4 KENT COM., 504. The English law of devise was imported into this country by our ancestors, and incorporated into our colonial jurisprudence, under such modifications, in some instances, as were deemed expedient. Lands may be devised by will in all the United States; and the statute regulations on the subject are substantially the same, and they have been taken from the English statute of 32 Hen. VIII. and 29 Charles II.

N. Y. 2 R. S., 56, § 1. All persons, except idiots, persons of unsound mind and infants, may devise their real estate by a last will and testament, duly executed according to the provisions of this title.

§ 2. Every estate and interest in real property descendible to heirs may be so devised.

§ 5. Every will that shall be made by a testator, in express terms, of all his real estate, or in any other terms denoting his intent to devise all his real property, shall be construed to pass all the real estate which he was entitled to devise at the time of his death.

II. Involuntary Alienation.

CHAPTER I.

IN FAVOR OF CREDITORS.

(a) Early Forms of Transfer.

2 BL. COM., 160-162. A fourth species of estates, defeasible on condition subsequent, are those held by statute merchant, and statute staple; which are very nearly related to the vivum vadium before mentioned, or estate held till the profits thereof shall discharge a debt liquidated or ascertained. For both the statute merchant and statute staple are securities for money; the one entered into before the chief magistrate of some 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 seized 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 extended to all the king's 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.

Another similar conditional estate, created by operation of law, for security and satisfaction of debts, is called an estate by elegit. . . . At present I need only mention that it is the name of a writ, founded on the statute1 of Westm. 2, by which, after a plaintiff has obtained judgment for his debt at law, the sheriff gives him possession of onehalf 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 one-half of them was liable to be taken in execution for any other debt of the owner.

3

I shall conclude what I had to remark of these estates, by '13 Edw. I., c. 18. 13 Edw. I.

See page 61, supra.

statute merchant, statute staple, and elegit, with the observation of Sir Edward Coke.1 "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 assize) as a tenant of the freehold shall have, yet it is but the similitude of a freehold, and nullum simile est idem." 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 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 his assets will extend, are in reason entitled to possess that fund out of which he has directed them to be paid.

DIGBY, HIST. REAL PROP., Ch. V., § 5. Creditors' Rights. -No branch of the law is of greater practical importance than that which relates to the rights which creditors gradually acquired of having recourse to the land of their debtors for the payment of their debts. In the first place, the creditor

'I Inst. 42, 43.

might acquire rights over the debtor's land in consequence of a judicial proceeding either in the ordinary courts of common law, or under the extraordinary jurisdictions created by the Statute of Merchants, 13 Edward I, stat. 3, and the Statutum de Stapulis, 27 Edward III, stat. 2, c. 9. Secondly, a debtor might, without the intervention of any judicial proceedings, give the creditor the security of his land for a debt.

After obtaining a judgment in his favour in an action at common law, the creditor was enabled by one of the provisions of the Statute of Westminster II (13 Edward I, c. 18) to choose whether to have execution upon the goods of the debtor by the writ which is still called the writ of fieri facias or to have a writ commanding the sheriff to "deliver to him [all the chattels of the debtor saving only his oxen and beasts of his plough, and] the one half of his land, until the debt be levied upon a reasonable price or extent." This power of the creditor to seize and sell half the debtor's land is now extended to the whole. The writ by which this is effected has ever since the Statute of Westminster II been called the writ of elegit.

The Statutes Merchant and Staple were designed to give creditors who were merchants a speedier and more effectual mode of proceeding to recover debts than was afforded by the common law, The merchant creditor was empowered to summon his debtor before the "Mayor of London or before some chief warden of a city or of another good town where the king shall appoint," and obtain from him an acknowledgment or recognizance of the debt and of the day at which it would become due. This acknowledgment was then formally drawn up, and if the debt was not paid it might be enforced against the person and property of the debtor. As to the debtor's lands, "the merchant shall have such seisin of the lands and tenements delivered unto him or his assigns that he may maintain a writ of novel disseisin if he be put out, and of redisseisin also as of freehold, to hold to him and his assigns until the debt be paid." It