ESTATES-continued.

If it was intended that the descendants of the tenant should, at his decease, succeed him in the tenancy, as son to sire, then that intention required, according to the maxim already quoted, to be expressed by additional words of grant, the gift being in that case expressed to be to the tenant and his heirs. This extended form of grant, however, did not originally give the ancestor more than a life estate; he and his heirs, i.e., descendants, were equally nominees in the original grant, and took as a succession of usufructuaries, each of them during his life, and for that period only, enjoying the benefit of the grant. Such was the construction which this form of grant received as far down as the reign of Henry II.; but from causes which were vigorously at work, that construction was abandoned by the reign of Henry III., and a construction adopted in its stead which is very nearly the construction of the present day,-that the ancestor is the alone nominee in the grant and takes a fee simple to himself, with power by subinfeudation and otherwise to defeat or prejudice his issue. The power of alienation, the facility of which is the chief characteristic of the modern fee simple, was not long to follow after, being complete as early as the 18 Edw. 1, c. 1, commonly called the statute Quia Emptores. See title ALIENA

TION.

The estate for life was originally inalienable, unless where the lord consented to the alienation, or, in other words, to the substitution of a different vassal for the first grantee; but the estate for life gradually became freely alienable without the lord's consent (see title ALIENATION, supra). When an estate for life was aliened in this latter way, the alienee took an estate pur autre vie, i.e., during the first grantec's life and not during the life of the alienee himself. Accordingly, the first grantee was in such a case described as the cestui que vie, and the alienee was described as the tenant pur autre vie.

The estate pur autre vie was attended with peculiar incidents. It was subject, like the ordinary estate for life, to the feudal maxim, Verba dant feudo tenorem, and therefore when the grant was made to C. D. simply without more, C. D. took a tenancy pur autre vie for his own life only. Consequently, C. D.'s estate was doubly liable to determine, depending for its continuance upon the joint existence both of A. B., the first grantee, and of C. D., the alienee, and determining upon the death of either. If it was intended that the grant to C. D. should extend beyond the life of C. D. and throughout the life of A. B., then that intention required, according to the maxim

ESTATES-continued.

already quoted, to be expressed by additional words of grant, the gift being in that case expressed to be to C. D. and his heirs. Now, if the grant were made to C. D. simply without more, and C. D. died leav ing A. B. him surviving, the land was left without an owner so long as A. B. lived, the law not suffering A. B. to re-enter after having parted with his life estate. Neither could the lord apparently re-enter. Νο person having, therefore, a right to the estate, anybody might enter on it; and he that first entered became entitled forthwith to hold the land so long as A. B. lived, and was called the general occupant with reference to the manner in which he had acquired the land. On the other hand, if the grant were made to C. D. and his heirs, and C. D. died leaving A. B. him surviving, the land was not left without an owner so long as A. B. lived; but the heir of C. D. might enter and hold possession so long as A. B. lived, and was called the special occupant with reference to the manner in which he had acquired the land. General occupancy has been abolished, but special occupancy has been preserved, by the Statute of Frauds (29 Car. 2, c. 3, s. 12), and also by the New Wills Act (7 Will. 4 & 1 Vict. c. 26, ss. 3, 6), which have enacted in effect that the owner of an estate pur autre vie (apparently whether granted to him simply without more or to him and his heirs) may dispose thereof by will, and failing such disposition the heir as special occupant shall become entitled to it and to the extent thereof be chargeable with the debts of his ancestor: and in case there shall be no special occupant, then the executor or administrator of the deceased testator or intestate is to take possession of the land, and to the extent thereof to be chargeable with the payment of the debts of the deceased. By the Act 14 Geo. 2, c. 20, the surplus (if any) of an estate pur autre vie as to which the owner died intestate was made distributable, and by the New Wills Act the same is now distributable among the next of kin of the deceased; and by the Act 6 Anne, c. 18, in a case of prima facie concealment of the decease of the cestui que vie, with the determination of whose life the estate pur autre vie, as already stated, necessarily determines, the person next entitled to the land may upon affidavit of his reasonable belief of such decease obtain an order from the Lord Chancellor for the production of the cestui que rie alive, and failing, or until such production, the applicant may enter upon and hold the land.

For the origin of the estate-tail, and the varieties thereof, see the next following titles.

ESTATE-TAIL. This is an estate given to a man and the heirs of his body. Growth of the Estate-Tail. The following stages in the growth of the estate-tail may be indicated:

(1.) Permission was granted to the heirs of the tenant to succeed on the decease of their ancestor;

(2.) The word heirs having acquired about the time of Henry II. a breadth of meaning sufficient to admit collaterals to succeed as heirs;

(3.) It became necessary in order to exclude collaterals to limit the estate expressly to a man and the heirs of his body;

(4.) This limitation to a man and the heirs of his body came to be construed in the Courts as a conditional gift, the condition being that the man should have issue, and so soon as that condition was fulfilled, the estate became an absolute estate in feesimple: whence

(5.) The statute De Donis Conditionalibus, 13 Edward 1 (Statute of Westminster the Second), c. 1, was passed, enacting that the will of the donor, according to the form of the deed of gift manifestly expressed should be from thenceforth observed, or, that the estate should descend according to the formedon (secundum formam doni), so as that the ancestor should not alien it from his issue nor the donor be defeated of his reversion. This Act created the estate-tail as it at present exists. The further history of that estate is a history of the

Decline of the Estate-Tail. The estatetail was felt to be inconvenient in many ways, which were probably more sentimental than real, but the opposition of the nobility to the repeal of the statute succeeded in maintaining it intact for about 200 years, when,—

(1.) By the decision in Taltarum's Case (Year Book, 12 Edw. 4, 19), by means of a quiet decision, or rather an obiter dictum, of the judges, the incident of alienation from the issue, and so as to defeat remaindermen and the reversioner, was annexed to the estate-tail. It was there pointed out, or admitted, that the destruction of the entail might be accomplished by means of judicial proceedings collusively taken against the tenant in tail for the recovery of the lands entailed. The nature and effect of these proceedings will be found stated and explained under the title COMMON RECOVERY, which see, that being the name by which the proceedings in question were characterised.

(2.) Another mode by which the estatetail might be barred, but as against the issue only, was the Fine, for the history, nature, and effects of which, see that title.

(3.) These processes of barring the

ESTATE-TAIL-continued.

entail, namely, Common Recovery and Fine, grew to be felt as cumbrous and inconvenient; they were also dilatory and expensive; and accordingly by the statute, 3 & 4 Will. 4, c. 74, a statute passed (it will be observed) at the time of the Reform Bill, 1832, fines and recoveries were abolished, and a simpler mode of assurance was substituted for them. This latter assurance is commonly called a Disentailing Assurance, for the nature and effect of which see that title.

The so-called Perpetual Entail of modern times. There is a popular impression abroad that the entail is perpetual. This is a fallacy, the explanation of which is to be found in the modern artifice of conveyancers, whereby the entail is perpetuated. That artifice consists of the following parts:

Suppose that A. is tenant for life, and B. his son (as commonly happens) is tenant in tail in remainder expectant on his father's decease, so soon as ever B. attains the age of twenty-one years,-an age at which, or shortly after attaining which, it is probable that B. will marry,-the father and son being on friendly terms with each other, and the father more especially dreading that the inheritance may be dissipated through the son's folly, it is agreed between them to execute a disentailing deed of the estates, and to resettle them to the following uses, that is to say,

(1.) The father, who is already tenant for life, is to be created tenant for life again;

(2.) The son who, before executing the disentailing assurance, was tenant in tail, is to be created tenant for life only in remainder expectant on his father's de

cease;

(3.) The first grandson (i.e., the first son of the son) being a person not yet in existence, but who may reasonably be expected to come into existence in due course of time, is to be created first tenant in tail of the estates in remainder expectant upon the decease or respective deceases of his father and grandfather, and so on with the second, third, fourth. &c., grandsons.

In this way the entail is pushed off into the next generation; for the first grandson is the first tenant in tail, and he cannot alienate his estate until he is of the age of twenty-one years at the least, and is not (as already stated) yet in existence. Then when the grandfather of this grandson is dead, and the grandson's father is in possession of the estates, it is clear that the original condition of matters is restored, B. who is now the father being tenant for life, and the grandson who is now the son being tenant in tail. So soon therefore, again, as the son has attained the age of

ESTATE-TAIL-continued. twenty-one years, his father and he have only to repeat in their generation what was done in the generation before them; that is to say, execute a new disentailing assurance and re-settle the estates to analogous uses. And thus by means of disentailing assurances and deeds of re-settlement successively executed in each successive generation, the entail of freehoid lands in England is popularly regarded as being perpetual, and it is so practically in fact.

ESTATE-TAIL IN PERSONAL ESTATE. There is no estate-tail in personal estate, whether chattels real or chattels personal; but the words which seem to confer an estate-tail in personalty confer in fact an absolute estate in fee simple. This construction of these words arises from two reasons, namely: (1.) The circumstance that the stat. De Donis (13 Edw. 1, c. 1) extended only to real estate, and (2.), the decision in Leventhorpe v. Ashbie, Tud. L. C. Conv. 763.

ever,

ESTATE-TAIL QUASI. This is an estatetail improper, and is derived out of an estate for life, when the tenant for life grants his estate to K., and the heirs of the body of K., these words of grant being apt and proper to create an estate-tail; but inasmuch as the estate-tail of K. cannot (as the estate-tail proper may) possibly last for but can last at the most for the life of the tenant for life (or grantor), therefore it is called an estate-tail improper or quasi. It further differs from the estate-tail proper in this respect, that it may be barred without the necessity of any inrolment of the deed of disentail in the Court of Chancery (Fearne's Conting. Remrs. 495). On the other hand, it agrees with the estate-tail proper in the course of descent, and also in this respect that where there is an estate for life prior to the estate-tail quasi, then the tenant for life, as being ex officio protector, must consent in order to the bar being effective against the remaindermen and reversioners. Allen v. Allen, 2 D. & War. 307.

ESTOPPEL. Is a term of law denoting that the person whom it affects is estopped; i.e., stopped or hindered, from saying anything different to what has been already said, even although what he wishes to say is the truth, and the thing already said an error. There are three kinds of estoppels, viz. :

(1.) Estoppels by record;

(2.) Estoppels by specialty; and (3.) Estoppels by matters in pais. The principle of, or justification for, the first of these three species of estoppel is, that no one shall aver against a record,

ESTOPPEL-continued.

i.e., a judgment or verdict of the Court, so long as that judgment remained unreversed; and of the second, that a man shall not deny what he has already, with all the solemnity attaching to a deed, affirmed; and of the third, that a man shall not aver the contrary of that which by his previous conduct he deliberately led other persons to infer, and they have inferred accordingly, and would now be prejudiced pecuniarily if the contrary averment were admitted.

The operation of estoppels is personal, that is, against the party or parties who are principally affected thereby, their heirs, executors, and administrators; but in the case of an estoppel by record, where the record is a judgment in rem, the operation of the estoppel is universal, or (as it is said) against all the world. For particular instances of estoppel of all three varieties, see 2 Sm. L. C. 679.

ESTOVERS. This word, which is derived from the French étoffer, to furnish, i.e., stuff, is used to denote certain rights enjoyed by persons who have merely a limited estate or interest in land, being rights necessary to the enjoyment of that estate or interest. There are three kinds of estovers, namely, (1.) Housebote, being a sufficient quantity of wood for the fuel and repairs of the house;

(2.) Ploughbote, being a sufficient quantity of wood for the making and repairing of agricultural imple

ments; and

(3.) Haybote, being a sufficient quantity of wood for the repair of fences.

It is a rule of law, that estovers must be reasonable; also, that they must be strictly applied to their respective purposes, and to none other. Any excess in the enjoyment or any misapplication of the just amount would be waste. Simmons v. Norton, 7 Bing. 640.

ESTRAYS.

These are such animals of a tame and valuable character as are found wandering, i.e., straying, in any manor or lordship, and are without any apparent

owner.

The law gives all such animals to the king, but allows him to make grants of them to other persons, and he has in very many cases granted them to the lords of manors, so that they are become incident thereto by special grant.

ESTREAT. This word, which is derived from the Latin extractum, denotes a copy or extract from the Book of Estreats, that is to say, the rolls of any Court in which the amerciaments or fines, recognisances, &c. imposed or taken by that Court upon or from the accused, and which are to be levied by the bailiff or other proper

ESTREAT-continued.

officer of the Court. Recognizances are said to be' estreated when they are forfeited by the failure of the accused to comply with the condition of the recognizance, as by failure to appear or otherwise.

ESTREPEMENT, WRIT OF. This was a writ of waste, and lay in particular for the reversioner against the tenant for life, in respect of damage or injury committed by the latter to the lands or woods of the reversioner.

ET HOC PARATUS EST VERIFICARE. These words were used, when the pleadings were in Latin, at the conclusion of any pleading which contained new affirmative inatter; they expressed the willingness or readiness of the party so pleading to establish by proof the matter alleged in his pleading. A pleading which concluded in that manner was technically said to "conclude with a verification," in contradistinction to a pleading which simply denied matter alleged by the opposite party, and which for that reason was said to " conclude to the country," because the party merely put himself upon the country, or left the matter to the jury. But now, by the C. L. P. Act, 1852, s. 67, "no formal conclusion is necessary to any plea, avowry, cognisance, or subsequent pleading."

EVICTION. This is the same as dispossession or ouster of the possession (see title OUSTER). It is usually applied to ouster from real property only, but it is not inapplicable to the dispossession from personal property also. The covenant for quiet enjoyment which is usually inserted in deeds is in substance a covenant against eviction. It is competent also for a landlord to evict his tenant for proper cause; and a landlord may also be guilty of a wrongful eviction of his tenant, as where without proper cause he either actually, i.e., physically, evicts him, or does any act of a permanent character with the intention of evicting the tenant, and which is inconsistent with the latter's returning into or continuing in possession.

EVIDENCE. Is the proof of, or mode of proving, some fact or written document. It is to be considered (1.) In its Nature, and (2.) In its Object. (A.) With regard to its Nature,-Evidence is either primary, or secondary, or presumptive, or hearsay. Admissions are not themselves evidence, but narrow the field which the evidence has to cover.

(1.) Primary Evidence. This is the highest kind of evidence which the nature of the case admits of. Thus, where a will of lands is to be proved, the primary evidence of it is the will itself, and not the

EVIDENCE-continued.

probate; for the Court of Probate has no cognisance of real estate (B. N. P. 246). And where any contract or agreement has been reduced into writing, the primary evidence of it is the writing (Fenn v. Griffiths, 6 Bing. 633). But when the narration of an extrinsic fact, i.e., a fact which has arisen independently of the writing, has been committed to writing, the fact may yet be proved by parol, i.e., extrinsic evidence, e.g., a receipt for money (Rambert v. Cohen, 4 Esp. 213.) Also, parol admissions are good as evidence against the party making them, although they relate to the contents of a written instrument (Slatterie v. Pooley, 6 M. & W. 664). The proper evidence of all judicial proceedings is the proceedings themselves, or an examined copy of them. Thelluson v. Sheddon, 2 N. R. 228.

(2.) Secondary Evidence.-This is admissible where primary, that is, better, evidence cannot be had, e.g., in the case of a lost deed, upon proof of the loss a copy of the deed is admissible (B. N. P. 254); and so also upon proof of an unsuccessful application to the person who has the legal custody of the deed (R. v. Stoke Golding, 1 B. & A. 173). The wrongful refusal of a third person (not being a solicitor) on subpœna duces to produce a document in his possession, is, however, no ground for admitting secondary evidence (Jesus College v. Gibbs, 1 Y. & C. 156); but it is otherwise in the case of a solicitor who so refuses (Hibbert v. Knight, 2 Ex. 11). In some cases, secondary evidence of oral testimony is admitted, e.g., where the testimony of a witness on a former trial is admitted on another trial without producing the witness in person, as where a witness was examined in a former action on the same point between the same parties and he is since dead (B. N. P. 242), or is kept away by contrivance (Green v. Gatewick, B. N. P. 243). So, also, upon an examination de bene esse (which see). And see title NOTICE TO PRODUCE.

It is commonly said, that there are no degrees of secondary evidence. This means, that when secondary evidence is admissible at all, upon failure to produce the original document, no restriction is put upon the party producing the evidence as to the kind of evidence he shall produce for that purpose; but if it was apparent that more satisfactory evidence might be produced than is produced, the jury or a jndge will be influenced by that consideration (Doe d. Gilbert v. Ross, 7 M. & W. 102). And there is one exception to the rule. namely, where by statute a special kind of secondary evidence is substituted for the original.

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