before-mentioned, or estate held till the profits thereof shall discharge a debt liquidated or afcertained. For both the ftatute merchant and ftatute staple are fecurities for money; the one entered into before the chief magistrate of fome trading town, purfuant to the ftatute 13 Edw. I. de mercatoribus, and thence called a statute merchant; the other pursuant to the statute 27 Edw. III. c. 9. before the mayor of the staple, that is to say, the grand mart for the principal commodities or manufactures of the kingdom, formerly held by act of parliament in certain trading towns, from whence this fe curity is called a ftatute ftaple. They are both, I fay, fecurities for debts acknowleged to be due; and originally permitted only among traders, for the benefit of commerce; whereby not only the body of the debtor may be imprisoned, and his goods feised in satisfaction of the debt, but also his lands may be delivered to the creditor, till out of the rents and profits of them the debt may be fatisfied: and, during fuch time as the creditor fo holds the lands, he is tenant by ftatute merchant or ftatute ftaple. There is also a fimilar fecurity, the recognizance in the nature of a statute staple, acknowleged before either of the chief juftices, or (out of term before their fubftitutes, the mayor of the staple at Westminster and the recorder of London; whereby the benefit of this mercantile transaction is extended to all the king's fubjects in general, by virtue of the ftatute 23 Hen. VIII. c. 6. amended by 8 Geo. I. c. 25. which direct fuch recognizances to be enrolled and certified into chancery. But thefe by the ftatute of frauds, 29 Car. II. c. 3. are only binding upon the lands in the hands of bona fide purchafors,

d See book I. c. 8.

long fanctioned by illuftrious names, it might be obferved that the equity of the fecond ought to have outweighed both the law and equity of the third; for it can hardly be reconciled with fubftantial justice, that the third by any contrivance or combination should be permitted to run away with the whole estate, and to leave nothing to the fecond, who had fairly and honeftly advanced his property. But this, if wrong, can only be corrected by the authority of the legiflature,

from

from the day of their enrolment, which is ordered to be marked on the record (5).

At

V. ANOTHER fimilar conditional eftate, created by operation of law, for fecurity and fatisfaction of debts, is called an [161] eftate by elegit. What an elegit is, and why fo called, will be explained in the third part of these commentaries. prefent I need only mention, that it is the name of a writ, founded on the statute of Westm. 2. by which, after a plaintiff has obtained judgment for his debt at law, the sheriff gives him poffeffion of one half of the defendant's lands and tenements, to be occupied and enjoyed, until his debt and damages are fully paid: and, during the time he fo holds them, he is called tenant by elegit. It is easy to observe, that this is also a mere conditional eftate, defeafible as foon as the debt is levied. But it is remarkable, that the feodal restraints of alienating lands, and charging them with the debts of the owner, were foftened much earlier and much more effectually for the benefit of trade and commerce, than for any other confideration. Before the ftatute of quia emptores', it is generally thought that the proprietor of lands was enabled to alienate no more than a moiety of them: the ftatute therefore of Weftm. 2. permits only fo much of them to be affected by the procefs of law, as a man was capable of alienating by his own deed. But by the ftatute de mercatoribus (paffed in the fame year) the whole of a man's lands was liable to be pledged in a statute merchant, for a debt contracted in trade; though only half of them was liable to be taken in execution for any other debt of the owner,

I SHALL conclude what I had to remark of these estates, by ftatute merchant, ftatute ftaple, and elegit, with the obfervation of fir Edward Coke", "These tenants have un"certain interefts in lands and tenements, and yet they have "but chattels and no freeholds;" (which makes them an 13 Edw. I.

13 Edw. I. c. 18.

(5) Thefe eftates are fometimes referred to in argument, but are now unknown in practice.

exception

161

exception to the general rule) " because though they may "hold an estate of inheritance, or for life, ut liberum tene"mentum, until their debt be paid; yet it shall go to their "executors: for ut is fimilitudinary; and though, to recover "their eftates, they fhall have the fame remedy (by affife) as "a tenant of the freehold shall have', yet it is but the fimili- [161] "tude of a freehold, and nullum fimile eft idem." This indeed only proves them to be chattel interefts, because they go to the executors, which is inconsistent with the nature of a freehold: but it does not affign the reason why these estates, in contradiftinction to other uncertain interefts, fhall veft in the executors of the tenant and not the heir; which is probably owing to this: that, being a security and remedy provided for perfonal debts due to the deceased, to which debts the executor is entitled, the law has therefore thus directed their fucceffion; as judging it reasonable, from a principle of natural equity, that the fecurity and remedy should be vefted in thofe to whom the debts if recovered would belong. For, upon the fame principle, if lands be devised to a man's executor, until out of their profits the debts due from the teftator be discharged, this intereft in the lands fhall be a chattel intereft, and on the death of fuch executor fhall go to his executors: because they, being liable to pay the original teftator's debts, fo far as his affets will extend, are in reafon entitled to poffefs that fund, out of which he has directed them to be paid.

CHAPTER THE ELEVENTH.

OF ESTATES IN

POSSESSION,

REMAINDER, AND REVERSION.

ITHERTO we have confidered eftates folely with regard to their duration, or the quantity of intereft which the owners have therein. We are now to confider them in another view; with regard to the time of their enjoyment, when the actual pernancy of the profits (that is, the taking, preception, or receipt, of the rents and other advantages arifing therefrom) begins. Eftates therefore, with respect to this confideration, may either be in possession, or in expectancy and of expectancies there are two forts; one created by the act of the parties, called a remainder; the other by act of law, and called a reversion.

I. Or eftates in possession, (which are sometimes called eftates executed, whereby a present intereft paffes to and refides in the tenant, not depending on any subsequent circumftance or contingency, as in the cafe of eftates executory,) there is little or nothing peculiar to be observed. All the eftates we have hitherto spoken of are of this kind; for, in laying down general rules, we usually apply them to such eftates as are then actually in the tenant's poffeffion. But the doctrine of estates in expectancy contains fome of the nicest and most abstruse learning in the English law. Thefe will therefore require a minute difcuffion, and demand fome degree of attention.

II. AN estate then in remainder may be defined to be, an estate limited to take effect and be enjoyed after another estate is determined. As if a man feifed in fee-fimple granteth lands to A for twenty years, and, after the determination of the said term, then to B and his heirs for ever: here A is tenant for years, remainder to B in fee. In the first place an eftate for years is created or carved out of the fee, and given to A; and the residue or remainder of it is given to B. But both these interests are in fact only one eftate; the present term of years and the remainder afterwards, when added together, being equal only to one eftate in fee. They are indeed different parts, but they conftitute only one whole: they are carved out of one and the fame inheritance: they are both created, and may both fubfift, together; the one in poffeffion, the other in expectancy. So if land be granted to A for twenty years, and after the determination of the faid term to B for life; and after the determination of B's eftate for life, it be limited to C and his heirs for ever: this makes A tenant for years, with remainder to B for life, remainder over to C in fee. Now here the eftate of inheritance undergoes a divifion into three portions; there is firft A's eftate for years carved out of it; and after that B's eftate for life; and then the whole that remains is limited to C and his heirs. And here alfo the first estate, and both the remainders, for life and in fee, are one eftate only; being nothing but parts or portions of one entire inheritance; and if there were a hundred remainders, it would still be the fame thing: upon a principle grounded in mathematical truth, that all the parts are equal, and no more than equal, to the whole. And hence also it is easy to collect, that no remainder can be limited after the grant of an eftate in fee-fimple: because a fee-simple is the highest and largest estate, that a subject is capable of enjoying; and he that is tenant in fee hath in him the whole of the eftate: a remainder therefore, which is only a portion, or residuary part, of the estate, cannot be referved after the whole is difpofed of. A particular eftate, with all

a Co. Litt. 143.

Plowd. 29. Vaugh. 269.

the