol. i. p. 
 40. 81. (4th edit.) 
 
 R As
 
 24.fi ESSAY ON THE Ch. 5. 
 
 As to a widow during widowhood, or to 
 baron and feme during their joint lives, 
 remainder to the heirs of the body of the 
 widow or feme; though ihe could not 
 have had an heir of her body before her 
 death, yet fhe might have married in the 
 firft cafe, or the hulband might have died 
 in the other, before that event ; yet the 
 eftate-tail was executed (/;). 
 
 6thiy, By j^lgj. ichether ihe eftaie of the ancefior he 
 
 implication. ^ _ . . 
 
 exprefdif giveii, or arife by implication of 
 law. 
 
 As if A. feifed in fee, covenant to ftand 
 feifed to the wi^ of his heirs male by his 
 fecond wife; A. takes an eilate for his 
 own life by implication, and the eftate-tail 
 is executed in him CcJ. 
 
 But 
 
 {h) Bro. Eft. 76. Dyer.^ 9. pi. 22. Fearne^ 24. 
 (3d edit.) voi. i. p. 34. (4th edit.) 
 
 {c) I f^ent. 372. Pybus and Mitford ; and Fearne^ 
 30. (3d edit.) 49, (4th edit.) 
 
 Note J though the cafe of Pybus v. Mitford has been 
 
 queftioncd, and even denied to be Jaw, (fee 7 Vin. 597. 
 
 5 Defcent
 
 Cli. 5. LAW OF DESCENTS. 243 
 
 But here we miift obferve, that when a [165} 
 limitation is cxprefsly made of the freehold 
 during the anceftor's life, fuch exprefs ef- 
 tate rebuts an imphcation. 
 
 As where A. conveyed lands to truftees 
 and their heirs, in trufi:, during his life, 
 to permit him to receive the profits; re- 
 mainder to the firft and every other fon of 
 his then-intended marriage, in tail-male: 
 and, for want of fuch ifllie, to the heirs 
 of his body generally ; with remainder to 
 hlmfelf in fee. The exprefs eftate to the 
 truftees, during his life, precluded an im- 
 plied one in A. ; and, therefore, it was 
 
 Defcent (I), pi. 38. in marg.); yet the do6lrine as 
 laid down in the rule is correct. And though what is 
 faid in the cafe of Southcott v. Stowell, {2 Mod. 21 1. 
 and 2 Ve7-n. 735.) may be thought to invalidate the 
 vnjlance given, yet the rule ftands unimpeached ; there 
 being rAhcr cafes diredly in fupport of the dottrine. 
 See Pcrihay v. Hurrell, 2 Vern. 370. Wills v. Palmer, 
 2 J. Bl. Rep. 687. and 5 Burr. 2615. i Jtk. 596. 
 Fearnc, 17. 30. 32, &c. (3ded.); and 27. 50. 54, 
 &c. (4th cd.) Sec 22 Vln. 283. Ufes, (A. b.) pi. 2. 
 in marg. 
 
 R 2 adjudged
 
 244 ESSAY ON THE Ch. 5, 
 
 adjudged that the heirs of his body were 
 in by purcJiaJeijr). 
 
 But if the Hmitatlons of the freehold 
 be fuch as may determine during the life 
 of the grantor, and no exprcjs cftate be 
 limited to him, the ufe will rcfult to him 
 for life in remainder expectant upon fuch 
 precedent iifes, and his heirs fliall be in 
 by defc en t {(.•). 
 
 Though the determination, within the 
 lifetime of the grantor, of any eltate li- 
 mited toothers fhall not, it feems, be pre- 
 fumed, if fuch determination muft be ef- 
 fe6fcd by their ivrongj'uL a^l; as by the 
 fortViture or furrender of trull:ees(y). 
 
 But, if the freehold be paded to truf- 
 tees and their lieirs, and then any limita- 
 
 {d) Carth. 272. Tippin v. Cofin. ; dinAFearne^ 32. 
 (3d. ed.) and 52. (4Lh ed.) 
 
 {e) See 2 J. Bl. Rep. 687.; and 5 Burr. 2615. 
 Wilis <y. Palmer ; and i Fearne-^ 54, &c. 
 
 [f] Cartk. ^'jl. Tippin v. Cofin. 
 
 tioa
 
 Ch. 5. LAW Ot" DESCENTS. 245 
 
 lion be made, though only for years, to 
 the grantor, which muit take eftecl by 
 tranfmutation of poilefsion out of the 
 fcifin of the truilees, fuch exprefs Ihiiita- 
 tion to the grantor Ihall prevent his taking 
 an eftate for Ufe by impUcation(^). 
 
 If the ufe limited to others than the 
 grantor, be Wmxi^A ov\\y for years, and 7zo 
 ufe of the freehold be limited till the grantor s 
 death, the ufe of the freehold, as undif- 
 pofed of till that period, fcems to fall 
 within the dodrine of refulting ufes ; and 
 fo the anccllor have an eltate by implica^ 
 tion to which the limitations to his heirs 
 may attach (/i). 
 
 And it fecms that an eftate may fo re- 
 fult, or arife by implication, in the cale 
 of a truft, as well as of a legal eftate (i). 
 
 (g) See 2 Lord Raym. 854. Adams v. Terre-te* 
 Hants of Savage, i Fearne, 50. 
 
 {h) See Fearne, 31. (sded.) 49, 50. 61. (4th ed.) 
 
 (/) See I Atk. %c^b — 7; in the cafe of Hopkins aU 
 Pare v. Hopkins, 
 
 R 3 But
 
 24^6 ESSAY ON THE Ch. 5. 
 
 But it is faid that implication fliall not 
 be permitted in a furrender of copyholds, 
 though it may be in a will of them(^). 
 
 7thly, Me- ]^Qy {g {( of moment whether the eftates to 
 
 diate or im- 
 mediate, the anceftor and the heirs be mediate or imme- 
 diate. (See the rule in Shelly*s cafe, be- 
 fore.) 
 
 As to A. for life, remainder to the heirs 
 
 of his bodv; or to A. for life, remainder 
 
 to B, for life , remainder to C. in tail-male ; 
 
 [1^6] remainder in tail general; remainder to 
 
 the right heirs of A. (/), 
 
 sthly, Veft- ]sfor whether the eftate to the heir be fuch 
 
 in? or not ^ ^ ., r n i 
 
 vefting. asmuft neceffarily, or may pojsibti/, vest in 
 
 {k) See I Brown! . 127. Allen & Nafh. Cro. Car. 
 366. Seagood & Hone, i Fearne, 200. (sded.) 416. 
 (4th ed.) iWatk. Copyh. 115. 
 
 (/) Trln. II Hen. IV. fol. 74. b. pi. 14. Fitz. 
 Abr. Feoffme-nte, pi. IC9. Co. Litt. 22. b. 319. b. 
 Jenk. Cent. 248. pi. 38, See 2 Atk. 57. Godolphin 
 V. Abingdon; and 247. Colfon v. Colfon. And 
 Douglas., 506. note j and Fearne^ 21. 25. (3d edit.) 
 and p. 30. 102, (4th edit.) 
 
 the
 
 Ch. 5. LAW OF DESCENTS. 247 
 
 the ancejior or not: for tJiough there be an 
 utter impofiibilily of its ever fo vefiing at all, 
 yet if it attaches in him as a contingent p^^^^^\^i^g^ 
 remainder, the heir Jliall be in by descent. 
 
 As to A. and B. during joint lives ; or to 
 hufband tor life, remainder to wife for life; 
 remainder to the heirs general or fpecial of 
 the one dying firft^ or oUJiefurvivor: though 
 the limitation over is only a contingent 
 remainder, yet it attaches in the anceitor, 
 and the heir ihall be in by DESCENT(7?i), 
 
 But this rule applies only to thofe cafes in 
 which the eftaie to the heir is limited by 
 WAY OF REM7\iNDER, and does not extend 
 to thofe in whifih the eftaie to the heir is A 
 
 CONDITIONA]^ LIMITATION {ll). 
 
 For, as the particular eftate and the 
 remainders o\ er are but fo many portions 
 
 (?«) Co. Lift. 387. b. I Brozun's Chanc. Cafes^ 584. 
 Appendix. Highway & al. v. Banner U al. j and fee 
 J Fearne^ 32. 38. 133. 521. (4th edit.) and Co. Litt, 
 191. a. note (i). (Harg. and But. ed.) and Ibid. 26. 
 a. Prejion on Shelly s cafe^ 65. 
 
 (n) I Fearne^ 414. 416. 
 
 R 4' of
 
 24S ESSAY ON THE Ch. 5 
 
 pf the fame eftate, they fliall, when they 
 attach in the fame perfon, as before no- 
 ticed, be fo united as to caufe the heirs to 
 be in by defcent. 
 
 But the nature of a conditmial Umitation 
 is effentially different from this. The con- 
 ditional Hmitation is 7iot a portion of the 
 eftate firft created, but a new o?ie to take 
 place on a fpecified contingency on which 
 the prior one is utterly to ceafe; thefe, 
 therefore, are incapable of coalefcing, 
 fmce they cannot exiit together. 
 
 , A remainder is to commence when the 
 
 particular eftate is, from its very nature, 
 to determine ; it is, as it were, a conti- 
 nuance of the fame eftate : it is a paj^t of 
 the fajne whole. A conditional limitation 
 is not the continuance of the eftate firft 
 limited, but is entirely a different and fe- 
 parate one: it is not to commence on the 
 determmatmi of the firft, but the firft is to 
 determine when the latter commences • 
 it is the commencement of the latter 
 which refcinds and deftroys the former, 
 and not the ceafing of the former which 
 
 gives
 
 Ch. 5. LAW OF DESCENTS. 249 
 
 gives exigence to the Jalt. The particular 
 cllate and remaii.dcrs are, in t\\S:, (as 
 the very terms imply,) but one and the 
 fame eflate. The cftate lirlt appointed 
 and the conditional limitation are feparat^ 
 and didimSt eftateb(o). 
 
 As to EXECUTORY DEVISES, they may 
 ]/e divided into two elalics. '1 he tirfl con- 
 lifts of tbofe cafes in whicli there has been 
 a prior difpolition of the zdiolc fee; and 
 the fecond, of thofe in which there has 
 been iio prior limitation made of the ef- 
 tate. 
 
 The firfi: clafs falls immediately within 
 the obfervations we liave made with ref- 
 pe(5l to conditional limitations. And as to 
 the fecond, tl^e very nature of the limi- 
 tations it embraces is that there be no par-' 
 tlcular eftate to fupport tjiem ; for if there 
 be a particular eftate, they aie not executory 
 devifes but remainders (^p) : as if a limita^ 
 
 {o) See I Fearnej 9, &;c. 414. 416. Sand, on Vfeu 
 1^2, he 
 
 {p) See ante-i 134. N. (a). 
 
 tlon
 
 250 ESSAY ON THE Ch. 5, 
 
 tion be to the unborn Jon of A.: in thefe 
 cafes, there being no particular cftate, 
 there can, of necefsity, be none with 
 wliich the executory limitation can unite. 
 
 Eftate to the But as to a remainder^ we may here re- 
 heu- fixed m j^^j.}^ oncc for all, ihixi xvhenever an an- 
 
 tiic aaceitor. ' ' 
 
 cejior takes tJte requifite particular cftate^ the 
 fiibfetjuent limitation to his heirs general or 
 Jpccial is bij the law fixed in such an- 
 cestor; and if the fubfequent limitation 
 to the heirs be imconditional, it then vefts 
 ^ J in fuch anceftor; and if immediate aifo, 
 (as to A. for life, with remainder to the 
 heirs of his body,) it then is executed 
 in him in possession: if it be iiiediate^ 
 (as to A. for life, remainder to B. for life, 
 remainder to the heirs of the body of A.) 
 the fubfequent limitation to the heirs is a 
 remainder vested in tpie ancestor, 
 SUB modo, but not to be executed in hiin in 
 POSSESSION till the determiiiation of the 
 mefiie eftatc. But if the fubfequent limi- 
 tation be contingent, (as to the heirs of the 
 anceftor dying firll,) then it attaches in the 
 nnceftor as a contingent remainder: And 
 if fuch contingency happen in the lifetime 
 
 of
 
 Ch. 5. LAW OF DESCENTS. 251 
 
 of the anceftor, it then becomes vefted in 
 hhn: and, coni'equently, in ail thefe cafes 
 the heirs fliall take by descent (^y. 
 
 Ajid zcjhat has been /aid applies as icell to gthiy, Copy- 
 coPYHOLDS as to freeholds (^)-), 
 
 So alfo as well to legal cftates^ by de- 'oj^^y' Le- 
 
 ^ "^ gal eitatesby 
 
 VISE as by deed(^f). devife. 
 
 So alfo as to trufts executed, or com-iuhiy, 
 
 1 r T rc ci. Trulls. 
 
 pletely declared, and lo as to take ettect 
 immediately under the deed or will ori- 
 ginally creating the trult; with refpe^l 
 
 (j) See Fitzh. Feoffrnent, pi. 109. Reliefe^ 4. Bro, 
 Done. II. EJiates^ 6. Relief e, 2. See Kitch. 146. a. 
 Co. Litt. 319. b. 345. a. I Harg. LaiuTra^s^ 497. 
 499, 500. 503. J and I Fearne^ 2>1 — ^' ^^^ '^4- 108. 
 (4th edit.) 
 
 (r) See i Strange, 487, Smith v. Triggs; and 
 Fearne, 43. 49. (3d edit.) 79. 88. (4th edit.) 
 
 (/) Feam'e.^ SI- (S^edit.) 96. (4th edit.) And fee 
 3 Jtk. 294. Warrick v. Warrick j l Harg. Law 
 Travis, 502.; and 3 Fr. Wms. 259. Atkinfon v. 
 Hutchinfon. 
 
 to
 
 252 ESSAY ON THE Ch. 5. 
 
 to which, the fame conflruction prevails 
 as in the cafes of legal eftates (^). 
 
 But as to trufls executory, or to be car- 
 ried into execution by fome future a6l, as 
 thofe in which the limitations arc imper' 
 feci and fomething is left to be done by 
 the truftecs in the firft place, and, fe- 
 condarlly, by a court of equity; they are 
 molded by the court as heft to anfwer the 
 intent of the perfon creating them (2^). 
 (Though, where it does not violate fuch 
 intent, the fame rule is appHed even to 
 trufls executory as to legal eflates(2)— ), 
 
 ri68l And, therefore, the words '•' heirs of the 
 Words of body" are frequently taken as words of 
 
 purchafe. ■ '' 
 
 {t) See Ca. Temp. Talb. 19, Lord Glenorchy v. 
 Bofville. I Fearne^ ijl. 190, &c. 2 Fef. 655. 
 Garth v. Baldwin. 
 
 (ti) Ca. Temp. Talb. 19. 1 Fearne^ 167, &c. igo. 
 20J. 205. 217, &c. I Atk. 608. Roberts -y.Dixwell; 
 and fee Bagfhaw & Spenfer in Collet. Jurid. 412. 
 
 (jf) 2 V(J. 655. Garth v, Baldwin, i Fearne, 184. 
 204, &c. 
 
 PURCHASE,
 
 Ch. 5. LAW OF DESCENTS. S)53 
 
 PURCHASE, If applied to trulls, when they 
 
 would not be fo it' applied to legal eftates; 
 
 and when fo taken, are srenerally con-^'"<^ ^^"^^~ 
 
 ilrued to the iirft and other fons, &e. in 
 
 flria fettlement(7/). 
 
 Thus, 
 
 (yj This conflruilion is chiefly' applicable in the 
 cafes of marriage articles. 
 
 For as, in marriage articles, a provifion for the 
 ifTue appears to have been the chief end in view, a 
 court of equity w^ill often confider them as purchafers, 
 (i Pr. JVms. 145. Bale & Coleman; and 291, Sealc 
 & Seale,) and decree a ftriil fettlement in the children ; ' 
 
 in order to prevent one of the parents only from fruf- 
 trating that intent, by deftroying the entail which 
 might otherwife have taken place in the parent ac- 
 cording to its legal conPcru(Stion. 
 
 And, therefore, where there is no danger of fi;ch 
 end being fo defeated, a court of equity will not inter- 
 fere, but fufFer the words to have their legal operatioii, 
 and the entail to remain in the parent ; as where the 
 wife is made tenant in tail of lands moving from the 
 hufband. 2 Fef. 358. Howell ■:;. Howell. 2 Jtk. 
 477. in the cafe of Green v. Eakins & al. i Fearne^ 
 131, he. 162, &c. 2 Fr. Wilis. 355, note. 
 
 But it feems that this rule will not hold as to copy- 
 holds ; the ftat. II Hen. 7. c. 20. not extendino- to 
 them. See 2 Criiije^ 158. 2 Vej, 358. note. 
 
 For
 
 ESSAY ON THE Ch. 5. 
 
 Thn?, when a particular edate of free- 
 hold is in the anceilor, the fubfequent li- 
 mitation 
 
 For where the power of altering fuch trufts has been 
 vefted in both parents, the court has refufed to inter- 
 fere. 2 Fef. 358. Whateley v. Kemp, (cited) i 
 Fcarne^ 1 32, he. 
 
 So where a ftrifl fettlement appeared to have been 
 man'feftly contrary to the intent of the parties. 2 Vef. 
 358 — 9. I Fearne^ 135, &:c. 
 
 Nor will the court interfere where a fettlement has 
 Jbcen made by the parties fubfequently to the articles, 
 but before the marriage : for the fettlement will, in 
 fuch cafe, be confidcred as a new agreement, and (o 
 controul them. Ca. Temp. Talb. 20. Legg v. Gold- 
 wire. I Fcams., 154. 2 Pr. TV?ns. 356, note. 
 
 Unlefs fuch f.ntlement be exprefsly alleged to have 
 been made in purfucince or performance cf the articles ; 
 fo that the prefumption of a new agreement be done 
 away. 1 Pr. JVras. 123. Honor v. Honor. 2 Ibid. 
 349. Weft V. Erifley; and 356, note. Ca. Temp. 
 Talb. 20. Legg V. Goldwire. i Fearne, 13B, &c. 
 
 But where the fettlement is m.ade after marriage, 
 the court will fetup the articles againft the fettlement. 
 ^ Atk. 371. Hart ^•. Aliddlehurft. Ca. Temp. Talb, 
 20. Legg V. Goldwire. Ibid. 176. Strcatfield v. 
 Streatfield. 2 Jtk. 39. Glanville v. Payne. 
 
 Yet where other property of a parent is limited to 
 any of the iflue, and the ifluc fo provided for bring a 
 bill for carrying the articles into ftrift fettlement, the 
 perfon fo bringing the bill (hall, in many cafes, be put 
 
 to
 
 Ch. 5. LAW OF DESCENTS. 255 
 
 mltation to his heirs general or fpecial 
 fliall be fixed in fucli anceltor, and the 
 
 heirs 
 
 to eletSllon before the court will decree the execution 
 of them. Ca. Temp. Talb. ijC. btreatfield -y. Streat- 
 field. See 2 Jtk. 39. Glanville v. Payn^. 
 
 But if there were no articles entered into previoufly 
 to marriage, there can, of neceffity, be none to con- 
 troul a fettlement made afterwards ; and where there 
 are not articles as well as a fettlement, the court will 
 not conftrue words which make a legal eftate-tail in 
 the parent, to the firft and other Tons, &c. 3 yftk. 
 294. Warwick v. Warwick. 2 Jik. 39. Glanville 
 V. Payne. 
 
 Unlefs, indeed, there is a direct declaration in the 
 recital of the fettlement that it was the intention of 
 the parties to make a provifion for the iilue, by fe- 
 curing the premifes fettled, for their benefit, in which 
 cafe the court will effcdluate fuch intention by de- 
 creeins: a ftridt fettlement, if the words of the deed 
 would otherwife give an eftate-tail to the parent, and 
 enable fuch parent, at law, to defeat the provifion for 
 the iflue, contrary to the recited intention. But where 
 the recital to affure the lands is in general terms, or, 
 exprefsly, to fettle them " ts the ufes thereinafter men- 
 tioned*' a court of equity will not interfere, but fufFer 
 the words to have their legal efted:. See 3 Brown's 
 Chanc. Ca. 27. Doran -y. Rofs. i Vef. Jim. 57. S. C. 
 and 170.; and fee 2 /^i/ 351. Howell ■y, Howell j and 
 Cowpery 12. Moore V. Magrath. 
 
 And
 
 25^ ESSAY ON THE Cli. 5. 
 
 i2thly,UIti- heirs in by descent; and fo alfo xvhai 
 don^o^he' ^^''-'. ultimate limitat'tOiL is to the heirs gc^ 
 
 heirs of the y^^,,.^^/ 
 
 grantor. 
 
 And note ; that, in cafe of articles, it is not 
 enough that they be recited; they muft alfo be pro- 
 duced. Atnbler^ 515. Card well "i). Mackerill ; and 
 I Fearne^ 159. 
 
 Nor will a ftrift fettlement be decreed in favour of 
 collaterals y unlefs it fhould be apparent, from the cir- 
 cumRances of the cafe, that they were included in the 
 confiderations j for the intention of fuch articles feem^ 
 prima facie to be only to provide for the ijjite of the 
 marriage: or 'Unlcfs the articles be decrted as to the 
 perfons firft claiming; in which cafe the court will 
 decree in their favour alfo; as it always executes ar- 
 ticles in t'jto^ or not at all. See 10 Alod. 533. Ofgoode 
 V. Stroud. 2 Pr. Wms. 245. S. C. 2 Ibid. 594. 
 Vernon V. Vernon. I /v/- 73- Stevens "y. Trueman. 
 3 Aik. 186. Goring v, Nafh. 
 
 But, as the chief view of the court is to fecure a 
 provifion for the ifTue independantly of the parent, it 
 will decree an execution In favour of the children of 
 the party covenanting to convey, and tor whom that 
 parent was morally obligated to provide, although fuch 
 children be not the ilTue of the very marriage in con- 
 fideration of which the articles were ei>tered into j as 
 thofe of a former, or of a future, marriage : or where a 
 fether covenants to fettle lands on the marriage of his 
 fon, with remainder over to a daughter and the heirs 
 of her body, it will carry the articles into execution 
 in favour of the ifiue ofthe daughter j fince the father 
 
 was
 
 Ch. 5. LAW OF DESCENTS. ^n 
 
 7ieral{z) of the grantor or devifor, or any 
 undifpofcd of portion of the ejiale continue in 
 him, his heirs Jhall fucceed thereto by de- 
 scent, though THE ANCESTOR HIMSELF 
 TAKE no PARTICULAR ESTATE. For fucll 
 
 ultimate limitation will itill be in him as a [1G9] 
 
 reverfion{ja), 
 < 
 
 was morally obliged to provide for her alfo. See the 
 cafes laft V;ited j and, particularly, Goring & Na(h. 
 I lAf. 216. and I Jii. 265. Newftead& al. v. Searles 
 k al. Coiuper, 710. Doe d. Wnt^on v. Routledge. 
 
 In ca&s of wills, where the claimants are merely 
 voluntee'rs, the court will not aid. See i Fearne^ 163, 
 &c. ^de alfo 2 Pr. Wms, 684. N. (i). Barnard v. 
 Larger, (cited). 
 
 Nor will equity decree a ftri<3: fettlement, even m 
 the cafe of articles, againft purchafers for a valuable 
 colifrideratlon and without notice. 3 Jtk. 291. War- 
 w'ick V. Warwick, i Fearne, 156, &c. 
 * But a fettlement, though made after marriage, by 
 a perfon not indebted at the time, will be good againft 
 fubfeqiient creditors, i Jtk. 15. Ruflell & al. v: 
 Hammond &c al. Ibid. 265, Newfted v. Searles. 2 
 f^ef. II. Lord Townfhendz'. Windham, 2 Brown's 
 Chanc. Ca. 90. Stephens v. Olive. Coivper^ 7051 
 Doe d. Watfon v. Routledge. 
 
 (z) Se& pDjl, 179. of a deed, &c. 
 
 ' {a) See I Fearne^ 66. (4th editO' 
 
 s And
 
 S5S ESSAY ON THE Cli. 5* 
 
 And as to this, the rule is, that 
 
 Portion un- Whatever portion of the ejiate (h), or ufe (c), 
 ^^^znlfihtor truji{d), is not disposed of, remains 
 oldefiate. -^^ ^j^^ perfou ivko difpofes', and ivill de- 
 scend to his right heirs: for being part of 
 the OLD ESTATE, it Jluill Continue to go as 
 if no difpofition at all had been made of it ; 
 i. e. if it had defcended from the mother, to 
 the heirs of the part of the mother, and vice 
 verfa. 
 
 I And this although a particular eftate or 
 fum be exprefsly given or limited to the 
 heir at law : as if lands are devifed to truf- 
 tees to fell, and, out of the fale-money, 
 
 {b) 3 Pr. Wms. 63. Chefter v, Chefter. Ca. Temp. 
 Talb. 44.. Hopkins v. Hopkins, i Jtk. 581. S. C. 
 Biitl. N. (i). to Co. Litt. 271. b. S. C. Preced. 
 Chanc. 542. Emblyn v. Freeman. 
 
 {c) Co. Litt, 23. a. 271. b. and N. (i). 
 
 (i) 3 Pr. JVms. 21. Crufe v. Barley, and N. (i) 
 i Vern. 644. Hobart v. Countefs of Suffolk. Ca, 
 Temp. Talk. 165. Robinfon ^'. Comyns ; and 254 — 8. 
 Manfell v. Manfell. 2 Atk. 150. Lloyd v. Spiller. 
 I Vef. 108. Arnold v. Chapman ; Hopkins v. Hop- 
 ins i and Emblyn v. Freeman j ubifup, 
 
 to
 
 Cii. 5. LAW OF DESCENTS. 259 
 
 to pay one hundred pounds to the heir at 
 law, yet he fliall have the undifpofed-of 
 furplus alfo. So, if an cliate for life be 
 devifed to the heir, he iliall have the rc- 
 verfion too(6'). But if no further difpofi- , 
 lion be made than to the heir for his life, 
 the fee defcending fliall merge the life ef" 
 tate(y). 
 
 As if a perfon, feifed ex parte 77iaterna^ 
 devife or grant in tail, the reverfion v^ill 
 remain in him, and Ihall defcend to his 
 maternal heirs (o-). 
 
 So if he, after feveral mefne eftates, 
 limit the ultimate " remainder*' to his 
 own right heirs; for it is not a remainder, 
 though it be called fuch, but the reverfion, 
 which Ihall defcend as before (Ji). 
 
 And 
 
 {e) Preced. Ckanc. 162. Randall -z/* Bookey. i Pn 
 fVms. 390. Starkey v. Brooks. 
 
 (/) See 3 Leoit. 26: Ca. 53. Crs. Jac. 260. Wood 
 t*. Ingerfole. 
 
 {g) See 2 Injl. 335. Litt. f. 19. j and Co. Lltt. 22* 
 b. and 2 Bla. Comm, ch. 7. p. 112. 
 
 {h) See Jenk. Cent. 248. pi. 38. Bro. Livery^ ^ 
 
 Ouji le Main. 61. Ten. ^\.\ and ^ Atk. 57. Godol- 
 
 s 2 phin
 
 260 ESSAY ON THE Ch. ^. 
 
 And this although fuch ultimate limita- 
 tion he provifwnally nv^dic : as if the ancef- 
 tor covenant to ftand feized, or make a 
 feoffment, to the ufe of his wife for life, 
 with fuch ultimate limitation to his own 
 right heirs ; with a provifo that if the wife 
 be difturbed by the heir, or any claiming 
 under him, then to the ufe of the wife 
 and her heirs. For fuch limitation to his 
 own heirs is void as a remainder ; being 
 part of the old eflate, to which the heir 
 fliall fucceed by defcent(i).. 
 
 £l70] And note; that where the ultimate li- 
 mitation of the wife's eflate was to the 
 right heirs of the wife, with a provifo for 
 the wife to difpofe of it " as flie fhould 
 think fit," it was held to be only a new 
 qualification of the old estate, and not 
 
 phin V. Abingdon. 2 CV. 91, b. Bingham's cafe; and 
 cafes there cited. 
 
 So of" copyholds \ fee i TFatk. Copyh. 95. 
 
 (;) See Mocre, 742. pi. 1022. Bartor/s cafe; and 
 fee Z)y<?r, 124. pi, 38. Cro, Eliz, 919. Haynfworth 
 V, Pretty. 
 
 a7i
 
 Ch. 5. LAW OF DESCENTS. ^l 
 
 an alteration of it till fucJi new qualification 
 Jliould be executed (^k). 
 
 But if an cftate be to A. for life, with ;;^^^'^^;j^^^ 
 remainder to " the next heir male" of A. number, 
 in the singular number, and words of 
 
 LIMITATION- BE GRAFTED THEREON, 
 
 fueh heir ihall take by purchase : the 
 words " next heir male" being only ex- 
 prcfbive of the pcrfon who Ihould take, or 
 as a dejcrijjtio perfojueQ), 
 
 And we may obfervc, on this point, that, 
 when an ertate for life is limited to a per- 
 fon, and another is limited over to his 
 heirs, or iliue, if it ihould appear that by 
 the words heirs or ifllie was meaned a cer- 
 
 {k) Abbot -y. Burton, ii Mod. i8i.; and in 14. Fin, 
 Heir, (W. 2.) pL 6. p. 289. 
 
 (/) See Archer's cafe, i Co. 65. ; and fee further, 
 Fearyie^ I02. 294. (3d edit.) and 229. 548. (vol. i. 
 4th edit.) Powell on Devifes^ 363. Godbolt, 155. 
 pl. 207. Robinf. on Gcrjelk. b. i.e. 6. p. 95 — 7. 
 2 Strange^ 731. Goodright (^. Lifle -u. Pullin & al.'t 
 and fee Harg. note {4) to Co. l^itt. 8. b. and authors 
 there referred to; and i Harg. Law TraSfs^ 505 — 7.; 
 and 2 Burr. mo. Doe d. Long v. Laming. 
 
 s 3 tain
 
 $6^ ESSAY ON THE Ch. 5. 
 
 tain or particular pofan, with relation to 
 the time when fuch limitation fhoiild take 
 place, (as the death of the tenant for life,) 
 then fuch words ihall be zcoj'ds ofpurchafe ; 
 but if the teftator intended to compre-. 
 hend, by fuch words, a claf$ or denomina^ 
 iion of licirs^ and intended to embrace them 
 indcfinitiiy^ then they fliall be ivovds of lU 
 viitatiofiQii). 
 
 Refulting So (ilfo if the entire ufe rejults; he being 
 
 then in of his micient ufe. 
 
 [171] 
 
 For the ufe follows the nature of the 
 land from which it fprings ; " as th@ 
 fhadow follows the body." 
 
 . And, therefore, if a perfon, fcized of 
 land as heir on the part of his mother, 
 jiiake a feoffment, or levy a fine, fur cog- 
 nizdvce de droit come ceo, 8Cc. without de- 
 claring the ufcs to which it fliall enin*e, 
 
 [m) See Harg. Law TraiiSy 561. i Bro» Ch, Caf. 
 
 20&. Jones V. Morgan. 
 
 ^ the
 
 Ch. 5. LAW OF DESCENTS. 2<5S 
 
 the ufe ref Lilts; and tlie heirs on the part 
 of the mother ihall fucceed (tz). 
 
 So the refulthig ufe of gavelkind -lands 
 fliall defccnd to all the fons; and of lands 
 in BoroLigh-Englilh to the youngeft/^o). 
 
 So a refulting ufe of copyholds fhall 
 follow the cuitomary defcent(/;). 
 
 So alfo of a truU((7). 
 
 And, as the ufe fliall follow the defcent, 
 fo fhall it rcfult alfo according to the quan^ 
 tily of the cfiatc which the grantor or 
 grantors had before in the lands : as if 
 there are two joint-tenants for life, with 
 
 {n) Co. L'ltt. 12. b. N. (2). 13. a. N. (2). 2 Co, 
 58.3. Beckwith's cafe ; and pi?/?, 181. 185 — 7. 
 
 {0) See Robinf. Gavelk. 78 — 9. b. I. ch. 5. and 
 authors by him cited. Bro. Fecffm. al. Ufes, 32. j and 
 fee 2 f^ef. 300. Fawcett v. Lowther. 
 
 (/>) See Fawcett v. Lowther, ubt fup. See 22 Fin, 
 Ufes^ (Y. a.) /./. 6. i JVatk. Copyh. 215. 
 
 {q) Fawcett v. Lowther; and 22 Fin, UfeSy (D). 
 pi. 7. JVatk. Copyh, ubi fup. 
 
 s 4 the
 
 25i ESSAY ON THE Ch. 5. 
 
 the remainder over in fee to one of them, 
 the life fliall fo refiilt ; and they fhall con- 
 thiue in in the fame manner. So of tenant 
 for life and reverrioner(r). 
 
 Truft. r So if the ultimate limitation oy a trust 
 
 be to the right heirs of the perfon creating it^ 
 fuch heirs take by descent, ivhilefuch truft 
 continues: for trufts are fubje6t to the 
 fame rules, as to defcents, as legal ef- 
 tatesf/). But if fuch heir gain the legal 
 eftate by defcent or purchafe, fuch truft 
 eftate becomes extin(?t (j). 
 
 Incidents And as the ultimate limitation for re- 
 
 ^^ll^'^^^^'^'verfio?iJ of an efiate Jliall thus defcend to the 
 
 heirs of the part of that parent from ivhom it 
 
 (r) 2 Co. 58. a. Beckwith's Cafe, i Co, 126. b, 
 Chudlei^h's cafe. 
 
 (/) 2 JPr. Wjns. J 12' Banks ^. Sutton. 736. Covvper 
 V. Earl Cowper. 2 Bin. Cojnm. ch. 20. p. 337. ; and 
 fee I Jtk. 596. Hopkins v. Hopkins. 2 Jtk. S7' 
 Godolphin v. Abingdon. Ca. Temp. Talb. 3. Lord 
 Glenorchy v. Bofville. 
 
 {t) See the cafe of Doe on dem. ^Balch v. Putt, in 
 Dougl. y]!. zn^pojl, 181, 5v'c. 
 
 came^
 
 Ch. 5. LAW OF DESCENTS. 265 
 
 came, fo fiall its incidents: as, from 
 the very nature of the thing, the mciclcnt 
 fliall follow, and be ruled by, its prin- 
 cipal. 
 
 And, therefore, if A. feizcd in fee fjRent, 
 parte materna makes a gift for life, or in 
 tail, referving rent, and dies without ilfue, 
 the rent fliall go to his heir on the part of 
 his mother (z^). 
 
 So if he had had a rcnt-feck, and a di- [172] 
 Jirefs was afterwards granted to him and ^ ' " 
 his heirs, the diltrefs Ihould go with the 
 rent, as an incident to it, to his heirs ex 
 jjarte materna {x). 
 
 So if he has a houfe ex parte 7nater?ia,'E^ov€tt, 
 and one grant to him that he and his heira 
 fliall have competent ejiovers to be burned 
 in fuch houfe; thcfe, though a new pur- 
 chafe, iliall go with the houfe, as appur*. 
 
 («) Co. Litt. 12. b. and/;?/. 
 
 {x) 8 Cq. 54. a.j and Co. Litt. i%, b. 
 
 tenant
 
 Q.6G ESSAY ON THE Ch. 5. 
 
 tenant to it, to his heirs of the part of his 
 mother (3/)/ 
 
 Condition. But a condition, it is faid, fiiall not go to 
 the heirs of the part of the mother, for it 
 is not an incident: and, therefore, if fuch 
 eftate had been granted on condition, the 
 heir ex parte paterna fhould have taken 
 advantage of it; but the heir ex parte 
 MATERxVA might have entered on him, 
 and enjoyed the ell:ate(2). 
 
 [173] Thus, fo long as the eftate which is de- 
 rived 'CX parte materna continues, fo long 
 fliall it DESCEND to the maternal heirs; but 
 if fuch eftate be made to fix by purchase 
 in him who is heir ex parte materna, the 
 eftate fo fixed iliall defcend to his heirs on 
 the part of his father, as before afferted. 
 
 [y] 8 Co, 54. a. 
 
 (2) Co. Liu. 12. b. Plowd. 57. a. (where Mon^ 
 iague. C. J. calls this ^' a cunning cafe.") 
 
 But indeed the do6lrine fcems juftly queftionable. 
 $t&Robbjf.onGavelk. b. i. c. 6. p. 121., aiid note.
 
 Ch. 5. LAW OF DESCENTS. 267 
 
 We will now, therefore, proceed to en- ^'^^^ ^^^^ 
 
 ' ^ ^ cliange the 
 
 quire what a6t of the perfon, feized ex purte descent from 
 
 . , r 1 • 1 • t'^^ maternal 
 
 matenia, will hx the eltate lo derived, in to the pater- 
 him or his heirs by purchase, and, con-^^^^^^"^' 
 fequently, change the defcent to the pa- 
 ternal line ? 
 
 And to effect this, he viujl acquire, orNeweHate, 
 give, A NEW estate: for if the perfon 
 taking be in, in any wife, of the old one, 
 Jie is not inASApuRCHASER: and, there- 
 fore, its defcent will 7iot be changed. 
 
 As if the heir enter for condition broken, old efiate, 
 he is in of the old ejiate, and, confequent- 
 
 )y, BY DESCENT(tf). 
 
 {a) See Jenk. Cent. 249. pi. 40. Co. L'ltt, 12. b. 
 76. a. and 202. a. andb. i Co. 95. a. 99. a. F.N. B. 
 J43Q. 
 
 So of a copyholder who furrenders on condition ; on 
 its being broken, br fulfilled, (as the cafe may be,) he 
 may enter, and fliall be in in ftatu quo prius, without 
 a new admiflion or fine. See Co. Copy h. f. 56. TraSls, 
 p. 128. Kitch, Courts^ 123. a. (Fr. edit.) Caltb. 60, 
 
 We
 
 268 ESSAY ON THE Ch. 5. 
 
 F174] We will, therefore, confider the opera- 
 tion of his devife, his deed, his fine, and 
 his recovery. 
 
 J>e-vife. And, firfl:, as to a devise. 
 
 And as to this, the law is, that 
 
 When it fhall Wlwi a per foil dcvifes fucii lands to his 
 
 Te\ctnl^ ^^^^ ^^S'^^ ^icirs, WITHOUT CHANGING THE 
 TENURE OR QUALITY OF THE LANDS, 
 
 although he charge the??! with debts or other 
 incumbrances, yet the heir Jliall be in by 
 descent; and the lands J] tall go, on his 
 death without ijfue, to Jus heirs on the part 
 OF HIS MOTHER (^): for dcfccnt is fa-f 
 voured in law. 
 
 {I) Lord Raym. 728. Emerfon v. Inchbird. Ihul, 
 829. Reading v. Rawfterne, or Royfton. Comyns's 
 Rep. 123. Ca. 86. S. C. Ibid. 72. Ca. 45. Clarke 
 V. Smith. 2 Stra. 1270. Allen v. Heber. i BlackJ}, 
 Rep, 22. S. C. 2 Jtk. 290, Plunkett v. Penfon. 
 2 Burr. 879. Hurft & a!, v. Earl of Winchelfea & al, 
 2. Bl. Comm. 24.1— '2, ch. 15. Co. Liit. 12. b. N.(2). 
 Dyer, 124. pi. 38. 3 Leon. 26. ; and fee further, 
 Com. Dig. Devife, (K). and Finer, Devife, (P. c.) 
 
 And
 
 Ch. 5. LAW OF DESCENTS. 269 
 
 And it is the fame as to copyholds, 
 notwithftanding they pafs by furrender; 
 for fuch furrender, and the confequent ad- [175] 
 mifsion, will 7iot make a new eflate (t*). 
 
 And the old cafes, (1 Cro. 161.) that if 
 a man devife to his heirs in fee upon con- 
 dition, the heir fliall take by purchafe ; 
 and the opinion in 2 Mod. that if a man 
 devife to his heir, paying 20/. the heir 
 fliall take by the will, and not by defcent; 
 are (faid to be) unintelligible and ill-re- 
 ported. For if a man devife lands to his 
 heir, charged with a rent issuing 
 OUT OF THEM, the heir fliall take by de- 
 scent (r/). 
 
 And it is not in the ele^lion of the heir 
 to be in by purchafe or by defcent; for 
 the law cafts the defcent on him immedi- 
 ately on the death of the anccftor, and the 
 
 {c) See I Strange, 487. Smith i-. Trigg; and 
 Fi-arne^ 49, (3d edit.) 87. (4th edit.) 
 
 {d) Clark and Smith, Comyns's Rep. 72. ca. 45.; 
 and Cro. Eliz. 833. pi, 2. and 919, pL 14. Haynf- 
 worth V. Pretty, yftv. 
 
 3 devife
 
 270 ESSAY ON TUf. Ch. 5. 
 
 devife Is abfolutely void. Befides, could 
 the heir, by his ele6^ion, have taken by 
 purchafe, he would have defeated his lord 
 £)f many emoluments of his feigniory, and 
 deprived the fpecialty creditors of his an- 
 [176] cefiors of the fund which was anfwerable 
 for their demands: for till the flatute of 
 WilL 3. the devifee was not chargeable, and 
 even that flatute docs not affect our prefent 
 fubje61(<?). Indeed, the cafes on this point 
 go apparently upon the fuppofition that 
 the heir has no ele61ion ; and coniider the 
 devife as abfolutely void, as having " no 
 operation at all," and not as being depen- 
 dant upon the will of the heir(/). 
 
 {e) See 2 Strange. 1270. Allen v. Heber; and fee 
 alio I Lord Raytn. 728. Emerfon v. Inchbirdj and 
 2 Burr. 1 106. Long i;. Laming. 
 
 {f) See the cafes of Reading and Royjion, and AllaA 
 V. Heber^ ante and po/i. } and Hob. 30. I Freem. 248. 
 pi. 263. Brittane v. Charnock ; and fee Powell on DeVk 
 4.27.430. 1 Strange, 4.gi. Smith -y. Triggs. "^ Leon. 
 118. Ca. 167, Bafbpool's cafe. 4 Leon. 35. S. C. 
 and fee But I. Continuation of Harg. N, (i). to Co» 
 Liu. 64. a. (Sea. V. (3).—}* 
 
 But
 
 Ch. 5. LAW OF DESCENTS. 271 
 
 But if the devifor alter the estate, ^hcn it 
 
 AND LIMIT IT DIFFERENTLY FROM WHAT^^^^^' 
 IT WOULD HAVE DESCENDED TO THE 
 
 HEIR, the heir JJiall take, of eourfe, by 
 purchase; it being another estate; 
 which muft defcend from fuch heir, as the 
 FIRST purchaser, to his hcirs Oil the part 
 OF HIS father (^•). 
 
 And, therefore, if a perfon feized in fee 
 devife his lands to his eldeft fon in tail, 
 the fon, though heir at hiw, fliall take by [177] 
 ptJRCHASE ; for it is a different eftate from 
 that which would have defceiidcd to 
 him (Jl), 
 
 And if the devifor had been feized ex 
 parte matama ; or if a mother had fo de- 
 vifed to her fon ; as the devifce would take 
 fuch entail as a purchaser, fliould he 
 afterwards fuffer a recovery the fee fo ef- 
 
 {g) See the references in note (^), p. I74". 
 
 {h) Trin. 3 Hen. VI. pi. i. fol. 46. a. Ploivd, 
 545. b. ; and fee the cafe of Wills v. Palmer, 2 Bla, 
 Rep. 687. i and 5 Burr. 2615, 
 
 feded
 
 272 ESSAY ON THE Ch. 5. 
 
 fec!:ed would defcend to his heirs oh the part 
 
 0¥ HIS FATHER (/). '; 
 
 So whenever a pcrfon, fcized ir^ fee^ 
 devifes an eflate to his heir at law and limits 
 a remainder over, the heir fliall take by the 
 devife and be in In/ p2irchaje(^k). But if, 
 on the other hand, he had devifed :the 
 particular eftate to a ftranger and the re- 
 mainder over to the heir in fee, the keir 
 ihould be in bj/ defcentij). 
 
 Note then, the difference when the heir 
 takes a particular eflate and the ultimate 
 limitation be to a ftranger, and when the 
 particular eflate be to a ftranger and the 
 ultimate limitation to the heir at law* 
 The eftate taken by defcent muft be the old 
 fee ; but the . ultimate limitation to a 
 ftranger neccffarily prevents the prior one 
 
 (/) See pojl. p. 187. ; and cafe ?/" Martin v. Strachan, 
 I JFilf. bb. 
 
 {/:) See Bro. Devife. 4. aud4l, ; and anUy Cafe of 
 
 Wills and Palmer. 
 
 (/; jKte, p. 169. 174*.. 
 
 to
 
 Ch. 5. LAW OF DESCENTS. Q1$ 
 
 to the heir from being a fee; and, confe- 
 quently, that fo taken by the heir mull: be 
 a different one from that which was in the 
 anceftor. AVhereas, if the ultimate limi' 
 tation be to the heir at hivv, it nuift be 
 part of the old fee, und ilpoled of; the 
 devife being void ; as conveying the fame 
 ellate (in point of quality) as that which 
 would have defcended to him, and which 
 was once in the anceflor(7?i). 
 
 So, in the cafe of an executory devife; 
 the heir at law ihall take the eftate by de- 
 fcent until the contingency arife; for until 
 that event, tJic fee is not affected ; and, 
 confequently, the fame ejiate which was in 
 the anceftor devolves to the heir (/i). 
 
 So if a perfon has feveral daughters, 
 who would be his heirs at law, and devife 
 to them in fee, they ihall take as pur- 
 chasers. For though they would have 
 fucceeded to him as his heir, yet that 
 
 (;«) Ante^ p. 1 75 — 6. 
 
 («) Ante^ p, 134.; and/>^. 179. 
 
 X would
 
 274 ESSAY ON THE Ch. 5. 
 
 , would be inparcmari/'y whereas here they 
 
 take in joint-tenancy or common (o). 
 
 So where A^ having two daughters, (one 
 of whom died, leaving a fon,) devifed his 
 
 flTSl ^"^ ^^ ^^^ ^^^ ^^ ^^^ deceafed daughter; 
 the fon took as a purchaser. For, 
 ^' by this devife there was an alteration of 
 theeftate; for if the land had defcendedy 
 both the daughters would be but one heir, 
 and would take as coparceners: but when 
 a devife is made of all to one, or the fon 
 of one, of the daughters, then the devifee 
 takes BY PURCHASE in a different manner 
 from what would be, in Cafe the land had 
 defcended (/?),*' 
 
 So if a perfon has fevcral fons, and, 
 being feized of lands in gavelkind, devife 
 to them ; they would take by purchase, 
 
 ((?) Cro. Eliz. 431. />/, 36.; and fee Godb, 362, 
 363. fa. 455. Taylor & Hodgfkins ; znAantCy p. 150. 
 no\.c{d)\ and poji. note {q), 3 Jtk. 731. Rig-r 
 den 1/ Vallier. 
 
 (/>) Com. Rep. 123. ca. 86.; and 2 Lord Raym, 
 129. Reading v. Royfton, 
 
 as
 
 Ch. 5. LAW OF DESCENTS. 275 
 
 as joint-tenants, or as tenants in com- 
 mon (^).*' 
 
 So if one fcized of lands at common-law, 
 devife them to his eldeft fon and a ftranger, 
 it is a good devife ; and they fhaii take as 
 
 JOINT-TENANTS (r). 
 
 I 
 
 But if the teftator devife to his fon and 
 a ftranger, or to two or more of his fons 
 
 (y) Moorej 864. pi. 1 190. Sparket;. Purnell. ^o^ 
 Robin/, on Gavelk. b. i. c. 6. p. 126 — 7. and authors 
 there referred to; and fee alfo 2 Burr. 1 100. Long 
 V. Laming; and i Hen. Bla. Rep. 1 — 5. E. 
 28 Geo. 3. Dallyy. King; and fee 3 v^/^. 731. Rig- 
 den & al. V. Vallier. 
 
 (r) Goiib. p. 94. ca. 105. and fee l Her. Blackjl. 1. 
 Dally V. King. 
 
 So if a father had enfeoffed his fon and heir and a 
 flranger, with remainder to the heirs of the fon ; the 
 fon ihould have taken by purchafe for the benefit of 
 the ftranger ; though, had it not been for the ftranger, 
 it would have been deemed a mere collufion for the 
 purpofe of defrauding the lord of his worfhip. Per 
 Danby. Pafch. 33 Hen. 6. pi. t. fol. 15. b. 
 
 So a devife to A. for life, with remainder to the 
 right heirs of the tejlator and of B.', and B. die in the 
 life-time of A. the heirs would take as joint-tenants. 
 See I RolU Rep. 317. 
 
 T 2 (one
 
 ilia ESSAY ON THE Ch. 5. 
 
 (one only being his heir) i?i common, it 
 Ihould feem that the fon being heir at 
 law fhall take his portion by defcent. 
 
 For, as Mr. Fearne remarks (/), and I 
 think very juftly, if we fuppofe a teftator 
 to devife a moiety or any other Ihare of 
 his real eftate to a ftranger, making no 
 difpofition at all of the remaining undi- 
 \'ided ihare, . fuch remaining undivided 
 fhare would, of courfe, defcend to his 
 ll^^ir at law, and he muft hold in common 
 with the devifee of the undivided fhare 
 devifed. It is clear, therefore, he adds, 
 that an heir may take by defcent, as tenant 
 in common with a devifee, an undivided 
 part of 'the eftate, which his anceftor was 
 folelv feized of: and it fhould, therefore, 
 feem to be immaterial, whiether the Ihare 
 he would fo take be exprcfdy deinfcd to him, 
 or left unnoticed by the mlt\ for if ex- 
 prefsly devifed . be wpwld take it in com- 
 7no?i, and, if not noticed, he would take 
 it in the fame ?najiner; and a devife to two 
 z% tenants in common 'i^, in effe6f, a devife 
 
 (/) Pojih. Works ^ 130—2. 
 
 of
 
 Ch. 5. LAW OF DESCENTS. 277 
 
 of one undivided part to one, and of aii- 
 other undivided part to the other-, fo that 
 under Inch a devife to an heir and another, 
 as tena?it^ in common, the heir takes as if 
 one undivided moiety wei'e devifed to tJie 
 other,' and the refidue to himfelf ; that is, 
 in the fame manner as if no dlfpofition 
 at all of fucli refidue had been eXpreffed 
 in the will; in which cafe he would have 
 taken by defcent; and, therefore, the 
 fame eflate been devifed to him in fuch 
 refidue as he would have taken by defcent, 
 the general rule, refpe61ing devifes to an 
 heir, feems to extend to it. 
 
 " It has, indeed, been held (t), tliat a 
 devife to the heir and another, makes the 
 heira purchafer; but that feems, fays Mr. 
 Fearne, to be on account of the joints 
 tenancy and benefit of furvivorJJiip to the 
 Granger. And it appears that, under a 
 devife to tzvo co-heirs (ii), they take as 
 joint- tenants by the will, and not bi/ de- 
 
 it) Ante, [p). 178, (r). 
 
 {u) See ante, p. 177. (0). anci 178. {q). 
 
 T 3 fce7iti
 
 278 ES8AY ON THE Ch. 5. 
 
 fctnt ; and fo in a devife to them in common, 
 they take as tenants in common, and not 
 bydefcenf. But, it is evident, under either 
 of thefe tenures, they take evert/ part of 
 the land devifed in a different manner than 
 bi/ defcenf', whereas, in tlie cafe of a de- 
 vife to the heir and another, as tenants in 
 common, the heir feems to take the part 
 devifed to him jufi: in the fame manner as if 
 it had been left to defcend to him, and, 
 confequently, that no obilacle would arife 
 as to the eldefi: fon's taking his moieti/ by 
 defcent\ and, confequently, if the teltator 
 had liad the lands from his mother, that 
 fuch moiety would defcend from the eldeft 
 fon to his heir on the part of his paternal 
 grandmother." 
 
 [179] So where one devifed to his fon and 
 heir, " but in cafe he died without iflue, 
 not having attained twenty-one," then 
 over: the fon attained twenty-one. By 
 Henley, Lord- Keeper, "the eldeii fon 
 took BY DEVISE, as having, under the 
 will, a different eftatc than would have 
 defccnded to him : the one being pure and 
 abfolute, the other not." And reference 
 4 was
 
 Ch. 5. Law of descents. 279 
 
 was made to the cafe of Allum v, Heber, 
 Lutza. 191 ; and 1 SaU'. 241 (x). 
 
 But in the cafe of Hindc v. Lyon(j/), 
 where a devife was " to the wife till the 
 lieir fhould be of the age of twenty-four 
 years, and that at that age the heir fhould 
 have the lands to himfelf and his heirs for 
 ever; and that when he fhould come to 
 the age of twenty-four years, the wife 
 fhould have the third part during her life; 
 and if the heir died before the age of 
 twenty-four years, that then the lands 
 fhould remain to the wife during her life, 
 with remainder, after her death, (if the 
 heir had no ifllie,) to the daughter of the 
 devifor in tail, remainder to the right 
 heirs of the devifor;" it was adjudged that 
 the heir, having attained twenty-four, 
 was in by defccnt. 
 
 In this cafe, therefore, the heir was not 
 to take till he attained twenty-four; but, 
 
 {x) Ambler^ 383, Scott v. Scott. 
 
 {y) Dyevy 124. a. />/. 38. 2 Leon, il. 3 Ibid. 64. 
 70. 
 
 T 4 fa
 
 280 ESSAY ON THE Ch. 5, 
 
 (o foon as he would have taken, he would 
 have taken the abfolute fee, fnoi a bafe-fee, 
 as in Scott v. Scott) ; and as he would have 
 taken an abfolute fee under the will, it 
 would have been the fame eftate as he 
 would have taken without the will; and, 
 confequently, would be in by defcent, as 
 of the worthier title. 
 
 Deed, And as to A DEED, the law is, that 
 
 Fee-fimple. A perfon CANNOT raife A FEE-SIMPLE tO 
 
 his own ?ight heirs, by tJie name of Jieirs, as 
 A PURCHASE, unlefs he parts with the 
 
 WHOLE ESTATE (^). 
 
 Fee-tdl. Neither can he make the heirs of his 
 
 BODY to take BY PURCHASE, by Conveyance 
 
 AT COMMON-LAW (rt): 
 
 (2) Co.Litt. 22. b. Dyer, 156. pi 24. H6h»Z0, 
 
 1 Fent. ^72. I Pr. Wms. 359. 387. 2 Atk, 57. 
 
 2 Bla. Rep. bZ-j — 9. 
 
 {a) Co. Lltt. 22. b. Brooke, Done, 32. and Taile, 
 II. Dyer, 156. pi. 24. 2 Bla, Rep. 687. and 
 I Fearne, 67. (4th edit,) 
 
 1 As
 
 Ch. 5. LAW OF DESCENTS. 251 
 
 As if he limit an eftate to A. for llfc, [180] 
 with remainder to the heirs of his own 
 body; fucli remainder is void. 
 
 But if it had been by way of use, asufe. 
 to A. and his heirs, to the ufe of B. for life, 
 with remainder to the ufe of the heirs of 
 THE BODY of the dojior; the heirs of his 
 body would take by purchase (/y). 
 
 Yet had the remainder been (or had there Heks gcns« 
 been a fubfequent remainder) to Aw A'c/r^''^^" 
 GENERAL, they would have taken by 
 DESCENT and been in of the old e/iate (c). 
 
 (/;) See Carth. 272—4. i Fearne^ 67. and 118 — 
 119. (-4111 edit.) 
 
 But note, in order to make the heirs of the body of 
 the grantor or donor to take by purchafe; the eftate 
 muft be fo limited as to exclude the prefumption of 
 an implied life-eftate in fuch grantor; as, otherwife, 
 fuch limitation to the heirs of his body may fix in the 
 anceftor, and (o the heirs be in by defcent. See ayzte^ 
 164 — 5. ; and the cafe of Wills v. Palmer in 2 Bla. 
 Rep. 687.; and 5 Burr. 2615. j and i Fearne, 54, &G. 
 (4th edit.) 
 
 (c) See antey p. 169, 
 
 But
 
 tatc 
 
 252 ESSAY ON THE Ch. 6. 
 
 Parting with But if the grantor part with his whole 
 !-l^^*'^^^^' ESTATE, and then a limitation be either to 
 his heirs general or fpecial, fuch heirs Ihall 
 take BY purchase; for here the reafon 
 fails: the limitation cannot be confidcred 
 as the reverjion, for that is always a part of 
 the efiate granted xvhich remai?is in the 
 grantor{d)'. but where the whole is 
 granted, there is nothing which can re- 
 main in him; and, confequcntly, there 
 can be no reverfion ; for if there he a rever- 
 
 flSll ^^^^"^ ^^^^> ^^ ^^^ "^^ granted all. If, 
 therefore, a perfon grant* to A. and his 
 heirs for ever, (in fee-limple,) he can have 
 no reverfion left in him; and fo any eftate 
 limited afterwards to him or his heirs 
 muft be a new ejlate^ and taken by pur- 
 chase. ^ 
 
 F-offment ^^ ^^ ^' feizcd ex parte materna, make a 
 and re-enfe- feoffment in fee, and take back an eftate 
 to him and his heirs; this is a new pur- 
 chase: and if he die without iffue, his 
 
 {d) Co. Litt, 22. b.j 2Bla,Comm. 175. ch. 11. 
 
 heirs
 
 Ch. 5. LAW OF DESCENTS. 283 
 
 heirs on the part of His father Ihall in- 
 herit (e). 
 
 " But this muft be uiiderftood of two^^c. 
 diftina conveyances in fee : XXiQfirJl pafsing 
 the life as well as the poffefsion to the feoffee, 
 and fo completely divelling the feoffor of 
 all intelell in the lands ; and X\\& fecond vci^ 
 granting the eftate to him." 
 
 <« For if in the firft feoffment the ufe had 
 been exprefsly limited to the feoffor and 
 his heirs, or if there was no declaration of 
 ufes and the feoffment was not on fuch 
 confideration as to raife an ufe to the feof- 
 fee, and confequently the ufe refulted to 
 the feoffor; in either cafe he is in of his [182] 
 ancient ufe, and not by purchase (/)." 
 
 {e) Co. Litt. 12. b.; and fee Brooke^ Liv. ^ Oujler 
 It Maine ^ pi. 6 1 . 
 
 (/) Hargrove's note (2) to Co. Lltt. 12. b. i and 
 fee Co. Litt. 13. a. and 22. b. Serjeant Carthew'i 
 Readings on the Law of Ufes, in the Collet 'Jurid. vol. i. 
 p. 370. 376 — 7.; and fee alfo 2 Co. 58. a.j and 
 Brooke., Liv. iff Ou/ier le Maine^ 61. 
 
 But
 
 284- ESSAY ON THE Ch. 5. 
 
 But I conceive that, before the ftatute 
 of 27 Hen. VIII. c. 10., it was by no 
 means requifite that the ufe (hould pafs to 
 the feoffee on the feoffment, fo the legal 
 eltate was deveflcd out of the feoffor. 
 For, though the ufe was not conveyed by 
 the firil; feoffment to the feoffee, but re- 
 fulted or was exprefsly Hmitcd to the fe- 
 oftbr or his heirs, yet, that on the rc-^w- 
 feoffment by the feoffee, the feoffor would 
 have been in of a new eftate, and fo the 
 line of defcent have been changed (^). 
 
 For, although fuch ufefo limited or re- 
 fulting to the feoffor, even before the fta- 
 tute (/i), would have been the ancierit ufe, 
 yet if the legal efiate was afterwards con- 
 veyed to Xhe^cejiuy que ufe, it would have, 
 certainly, vefted in him bj/ pur chef e, and 
 have gone to his paternal heirs. For, 
 though the ufe was the old ufe, the legal 
 
 {g) Sec Carthezu. 141. Rice v. Langford j and fee 
 alio Hale's Comm. Low^ 269. ch. I i.j and 3 VeJ. fun, 
 339. 342, Selby V, Alfton. 
 
 (A) See I Co. 100. b. 
 
 eflatc
 
 Ch.5. LAW OF DESCENTS. 285 
 
 ejlate would bave j^een a new one-, it having 
 before paflefl entirely from the feoffor. 
 And, on the re-con veyancc to him, the 
 gld ufe would have been extintl: in the 
 fame manner as a conveyance of the legal 
 eflate by a trullee would, at this day, 
 veil in the ce/hiy que iriiji as a purchafer, 
 and extinguiih his equitable interefi; as 
 we ^re about to notice. 
 
 Thus, if an eflate, defcended ex parte 
 mateima, be conveyed to A. and his heirs, 
 to the ufe of him and his heirs, upon cer- 
 tain truits; and the ultimate limitation of 
 fuch trull be cxprefsly made, or a portion 
 be unlimited, and fo refult to the perfon 
 conveying, or his heirs, fuch truft, fo li- 
 mited or refulting, will be part of the old 
 eftate, and go to his heirs by defccnt (/)• 
 
 (/) See Bro. Feofm. al. Ufes^ pi. 32. 22 Fin. 185. 
 Vfes., (D). For trufts are fubjed to the fame rules, as 
 to defcents, as legal eftates : See 2 Pr. JVms. 713. 
 Banks V. Sutton. Ibid. 736. Cowperi;. Earl Cowper, 
 2 Bl. Comm. 337. ch. 20. See alfo Rep. Temp. Talb. 
 3. l.ord Glenorchy -y, Bofville. i M. 596- Hopkins. 
 V. Ho[}cins,. 
 
 For
 
 285 ESSAY ON THE Ch. 5. 
 
 For though the grantor thus devefls hhn- 
 felf both of the legal eftate and the ufe(X:), 
 yet the beneficial intereft appertains (when 
 not otherwife dlfpofed of) to the perfon 
 \vho would have been entitled to the legal 
 eftate if it had not been conveyed (/); in 
 the fame manner as the ufe would have 
 done before the ftatute on the conveyance 
 of the legal eftate. And as a truft now 
 is what a legal eftate then was(7M), it muft: 
 follow that, as fuch ufe, whether ex- 
 prefsly limited or refulting, was the an- 
 cient ufe, a thing collateral and annexed 
 in privity to the eftate of the land, and 
 
 (k) I Jtk. 589. 591. Hopkins V. Hopkins; and 
 ]bid. 622. Hawkins v. Chappel & al. Rep. Temp. 
 Talb. 165. Robinfon v. Comyns. Carth. 272. Tip- 
 pcn-v. Cofin. Comyns's Rep. 242. Daw v. New- 
 borough. 
 
 (/) See ante J p. 169, (d). and Co. L'ltt. 272. b. 2 
 Vef. 304. Fawcett v. Lowther. Carthew. 141. Rice 
 V. Langford. 
 
 {m) 2 Jtk. 150. Lloyd v. Spillet ; and fee Co. Lift. 
 172. b. ; and Butl. note (2). to Co. Litt. 171. b. 
 I Jtk. 591. Hopkins v. Hopkins. 2 Bla. Comm. 336. 
 eh. 20. Carthew. 141. Rice v. Langford, 
 
 to
 
 Ch. 5. LAW OF DESCENTS, 287 
 
 to the perfon touching the land (71), and 
 fo, as it were, a portion of the old efiate^ 
 fuch truft, fo limited or refuiting, muft 
 be a portion of the old eftate alfo. 
 
 But, if fuch trufl eflate defcend tx parte 
 materna, and the legal eflate be afterwards 
 conveyed to the cejiuy que triift^ he ihall 
 take fuch legal eftate by purchafe ; and, 
 confequently, it Ihall go, on his death, 
 to his heirs on the part of his father : and 
 the truft eftate fliall merge in the legal 
 when they both become fixed in him. 
 
 As where a woman conveyed an eftate 
 to truftees in truft to permit her to receive 
 the profits during life ; and (alter feveral 
 mefne limitations of fuch truft) in truft 
 for her right heirs. The truft defcended : 
 and afterwards one who was her heir, as [lS3j 
 to a moiety of the premifcs, had the legal 
 eftate conveyed to him by the truftee: 
 and it was held that the legal eftate vefted 
 in him by purchase, and that it fliould 
 
 {n) Co. Lift, 272. b. 
 
 dc 
 
 fccn<l
 
 288 ESSAY ON THE CIi. 5; 
 
 defcend to his heirs on the part of the 
 father, and could not follow the old ufe(o). 
 
 For as to heirs e.v parte paUrna vcl ma-^ 
 terna^ it does not appear that an heir of- 
 one fort has been ever held, even In equi- 
 ty, to be as a truilee for an heir of the 
 otlier; but, when the legal and truft ef- 
 tates concentre in tlie fame perfon, the 
 truft eftate becomes abforbed in the le- 
 gal (;j). 
 
 And, upon the fame principles, it fliould 
 fecm that if lands be mortgaged in fee and. 
 
 (o) 5^1? the cr<fe of Doe on Dem. of Balch. v. Putt, 
 er Pott, in Dougl. 773, 774. 777. i and />£/?. 191. 
 
 So, before the ftatute of ufcs, if a peifon enfeoiFed 
 another to the intent to pay his debts, and then to 
 re-enfeofF his own heirs ; upon fuch enfeoffment, the 
 heir fhould not have been in ward ; and, confequently, 
 would have been in by purchafe. See Brooke^ Garde » 
 
 5. 
 
 Thus, whether we confider this to hat'e been an ufe 
 
 or trull, (Sec Sanders on Ufes, 9. 14. 18.) yet we fee 
 
 that, on the re-conveyance of the legal eftate to the 
 
 heir, it veiled in him as a purchafer. 
 
 [p] See Doug', 779.; ^.nd poj}. 191. SeezUo CaJ^ 
 Temp. Talb, 1&4. Sir John Robinfon v, Comyns. 
 
 after
 
 Cli. 5. LAAV OF DESCENTS. ^S9 
 
 after forfeiture, be re-conveyed to tlie heli" 
 
 at law, althougli the heir at law took the 
 
 equity of redemption by defcent, yet that 
 
 the legal eftate niuft, on fuch re-convey- 
 
 ance, veft in him as a pur chafer {(j) \ and, 
 
 confequently, go to his heirs on tJie part of 
 
 his father: for a mortgagee is, till fore-^ 
 
 cloiurc, confidered, even in equity, as a 
 
 bare truftee for the mortgagor, as to the 
 
 inheritance of the premifes(7-); and we 
 
 have fhewn above that, on the conveyance 
 
 of the legal eftate by a truftee to the cefiu]/ 
 
 que truft^ fuch legal eftate fhall veil in him 
 
 by purchafe; when his equitable intereft: 
 
 will be merged. 
 
 And here it may not be altogether ufe- 
 lefs to remark, that a confideration is not 
 requifite to change the defcent from the 
 maternal to the paternal line; as in the 
 
 {q) See the cafe of Benfon v. Scott as reported in 
 12 Mod, 49. and 7 Durnf. & Eaji, 103. Doe d^ 
 Harman & Ux. v. Morgan. 
 
 (r) 1 Jtk. 606. 
 
 u cafes
 
 ±90 ESSAY ON THE Ch. 5. 
 
 1 cafes of feoffment and re-enfeoffment;- — 
 
 Fine fur done, grant, &" render, &:c.(/). 
 
 Rent. If a perfon fo feized make a feoffment in 
 
 FEE, refeiving a rent to him and his heirs, 
 the rent fliall go to his heirs ex parte pa- 
 tern A (^). 
 
 But othervvife of a rent referved on a 
 grant of fuch eftate for life or in tail{ii)', 
 for, on fuch grant, the reverfion was left 
 in the grantor, which mult defcend to his 
 [184] heirs on the part cf his wother; and the rent 
 Ihall follow fuch reverfion as its incident: 
 but when the grant was in fee, there was 
 no fuch reverfion to which it could attach; 
 and, confequcntly, it muft be confidered 
 fubfiantively as a new eftate. 
 
 Leafe for So if A. having a leafe to her and her 
 
 ^'^' heirs for lives, devife it to her daughter. 
 
 {f)See2Jtk. 150. Lloyd 'y.Spillet. Bro. Garde^ 
 5. 93.; and Carth. 141. Rice ^. Laiigford. 
 
 (/) Co. Litt. 12. b. 
 
 (u) Co, Litt, 12. b. and ante, p. 171. («). 
 
 and
 
 Ch. 5. LAW OF DESCENTS. 2P1 
 
 and afterwards the leafe be renewed ; this 
 lalt is a NEW leafe, and, as fuch, fhall de- 
 fcend to the heirs on the part of the fa- 
 ther (i). 
 
 Thirdly, as to A fine. Fim. 
 
 A FINE levied by tenant in tail 
 affects not the reverfion or remainders over, 
 
 WHEN IN ANOTHER PERS0N(3'). 
 
 But if HE HAS THE FEE IN HIMSELF, 
 
 the fine extinguifiies the eftate tail, and brings 
 the reverfion into poffefsio?i (a). 
 
 And, 
 
 {x) Precedents in Chancery j 319. Mafon v. Dayj, 
 and I JtL 480. Pierfon v. Shore. 
 
 (y) (So they claim within the time prefcribed.) 
 I Cruifey 208. Co. L'ltt. 372. a. 
 
 (2) I Cruife, 274. Carth. 257. 261. 
 
 But this muft be underftood of a fine ivith procla-' 
 mations: for a fine without proclamations, though it 
 will work a difcontinuance, will not deftroy an eftate- 
 tail. See 3 Co. 86. a. Bull. N. P. 229. i Cru. 
 151. 
 
 Though a fine ftiall be intended to have been levied 
 with proclamations till the contrary be Ihewn. 3 O. 
 86. k 
 
 u 2 But
 
 Rin<k;\ 
 
 292 ESSAY ON THE Cli. 5. 
 
 And, confequently, this being the old 
 fee, if it liad defcended ex parte materna 
 before the levying of the fine, it mud do 
 [185] fo afterwards; as the fine does not affetl; it 
 othcrwife than by bringing it into pof- 
 fefsion : 
 
 Crafiti^ Uiilefs it he A fine sur done, grant, 
 
 & RENDER : for if a perfon, fcized ex parte 
 materna, levy such fine, it xvill operate 
 as a feoffment and re- enfeoffment, and give 
 liim A new estate; xvhich fliall, confe* 
 quently, defcend to his heirs on the part 
 
 OF KIS FATHER (rt). 
 
 But if this intendment be rebutted, then it will be 
 neceffary to prove the proclamations, (as they muft be 
 proved to bar a ftranger). Bull. N. P. 229. 
 
 And note; that the ftatute 4 Hen. 7. c. 24. does 
 not extend to fines levied in courts of ancient demefne; 
 and, therefore, though fines levied there will caufe a 
 difcontinuance, they will not bar an entail, unlefs by 
 fpecialcuftom. i Sulk. 339. Hunt z*. Bourne, yenk. 
 Cent. 87. pi. 68. Cruifc on Fines^ 93. 175. iWatk. 
 Copyh. 41. 
 
 {a) Carth. 140, Rice v. Langford. Dyer, 311, 
 pi. 84. 
 
 But
 
 Ch. 5. LAW OF DESCENTS. 293 
 
 But It mufl: be obferved that, although 
 on a fine far done, grant, & render, the 
 ufes rendered to the cognizor are new ufes, 
 becaufe the eftate has palled to the cog- 
 nizee; yet, as fuch fine is a double fine, 
 comprehending the fine fur cognizance de 
 droit come ceo, &c. and that fur concefsit, 
 the cognizee takes his eftate by the fine 
 fur cognizance, kc. and the eftate or ufes 
 fo rendered by him, is a portion of, or are 
 ferved by, ^A«^ eftate ; and, therefore, in 
 cafe fuch eftate be not wholly rendered to 
 the cognizor or a ftranger, but a part be 
 alfo limited to the cognizee or his heirs, 
 fuch part is a portion of the eftate fo 
 taken on the fine coj7ie ceo. Sec; and, con- 
 fequently, the ufes fo limited on the fine 
 fur concefsit to the cognizee or his heirs, 
 are not new ufes, but muft be confidered 
 as his old reverfion : as if a fine be levied 
 to baron and feme and the heirs of the 
 baron, and they grant and render, by the 
 fame fine, the fiune tenements to the cog- 
 nizor for the term of the life of the baron, 
 remainder to a ftranger for life, with re- 
 mainder to the heirs of the baron; the 
 heks of the baron fliall take by defcent, 
 
 u 3 ' and
 
 294. ESSAY ON THE Ch. 5. 
 
 and not by purchafe ; the portion, fo ul- 
 timately limited, continuing in the baror^ 
 as his revi:Mrion, and not rendered by the 
 cogr.izor, as the eltate taken by him is 
 rendered by the cognizee(/'). 
 
 So if the render be in tail, fi. e. of a 
 portion only of the ellate,) the cognizee 
 fhall have the reverfion to his own ule(^). 
 
 Surcogni- The fine _/kr done, g^-anf, SC render, is, 
 
 xance, &c. J^Q^g^,^,.^ ^H^ ONLY ^ 'j K T OF FINE zcllick 
 
 gives A NEW estate: for if a perfon, 
 ferzed ex' parte inattrna, levies a fine fur 
 cognizance de droit, come ceo. Sec. and 
 either makes no declaration of the ufes, 
 or declares it to be to the ule of liimfelf 
 and his heirs, the lands will fiill defcend 
 ex parte mat errur, becaufe it is liill the old 
 ufe; whicl^, confifting in trull and confi- 
 dence, will follow the nature of the land, 
 and will defcend as the land would have 
 
 {L) See Dyer, 237. pi. 31. Bromley v.. Bennetj 
 and P.Jch. 15 Ed. 3. there cited. 
 
 (r) See Moore, 46. />/. 138 ; per Dyery quod Berthivs 
 U antevi Scrgeatits Conce[ferunt^ 
 
 defcend ed
 
 Ch. 5. LAW OF DESCENTS. ^95 
 
 defcended if no alteration had been made: 
 
 and it is totally immaterial whether the 
 
 ufe be exprelsly declared upon fuch fuie, L^^^J 
 
 or permitted to rife by implication (a'). 
 
 Fourthly, as to A recovery. ^^^^'^^O'- 
 
 ^^^^CAe-i-nA Is a common 
 
 A common recovery is now conlidered ^^^^^^^^ 
 merely as " a form of conveyance," or 
 common aiTu ranee (e) ; and, therefore, if 
 no ufes be declared, nor any raifcd to the 
 ■recoveror, its operation is the fame, as to 
 this point, as a feoffment or fine. Each 
 of thefe conveyances paffes a fee (/) ; but 
 the fee cffeaed by either is immediately 
 to the ufe of the perfon conveying (if fuch^^^^- 
 appears the intention of the parties {g)—) ; 
 
 {d) I Cruip, 71. And fee alfo Carth. 140— i.; 
 Chetzvynd on Fines, fee. 12. p. 84. and Barnes, 46?- 
 Armftrong d. Neve & aL v. Woolfey & al. 
 
 {e) See I JVilj. 73. i Burr. 1 15, 116. I Co. 
 15. b. Cro. Jac. 643. pL 3. Hob. 28. 
 
 (/) See I Burr. 92. j and ante. Of Feoffment and 
 Fine, p. 179. 184. 
 
 And fee Hob. 322—3. 
 
 (g) SQeGilb.Rep.iy. and note i znd Dougl. 26. 
 
 u 4. and
 
 296 ESSAY ON THE Ch. 5. 
 
 and as he is thus in of his ancient ufe, and 
 the ftatute uniting the poffefsion to it, he 
 is confidered as iji of his old estate ; 
 and, confequentiy, the defcent remains as 
 before. 
 
 r 1 871 Tims if a per/on, feized ex parte materna 
 
 By tenant in in FEE, fuffers a vecovcri/, and no iifcs be de- 
 ^ claredy nor any co7iJid.eration appear to raife 
 
 them to the recoveror, the use results; 
 or if the ufes be declared to the recover ee and 
 his heirs, he is in of his old estate, 
 which fJiall continue to defcend as if no reco^ 
 very had beenfvfferedQi), 
 
 By tenant 5n ^^^^^ if ^ TENANT IN TAIL, feized by 
 
 "f^^l- ^ defcent ex parte materna, fuffer A reco^ 
 
 ' -^ VERY, the fee effected by fuch recovery fJiall 
 
 defcend to his heirs on the part of his 
 
 {h) I Jnd. 11"]. -pi. 173. Dowlman's cafe. Hob. 
 27. 9 Co. 7.b. Dowman's cafe. Dyer^ 146. pi. 7Q, 
 71. ViUers & Beaumont. 2 Brotunl. iji. Rovvles -y. 
 Ofborne. Cro. Jac. 643. Ferrers & al. v. Fermor 
 teal. Gilb. Rep. 16. 18. I Jtk. (). in Stapilion v.- 
 Stapilton. 9 Mod. 1 72. Loi:d Derwentwater's c^fe, 
 I Wilj, 74. 
 
 mother;
 
 Ch. 5. LAW OF DESCENTS. 297 
 
 MOTHER : but if lie took the estate tail 
 by PURCHASE, or by descent ex parte 
 FATERxNA, the fee fo cffectcd Jlidll go to his 
 heirs on the part of his father: and 
 this whether the lands be freehold or co- 
 pyhold (/), 
 
 If a line and recovery be for a particular [ 1 90 J 
 purpofe, the feveral deeds, fine, and re- f;;^;"'"">^-' 
 covery, fliall be confidered as one con- 
 veyance, and neither be permitted, by 
 its peculiar properties, to operate to the 
 dellrudion of the intent of the parties((). 
 
 As where baron and feme covenanted to 
 levy a fine of lands dcfcended to the feme 
 
 (/) I Wils. 66. Martin d. Tregonwell v. Strachan 
 h ai 4 Brown's Ca. in Pari, 486. S. C. 5 Durtif 
 ^ EaJ}^ 104. Roe d. Crow v. Bald were & al. 
 
 (/') 2 Co. 75. Cromwell's cafe, 3 Atk. 748. Parfons 
 V. Freemain. Gilb. Rep. ij. Lord Altham -y. Earl of 
 Anglefea. Cro. Jac. 643. Sir John Ferrers & al. v. 
 Sir Richard Fermor & «/. 2 Burr. 1131. Selwyn -y. 
 Selwyn. I J. Blackji. Rep. 222. 251. S. C. ; and i 
 Ibid. 605. Roe d. Noden v. Griffith. 5 Burr, 27 87. 
 Vaugh^n d, Atkins v. Atkins. 
 
 from
 
 298 ESSAY ON THE Ch. 5. 
 
 from her mother, which was levied ac- 
 cordingly, and a recovery afterwards fuf- 
 fered; it was held, that the deed, fine, 
 and recovery made but one conveyance; 
 that the eftate moved originally from the 
 coGNizoR, (wPiich, in this cafe, was the 
 
 FlSll fi^iT-^if) — )• '^^^'^^ ^^"''^t what the cognizor 
 had not parted ^vilh was flill in fuch cog- 
 nizor; and, therefore, fo much as was not 
 declared of the ufes upon tlie recovery 
 was ftill to the old iife\ the nature of the 
 common recovery being but as an inllru- 
 ment for railing the ufe(m). 
 
 Merger cf the And laftly, icJien the legal estate 
 'r\Tf'fi''''defcends in fee-fimple ex parte materna, 
 
 tn Ine legal, -' J j i r ' 
 
 ami the equitable estate ex parte pa- 
 terna, or vice verfa, the ^equitable es- 
 
 By defcent cf 
 
 thelcgal fee; TATE SHALL MERGE IN THE LEGAL ; (111(1 
 
 (/) 2 Co. 57. b. Beckwithe's cafe; 77. b. Crom- 
 well's cafe ; and Dough 44, 45. Hurd v. Fletcher & al. 
 
 (w) Abbot V. Burton, li Mod. 181.; and in 14 
 Vin. Abr. Heir, (W. 2.) pi. 6. Com. Rep. 160. S. C. ; 
 and fee 5 Com. Dig. 582. Ufes, (D.2.) and 2 Co. 58. 
 b.i and Cro. Jac. 643. pi. 3. 
 
 boiJl
 
 Ch. 5. LAW OF DESCENTS. 299 
 
 both ^fJiall follow the line through ichich the 
 LEGAL ejlate defccnded(ii). 
 
 So alfo if. the equitable ellate bad do- By purchafe, 
 fcended ex parte inaterna and tbe beir had 
 had the legal eftate by purchase, tbe 
 equitable eitate would merge and be utterly 
 extineuilbed in tbe Icc^al ; whieb would, 
 of couriV, go to tbe heirs on the part of the L^-^-J 
 father {jj'). 
 
 And, by Willes, J. " when tbe quef- p^/^,;.W *«w 
 tion is between tbofe of tbe paternal and^'''^"^"'^' 
 
 (;z) Doiigl 771 — 780. Goodright lejce 5/ Alfton 
 V. Wells k al. 1 Br-^w. Ca. Ca. 36,3. Wade v. Paget. 
 3 Fcf. Jun. 126. Philips V. B.ydges; and Ibid. 339. 
 Selb/.-y. Alrton. 
 
 So the pofleflioii of lands was incompatible with an 
 ufe iffuing out of them ; and, therefore, on the cejiuy 
 que ufe's accc-ffi->n to the lands, the ufe ceafed, and 
 was abioibed in the legal eftate. Ploivd. 44. 
 
 And it if. faid that, if one have lands of the part of 
 his faiher and a rent out of the fame lands on the pari of 
 his mother, the rent v/iil become extiii6t ; and cannot 
 be revived or divided thoighhe die without iliue. 18 
 Finer, ^qS- Re.t, (T.) pi. 9. See Co. Lit:. 149. b. 
 
 (5) Dougl. 771 . Goodright d. Alfton v. WelU k al. 
 and Doe d. Balch v. Putt, or Pott, cited ; aiid ante^ 
 
 tbofe
 
 300 ESSAY, &c. Ch. 5. 
 
 thofe of the maternal line, the law always 
 gives the preference to tlie former (^p),^"* 
 
 Tnjvo titles. And, by BuLLER, J. as " where two 
 titles unite, the party fhall be in of the 
 beft," and as the clear legal fee-fimple is, 
 in thefe cafes, the beft, the party fliall 
 therefore be in of it (y).^ 
 
 (/)) Dougl. 778, 
 {q) Ibid. 779, 
 
 APPENDIX.
 
 TAliI,E OF C OXSAXCriXn Y. 
 
 .! ' IX 
 
 
 9 X M 1 
 
 3;£1 
 
 /I 
 
 \ii 
 
 tip, 
 
 7 XI 
 
 ciri..... 
 
 << \ 
 
 "~ 
 
 V 
 
 xu 
 
 3£" 
 
 7 XI 
 
 'z:'r 
 
 X ; viu 
 
 
 '^ 
 
 X 
 
 "Tcr' 
 
 .i IX 
 
 .„,.,.. 
 
 ; i-m 
 
 ,„.-. 
 
 .1 \ii 
 
 „...., 
 
 TTir Rrm/m Xutitmdf I.II.IU IT l-e 
 fhmr r/if Ordtr m >-Ai^A lAf 
 
 X / I VIII njl / X ff 
 
 K J XI 7 
 
 VI M 
 
 vm ; X e xli /> 
 
 II y ir 
 
 / \Ti ;i IX 
 
 MM I X f>' XII 
 
 XIV /(' 
 
 1 1 I 
 
 1 II 2 
 
 Ml J 3X 3 XI 7 Xlll 
 
 Via ; X 
 
 lU .) Ill 
 
 b 
 
 r
 
 [ 301 ] 
 
 APPENDIX. 
 
 Of the Diftribution of the Perfonal EffeEls 
 of an Inteflate. 
 
 If the inteflate leave a widow and wife. 
 children, the widow ihall take a third 
 part of the furplus of his efFe6ls. If he 
 leave no children, flie fliall have a moi- 
 ety (tf). 
 
 But the ftatute does not extend toHufband. 
 the eftate of a feme covert \ and, th(5re- 
 
 {d) Stat. 22 & 23 Car. 2. c. 10. f. S^ Sc 6. 
 
 And note ; the widow takes as widow, by the ex- 
 prefs words of the ftatute, and not as being of kin; 
 for a wife is (as fuch) of no kin to her hufband. See 
 3 /itk, 761. Worfley v. Johnfon. 
 
 fore,
 
 302 APPENDIX. 
 
 l^orc, the luifband is entitled to her ef- 
 feas(/y). 
 
 Children. If the iiiteflate leave children, his ef- 
 
 feO-ls, (i. e. the whole if he leaves no 
 widow, or two-thirds if he does leave one,) 
 iliall be equally divided among his chil- 
 (I) drcn(I) (c); whether male or female; 
 whether by the fame or different wives (c?) ; 
 whether pofthumous or born in his life- 
 time ^e); whether papifi or proteflant(/). 
 Or, if he leave but one child, to fuch 
 only child (^). 
 
 {b) Stat. 29 Car. 2. c. 3. / 25. 2 Bl. Comm. 515. 
 ch. 32. I Pr. JVms. 379. Squib v. Wyn. 3 Atk. 
 526. Elliot V. Collier. 
 
 (f) Stat. 22 & 23 Car. 2. c. 14. / 5. 
 
 {d) For the half-blood fhall take equally with the 
 whole. Carth. $1. Brown -y, Farndell & ^7. Show, 
 Pari. Caf. 108, iio. Watts & ^/. v. Crooke. Buu" 
 bury, 158. Janfon v. Bury; and Wale v. Theedham, 
 there cited. 
 
 [e) 2 Atk. 115. V/ailis V. Hodfon & Ux, l Vef, 
 156. Burnet 1;. Mann. 
 
 (/) 3 P^' JVms. 49. D'Avers v. D'Ewes. 
 
 {g) Prec. Chanc. 21. Palmer -y. Garrard. Carthew. 
 52. Brown v. Farndell. 3 Pr. Wmi, 49. note (D). 
 D'Avers v. D'Ewes. 
 
 3 If
 
 APPENDIX. 303 
 
 If fome of the children of the inteflatc Reprefenta- 
 
 ■ . 1 -1 1 r ^ ^^""'^^ among 
 
 die hi his life-thne leaving children, luchdefcendants. 
 children Ihall ftand in loco parentis, and 
 lliall take their deccafed parent's ihare(/0: 
 as if there be two fons, and one die leaving 
 three children, and the other furvlve the 
 inteltatc; the three children of the de- 
 ceafed fon ihall have one moiety, and the 
 furviving fon the other. 
 
 And this right of rcprefentation among 
 tJie defce7idants of the intellate is not con- 
 fined within any degree (/), 
 
 But if all the children of the inteftate Taking /.r 
 
 capita, or per 
 
 die in his life-time leaving children, then/.r/^/. 
 the diftribution fliall be (II) to them (fuchGrand- 
 
 , . . children. 
 
 iiiue) per capita-, they now claiming in ^n) 
 their oivn right and 7iot by rcprefentation. 
 For where all the parents are decealed, 
 their children take per capita ; but when 
 fome only, they i^]^c per Jiirpesiji). 
 
 And 
 
 [h) Stat. 22 & 23 Car. 2. c, 10. /. 5. 
 (/■) See the Stat, and poji. {tn). 
 {k) Prec. Cham. 54. Walfli 1;. Walfh. ^Vef. 21$. 
 in the cafe of Lloyd v, Teuch. 3 Pr. IVms. 50. in 
 
 the
 
 304* 
 Hotchpot. 
 
 Great- 
 grand- 
 children. 
 
 (Ill) 
 
 Father. 
 (IV) 
 
 APPENDIX. 
 
 And note ; when diftrlbution is made 
 among children, they mult bring their 
 advancement into hotchpot, as by the a6t 
 is dire6ted (/). 
 
 If there be no grandchildren furviving 
 the inteftate, then the great-grandchildren 
 (III) (hall take equally per capita^ and fo 
 on ; the lineal defcendants of the inteftate 
 in infinitum^ being preferred to all afcen- 
 dants or collaterals (;?z). 
 
 If the inteftate leave no children, or 
 rcprefentatives of them, the father (IV), 
 if living, ftiall take, in exclufion of the 
 mother, brothers, and fifters, &c. (??). 
 
 the cafe of D'Avers v. D'Ewes. i Pr. Wins. 459. 
 Bov/er "i^. Littlewood. i Atk. 454. Durant iy, Preft- 
 wood. 2 Black. Conmi. 517. ch. 32. 
 
 (/) Siat. £2 & 23 Car. 2, c. 10. / 5. 
 
 (m) See the Stat. Car. 2. i Co?n. Dig. 273. Ad- 
 miniftration, (H.) cites Raym. (Sir 2'homas)^ 500. 
 I Pr. JVms. 27. I JtL 457, 458. 2 Pr. Wms, 
 346. 
 
 («) 2 Bla, Comm. 517. ch. 32. 
 I 
 
 If
 
 APPENDIX. 305 
 
 If the father be dead, the (V) i^other, Mother^and^ 
 brothers and fifters of the inteftate, ihall fillers. 
 take equally (o): as if there be a mother 
 and four brothers or fiflers, each fliall take 
 a fifth (jy). 
 
 So If fome, or all, of fuch brothers orReprefenu- 
 
 tivcs* 
 
 fifters die, leaving children, fuch children 
 fhall liand in loco parentis: as if there be a 
 widow, mother, and the children of a 
 deceafed only brother, the widow fhall 
 take her moiety, and the mother and the 
 children of the brother ihall have each a 
 fourth ; 2. e. the mother one fourth, and 
 the children the other; for the children 
 take qiiaji by reprefentation (y). 
 
 (*) Stat. 1 Jdc, 1. c, 17. / 7. 2 Bl. Comm. 516^ 
 ch. 32. 
 
 (/)) See 1 Strange, 710. Keilway v. Keilway. 2 
 Pr, IVms, 344. S. C. 
 
 {q) See Stat, i Jac. 2. c. 17. / 7. 2 Pr. Wms. 
 344. Keilway v. Keilway. X Atk, 455. Stanley v. 
 
 Stanley* 
 
 X But
 
 50^ 
 
 APPENDIX. 
 
 Among col- 
 laterals. 
 
 But this riglit of reprefentation, being 
 among collaterals, fhall not extend further 
 than brothers or fifters children (r). 
 
 Mother 
 alone. 
 
 If there be no brother, fifler, or de- 
 fcendant of fuch brother or fifter, the 
 mother fliall take the whole ; fhe having 
 been entitled before the ftatute 1 Jac, 2., 
 though there were brothers or fillers ; and 
 that ftatute does not take away her right 
 but only as to them and their ifrue(/) : 
 for to a grand/on of a brother, who muft 
 claim in his own right, the mother fliall 
 be preferred (t). 
 
 Mother-in- 
 law. 
 
 But note; a mother-in-law fhall take 
 nothing (u). 
 
 (r) I Atk, 457. Stanley -y. Stanley, 
 
 (/) See the Stat, and % Black. Comm. 516. ch. 32, 
 11 Finer. 196. (Executor, Z. 12.) Jackfon v. Prude- 
 home. I Jtk. 457. Stanley v. Stanley. 
 
 (0 See the Stat, and poji. And fee alfo I Atk. 457. 
 Stanley v. Stanley. 
 
 {u)7. Pr. JVmSi 216. Duke of Rutland v. Duchefs 
 of Rutland, 
 
 If
 
 APPENDIX. 307 
 
 if there be no mother, the brothers Brothers and 
 
 lifters where 
 
 and filters take equally; their children no mother. 
 Handing In loco parentis (jc). But note ; 
 reprefentation among collaterals ends with 
 fuch children: for if there be a brother's 
 gran df on and a fiiler's fon, the fifler's fon 
 fhall exclude the grandfon, who (hall take 
 nothing (3/). So a living uncle fliall ex- 
 clude a deceafed uncle's fon (2). 
 
 If there be neither brother nor filler, Next of kin- 
 nor children of a brother or filter, then 
 diftribution fhall be made, without pre- 
 ference, to thofe, whoever they may be, 
 who are next in degree of kindred to the 
 inteftate. 
 
 And the degrees of kindred fhall be According to 
 computed according to the civil law(c). 
 
 {x) See the Stat. Car. II. 
 
 [y) I Pr. JVms. 25. Pett's cafe. Comyns's Rep6 
 87. S. C. I Lord Raym. 571. S. C. and fee poJi> 
 
 (2) See pojl. p. 309. 
 
 {a) Prec. Chanc. 593. Mentney v. Petty. 2 Jtk, 
 lij. Wallis V. Hodion. i f^ef. 334. Thomas v. 
 Ketteriche. 2 Bla. Comm. 504. 515, ch, 32. 
 
 X i{ And
 
 308 APPENDIX.* 
 
 Paternal and And if there are relations both on the 
 lines. father's and mother's fide, in equal de- 
 
 gree, they fliall take together (^). 
 
 Grandfather. If there be neither brother nor fifter, 
 nor children of a brother or fifter, the 
 grandfather, (or the grandmother, if he 
 (VI) be dead,) fhall next take (VI). For al- 
 though the grandfather is in equal degree 
 with the brother or fifter, yet they Ihall 
 always take firft and exclude /^w^(c). 
 
 But, if there be cliildren of brothers or 
 lifters, who do not claim by reprefentation 
 but in their own right, (as where all the 
 brothers and fifters, and mother alfo (fee 
 page 305, are deceafed,) the grand- 
 father fliall be preferred; he being nearer 
 in degree. For, as the grandfather 
 is nearer than the uncle, and, there- 
 
 [h) I Pr. TVms. 53. More v. Barham (cited). I 
 Com. Dig. 273. Adminiftration, (H). cites Raym. 
 (Sir ThoTnas)y 500. 
 
 {c) See 3 Atk. 762. Evelyn v. Evelyn ; and S. C, 
 more fuliy in Burn's Eccl, Law^ 348. 
 
 fore,
 
 APPENDIX. 309 
 
 fore, /hall exclude him(rf); fo, as the 
 nephew^ or brother's child, is in the fame 
 degree as the uncleCe), the graiKUathcr 
 inufi:, for the fame reafon, exclude him 
 (the nephew) alfo (/j. 
 
 If there be no grandfather, then the Great- 
 great-grandfather, (or great-grandmother, ^jl'^'j.^j^"^^, ^'"' 
 if he be dead,) uncles, aunts, nephews, g^''^"-*'"o- 
 
 ^ ^ . tner, uncle, 
 
 and nieces, (or brothers or fillers children aunt, nephew 
 claiming in tJieir own rightj lliall (VII^ (VII)* 
 take together; being in equal degree (f). 
 
 For the living uncles and aunts fliall 
 exclude the children of deceafed uncles 
 and aunts ; fuch children being too re- 
 mote to claim bj/ reprejhitation; and, if 
 
 (c/) Prec. Chanc. 527. WoodroiFc v, Wickworth. 
 Jb'id. 593. Alentney v. Petty. I Pr. JVms. 41. 
 Blackborough -y. Davis, i Lord Raym. 684. S. C. j 
 and fee i f^ef. 215. Lloyd v. Shore. 
 
 (f) I Atk. 454. Durant v. Preftwood. 
 
 (/) See 2 Vef. 213. Lloyd i^. Tench. 
 
 {g) Preced. in Chanc. 593. Mentney v, Petty. I 
 Jti. 454. Durant v. Preftwood. 2 Fef, 213. Lloyd 
 Vf Tench, 
 
 X 3 con-
 
 310 APPENDIX. 
 
 confidered as claiming in their oivn right, 
 they are a degree further from the intef- 
 tate(/?): as the nephews, or nieces, or 
 children of brothers or fifters, fhall exclude 
 the grandchildren of fuch brothers or fifters 
 when claiming in their own right; as be^ 
 fore obferved (/). 
 
 Great-great- If there be neither great-grandfather, 
 ir moth-r, ' unclc, aunt, nephew, or niece, then the 
 IrTcouftn!' great-great-grandfather, (or great-great- 
 and great- m-andmothcr, if he be dead,) great-uncle, 
 
 nephew. ^ r ^ i » r ^ i 
 
 nrft-coulin, (or uncle s Ion,; and great- 
 nephew, (or brother's grandfon, claiming 
 in his own right, and not by reprefenta- 
 (VUI) tion,) fhall (VlII) take together; being 
 in equal degree (A). 
 
 And note; that the diftribution is not 
 to be made till a twelve-month after the 
 
 {h) I Pr. Wms. 594. Bovver -y. Littlewood. Prec. 
 Chanc. 28. Man v. Harding, ii Viner, 195. Exe- 
 cutor, (Z. II.) pi. 15. 
 
 (0 P- 307. 
 
 (i^) See I Vef. 333, Thomas -z;. Ketteriche. 
 
 inteftate's
 
 APPENDIX. , 3U 
 
 inteftate's deceafe ; (fee the Stat.) ; yet the 
 interejl vcjis iinmediately (J) in the perfon en- 
 titled^ (faving as to a porthumous claim- 
 ant) : fo that if he die within the year, 
 his Ihare fhall go to his reprefentative(m). 
 
 And note alfo ; that, after the children 
 of brothers and fifters, diftribution muft 
 always be made per capita among colla- 
 terals {ii). 
 
 (/) i. e. On the death of the inteftate ; Carth, 55. 
 For if a perfon had a brother and fifter, and the fifter 
 had married and died before the inteftate, the hufbanci 
 of the fifter fhall not take any thing. 
 
 {m) 2 Pr. Wins. 442. Edwards v. FreemaYi. 3 
 Pr. TFms. ^c). note (D.) Grice "Z/. Grice. Carth, ^2^ 
 Brown v. Farndell & al. 
 
 («) (^omyns's Rep, 87. Pett. -y. Pett. i LordRaym. 
 
 471. S. C. I Pr. Wms. 25. S. C. i Ib'id. 593. 
 
 Bowers v. Littlewood. Free. Chanc. 28. Maw v^ 
 
 Harding. Ibid. 54. Walih v, Walfh. 3 Pr, IVm^, 
 50. D' Avers i;. D'Ewes. 
 
 X 4 INDEX.
 
 INDEX. 
 
 A. 
 
 Abatement— page 3. 47. 53. 62. 
 
 Abeyance — 198. 202. note. 
 
 Advowfon— curtefy of advowfon, when the wiffe dies before 
 avoidance, 54. 
 prefentation to, 54. 58, 70. note («). 77. 
 ufurpation of, 3. note {c). 78. 
 appendant, 78. 
 recovery of, fhall caufe a pojjejfio fratrtSy 30. note. 
 
 66. note {g). 
 recovery of the lands to which it is appendant, 78. 
 Appendancies — feifin of, 7. 78. 
 ArtieJes, marriage — conftrudion of, 253. note (y). 
 AfTets — lands dcfcending are aiTets before entry, 55. 
 
 of a remainder or reverfion on a freehold being aflets, 140. 
 Aflignment — of dower, 85. note [c). 87. lOI. 
 Aflize — K$. 
 Attorney — entry by, 72--4. and notes (/). (/). 
 
 livery of feilin by, 74. note (^}, 
 Attornment — i6. 138. 
 
 xiow unnecefTary, 34, 
 
 Attornment
 
 INDEX. 
 
 Attornment — originally coram paribus, 138. 
 Avovvance — on a feifin in law, 55, 
 
 B. 
 
 Bafe fee — 209. 278. 
 
 ^a.{[avd eigne — 68. note (^). 87. note (^), 217. 
 
 Blood — (Half). See half-blood, — Neareft of blood, whom, and 
 
 how they take, 227, 
 Borough Englifh — defcent of, 112, note (/*). 223. note (^). 
 
 a pofthumous ifTue may enter on his elder 
 brother, 207. note (/). 
 Brothers — of defcent between brothers, iii. note («). 
 
 c. 
 
 Claim — (continual), 62. 
 
 by attorney, 75. note. 
 Common (tenants in) — when the poiTeflion of one is that of 
 
 the others, 69. 
 take always by purchafe, 273 — 4. 
 Condition — who may enter for condition broken, 73. note. 200i 
 note (a). 266. 
 perfon entering is in of the old eftate, 267. and 
 note («), 
 Conditional limitation — 248, 
 
 Confideration — not necefiary to change the defcent, 289, 290. 
 Coparcenary — entry by one coparcener, 69. 
 
 coparcenerstakealwaysby defcent, 225. note. 278, 
 Copyholds— furrenderee dying before admittance, 32. 
 
 admittance of the particular tenant is that of the 
 
 remainder-man, 33. note (g). 
 copyholder may releafe his right to a wrongful te- 
 nant, 47. '■" 
 his poffeflion is that of the lord, 68. 
 
 Copyholds
 
 INDEX. 
 
 Copyholds— copyholder holds at his will, 68. and note (/). 
 
 is in in Jlatu qua prius on entering for conditioa 
 
 broken, without a new admittance, 267. note [a). 
 
 are fubje<ft to the fame rules as freeholds are with 
 
 refpe6l to the coalefcence of eflates, 251. 
 and alfo as to the changing of the defcent from the 
 
 maternal to the paternal line, 269. 
 pojfejjio fratris may be of them before admlffion, 68, 
 
 69. and notes. 81. note [k). 
 the freehold remains in the lord of whom held, 69. 
 
 note (/). 
 free-bench. See Free-Bench, 
 See Surrender, and Leafe. 
 Counties — origin of, 18. note, 
 Curtefy — no curtefy of a right, 51. 
 nor of a feifin in law, 54. 
 
 nor of a reverfion or remainder on a freehold, 141 — 2, 
 of curtefy where the wife had been difleifed, 53. note 
 
 (?) and (r). 
 what feifin fufficient to entitle the hufband to his cur- 
 tefy, 53—4. 72. note (/). 
 curtefy admits of no mefne feifin, lOi. 
 9t what time the eftate is faid to vcft in the hufband, 
 
 103. 
 tenant by curtefy holds of the lord, 104. 
 
 D. 
 
 Debts— -Devife to pay debts, a chattel intereft, 67. note. 
 
 Peed — operation of a deed Qn an eftate defcended ex parte mor 
 
 terna^ 280. 
 Deforcement — 45 . 
 
 Demefnes— (the king's), 127. and note (;«). 
 Pefcent — the anceflor taking by defcent, i. 36. 
 
 \ Defcent
 
 INDEX. 
 
 Defcent— canons of defcent, iii. 
 
 the father may inherit to the fon as his coufin, iii. 
 
 note [a). 
 immediate defcent, iii. note (a), 
 right of reprefentation holds in defcents by cuftom, 
 
 112. note (b). 
 collaterals, iii. 114. notes, 
 defcent of a right, 82. 
 of an eftate in pofTeflion, 163. 
 of an eftate in reverfion or remainder on a freehold, 
 
 116. 137. 148. note (d). 157. 
 of a truft, 263. 
 ex parte materna-f 221. 
 what fhall break the defcent, and give the preference 
 
 to the paternal heirs, 224. 267. 
 the rules of defcent not to be altered, 223. note {d). 
 when a perfon takes by defcent, i. 233. 261. 268, 
 it is not in the election of the heir to take by defcent or 
 
 purchafe, 269. 
 flcfcent is favoured, 268. 
 See Half-BIood. 
 .Devife — executory devife j fee that title. 
 
 devifes known to the Saxons, 16. note (/). 
 
 death of the devifee before that of the devifor, 24. 204. 
 
 devife gives a feifm in hw, 32. 
 
 devifee dying before entry, 32. 
 
 entry of a devifee for years makes a pojpjfto fratrh 
 
 67. note, 
 v/hen the devifee muft take, 203 — 4. 
 v/hen the devife of an eftate defcended ex parte ma^ 
 
 terna fhall break fuch defcent, 271. 
 
 tvhen not, 268. 
 
 JDifTeifin — 3. 53. 82. 
 
 Diftribution of an Inteftate*s Q^td^^f^ Appendix, 
 
 Dominium
 
 INDEX. 
 
 Dommum direSfum of lands-originally in the nation or tribe, 
 
 117. 
 in the king, i^S* 
 Dominium utile — in the tenant, 135. 
 
 Dower— of a feifin in law, 4^. 49- r u u a 
 
 but not of a reverfton or remainder on a freehold, 4&. 
 
 85. 142. 
 nor of aright, 51. 
 
 of dower when a ftranger abates, 49. 
 whan the hulband had been diffeifed, 52. 
 dower defeating feifin, 83. 
 dowager is in by her hufband, 84. 
 endowed of lands of which Ihe was not dowable, 87. 
 
 note (/;). 
 accepting leafe or guardianftiip, 88. note (/). 
 recovery againft a ftranger to whom the heir had leafed 
 
 the whole lands, 92. 
 of claiming againft the heir who took by purch^e, 93. 
 mother endowed before the grandmother, 95. 
 dower is favoured, 100. 
 aflignment of dower, lOi. 
 the dowrefs holds of the heir, and is attendant on 
 
 him, 104. 
 a remainder on an eftate in dower, not good, 84,. 
 
 note [b). 
 
 See FreC'Bemh, 
 
 E. 
 
 Elegit— (tenant by), 65. 
 
 Entry— heir before entry has a feifin in law, 38. 
 
 and a relief ftiall be paid on his death, 38. note (/). 
 
 he may releafe to an abator, 47» 
 
 his wife Ihall be endowed, 49* 
 5 
 
 Entry
 
 Entry-^heir itiay maintain a writ of right, ^5. 
 
 the lands defcending are affets before his entry, 5S' 
 
 he may leafe before entry, 67. 
 
 entry, what, and how made, 60. 
 
 by the heir, 61. 
 
 by guardian or lord, 64. 
 
 by tenant of a chattel intereft, 65. 
 
 by a devifee for years, 67. note. 
 
 by a particular tenant, 33. and note (g). 67. note. 
 
 by a copyholder, 68. 
 
 by one coparcener, joint-tenant, or tenant in common^ 
 
 69. 
 by a younger brother or a filler, 72. 
 by a ftranger, 72. 
 
 by attorney, 72, and note(/). 74. note (/). 
 not tolled by the defcent of an eftate, of which the an- 
 
 ceftor was never abfolutely feifed, 31. 
 nor by the defcent of a reverfion or a remainder on a 
 
 freehold, 137. note (t). 
 of entry by a pofthumous heir. See Infant in Ventre fa 
 
 Mere. 
 entry to avoid a fine, 73. note. 76. note(M). 144 — 5' 
 
 note (/), 
 
 Equitable eflate — cannot coalefce with a legal one. 238. 
 
 when it fhall merge in the legal eftate, 238, 
 298. 
 Equitable relations — 35. note {k). 
 
 Equity of redemption — pojfejfio fratris of, 77. note {a). 107. 
 conveyance of the legal eftate. 287. 
 
 Efcheat—title by efcheati the lord muft enter or bring his 
 writ, 4. 8. 
 efcheat of a remainder, 10. note {m), 
 
 Efcheat
 
 INDEX. 
 
 Efcheat— entry of a pofthumous heir in cale of efcheat, 20 1. 210. 
 
 217. 
 Efplees — (alleging of), 56. 
 Exchange — death of the party^ 32. 
 Executory devife — the ulterior fee is defcendible, 13. 155. 
 
 but is not faid to be veftcd while the anterior 
 
 one continues, 14, note (0). 214. 
 nor is it fubjedl to poJJ'i.j[fto fratr'is^ 149. 155. 
 of the entry of the poltlmmous iflue of the 
 
 perfon talcing the anterior fee, 214. 
 how it differs from a remainder, 202. note- 
 
 249. 
 — from a conditional limitation, 248. 
 divided into two clafTes, 249. 
 fee defcends to the heir, 278. 
 
 F. 
 
 Father— how he may inherit to the fon, iii. note {a). 
 Fee — an eftate gained by wrong is a quaji fee, 3. note [c). 
 bafe-fee, 209. 
 
 two fees cannot exift together, 300. 
 Feoffment — incomplete without livery of feifin, 19. 
 feoffment and re-enfeoffment, 283, &c. 
 Feudal fyftem — origin of, 16. note (/). n6. 
 feuds, annual, 118. 128. 
 at will, 134. 
 for life, 134. 
 
 held of the ftate, 117, 128. 
 of the king, 126. 
 Fine of lands— cognizee dying before execution, yet the heir in 
 by defcent, 28. 
 gives a feifin in law before execution, 29. and 
 note {%), 
 
 Flop
 
 INDEX. 
 
 J^ine of lands — entry to avoid a fine levied with proclamations^ 
 73. note. 76. rote [u). 144 — 5. note (/). 
 when a fine levied of lands defcended ex parte 
 materna fhall change the defcentj and caufe 
 them to go to the paternal heirs, 291, &c. 
 Fine — -fur done^ grants I3' render^ operation of, 292. 5. 
 Fine to the king, 130. note. 
 Formedon — (writ of), 57. 
 Free-Bench — where the hufband dies feifed, 54. note {t). 
 
 when the law cafts the pofTeffion on the widow, 
 lOi. and note [g). 
 Freehold eftate — the tenant of the freehold has the feudal pofiTeilion,, 
 or feifin in deed, 40. 135. 198. 
 the freehold not to be in abeyance, 198. 
 ' the freehold of eftates held by copy is in the lord, 
 68. and note (/). 
 
 G. 
 
 Gavelkind — defcent among collaterals, 113. note [c). 
 right of reprei'entation, 112, note. (Z*). 
 infant may releafe his right in gavelkind-Iands, 48. 
 the entry of one brother is the entry of all, 70. note 
 
 remainder limited of gavelkind-lands, 223. note(^/), 
 defcent of fuch remainder or of a reverfion, 239. note. 
 Guardiifti — entry by the guardian, 64. 199. 
 
 widov/ accepting the guardianfhip of the heir was 
 barred of dower during his minority, 88. note {k), 
 
 Half-Wood— See Popfto Fratriu 
 
 Half.
 
 INDEX. 
 
 Half-blood — children by different wives cannot fucceed to each 
 other ; but they may fucceed as the heirs of theix 
 common parent, 152. 158. 159. and note {h). 
 muft be proved; as a perfon is prefumed to be of the 
 whole blood, 75. note (u). 
 Heir — what he may do before entry. See Entry. 
 
 limitation to the heir fixed in the anceftor, 250. 
 " heir," m the fingular number, 261. 
 
 I. 
 
 Implication — of eftates by, 242. 246. 281. note {b). 
 Incidents — feifin of, 78. 109. 
 
 follow their principals in defcent, ibid, and 265. 290, 
 
 Infants — entry by their guardian or lord, 64 — 5. 73. note. 199. 
 
 by a ftranger in the name of an infant, 65. note {h), 
 
 73. note. 
 
 Infant in Ventre fa il/^r^— formerly not confidered as in ejfe, 198. 
 
 but now, generally, as abfolutely born, 
 
 212. 
 fuch pofthumous ifllie may enter on 
 the perfon taking by defcent, or 
 per for mam doniy 198. 200. 207. 
 or who takes a reverfion, 200. 208. 
 or a remainder veiled before his birth, 
 
 200. 211. 
 or by efcheat, 20i. 2 10. 
 but could not have entered on a perfon 
 
 taking by purchafe, 200. 205. 211, 
 or by remitter, 206. note {e). 
 on an executory devife to A. in fee, and 
 if he die without iflue, then to B. 
 in fee, it feems that the pofthumous 
 iiTue of A. may enter ou B. 214. 
 y Infant
 
 INDEX. 
 
 Infant in Ventre fa Tkf^r^— bafe-fee, 209. 
 
 of the entry of the pofthumous ifTue 
 of the bajiard eigne and midier puifne, 
 217. 
 of the mefne profits from the death of 
 the anceftor to the birth of the poft- 
 humous ilTue, 219. 
 Inftant — 50; 
 Intrufion — 45. note {t). 
 
 Joint-tenant — entry or prefentatlon of one joint-tenant, the entry 
 or prefentation of all, 69 — 70. 
 joint-tenants take always by purchafe, 224 — 5. 
 note. 274. 
 
 K. 
 
 Kin — bequeft to one's *' next of kin " how it operates, 226. note. 
 Kings^— elective, 119. 122. 
 
 become for life, 125. 
 
 hereditary, 123. 126. 
 
 how chofen and inaugurated by the northern nations in 
 early times, 122. 
 
 the king reprefeuts fociety as to the military power, 126. 
 
 and as to the property in lands, 126. 128. note. 
 
 and alfo as to the executive power, 129. note. 
 
 and hence profecutions for criminal offences are carried 
 on in his name, 129. note. 
 
 he is the chief magiftrate, I3!r. note. 
 King's Bench — 132, note. 
 King*s Demefnes- — 127. and note(w). 
 
 Leafe^pofTeflion of the lefTee isthat of the leffor, 39. 65. 135. 
 '■ * Leafe
 
 INDEX. 
 
 Leafe— leafe by the heir before entry, 67. 
 
 leafe for lives renewed, 290. 
 •Legal eftate — See Equitable Eftate. 
 
 legal eftates by devife fubjea to the fame rules dS 
 thofe created by deed, 251. 
 Limitation — conditional, 248. 
 Lord — entry by the lord, 64. 
 See Efcheat. 
 
 poffelTion of the copyholder is that of the lord, 68. 
 the freehold continues in him, 68. and note (/). 
 
 M. 
 
 Magiftrates — in rude ftates, 120. 
 
 the king is, in this nation, the chief maglftrate^ 
 131. note. 
 Materna (Defcents ex parte)— idb. 221. 
 Merger — an eftate tail will not merge in a fee, 145. 
 
 but otherwife of an eftate after pofTibility, &c. 146. 
 truft-eftate merging in the legal, 264. 298. 
 Mefne profits— who entitled to them from the death of the an- 
 
 ceftor to the birth of a pofthumous heir, 2ig. 
 Mortgage — reconveyance of the legal eftate changes the defcent, 
 
 288—9. 
 Mulier pulfn} — 217. 
 
 P. 
 
 Parcenary — See Coparcenary. 
 
 Particular eftate — equitable, when the remainder is legal j and 
 vice verfa^ 238. 
 for years, 238. 245. 
 
 none in the anceftor to whofe heirs the re- 
 mainder is limited, 239. 
 
 y 2 Particular
 
 INDEX. 
 
 Particular eftate — ^jointor feverai, 240. 
 determinable, 241. 
 by implication, 242. 
 eftate interpofmg between the particular one 
 
 and remainder to the heirs, 246. 250. 
 veiling or attaching in the anceftor, 246. 
 when the ultimate limitation is to the right heirs 
 of the grantor, the heirs fhall be in by de- 
 Itent, though the anceftor take no particular 
 eftate himfelf, 254. 
 Paterna {Dekents ex parte) — paternal line preferred, 166. 173. 
 
 299. 
 Perfonal effecls — diftribution of thofe of an inteftate, Jppendix. 
 Pojpjfio Fratris — of copyholds before admiflion, 69. 81. note [k). 
 is not favoured, 74. 
 
 how made of corporeal hereditaments, 60, 
 of incorporeal, 77. 137. 
 of appendancies, 78. 109. 
 of a remainder or reverfion on a freehold, 40, 
 
 66. note [g). 81. 92. 137. 
 of what hereditaments it may be, 77. note [a), 
 106. 
 Poflefllon — fee Seifm. 
 Poflibility — is defcendible, 14. 
 
 Poffibility (Tenant after) — is qu a fi iQxiznt for life; and his eftate 
 
 will merge in his reverfion in fee, 
 
 145. 
 
 Pofthumous heir — ig8. See Infant in Ventre fa Mere. 
 
 Power — appointee is in by tlie original donor or grantor, 236 — 7. 
 
 Pree.ipe — againft whom it lies, 41. 70. note. 
 
 Purchafe — the anceftor taking by pui-chafe, i. 15. 59. 151. 
 
 incomplete in the life of the anceftor, 27. 
 
 purchafer cannot allege feifin in an anceftor, 56. 
 
 need only prove a fixture of property, 59. 
 
 4 Puchafer
 
 INDEX. 
 
 Purchafe — tdkz% ut antiquum^ in. note. 173.221. 
 
 whenaperfon iliall take by purchafe, 223. note(^). 
 226. 231. 261. 282. 
 
 words of purchafe, 232. note [d). 229. 252. 
 Purchafer (Firft)— 9. 15. 59- ^37- note(«). 151. 
 
 Q. 
 
 ^wre impedit—hy one coparcener, kc. againft another, 70. note 
 
 R. 
 
 Recovery— does not give a feifin In hw before execution ; yet, 
 on the recoveree's dying before it be ferved, exe- 
 cution may be fued out againft the heir, 19. note. 
 76. See 66. 
 a common recovery is a mere form of conveyance, 295. 
 and only an inftrumcnt for raifing an ufe, 298. 
 efFea of it when fuffered of an eftate defcended ex parte 
 materna, 296. 
 Relations— bequeft to one's " relations," how it operates, 226, 
 
 note. 
 Relief— payable on whofc death, 12. note. 38. note (n). 
 Remainder— defcent of, 10. 107. 137. i57- 229. note, 
 is defcendible though contingent, 10. 
 of whom held, 10, n. note (w). 
 may efcheat, 10. note {m). 
 livery of feifm given to the particular tenant enures 
 
 to the remainder-man, 33. 67. note. 
 no feifin of a remainder on a freehold, 40. 107. 137. 
 nor dower, 46. 142. 
 nor curtefy, 142. 
 whether it may be afiets, 140. 
 remedy of the renaainder-man, 56. 
 grantable, 137. 
 
 Y 3 Remaindci
 
 INDEX. 
 
 Remainder — when a contingent remainder muft veft, 201, 205, 
 
 211. 215.' 
 when a remainder muft be taken, 202. 225. note, 
 pofthumous iilue might have entered on him who 
 
 took a remainder 'y^(?i before his birth, 200. 211^ 
 out not on him who took one dependent on fuch 
 
 event, 21 1, 
 remainder in Borough Engliih or gavelkind, 223^ 
 
 note (a). 
 remainder to the heirs general, 231. 256. 281. 
 to the heirs fpecial, 232. 280. 
 when a remainder to the heirs fball be vefted or 
 
 fixed in the anceftor, 246. 
 remainder on an eftate in dower not good, 84. note 
 
 Remitter — 79. 206. 
 Reverfion — what, 180. 282. 
 
 is part of the old eftate, 257. 
 
 on a chattel intereft, 39. 65. 67. note. 135—- 6. 
 
 on a freehold, 40. 66. note [g). 81. no. 137. 
 
 on a fee, 5. 
 
 to A. for life, and A. grant to B. for the life of B. 
 A. has a reverfion left, 6. note (g). 
 
 whether a reverfion on a fieehold may be aflcts, 140, 
 
 pn an eftate in dower, 84. note (/'). 148. 
 
 = in curtefy, 148. 
 
 on an eftate-tail, 142,151. 
 
 eftate after pofubility, kc. 145. 
 
 defcent of a reverfion on a freehold, 7.116. 137. 1.51. 
 
 157- 
 does not toll an entry, 137. note (t). 
 
 fuch reverfion is not fubje<3: to poj/ejfio fratris, 107. 
 
 137- 
 -=■ — dower or curtefy, 141 — 2. 
 
 3 R everfion
 
 INDEX. 
 
 Reverfion — is grantable, 137. 
 
 but not fo as to take effea in future, 139. 
 pofthumous iffue may enter on the reverfioncr, 200. 
 208. 
 Right— 44. 82. 
 
 releafe of right, 47. , / a 
 
 no feifin, dower, or curtefy of aright, S'- ^n^ "^te {0), 
 
 82. 109, 
 Right (writ of)— 55- 7^. 
 
 S. 
 
 Shelly's cafe (rule in)— 28. 233. 
 Seifin — of the term, 41. 
 
 actual — on a purchafe, 9. I5- S9' 
 on a defcent, 36. 57. 59- 
 how obtained, 59. 
 how defeated, 82. 
 how recovered, 75. note (/). 78. 
 feifm in law, 38. 44. 
 rebuttal of, 39. 44- S^i S^- ^7- 
 a fine gives a feifin in law before execution, 7!^» 
 but not a recovery, 30. note. 
 a dcvife gives a feifin in law, 32. 
 dower of a feifin in law^ 46. 49. 
 curtefy, 54. 
 
 of the feifin of a reverfion or remainder on a free- 
 hold, 40. 107. 137. 
 no feifm of a right, 51. 
 dying feifed, 36. note (/). 38. note {t). 
 alleging of feifin, 56. 
 
 difcontinuance of, 36. note (/). 38. note (f). ICS^, 
 prefumed to continue if the contrary be not fliown, 
 
 Y 4. Seifin,
 
 INDEX. 
 
 Seifin> a£lual — the feifin or feudal pofleflion is In the tenant of the 
 freehold, 40 135. 
 though by wrong, 3. note (c). 39. 82. 
 livery of feifin given on the creation of a freehold 
 
 eftate, 135. 
 by attorney, 74. note (i). 
 
 to the particular tenant, enures to thofe in re- 
 mainder, 23- 
 Statute-merchant and Statute-ftaple (tenant by) — 65. 
 Strict fettlement — 253. 
 
 T. 
 
 Tail (eftate)— will not merge in the fee, 145. 
 
 porthumous ifiue may enter on the reverfioner, &c. 
 
 207. See Infant in Fentre fa Mere. 
 reverfion on eilate-tail, 7. 142. 
 . after poflibility, &c. SeePoffibility (Tenant after), 
 fine levied by tenant in tail, 291. 
 recovery, 296. 
 
 of whom the tenant in tail fhall hold, 11. note. 
 > . . relief by, 12. note. 
 
 Teri-r-numbering by tens, 12. note. 22. note. 
 Trefpafs — who may bring it, 29.: note (z). 
 Trull — truft eilates fubjeiSts of chancery, 251—2, 
 executed and executory, 251 — 2. 
 trufts are fubjecl to the -fame rules of defcent as legal 
 
 eftates, 264. 285. note-(/). 
 the ultimate limitation to the right heirs of the perfon 
 
 creating it, 264. 
 truft-eftate merging in the legal, 264. 285. 298, ' 
 Twelve (number) — 21. note (13). 
 Tythings — 18. note. 
 
 Veftiiig
 
 INDEX. 
 
 U. and V. 
 
 Vefting— of tlie term, 42—3- 
 
 a remainder is defcendible before it be vefted, 10. 
 when a fee is limited on a fee by way of executory de- 
 vife, the executory fee is not faid to be ftridly vefted, 
 
 14. 215. 
 when a contingent remainder muft veft, 201. 205. 211. 
 
 when a limitation to the heirs {hall veft in the anceftor, 
 250. 
 Ufe-refulting ufe, 256. 282. 293. 295. 
 
 W. 
 
 Wrong— of an eftate gained by wrong, 3. and note {c). 82. 
 
 THE END. 
 
 G. Woo«ifaU, Printer, Pateraofter-row, London.
 
 LATELY PUBLISHED, 
 
 BY THE SAME AUTHOR. 
 
 I. An Enquiry into the Title and Powers of 
 His Majesty as Guardian of the Duchy of 
 Co.iNvVALL during th^ late Minority of the Duke. 
 
 II. Reflections on Government ik general, v/ith 
 their application to the British CoNSTiTUTi.ON. 
 
 ill. The Law of Tenures, by the late Lord Chief 
 Baron Gilbert ; with an Historical Intro- 
 duction ON the Feudal System, and copious 
 notes and illustrations. 
 
 IV. A Treatise on Copyholds; in two volumes: — 
 Vol. I. containing the Doftrine of Manors^ Grants, 
 Surrenders^ Entails, Remainders, Executory Intsrejis 
 and Trujis, Admiffion, Fines, Forfeitures, Extinguijh- 
 ment and Sufpenfton, and Enfranchisement, 
 Vol. II. Courts, Cujioms, Free -Bench and Curtefy, 
 Guardianj})ip, Licence, Heriots, Suits, Rents,' Cur- 
 poral Services, and the application of the Statute Law 
 to Copyhold Property. 
 
 V, An
 
 2 
 
 y. An Enquiry into the Question, Whether the 
 Brother of the paternal Grandfnother Jhall fucceed to the 
 Inheritance of the Son, in preference to the Brother of the 
 paternal Great-grandmother? The Affirmative having 
 been advanced by Mr. Justice Manwoode, acceded to 
 by Mr. Justice Harper, Mr. Justice Mounson, 
 and the Lord Dyer; and adopted by Lord Bacon, 
 Lord Hale, and the Lord Chief Baron 
 Gilbert: and the Negative by Mr. Robinson, (the 
 late Chief Justice of Gibraltar,) and Mr. Jus- 
 tice Blackstone. 
 
 VL Principles of Conveyancing, defigned for the Ufe 
 of Students y with an Introduction on the Study 
 OF that Branch of Law.
 
 LATELY PUBLISHED. 
 
 A new Edition, with Additions, of 
 
 REPORTS OF CASES, 
 
 Jrgued and determined in the King's Courts at Wejiminjler^ 
 
 In Three Volumes, royal odavo, 
 BY MR. SERJEANT WILSON. 
 
 Price i/. i8i-. hound. . " 
 
 A Practical Digeft of the 
 ELECTION LAWS, 
 
 In One Volume, royal odtavo, 
 
 BY ROBERT OR ME, GENT. 
 
 Price lOs, td, bound.
 
 A new Edition, with Additions, of 
 Sir MATTHEW HALE's PLEAS of the CROWK^, 
 
 In Two Volumes, royal o6lavo; 
 
 BY THOMAS DOGHERTY, ESQ^ 
 
 Price il. lis. td. bound. 
 
 A new Edition, with confiderable Additions, of 
 
 ATKYNS's REPORTS IN CHANCERY, 
 
 Three Volumes, royal odavo. 
 BY F. W. SANDERS, ESQ;^^ 
 Price 2/. 5^. hound. 
 
 A new Edition, with confiderable Addition-s, of 
 
 SIR JOHN STRANGE's REPORTS IN THE 
 KING'S BENCH, &c. 
 
 In Two Volumes, royal oftavo. 
 BY MICHAEL NOLAN, ESC^ 
 Price il. iQs. hsund. 
 
 A new Edition, with confiderable Additiotis, of" 
 
 BACON'S ABRIDGMENT, 
 
 Seven Volumes, royal o£lavo. 
 
 BY HENRY GWILLIM, ESQ. 
 
 Price 5/. 15^. 6^. bound.
 
 5, 
 
 A new Edition, with confiderable Additions, of 
 JACOB'S LAW DICTIONARY, 
 
 In Two, Volumes, large quarto, 
 BY T. E. TOMLINS, ESQ^ 
 Price 3/. lOs. bou7id. 
 
 REPORTS OF CASES, 
 
 Relating to the Duty and Office of a Juftice of the Peace, 
 
 In One Volume, quarto. 
 
 BY THOMAS C.ILDECOTT, ESQ^ 
 
 Price il. 151. hound. 
 
 A TREATISE ON THE LAW OF TITHES, 
 
 BY T. H. SHAW, GENT. 
 Prlct gr. bound. 
 
 AN 
 
 ARRANGEMENT and DIGEST of the LAW, 
 
 In One Volume, royal oftavo. 
 
 BY JOSEPH BURCHELL, ESC^ 
 
 Price los. bd. hound. 
 
 A new Edition, with Additions, of 
 
 THE ATTORNEY'S POCKET-BOOK, 
 
 In Two Volumes, i2mo. 
 BY F. C. JONES, ESQ^ 
 price JOS. dd. bound.
 
 6 
 TRACTS ON CROSS REMAINDERS, &c. 
 
 BY RICHARD PRESTON, ESQ. 
 Price 2s. 6d. Jewed, 
 
 A SUCCINCT VIEW OF THE RULE IN 
 SHELLY's CASE, 
 
 BY RICHARD PRESTON, ESQ^ 
 Price 3^. boards. 
 
 A TREATISE ON LEASES, 
 
 BY MATTHEW BACON, ESQ^j 
 Price iQs. bd. bound* 

 
 UC SOUTHERN REGIONAL LIBRARY FACILITY 
 
 AA 000 832 950 o