sure at common law; and consequently, that a right of entry in a person having a preceding vested use of the degree or measure of freehold, will support an use limited in contingency, so as to preserve its capacity of taking effect if there should afterwards be a seisin to that use: But it is at the same time denied, that the contingent use can vest and take effect without an entry by the feoffees, because the statute hath never executed the possession to that use for want of a scisin to it in the feoffees, and a cestui que use in rerum natura occurring at the same time; and as the statute hath never executed the possession to that use, the contingent use has never been in a situation to have the legal qualities, &c. of a contingent remainder at common law; for it is only where the statute hath carried the legal estate to the use, that an use can have those legal qualities, &c. If the son of C. had been born before the disseisin, the use to that son would have been immediately executed; and then, upon the death of C. the son might have entered, without any previous entry by the feoffees, in the same manner as a person to whom a contingent remainder at common law is given, may do; and the sole reason, why, a person having a contingent use cannot enter also, is, that as the disseisin in the case above supposed happened before the birth of the son, the statute has not-for want of a seisin in the feoffees-been able to execute the possession to that use, so as to clothe it with the legal qualities of an estate at common law.

The doctrine which Mr. Fearne opposed, was firmly established by the decision in Chudleigh's case, as the extracts from that case given in the former part of this note prove;-how then came it to pass, that Mr. Fearne in questioning the soundness of that doctrine, confined his strictures to the extrajudicial resolutions of the judges, in the case of Wegg and Villers, when there lay in this path a solemn adjudication in favour of it? The very ground of the conclusion of eight of the judges in Chudleigh's case, against the contingent use, was, that on account of the disseisin an entry by the feoffees was necessary, in order to give effect to that use; and that the feoffees barred having themselves of their entry in that case, the contingent use could never take effect.

This appears from Coke's report of the case, who, after stating the resolutions of the judges as cited above, sums up in the following words, "so all the justices and barons of the Exchequer, except Periam, Walmsley, and Gawdy, did conclude, that, forasmuch as the stat. 27 H.VIII. doth not extend but to uses in esse, and to persons in esse, and not to any uses which depend only in possibility, for that reason the contingent uses in the case at bar remain so long as they depend in possibility, only at the common law; and by consequence, they might be destroyed or disconti nued before they came in esse, by all such means as uses might have No. 27. [R]

See 1

been discontinued or destroyed by the common law," 1 Rep. 137, b. Now, at the common law uses were discontinued where the seisin to the use was devested, and they could only be revived by the entry of the feoffees to regain that seisin; and if the feoffees barred themselves of their entry the uses were destroyed, because it would be impossible that they should ever be revived. Rep. 121, 122, and 126. and the authority there referred to. It is evident, that Mr. Fearne wholly misapprehended the principle of the decision in Chudleigh's case; for he attributes that decision to-the determination in law of the particular estate by forfeiture, before the birth of the son to whom the contingent use was limited; whereas, so far from deciding that point were the judges, that they were only agreed that the determination in FACT of the particular estate by the death of the particular tenant, before the birth of the son, would have destroyed the contingent use, 1 Reports, 137, b. 138, a, but with respect to the determination in law of the particular estate before the birth of a son, only four of the judges expressed themselves of opinion, that a contingent use would be destroyed by such a determination of the particular estate, 1 Rep. 135, b. And only one of the four was governed by that opinion in his judgment, and the seven other judges instead of being of that opinion, were (according to Pollexfen, Poll. 389, and indeed from reasonable presumption furnished by the reports of the case) rather of the contrary opinion. And it is not to be wondered at, that seven of the judges did not accede to the opinions of the other four upon the last mentioned point, for when Chudleigh's case was argued, it was not taken for law, that the determination in law of the particular estate by forfeiture, would be a destruction of a contingent remainder even at common law, nor was it settled until a few years afterwards in Archer's case; for although Archer's case is reported by Coke before Chudleigh's, yet the latter was first adjudged. See Poll. 389, 390. But whatever may have been the sentiments of the judges upon the destruction of a contingent use by the determination in law of the particular estate, certain it is, that it was not adjudged as Mr. Fearne thought, nor made a point in the case; for Coke distinctly tells us, that "the question in the case was no other, but whether the contingent uses before their existence by the said feoffment of the feoffees, were destroyed and subverted, so that they should never arise out of the estate of the feoffees after the birth of the issues." See 1 Rep. 121.

We must now conclude; we have extended our account to a considerable length, but the importance of the subject and the great name of its venerable author, whose chief legal remains this reading may be considered, de

mands that we should pay to it particular attention. We have perused the whole of this edition with great pleasure, and we willingly bear this testimony to Mr. Rowe, that our admiration of Bacon is perhaps increased by thus viewing him, as it were, through a more favourable medium, for he has cleared up to us many obscurities and made many difficulties plain: and as there are few who would now read Coke's first Institutes, without the late valuable commentary, so we trust there will be no student who is tempted, as doubtless all will be, by the great name of Bacon to study his reading on uses, who will not be thankful to Mr. Rowe for the assistance he has afforded.

On a Passage in Mr. Cruise's Treatise on Fines concerning

AS

Dower.

S the point which is the subject of this communica tion is not of a practical, but speculative nature, I trust you will oblige a constant reader by inserting it in the next number of your valuable publication.

Mr. Cruise, in his able Treatise on Fines, 2d edit. p. 69, states the ground of the wife of the cognizee in a fine, sur done grant et render, not being entitled to dower to be, because he has a seisin only for an instant; but this I apprehend is not the true reason. He is unquestionably seised, as is evident from the case adduced by Mr. C. himself, and the law makes no distinction whatever on this subject, between a seisin for a moment and any long period. Dower, according to the definition of Littleton, Coke, Blackstone, and all other writers of eminence, is an estate for life which the law gives the widow in the third part of the lands, tenements, and hereditaments of which the husband was solely seised, at any time, during the coverture, of an estate of fee, or in tail in possession, and to which the issue of the widow by such husband might by possibility have inherited. It is therefore clear that if there is an actual seisin for any period of time, the wife will be entitled to her dower, provided the other es sentials occur.

The true ground of the exclusion of dower I take to be this-the law regards the cognizee in the light of a trustee; he is seised, it is true, but he is seised only for the purpose of rendering back,and the wife is not dowable of a trust T. R.

estate.

Errata in 4.'s Communication on Dower.

TO THE EDITOR OF THE LAW JOURNAL.

SIR, In your last Number you had the goodness to insert the greater part of the remarks I sent you, "on the best Method of barring Dower;" I will thank you to make the following corrections

p. 83 for "Br's method," read " E-n's method."

p 83, for the estate and intent of the trustee," read "the estate and interest of the trustee."

p. 85, for “ take place out of the estate,” read “ take place of the estate.” p. 86, for "determining," read “determination.”

p. 87, for without any impeachment," read" without impeachment.” p. 88, after the words, "paramount the claims of the wife," should be in serted an asterisk, referring to the note.

I am, Sir, your most humble servant,

16th March, 1805.

A.

For these mistakes, we hope we shall be excused, when our readers consider the difficulties under which all editors of periodical publications must necessarily labour, when they have to decypher the various hands of their correspondents. Those who favour us with their compositions will confer on us a further obligation if they will take care to have them copied so fair as to prevent all possibility of mistake.

TO CORRESPONDENTS.

Causidicus is informed that we have not yet perused both the pamphlets to which he alludes, and as the subject of them is rather political, we are in doubt whether we shall give any account of them.

M. C. will excuse us for having given the preference to com. munications upon subjects entirely new, instead of his rejoinder to R. R.'s replication. After the observations of Studens upon the same subject, he may probably wish to make some alterations to his letter; if so, he will find it at our publishers, at any time before the 15th instant, when the next number will go to press.

As some of our readers may not be acquainted with the cause of the delay in the publication of our present number so long beyond the usual time, we inform them that at a meeting of the proprietors and publishers of monthly publications, held at the Chapter Coffee House, March 29, 1805, J. Nichols in the chair, it was unanimously resolved, that in consequence of the disputes in the printing business, the monthly works intended for publication on he 1st of April, should be postponed to Tuesday the 9th.

On the Discontinuance of an Estate-tail; and the Operation of a Fine; comprised in some Observations on the following Passage in Cruise's Treatise on Fines.

BEFORE we quit this subject, it may be proper to observe, that the operation of a fine is merely to bar the estate tail, but not the remainders or reversion which depend upon it; for a fine levied by a tenant in tail in possession only discontinues the estate tail, and gives the cognizee a base fee, that is, an estate to him and his heirs, as long as the tenant in tail has heirs of his body, but does not bar the rights of the persons in remainder and reversion.

"But where the tenant in tail has the immediate reversion in fee in himself, he may make a good title by fine only; for in that case the operation of the fine will be to merge the estate-tail, and bring the reversion in fee into immediate possession, it being determined that a fine takes away the protection given to estates-tail by the statute de donis, and they then, like all other particular estates, become subject to merger and extinguishment when united with the absolute fee.*

"This method, however, of barring an estate-tail, is attended with one considerable inconvenience, which will be mentioned in a subsequent chapter." Cruise on Fines; 2d Edit. 1786, p. 176.

The operation of a fine levied by a tenant in tail, who has the immediate reversion in fee in himself, is to merge the estate-tail, and bring the reversion in fee into immediate possession, by which means it will become liable to the incumbrances of all those who were seised of it. So that, if a tenant in tail with the immediate reversion in fee in himself, makes a lease, acknowledges a judgment, or incumbers his estate in any other manner, and his heir levies a fine, it will operate as a confirmation of the lease or judgment. Ibid. p. 274.

Six, As you were pleased to insert the observations which I sent you on Mr. Cruise's Treatise on Fines, I have been

No. 29.

*

1 Show. 370. 1 Salk. 338. 4 Mod. 1.