scent per stirpes; the half-blood are admitted equally with the whole blood in the same degree (unless in case of an ancestral estate, and the half-blood not being of the blood of the ancestor); and, as though the more fully to sweep away the former law, the Statute of Distributions is to govern in cases not specifically provided for. The existence of each particular system during the three epochs into which the subject has been divided, may be referred to the requirements of the country and of the age in which such system existed or exists, though perhaps in that respect both the Statutes of William and Victoria might have been passed at earlier periods.

Necessity for knowledge of Jormer mode of bar or re

warranty.

CHAPTER XXIII.

CONVEYANCES BY TENANTS IN TAIL, UNDER REVISED
STATUTES OF ONTARIO, C. 100.

'CONVEYANCES by tenants in tail, whereby the estate tail,

and all estates to take effect after, or in defeasance of the covery, fine, or same, are barred, are governed now solely by R. S. O. c. 100. Before considering this statute, however, it will be advisable to give the student an insight into the former mode of bar by levying a fine, or the suffering a recovery, or by warranty; not so much because these modes ever prevailed to any extent in this Province (in fact there are but one or two records of fines at Osgoode Hall), as for the reasons that the former modes elucidate the present mode of bar, and the reports and text books constantly allude to warranties, fines and recoveries, as methods of conveying not only estates tail, but also many other estates and interests, of the nature and effect of which, therefore, the student should not allow himself to be ignorant. As a warrant for this course, moreover, there is the sanction of a very learned writer, who, possessing a knowledge of the law of real property equalled by few in his time, is as pre-eminent as Sir W. Blackstone himself for the elegance of style, and the originality of expression, with which he has contrived to impart that knowledge, and "place a polish on the rugged science of law." In reference to the English disentailing Act he says: "This statute consults the old law, and it is not possible to appreciate or expound its provisions without some knowledge of the law of settlement, and an acquaintance, more intimate, with those assurances which the statute has superseded; with their various uses and modes of operation, their learn

ing, and their language (a)." We have, however, very much abridged the text of the learned commentator, as also the remarks made in the first edition of this work.'

how abolished.

"The principles of the law relating to warranties were Warranties, never clear (b); and as by 9 Vic. c. 11, and R. S. O. c. 100, s. 2, all warranties by tenants in tail are abolished, and the statute 4 Wm. IV. c. 1 (R. S. O. s. 61) deprived a warranty of the power to defeat a right of entry or action, and by s. 78 deprived also the party wishing to avail himself of the benefit of the warranty, of the writs requisite so to do, we shall enter but shortly into this matter.'

ranty at com

By the feodal constitution, if the vassal's title to enjoy Implied warthe feud was disputed, he might vouch or call the lord or mon law. donor to warrant or insure his gift, which if he failed to do, and the vassal was evicted, the lord was bound to give him another feud of equal value in recompense. And so, by our ancient law, if, before the statute of quia emptores, a man eneoffed another in fee, by the feodal verb dedi, to hold of himself and his heirs by certain services, the law annexed a warranty to this grant, which bound the feoffor and his heirs, to whom the services (which were the consideration and equivalent for the gift) were originally stipulated to be rendered. It was on these principles that the word "grant" in a conveyance in fee was supposed to imply a covenant for title; but all doubt on that point is removed by R. S. O. c. 98, s. 6, which enacts that neither the word "grant" nor exchange "exchange" shall create any warranty, or right of re-entry, or covenant by implication, unless where so enacted by statute. The Provincial Act leaves to the word " "give" its former effect; whilst the Imperial statute 8 & 9 Vic. c. 106, to much the same effect as the Provincial statute extends to such word as well as to "grant" and "exchange."' And so even at this day, on a gift in tail or lease for life rendering

(a) Hayes on Conveyancing, 5 ed. p. 131. (b) 1 Wils. 73 per Willes, C. J.

By R. S. O. c. 98, a grant or

creates no war

ranty or right

of re-entry.

Word demise implies a cove

nant for quiet

enjoyment.

Express

warranties.

Fines.

rent, the donor or lessor (to whom the rent is payable), are bound to warrant the title (a). The word " demise" in a lease implies a covenant during continuance of the lessor's title for quiet enjoyment against all the world, unless such covenant by implication be taken away by an express covenant as to the enjoyment (b).

'As stated by Blackstone, (c) a tenant in tail in possession might' without the forms of a fine or recovery, in some cases make a good conveyance in fee simple by superadding a warranty to his grant, which barred his own issue, and such of his heirs as were in remainder or reversion.

A fine was one of those methods of transferring estates of freehold by the common law, in which livery of seisin 'was' not necessary to be actually given; the supposition and acknowledgment thereof in a court of record, however fictitious, inducing an equal notoriety. But, more particularly, a fine may be described to 'have been' an amicable composition or agreement of a suit, either actual or fictitious, by leave of the king or his justices; whereby the lands in question became, or 'were' acknowledged to be, the right of one of the parties. In its original, it was founded on an actual suit, commenced at law for recovery of the possession of land or other hereditaments; and the possession thus gained by such composition was found to be so sure and effectual, that fictitious actions were every day commenced, for the sake of obtaining the same security.

A fine is so called because it puts an end, not only to the suit thus commenced, but also to all other suits and controversies concerning the same matter.

(c) Vol. 2, pp. 302, 303, and as published in the first edition p. 327 of this work. See further as to warranties, 372 A. by Butler, n. 2 by Hovenden.

() Express warranties in a deed were, to the effect that the conveying party would, for himself, and his heirs forever, warrant the lands to the grantee and his heirs; such forms were used occasionally in old deeds of conveyance in this Province.

The mode of levying a fine was as follows: 1. The party Mode of levying. to whom the land was to be conveyed commenced an action at law against the other, generally by a writ of covenant real, the foundation of which was a supposed agreement or covenant that the one should convey the lands to the other on breach of which agreement the action was brought. This is one of the writs expressly named and abolished by 4 Wm. IV., c. 1, R. S. O., c. 51, together with other real and mixed actions.'

2. Then follows the leave to agree the suit, "licentia concordandi," for the defendant knowing himself to be wrong was supposed to make overtures to the plaintiff, who accepts them.

3. Next comes the concord, or agreement itself; which 'was' usually an acknowledgment from the deforciants (or those who keep the other out of possession,) that the lands in question 'were' the right of the complainant. And from this acknowledgment, or recognition of right, the party levying the fine is called the cognizor, and he to whom it is levied the cognizee. This acknowledgment must have been' made either openly in Court, or before certain judges or commissioners bound by statute to take care that the cognizors be of full age, sound memory, and out of prison. If there 'were' any feme-covert among the cognizors, she 'was' privately examined whether she 'did' it willingly and freely, or by compulsion of her husband. Our statutes authorizing conveyances by married women enjoined till lately similar examination, not now required.'

By several statutes still more solemnities 'were' super- Proclamation. added, in order to render the fine more universally public, and less liable to by levied by fraud or covin; 'among other things all proceedings were directed to be enrolled of record, and read, and proclamation thereof made in open court during the four succeeding terms.'

We are next to consider the force and effect of a fine. The Force and

effect of a fine.