cery in the place of a protector who shall be convicted of treason or felony, or of a protector, not being the owner of a prior estate, who shall be an infant, or where it shall be uncertain whether such last-mentioned person be living or dead. The Court of Chancery is also substituted (*) where the settlor declares that the person who as owner of a prior estate under such settlement, would be entitled to the protector shall not be such protector, and does not appoint any protector in his stead. And also in every other case where there shall be, under a settlement, a prior estate sufficient to qualify a protector, and there shall happen to be no protector, the Court of Chancery is to be the protector.

Having thus provided who shall be the protector, the Act then proceeds to declare in what cases his concurrence shall be necessary.

No actual tenant in tail(2), not having the remainder or reversion in fee immediately expectant on his estate tail, under a settlement where there is a protector, can dispose of the estate to the full extent authorized by the Act, without the consent of the protector, but he may without such consent dispose of the estate against all persons who by force of any estate tail which shall be vested in or might be or have been claimed by him, shall claim the lands. And(a) although the estate be converted into a base fee, yet as long as there is a protector of the settlement, his consent is requisite to the power of disposition given by the Act.

The power of the protector to consent is made absolute; his discretion is absolute and uncontrollable even by a court of equity. Nor can his giving his consent be deemed a breach of trust(b). Nor are the rules of equity in relation to dealings and transactions between a donee of a

(z) Sec. 34.

(a) Sec. 35.

(b) Sec. 36.

power and any object of the power in whose favor the same may be exercised, to apply to this case(c).

If a base fee and the remainder or reversion in fee be united in the same person, and there shall be no intermediate (*)estate between them, the base fee shall be ipso facto enlarged into as large an estate as the tenant in tail, with the consent of the protector, might have created under the Act, if such remainder or reversion had been vested in any other person(d).

The Act then proceeds to provide by what conveyances a tenant in tail shall convey. Every disposition is to be effected by some one of the assurances (not being a will) by which such tenant in tail could have made the disposition of his estate if a fee-simple absolute; but it must be made or evidenced by deed. No disposition by a tenant in tail, resting only in contract either express or implied or otherwise, and whether supported by a valuable or meritorious consideration or not, shall be of any force, nothwithstanding such disposition shall be made by deed. And the concurrence of the husband of every married woman being a tenant in tail, is made necessary(e).

The protector is authorized to give his consent by the same assurance which effects the disposition, or by a separate instrument. If given by a separate instrument, it is to be deemed an unqualified consent, unless the particular assurance is referred to, and his consent confined to that disposition. After having given his consent, he cannot revoke it(f). A married woman being a protector, either alone or jointly with her husband, may consent as a feme sole.

The dispositions and consents are not to operate unless valid in law, for the jurisdiction of equity is altogether excluded(g).

Copyholds are within the Act, but surrenders are to be made by legal tenants in tail, and surrenders or deeds to be made or executed by equitable tenants in tail(h). And the mode in which the protectors are to consent is (*)particularly pointed out(); but it is provided, that every deed by which copyholds are disposed of by an equitable tenant in tail, shall be void against any person claiming such lands for valuable consideration, under any subsequent assurance duly entered on the court rolls, unless the deed by the equitable tenant be entered on the rolls before the subsequent assurance shall have been entered.

The Act then alters the laws as to bankrupt tenants in tail, and gives to the Commissioners a power to alien upon the basis of the provisions in the Act, in favor of solvent tenants in tail(k).

And it also repeals the law for relieving persons entitled to entailed estates to be purchased with trustmonies, and applies to the estates to be sold and the monies to be invested (which are treated as if they were the lands to be purchased) the general provisions of the Act().

The Act then(m) contains a provision of great importance. Every married woman not being tenant in tail, is enabled by deed to dispose of lands of any tenure, and money subject to be invested in lands, and also to dispose of, release, surrender, or extinguish any estate which she alone, or she and her husband in her right, may have in lands of any tenure, or in any such money; and also to release or extinguish any power which may be vested in or limited or reserved to her in regard to any lands of any tenure, or in any such money, as effectually as if she were a feme sole; but her husband must concur, and the deed

(h) Sec. 50 & 53. (1) Sec. 70, 71.

(i) Sec. 51, 52, 53. (k) Sec. 55. to sec. 69. (m) Sec. 77.

must be acknowledged in the manner required by the Act, and the provision is not to extend to copy holds in cases where the power is not required.

The Act also contains provisions as to lands in ancient (*)demesne, renders amendments of fines and recoveries unnecessary, points out the manner in which deeds, consents and assurances are to be inrolled, and contains certain provisions in favor of purchasers, which latter provisions will be found in their proper place in this work(n).

The sweeping away of fines and recoveries is a solid improvement in the law, and the Act of parliament is a masterly performance, and reflects great credit on the learned conveyancer by whom it was framed. But the policy of the provisions in the Act may be doubted. All men's titles must for many years depend upon the law of fines and recoveries; and few will be found in a short time competent to judge of their validity. The substitute for the old law is one of vast complication, introducing a protector in every settlement to check the alienation by tenant in tail in remainder. Whilst we brush away our old books, no one can doubt that the new system, from its complication, will lay the foundation for new ones, and that the construction of the Act in every given case will not be settled but after a long run of litigation, although no doubt, at first, every thing will proceed smoothly. The Author was one of those who thought that the law would have been more simple if it had merely abolished fines and recoveries, and made deeds to declare the uses of fines, and to make tenants to the præcipe in recoveries effectual without actually levying a fine or suffering a recovery.

The Act has effected an important alteration in the law, by making the tenant for life continue to be the protector of a settlement even after he has sold the estate, or it has

(n) Infra, ch. 16, s. 7.

passed from him by bankruptcy or insolvency. This appears to be unwise. For the Act takes away the control of equity over the protector; declares that his discretion (*)is absolute; that he cannot commit a breach of trust; and that the doctrines of equity applicable to a donee of a power dealing with an object of the power are not to be applied to him. He may, therefore, make what bargain he pleases with the tenant in tail after the natural check (for such the possession of the first estate may fairly be considered) has been conveyed away. In the case of a bankrupt, he may acquire a great property as against his creditors, and a case may occur in which he may by his concurrence enable the first tenant in tail to bar a subsequent remainder vested by his bankruptcy in his own assignees.

V. It so often becomes necessary to consider in what cases an uninterrupted possession creates a title, that the introduction of a few general observations on the operation of the statutes of limitations, may not be deemed impertinent.

1. Then the statutes of limitations operate by way of bar to the remedy, and not, like the statutes of fines, as a bar to the right(o). Therefore, although a person is barred of one remedy, yet he may pursue any other remedy which may afterwards accrue to him. Thus, where a tenant in tail discontinued for three lives, and the issue in tail was barred of his formedon by the 21 Jac. 1.(p); afterwards by the death of the three tenants for life, a right of entry accrued to the issue, who entered, and his entry was held lawful(q).

(0) See Beckford v. Wade, 17 Ves. jun. 87.

(p) Ch. 16.

(q) Hunt v. Bourne, Lutw. 781; 2 Salk. 422; Com. 124; 1 Bro. P. C. 53.