SECT. V. the statute 27 Hen. 8. c. 10. the use was di Of limitations vested out of the grantees. of uses, and creation of legal estates by the statute, which differ from the rules of the common law. Tenant in tail may bar shift ing uses. Within what effect, (154.) It is a general rule, that where an estate tail is limited, and a secondary or shifting use is limited upon it, the tenant in tail may by recovery bar the limitations over". Therefore, it is said, "If tenant in tail be with 66 a limitation so long as such a tree shall "stand, a common recovery will bar that li"mitation "." When an estate in fee-simple is granted or period shifting devised, with a shifting use or secondary fee limited upon it, this secondary or shifting use must be expressly limited to take effect. within the compass of a life or lives in being, and 21 years after; otherwise it will be within the reasons of a perpetuity. This limitation of time is not, as Mr. Hargrave properly observes, arbitrarily prescribed; therefore, in the case of a posthumous child, it may be extended to a few months longer. But here we must distinguish, where the whole fee is first limited with a shifting use, or secondary fee upon it; and where the limitation of the use, in the first instance, is Page v. Hayward, 2. n In the case of Benson v. Hodson, 1 Mod. 111. Har. Co. Litt. 20. a. note 5. See 22 Vin. 252. pl. 4. a in tail. In the former case, we have seen, that the shifting or secondary, use must be expressly confined to the period of a life or lives in being, and 21 years, and perhaps few months over: because, as these kinds of shifting uses are not barrable by recovery, they would tend to a perpetuity. Thus, if an estate be limited to A. and his heirs, and if B. (a person then in esse) die without leaving issue living at his decease, or if, having such issue, all of them should die under the age of 21 years, then to the use of C. and his heirs; this limitation is good, because it is not limited after a total failure of issue of B. But if an estate be limited to A. for life, remainder to trustees to preserve contingent remainders, remainder to the first and other sons of A. in tail, remainder over; with a proviso, that if B. die, and there should be a total failure of heirs, or heirs of the body of B., then the uses limited to A. and his sons should cease, and the lands remain to the use of C. and his heirs: this limitation to C. is valid; because when the first tenant in tail comes into possession, he may bar it by a common recovery, and therefore there is no danger of a perpetuity P. P See Niccolls v. Sheffield, 2 Bro. 215. Doe v. Heneage, 4 Term Rep. 13.. of uses, and cre estates by the statute, which differ from the rules of the common law. Of shifting or secondary uses arising upon the execution of powers. SECT. V. (8.) I have noticed such shifting or springOf limitations ing uses as take effect, or arise, upon an event ation of legal provided for by the deed, in which the original limitations, intended to be defeated thereby, are created. But there is a species of shifting or future use, which arises from the act of some agent or person nominated in the deed; and this is called a use, arising from the execution of a power. Every power of this kind is a power of revocation, and new (156.) appointment; for the new uses and estates created under the appointment, must necessarily (as to the extent of such appointment) revoke, defeat, or abridge the uses, which existed, and were executed, previously to the new limitation°. Sometimes an express power of revocation is limited prior to the power of appointing new uses. But this is never necessary.. Powers of appointment. Powers of appointment are adopted under various circumstances, and they may either by the express provision of the deed precede, or be reserved after, the limitation of uses intended to be executed subject to such powers. Thus an estate may be conveyed to J. S. and his heirs, to such uses as A. shall appoint, and in default of appointment, and subject thereto, to the use of A. and his heirs. But it is • See 2 Vern. 511. Moor, 611. immaterial, whether the power actually precedes, or comes after, the limitation of the use to A. and his heirs. In a case where an estate was limited to the use of H. R. and his heirs, and to such uses as he should appoint by will, lord Hardwicke thought, that the word and must be understood disjunctively for the word or, in order to comply with the intention of the parties. But if a feoffment, or lease and release, be made to J. S. and his heirs, to the use of J. S. and his heirs, with a power of revocation reserved thereupon, such power is void; because J. S. is in by the common law". In conveyances to purchasers, the estate is sometimes conveyed to the purchaser and his heirs, to such uses as he shall appoint by deed or will, and in default of, and subject to, such appointment, to the use of the purchaser and his heirs. It is conceived, that a power of appointment so reserved cannot be exercised; for, subject to the power, the purchaser is IN by the common law; and it does not appear to me, that the reservation of the power before the limitation to the purchaser, can make any difference between this and the case stated by sir Edward Coke. A modern writers, to whom the profession is indebted for several valuable works, seems to SECT. V. think, that in this case, in order to preserve Of limitations the power, and to effectuate the intention of the parties, the releasee would be deemed to of uses, and cre ation of legal estates by the statute, which differ from the rules of the be in under the statute of uses. It would be difficult, however, to support that construccommon law. tion either upon principle or authority. That upon a conveyance to A. and his heirs, to the use of him and his heirs, A. would take in the course of possession by the common law, and not by the statute of uses, is a point, I apprehend, settled beyond controversy. In Gwam and Ward v. Roet, a reversion was conveyed by fine to the conuzee and his heirs, to the use of the conuzee and his heirs; and the conuzee brings debt against the lessee and it was objected, that no attornment of the lessee was alledged, as it ought to have been, “because the plaintiff "came in by the common law, and not by the "statute of uses-quod fuit concessum.” In the case of lord Altham v. the earl of Anglesey (Gilb. Rep. in Ch. 17.), it is expressly stated, that if a fine be levied to a man and his heirs, to the use of him and his heirs, in this case he shall take by the common law, and not by way of use: and the same doctrine is stated in Long v. Buckeridge, 1 Strange, 111. and by Bacon 63. Salk. 90. ante 86, 87, |