But if no such act of ownership be exerted by the mesne remainder-man or reversioner; or if

law by Lord Alvanley, in delivering the judgment of the Court of Common Pleas, in the case of Doe v. Hutton, 3 Bos. & Pull. 643, 651. In Brediman's case, 6 Rep. 58, it is laid down, that a reversion expectant upon an estate tail is not assets, because it lies in the power of tenant in tail to dock and bar it at his pleasure; but Lord Hardwicke, in Kinaston v. Clarke decided, that it was assets in Equity for the debt of the first taker, 2 Atk. 204; 2 Cru. Dig. tit. Reversion, s. 31. His Lordship said, "the saying a reversion in fee after an estate tail is not assets, is a gross expression, not accurate, and arises from the method of pleading allowed to the heir, that he may plead riens per descent; but if the creditor may take a reversion when it comes into possession, it shews a liableness in the thing to be assets; it is like a right descending; or suppose a rent-seck descended, and the heir never had seisin, he might plead riens per descent; and if the creditor took judgment against the assets quando acciderint, he might extend it whenever the heir got seisin." In Tyndale v. Warre, Jacob, 212, Sir T. Plumer, M. R. after taking a review of the authorities on this subject, said, "Upon the result of these authorities, I am satisfied that Lord Hardwicke's view is correct, and that the reversion is to be considered assets from the moment it descends to the heir, and is liable to the debt to the full amount of the value." And his Honour ordered a reversion expectant on a life estate, and on contingent remainders in tail, to be sold immediately to satisfy specialty creditors. But though in Equity a reversion after an estatc tail may be sold, and at law judgment may be had against the reversion quando acciderint, yet it should be remembered that specialty creditors of the first taker of such reversion can alone avail themselves of these remedies. In Giffard v. Barber, 2 Cru. Dig. tit. Reversion, s. 38; S. C. 4 Vin. Abr. 451; 1 Ves. sen. 174, Sir G. C. was entitled by descent to a reversion, and Lord Hardwicke said, "In this case the reversion would not be liable to the bond debts of Sir G. C. as assets by descent, because that cannot be where there is an intermediate estate, but must be where the heir takes as immediate heir to the ancestor, who entered into the bond." His Lordship, however, held, in accordance with the distinction taken in the text, that judgments acknowledged by Sir G. C. bound the reversion.

Under the new act for the amendment of the law of inheritance, the rule as to remainders and reversions would seem to be still the same; namely, that where no judgment is had in the life-time of a debtor, who is a mesne remainder-man or reversioner, and the stock of descent is not changed by him, the person taking such remainder or reversion by descent, would not be subject to the debts of the mesne remainder-man or reversioner. The

such remainder or reversion be not taken in execution for the debt or other act of the mesne

greater difficulty in changing the stock of descent under the new act, does not diminish from, but rather increases the reason of the rule; for the person taking still takes, not by descent from the debtor, but from the original purchaser.

The rule appears to extend also to estates in possession under the new act. As to these also the descent shall be traced from the purchaser; so that if A. a debtor, who has acquired lands by descent, die intestate, B. the person next entitled to inherit, would not be subject in respect of such lands to A.'s bond debts: for the descent, or the title to inherit the lands by reason of consanguinity, shall be traced from the purchaser; so that B. derives no title from A., but only from the purchaser, and therefore paramount A.'s debts.

Although B. in this case, be the heir of A. as well as of the original purchaser, he will still claim the lands in the character of heir of the purchaser, and not as heir of A. As the lands descend to him whether he be the heir of A. or not, it should seem that he ought not to be subject to A.'s bond debts in respect of them; the heir is subject to his ancestor's bond debts only where there are assets by descent, and in this case there are no assets by descent from A. but only from the purchaser. See Bushby v. Dixon, 3 B. & C. 298.

The evil consequences which might follow from the application of this rule in the manner just mentioned, are apparently obviated by the act to render freehold and copyhold estates assets for the payment of simple contract debts, 3 & 4 Wm. IV. c. 104, which was passed at the same time as the act for the amendment of the law of inheritance. It enacts that "when any person shall die seised of or entitled to any estate or interest in lands, tenements, or hereditaments, corporeal or incorporeal, or other real estates, whether freehold, customaryhold, or copyhold, which he shall not by his last will have charged with or devised subject to the payment of his debts, the same shall be assets to be administered in Courts of Equity for the payment of the just debts of such persons, as well debts due on simple contract, as on specialty..... Provided always, that in the administration of assets by Courts of Equity, under and by virtue of this act, all creditors by specialty in which the heirs are bound, shall be paid the full amount of the debts due to them, before any of the creditors by simple contract or by specialty in which the heirs are not bound shall be paid any part of their demands." The words of this act seem comprehensive enough to include estates both in possession and in reversion or remainder to which the debtor may have become entitled by descent.

Bond creditors, therefore, who, in the case of a debtor entitled by descent to an estate in possession, had before their remedy at law against his heir,

owner such remainder or reversion cannot be subject to possessio fratris, dower (e), or curtesy (f).

an estate tail.

And, therefore, if land be given in tail, and Reversion on the reversion in fee-simple descend or come to the tenant in tail, yet, during the estate-tail, he

(e) Bro. Abr. tit. Estates, 67; Fitz. Abr. tit. Dower, 55, 166; 8 Co. 96 a; Perk. s. 315, 317, 330, 340, 445; Fitz. N. B. 150, A; Finch's Law, b. 2, ch. 3, p. 125; Cordal's case, Cro. Eliz. 316; Co. Litt. 31 a, 32 a & b, 35 a & b; Kitch. on Courts, 160 b.

(ƒ) Bro. Abr. tit. Ten. par le Curtesy, 4, 10: Perk. s. 467; Dyer, 357, pl. 44; Co. Litt. 29 a & b; Finch's Law, b. 2, ch. 3, p. 125; Kitch. on Courts, 159, 160.

seem now confined to Equity; and if a debtor is entitled by descent to a reversion or remainder, his creditors, who had before no remedy at all against his heir, are now supplied with one.

The right of a creditor by specialty, in which the heirs are bound, to sue the heir of his debtor, is given by the common law. Bac. Abr. tit. Heir and Ancestor, (F). It is scarcely within the scope of an Essay on Descents to give a full account of the remedies that have been provided by successive statutes against the devisee of a debtor; yet it may be well to mention that by stat. 3 Wm. & Mary, c. 14, made perpetual by stat. 6 & 7 Wm. III. c. 14, the heir and devisee of a debtor might be sued jointly in an action of debt by every specialty creditor, Wilson v. Knubley, 7 East, 128; Farley v. Briant, 3 Ad. & Ell. 839; 5 Nev. & Man. 40: except where the lands were charged by will or otherwise with the payment of debts; and if the heir of a debtor had aliened lands descending to him, before an action was brought against him in regard of such lands, he was made answerable for the debt to the value of the lands so aliened. Brown v. Shuker, 2 Cro. & Jerv. 311. See also 1 Cro. & Jerv. 583. By stat. 47 Geo. III. c. 74, the lands of deceased traders were made liable in Equity to the payment of their simple contract debts. The 11 Geo. IV. and 1 Wm. IV. c. 47, consolidates all the above mentioned statutes, and extends the remedy against devisees to an action of covenant, as well as an action of debt. The last enactment on the subject is the 3 & 4 Wm. IV. c. 104, before mentioned.

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cannot be seised of such reversion so as to make a POSSESSIO FRATRIS: As where a person, having issue a son and a daughter by one wife, and a son by another, gave his land to his eldest son in tail the father died, and the fee descended to the eldest son, who afterwards died without issue and it was held, that the youngest son should have the land, and not the daughter, by reason that it was in reversion, and not vested in possession in the eldest son, during the estatetail as it is a POSSESSIO FRATRIS which makes the sister to inherit, and NOT A REVERSIO FRATRIS (g).

(g) Bro. Abr. tit. Descent, pl. 13, 30; Scire Facias, 126; Estates, 6; Garde, 87; Fitz. Abr. tit. Descent, pl. 5, 9, 10, 11; Assize, 327; Dyer, 89, 90, pl. 1, 6, and 325, pl. 38 ; Kitch. on Courts, 109 a, 110 a, 153; see 3 Co. 42 a; Dyer, 325, pl. 38; Plowd. 230; Co. Litt. 11 b, 14 a & b, 15 a, 191 b; Perk. s. 88; Fitz. N. B. 196, K, 220, D; Noy's Max. 23, ch. 4; Kellow v. Rowden, Carth. 126; Gilb. Ten. 13; Cunningham v. Moody, 1 Vesey, 174. And see the case of Jenkins on demise of Harris and wife against Prichard and others, in 2 Wils. 45. And note, that that case is mis-reported in Wilson as it was really determined, it directly supports the doctrine here laid down. It was determined in favour of the daughter by the second ventre.

Indeed, the facts as stated in Wilson (and which are there truly stated), together with the reasoning of the court, must have led to this conclusion; and the judgment is most evidently mistated or wrongly printed.

In a note of this case, as taken by Mr. Serjeant Hewitt when in court on the argument, the adjudication is thus given:

Thus, while the estate-tail continued, he could not be ACTUALLY SEISED of the reversion in fee

Jenkins on demise of Harris and wife

against

Prichard and others.

In this case it was clearly agreed, that by

the settlement of 1716,

David Smith was tenant for life; his wife was tenant in tail, with the reversion in David Smith.

And thereupon two points were made.

1st, Whether that reversion in fee descended upon the two daughters of David, viz. Elizabeth by his first wife, and Ann by his second wife, in such manner as that upon the determination of the estate tail, which descended upon Elizabeth, and from her upon her son, and expired by his death without issue, it should go in moieties, viz. one moiety to Ann, and the other to the heirs of Elizabeth? or, whether it should not go all to Ann as heir to her father, who was last actually seised of the reversion?

2ndly, Whether an actual entry was not necessary to have been made by the lessors of the plaintiff before the bringing of this ejectment, in order to avoid the fine levied by Job Gilbert and his wife?

As to these two points, upon full argument, the Judges were of opinion:

1st, That though the reversion descended upon the two daughters of David on his death, yet they were not actually seised of that reversion during the continuance of the estatetail, but the same was expectant thereon. And as whoever takes by descent must take as heir to him who was last actually seised, therefore Ann took the reversion wholly as heir to her father. And as to this 1 Inst. 14, 15; and Kellow v. Rowden in Carthew and Shower, were held to be authorities in point.

2dly, The Judges held that as this fine was stated in the case to be a fine without proclamations, an actual entry was not necessary to avoid it; and that they would not carry the neeessity of an actual entry to avoid a fine one jot further than it had been carried in the case of Dormer v. Fortescue, [3 Atk. 130],