induced to offer you my sentiments on another passage of that work. The statement in p. 176, that an estate-tail will merge in the reversion in fee, is certainly incorrect. It is a base fee-simple that merges, but the estate-tail is discontinued. In order to place the doctrine in a clear point of view, it may not be amiss to state, very briefly, the history of estates-tail. At the common law an estate-tail was a conditional fee restrained to some particular heirs, exclusive of others, as "to the heirs of a man's body;" to "his heirs male;” "his heirs female," &c. It was called a conditional fee, from the condition, either expressed or implied, that if there was no heir of the description mentioned in the gift, the land should revert to the donor; but, on the birth of the issue of the given description, the estate of the donee would have been discharged from the condition, which was then performed, and he would have had an estate in fee-simple absolutely, and he night have aliened and have exercised any act of ownership over it. However, if the tenant did not alien, and there happened at any time afterwards to be a failure of heirs of the description mentioned in the gift, the estate would have determined, and the lands reverted back to the donor. Thus, if an estate was given to a man and the heirs male of his body, the moment he had a son born, he was owner of the estates in fee-simple to all intents and purposes. The condition on which he should have a fee, namely, his having an heir male, was performed by the birth of a son, and he might then have aliened his property; but, if he neglected so to do, and his son died in his life-time it would not descend to his daughter or heir general; because the particular heirs of the donee to whom it was the donor's intention that the land should go, were extinct. Hence arose the practice of the donee's conveying the estate, on the birth of the issue of the given description, and taking back a new estate, by which method the descent would be to the heirs general. Thus stood the common law, when the nobility, who were anxious to preserve their large possessions in their families, procured the sta tute de donis; 13 Edward I. c. 1; which directed that the will of the donor should be observed, so that the donce should have no power to alien the land so given, but that it should remain to the issue of him to whom it was so given, after his death, or should revert unto the giver or his heirs if issue failed. The construction put on this statute was, that the estate so given to the donce was a particular estate. The great inconveniences which ensued from this statute gave rise to a fiction of law called a common recovery, by which the tenant in tail was enabled to make a conveyance of the fee-simple of the lands, as effectually as he could have done before the statute de donis. The restrictions of alienation by tenant in tail were, however, still further curtailed in the reigns of R. III. Henry VII. and Henry VIII. by certain statutes, whereby a fine levied by a tenant in tail is declared to be a good bar to him and his heirs, and all other persons claiming under such intail.* This is a very brief and incomplete history of estates-tail down to this period, but sufficient for the purpose of shewing in what manner a fine will operate on it at this day. As tenant in tail was complete owner of the estate at common law, after the fulfilment of the condition, namely, the birth of issue of the description mentioned in the gift, it follows that he might, at that period, have lawfully aliened it by fine, as well as by any other mode of assurance. After the statute de donis passed, he could not lawfully convey more than an estate for his life, but if he levied a fine of the estate, or made a conveyance by certain other modes of assurance, as by feoffment, a fee by wrong would pass, on account of the forcible operation of these assurances, and the estate-tail would have been suspended, or, as it is technically called, would have been discontinued. This was foreseen by the legislature at the time when the statute de donis was passed, and accordingly a remedy was given to the issue, &c. by that statute, to, recontinue or revive it. This power of restoring the estate, by issue in tail, was taken away in the case of an assurance by fine by the statutes of R. III. &c. as before mentioned. From the above observations, it will appear that a fine at this day will operate in two ways, both to pass an estate and to bar a right. First, it passes a wrongful fee and creates a discontinuance of the estate-tail; and secondly, it deprives the issue in tail of the right of reviving that estate. *Black. Com. vol. 2, c. 7, p. 116. When therefore a fine is levied by tenant in tail, with immediate reversion or remainder to himself in fee, it passes a base or wrongful fee, and not an estate tail, as asserted by Mr. Cruise; for that estate is discontinued, and a rightful fee from the reversion or remainder in fee is created; and, as two fees cannot subsist in the same person, the base fee will merge in the other. It ought to be observed that a fine under those circumstances ought never to be adopted without great caution, for the reasons mentioned by Mr. Cruise. I hope the above observations are not unintelligible, but the apprehension of being too late for the next number of the Law Journal prevented me from putting my ideas on the subject in that order which Iotherwise should have done. April, 1805. J. R. SIR, Observations by M. G. on R. R.'s Reply. I REQUEST you will do me the favour to insert a rejoinder to the reply of Mr. R. R. contained in the XIIIth Number of the Law JOURNAL, New Series. The observations in my last communication have been styled luminous and erudite.* I never had the vanity to suppose that any observation of mine would have thrown much new light on a subject which Lord Mansfield, and the most eminent men in the profession, bad endeavoured to elucidate. My object was chiefly to put the case of Zouch v. Parsons in what I then conceived and still do conceive to be its true light; and though I have been so unhappy as to have excited Mr. R.'s displeasure, yet flatter myself that my endeavour has not been entirely fruitless. It has paved the way to a very useful discussion, on a subject which is highly interesting and of great moment to the profession, and has induced a gentleman, who has given a great specimen of * Vide Law Journal, 1805, p. 53. ingenuity, ability, and learning, to turn his mind to the subject, and his essays, I am convinced, will be of essential service to the profession. The reader would doubtless expect from the person himself who expressed so much contempt for the light afforded by his antagonist something very brilliant; that he would come forth with the splendor of the sun, at whose light all the other luminaries would vanish. What then must have been his disappointment to find that the light which he affords is merely a faint reflection, and that the observations he makes are taken from other works, but somewhat altered, perhaps as gipsies who have stolen children disfigure them to make them pass for their own. I have been charged with persevering in error merely from an unwillingness to acknowlege it; I will with confidence wait the judgment of the judicious reader, whether this observation can with justice be applied to me. But I retort the charge: I do accuse Mr. R. of wilful and obstinate perseverance in error. Whence that irritation of mind, under which he laboured when writing his reply, which evidently appears from " the eyes of my intellect" and other expressions equally polite and elegant? whence that shrinking from the contest? It is attributed, indeed, to the writer's engagement, but this is the common resort of defeated argument a trick so palpable and stale as not to impose on a school boy. Can any man's engagements, however pressing and important, prevent him from answering arguments on a subject of this nature if he can answer them? Observations, too, which are so luminous and erudite. Whence is Mr. Hargrave's note cited to prove that it was the idea of that eminent conveyancer that it was not decided in the case of Zouch v. Parsons, that the infant was bound for evert Mr. H. states the position that the surrender or partitions of infants are void, and cites Hale's M.S. &c. for authorities; but he adds, in the case of Zouch . Parsons, Lord Mansfield was of opinion that the surrender of infants, if by deed, is voidable only, and that in that case, it was necessary to consider the grounds of the acts of infants being voidable,&c. but there is not one word indicative of an opinion that the conveyance in that case by theinfant was voidable. He only states Lax Journal, 1805, p. 54. + Ibid. 54. so much of that case as had any bearing on the position under consideration by him. The question, whether an infant mortgagee was bound by lease and release, was not considered by him, because it did not concern that position. Whence the assertion, that a just inference arises that the court would have been of opinion that the solemnity of the instrument would not have been sufficient, if there had not been a semblance of benefit, when the court declared their approbation of the law in regard to the solemnity of instruments as laid down by Perkins, which is as follows: "all such gifts, grants, or deeds, "made by an infant, which do not take effect by delivery "of his hand, are void; but all gifts, grants, or deeds, "made by infants by matter in deed or writing, which do "take effect by delivery of his hand, are voidable by him"self, by his heirs, and by those who have his estate ?" Whence does it happen that Mr. R. has not urged one argument in favour of his construction of Zouch v.Parsons? Whence all this, but from a conviction, that that construction could not be supported, and from a wilful and obstinate perseverance in his opinion notwithstanding that conviction? "The man convinced against his will An error in judgment has been imputed to be in collecting from Ketsey's case, that the disadvantageous purchases of infants are void.* As the decision in that case was very short, I will transcribe it: "But the court held it to be voidable only at his election, for if it were for "his benefit, it shall be no ways void; but the infant, at his "election, may make it void, by refusing and waiving the "land before the rent day comes, for then no action "of debt will lie against him: but in the principal case, it was not shewn that the rent was of greater value, and the "defendant was of age before the rent day came, there"fore," &c. Now is it not evident from the expression," if "it (a lease) were for his benefit, it shall be no ways void," that, if the lease had been to his disadvantage, the court would have been of opinion that it was void? And, as the reason assigned by the court, that the lease in the princi * Law Journal, 1805, p. 53. |