fine shall be levied or recovery suffered of lands of any tenure, with the exception of such as should then be in actual progress (q); and then proceeds to provide new methods for effectuating, in future, such of the results of these assurances as it was deemed right to preserve, viz. the barring of estates tail, and the passing or binding of the estates or interests of married women; while, on the other hand, it purposely omits to appoint any substitute for them, so far as regards their effect in working a forfeiture, or the bar by nonclaim, or discontinuance, in the case of fine (r).

I. In reference to the first of the results perpetuated, (the barring of estates tail), the enactment (s) is in substance, as follows: that every actual (t) tenant in tail, whether in possession, remainder, contingency, or otherwise, shall have full power (subject to the provisions hereafter mentioned as to protectorship,) to dispose of the lands (u) entailed, for an estate in fee simple absolute, or any less estate, as against all persons claiming under the estate tail, or in respect of any ulterior estate (x); and in lieu of a fine and recovery, it directs that such disposition may be made by any of the assurances (a will excepted), which would have sufficed for the purpose, supposing the estate to have been one in fee simple absolute; so that the disposition be an actual conveyance, and not one resting in contract only, and so that it be by deed, and inrolled

(1) Sect. 2.

(r) As to the particular case of persons liable after 31 Dec. 1833, to levy a fine or suffer a recovery under a contract for that purpose, entered into before 1 Jan. 1834, vide sect. 3.

(s) Sect. 15.

(t) The definition of "actual tenant in tail," (as the term is used in this act,) is thus given, "the tenant of an estate which shall not have been barred," vide sect. 1.

(u) The word lands when used generally in this act extends to all hereditaments of whatever tenure (except copy of court roll,) and whether of the corporeal or incorporeal class. It extends also to copyhold, where accompanied by expressions denoting that tenure, vide sect. 1.

(x) In this the crown is expressly included.

in the High Court of Chancery, within six calendar months after the execution (y). An estate tail in lands of freehold tenure (for copyholds are not to our present purpose) may now consequently be barred as against the grantor himself, the issue in tail, and all others in remainder, reversion, or other expectancy (subject to the provisions as to protectorship before referred to), by any of those conveyances (whether at common law or under the statute of uses) that have been discussed in former chapters, supposing such conveyance to be by deed, and by deed duly inrolled. The inrolment, indeed, is not essential in every case, it being dispensed with, where the disposition is by way of lease not exceeding twenty-one years, to commence from the date, or within twelve calendar months from the date, and reserving a rack rent, or not less than five sixths of a rack rent. Supposing the inrolment (when required) to be made in due time(z), the deed takes effect from the execution (a); but a subsequent deed, if first inrolled, will be intitled to priority (b).

To understand the provisions as to protectorship, we must recollect that though, by a fine, the issue might always be barred at pleasure, a common recovery (which alone had any effect as regarded those in remainder or reversion) was ineffectual when suffered by a tenant in tail not having an estate of freehold in possession; unless he obtained the concurrence of the person in whom the immediate freehold was vested (c). Now this check would have been entirely taken off, if the new statute, in abolishing recoveries, had proceeded simply to provide, that the tenant in tail might, in future, bar all parties through the medium of a deed inrolled. But it was not the design of the legislature to go so far. The restraint in question the statute 27 Hen. 8; vide sup. p. 493.

(y) Sect. 40, 73. And by sect. 41, if the assurance be a bargain and sale it will, if inrolled in due time in the Court of Chancery according to this act, be as valid as if it had been inrolled within the time prescribed by

(*) Sect. 41.
(a) Sect. 74.
(b) Ibid.

(c) Supra, p. 527.

was merely the accidental consequence, it is true, of the fiction on which a recovery is built, and its general tendencies were useless and injurious; but it happened, on the other hand, to secure one important object, that of affording protection to family settlements. For in these, it is usual to limit estates in remainder to the sons successively in tail, expectant on the determination of the parent's life estate; and the doctrine, which required the concurrence of the parent, as the immediate tenant of the freehold, put it out of the power of the eldest son to defeat the settlement, at his own pleasure, by a recovery, which he would otherwise have always been in a condition to do, as soon as he attained the period of majority. So far, therefore, as this object is concerned, it was deemed expedient that the substitute provided by the act in question (when used for the purpose of a common recovery, and not merely as a fine,) should be subjected to a check of the same description as the recovery itself; though, as a general rule, the concurrence of the person seised of the immediate estate of freehold is no longer required. The specific provision to which we here refer(d), is to the following effect; that no disposition by a person who is tenant in tail under a settlement, shall be effectual under the act to bar any person but those claiming by force of the entail, unless it be made with consent of the person who (within the meaning of the act) is "owner" of the first estate of freehold (or for years determinable on life or lives), prior to the estate tail (e); and the person, whose consent is thus required, receives accordingly the appellation of protector of the settlement. This provision, however, it is material to remark, is expressly confined to the case where the prior estate is created by the same settlement as the entail; for where it is constituted by a

(d) Sect. 34.

(e) Sect. 22. The words of the act are, any estate for years deter"minable on the dropping of a life or

"lives, or any greater estate, not being "an estate for years, prior to the estate "tail."

different assurance, the reason on which the protectorship is founded fails, and the act consequently leaves the tenant in tail to the free exercise of his power of disposition (ƒ).

Where an assurance is executed by a tenant in tail, in such form and with such attendant ceremonies as the act requires, it passes an indefeasible estate in fee simple absolute, for life, or years, or otherwise, according to the nature of the limitation. But if it be executed without consent of the protector, in a case where a protector exists, its effect is to bar the grantor and his issue in tail, only, and the rights of other (g) persons claiming in expectancy on the estate tail are not affected. An assurance purporting to be in fee simple absolute, will therefore in such case convey no more than a base fee (h) determinable on the failure of issue(i); though it is in the power of the grantor, by afterwards obtaining the consent of the protector, and making a new disposition thereon, to enlarge such base fee into a fee simple absolute (k). And in the particular case, when for want of the protector's consent, such base fee is created, and the immediate remainder or reversion in fee happens also to become united in the same person with the base fee, the latter will ipso facto, and without any such consent or new disposition, enlarge into a fee simple absolute (1). But whether the bar effected be general or partial only in its nature, it is to be understood that in all cases it operates without prejudice to the interests of other parties not claiming by force of, or in expectancy upon, the entail. It consequently leaves all estates prior to the estate tail, undisturbed (m).

(f) It is to be observed that an estate created by appointment, under a power in the settlement (sect. 1), an estate confirmed or restored by the settlement (sect. 25), an estate resulting to the settlor (sect. 22), and an estate by the curtesy, in respect of the estate tail, or of any prior estate created by the same settlement (sect. 22), are

to be considered as "created by the
settlement."

(g) Sect. 15, 34.

(h) Section 1 of the act.
(i) Ibid.

(k) Sect. 19, 35.
(1) Sect. 39.

(m) Sect. 15, 19.

1

Although in general, the act provides that the "owner" of the first prior estate (being of the kind already described) shall be the protector of the settlement, yet we may remark, that there are many cases in which the qualification for the protectorship is subject to more specific provision. For first, in certain cases arising before 31st December, 1833 (the date from which fines and recoveries are abolished), the person, who, under the old law, would have been the proper party to make a tenant to the præcipe, is now, without regard to any other rule of qualification, to be the protector(n). The act also provides that the first prior estate shall not avail to confer the protectorship, on any persons who take that estate, as lessees at a rent, doweresses, bare trustees, heirs, executors, administrators, or assigns (o) (with the exception, however, as to bare trustees, of such as under any settlement made before the act, would have been the proper parties to make a tenant to the præcipe(p)); the office being, in every case of exclusion, cast upon the owner of the next estate (if any) qualified to constitute a protectorship (q). Nor is the creation of the office always by the mere act of law. For the settlor himself is entitled, in the settlement creating the entail, to appoint any person or persons in esse (not exceeding three in number, and not being aliens,) to act in this capacity (the tenant of the prior estate being included in the number or not, at the pleasure of the settlor), and also to insert in the deed a power for the substitution of others, in the event of the death or retirement of those originally nominated (r).

The office is intended to be in every case a personal one, and therefore a protector does not lose his right to act in that capacity, by a transfer of the estate in virtue of which it was acquired, whether that transfer takes place by his own alienation or by his other act or default (s). But

(n) Sect. 29, 30, 31.

(0) Sect. 26, 27.

(p) Sect. 31.

(1) Sect. 28.

(r) Sect. 32.

($) Sect. 22.