trine. This is to be collected as a clear proposition, from the circumstance, that unless the two estates unite so as to become one, and as against the person on whose tenancy this act of law takes place, give one entire and undivided estate, and unless the former of these estates be extinguished, or at least suspended in the more remote estate, the prior estate is not affected by the doctrine of merger. For extinguishment, in other words merger, is the effect, while union is the cause. In Smith and Lord Camelford, (d) the late chancellor gave a very accurate description of the effect of merger, in observing that the estate for life was moulded into the estate-tail. In an ingenious argument on the case of Webb v. Russell, (e) Mr. Serjeant Shepherd stated the general rule of law to be, that "where a term and reversion

expectant on that term, unite in the same person by a different creation, in the same right, the term is merged in and extinguished by the reversion." In a subsequent part of this essay, it will be necessary to advert to two branches of this definition; first to shew that the different creation is not essential to merger, and secondly, that in some cases there may be a merger, though

the several estates are not held in the same right.

(d) 2 Ves. Jun. 714.

(e) 3 Term Rep. 394. See also Brooke Exting. pl. 50. Co. Lit. 182, Saund. 387. Salk, 326.

CHAP. II.

On the Difference between Merger, Suspension, Extinguishment, Discontinuance, and Re

mitter.

To render the principal subject more intelligible, it will be convenient and useful to consider the difference which in point of law exists between the five acts of law denominated merger, suspension, extinguishment, discontinuance, and remitter.

Merger is the annihilation of one estate in another.

Suspension is a partial extinguishment, or extinguishment for a time.

Extinguishment is the annihilation of a collateral thing or subject, in the subject itself out of which it is derived. A rent (a), a common, or a seignory, may be extinguished. That the estate in the rent, common, or seignory, ceases, is the consequence of the extinguishment of the subject itself. When the subject ceases, the estate therein

(a) 2 Roll. Abr. Surr. C. Com. Dig. Surr. D.

must also cease. Under the doctrine of merger the subject may continue after the annihilation of one estate in another; for notwithstanding the annihilation of the estate, the subject continues, and the effect of the merger is only to involve the time of one estate in the time of another estate, or at the utmost, to accelerate the right of possession under the more remote estate. Thus suspension and extinguishment, correctly taken, are applicable rather to the things themselves, than to the estates or degrees of interest therein.

Discontinuance is the cesser of a seisin under one estate, and the acquisition of a seisin under a new, and necessarily a wrongful title.

It is the cesser of seisin under one estate, and the commencement of a seisin under a new title: thus, when tenant in tail discontinues the estate-tail, the title under the estate-tail is suspended, and there is a new estate under a new title, gained by wrong. The same effect is produced, though the remedy to redress the injury is different, when a tenant for life aliens tortiously, and by that means puts an end to the seisin under which he was tenant for life, and a new seisin depending on a new title is gained. (a)

(a) 1 Inst. 251. b. Chudleigh's Case. 1 Rep. 140. Goodright v. Forrester, 1 Taunt. 578.

Remitter is the act of law which puts an end to the seisin under the wrongful and new acquired title, and restores the rightful owner to the ancient seisin and better title.

Suspension is merely for a time, because the party whose interest is to be suspended, has a particular estate; or because he has a defeasible interest, so that the subject itself, or the estate therein. may revive, when there shall be a separation of these interests, which if they were absolutely united, would be extinguished.— Lord Coke(b) has accurately drawn the distinction, with the exception that he hath omitted the durability of title. According to his Lordship, suspence in legal understanding is taken when a seigniory, "rent, profit, apprendre, &c. by reason of unity of possession, of the seigniory, rent, "&c. and of the land out of which they issue "are not in esse for a time, et tunc dormiunt, "but may be revived or awaked; and they are said to be extinguished when

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they are gone for ever, et tunc moriuntur, "and can never be revived; that is, when "one man hath as high and perdurable an "estate in the one as in the other."

Perhaps, the doctrine of remitter may apto have some connection with the learning on merger. An attentive examination

pear

(b) 1 Inst. 313. a.

of the two subjects will prove that there is a wide difference in the mode in which merger and remitter severally operate; remitter is the same in effect, as to rights and titles, which merger is as to estates, and extinguishment is of things. The doctrine of remitter proceeds on the ground that the possession is cast on an innocent person, who has an existing title to the possession, or in the pithy language of the law, an entry congeable, (c) or that the freehold is cast on a person who has a right which is remediable, and who has done no act by which he has estopped himself to insist on his ancient title; and then, as often as the possession where the entry is lawful, or the immediate freehold, when the right is remediable, devolves to that person by act of law, or is vested in him by the act of the parties, without his concurrence or voluntary consent, or at a time when that person (as in the case of an infant, feme covert, &c.) is under an incapacity of giving assent to any act which would be prejudicial, the law does of itself, restore the party to that estate to which he had a subsisting right of possession, at the time when he entered, or a subsisting right of action at the time when the freehold devolved to him. By these means the law denies that the estate under which the party

(c) Gilb. Ten. 120. or 130.