trading town, pursuant to the statute 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 security is called a statute staple. They are both, I say, securities for debts acknowledged 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 seised 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 satisfied; and, during such time as the creditor so holds the lands, he is tenant by statute merchant or statute staple. There is also a similar security, the recognizance in the nature of a statute staple, acknowledged before either of the chief justices, or (out of term) before their substitutes, 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 [161] subjects in general, by virtue of the statute 23 Hen. VIII. c.6. amended by 8 Geo. I. c. 25., which directs such recognizances to be enrolled and certified into chancery. But these by the statute of frauds, 29 Car. II. c. 3. are only binding upon the lands in the hands of bona fide purchasers, from the day of their enrolment, which is ordered to be marked on the record. V. ANOTHER Similar conditional estate, created by operation of law, for security and satisfaction of debts, is called an estate by elegit. What an elegit is, and why so called, will be explained in the third part of these commentaries. At present 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 possession 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 so holds them, he is called tenant by elegit. It is easy to observe, that this is also a mere conditional estate, defeasible as soon 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 softened much earlier and much more effectually for the benefit of trade and commerce, than for any other consideration. Before the statute of quia emptores,, it is generally thought that the proprietor of lands was enabled to alienate no more than a moiety of them: the statute therefore of Westm. 2. permits only so much of them to be affected by the process of law, as a man was capable of alienating by his own deed. But by the statute de mercatoribus, (passed in the same 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 statute merchant, statute staple, and elegit, with the observ- [162] ation of sir Edward Coke ". "These tenants have uncertain "interests in lands and tenements, and yet they have but "chattels and no freeholds;" (which makes them an exception to the general rule) "because though they may hold an "estate of inheritance, or for life, ut liberum tenementum, until "their debt be paid; yet it shall go to their executors: for ut “is similitudinary; and though to recover their estates, they "shall have the same remedy (by assise) as a tenant of the free"hold shall have', yet it is but the similitude of a freehold, and "nullum simile est idem." (7) This indeed only proves them to be chattel interests, because they go to the executors, which is inconsistent with the nature of a freehold; but it does not assign the reason why these estates, in contradistinction to other uncertain interests, shall vest in the executors of the (7) This passage is put together from two places in Co. Litt., a good deal transposed and altered in parts; the words "estate of inheritance or for life" do not occur in the original, and I conceive that the fact of the land going to the executor, and not to the heir, shews that the estate can in no case be one of inheritance. 162 tenant and not the heir; which is probably owing to this; that, being a security and remedy provided for personal debts due to the deceased, to which debts the executor is entitled, the law has therefore thus directed their succession; as judging it reasonable from a principle of natural equity, that the security and remedy should be vested in those to whom the debts, if recovered, would belong. For upon the same principle, if lands be devised to a man's executor, until out of their profits the debts due from the testator be discharged, this interest in the lands shall be a chattel interest, and on the death of such executor shall go to his executors: because they, being liable to pay the original testator's debts, so far as that his assets will extend, are in reason entitled to possess fund out of which he has directed them to be paid. * Co. Litt. 42. CHAPTER THE ELEVENTH. OF ESTATES IN POSSESSION, HITHERTO we have considered estates solely with regard to their duration, or the quantity of interest which the owners have therein. We are now to consider them in another view; with regard to the time of their enjoyment, when the actual pernancy of the profits (that is, the taking, perception, or receipt, of the rents and other advantages arising therefrom) begins. Estates, therefore, with respect to this consideration, may either be in possession, or in expectancy : and of expectancies there are two sorts; one created by the act of the parties, called a remainder; the other by act of law, and called a reversion. I. Or estates in possession, (which are sometimes called estates executed, whereby a present interest passes to and resides in the tenant, not depending on any subsequent circumstance or contingency, as in the case of estates executory,) there is little or nothing peculiar to be observed. All the estates we have hitherto spoken of are of this kind; for, in laying down general rules, we usually apply them to such estates as are then actually in the tenant's possession. But the doctrine of estates in expectancy contains some of the nicest and most abstruse learning in the English law. These will, therefore, require a minute discussion, and demand some degree of attention. II. AN estate then in remainder may be defined to be, an [164] estate limited to take effect and be enjoyed after another estate is determined. (1) As if a man seised in fee-simple 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 estate 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 estate; the present term of years and the remainder afterwards, when added together, being equal only to one estate in fee. They are, indeed, different parts, but they constitute only one whole : they are carved out of one and the same inheritance: they are both created, and may both subsist, together; the one in possession, the other in expectancy. So if land be granted to A for twenty years, and after the determination of the said term to B for life; and after the determination of B's estate 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 estate of inheritance undergoes a division into three portions: there is first A's estate for years carved out of it; and after that B's estate for life; and then the whole that remains is limited to C and his heirs. And here also the first estate, and both the remainders, for life and in fee, are one estate only; being nothing but parts. or portions of one entire inheritance: and if there were a hundred remainders, it would still be the same 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 estate in fee-simple: because a fee-simple Plowd. 29. Vaugh. 269. a Co. Litt. 143. (1) That is, determined according to the very nature and extent of its original limitation. Sometimes, in wills and conveyances to uses, a succeeding estate is made to take effect in possession upon the happening of an event before the natural determination of the prior estate; as, for example, A, tenant for life, provided that when C returns from Rome, the estate shall thenceforth immediately be to the use of B in fee. In this case B's estate is not strictly a remainder, because, if it were, it would be the residue only of the fee after A's estate for life, whereas on the return of C during A's life, it will take effect in destruction of that estate. Estates of this kind are called conditional limitations, See Fearne's Con. Rem. pp. 14. 17. 261. ed. 7 |