tainted. doned by let *If a man be attainted of treason or felony, although he be born (192). within wedlock, he can be heir to no man, nor any man heir to him, A person at propter delictum, for that by his attainder his blood is corrupted Though par(G). And this corruption of blood is so high, as it cannot absolutely ters patent, be salved and restored but by act of parliament; for albeit the person inherit: attainted obtain his charter of pardon, yet that doth not make any to secus as to a be heir whose blood was corrupted at the time of the attainder, of parlia either downward or upward. yet he cannot pardon by act ment. cor. 195, 196. fol. 132, 133. fol. 374. lib. 1. cap. 28. (k) As if a man hath issue a son before his attainder, and obtaineth (k) Stanf. pl. his pardon, and after the pardon hath issue another son, at the time Bract. lib. 3. of the attainder the blood of the eldest son was corrupted, and there- 276. & lib. 5. fore he cannot be heir. But if he die living his father, the younger Britton, fol. son shall be heir; for he was not in esse at the time of the attainder, 215 b. Fleta, and the pardon restored the blood as to all issues begotten afterwards. (Noy. 170. But, in that case, if the eldest son had survived the father, the youn- ed. 207. Ante, ger son cannot be heir; because he hath an elder brother which by 2. 129. Cro. possibility might have inherited (H): but if the elder brother had 1 Sid.195.202. been an alien, the younger son should be heir, for that the alien never 625. Crc. Jam. had any inheritable blood in him (11). See more plentifully of this. matter, sect. 746, 747. Finch. Svo. Cha. 543. 1 Rol. Abr. Attainder of the father no art colla teral descent between the (193)* Exchequer. 41 Eliz. in Hobby. (*) In the Mich. 40 & If a man hath issue two sons, and after is attainted of treason or felony, and one of the sons purchase land and dieth without issue, the other brother shall be his heir; for the attainder of the father sons. corrupteth the lineal blood only, and not the collateral blood between the brethren, which was vested in them before the attainder, and each of them by *possibility might have been heir to the father; and so hath it been adjudged (12) (*). But otherwise in the case of the alien-née, as hath been said. (7) But some have holden, that if a man, after he be attainted of treason or felony, have issue two sons, that the one of them cannot be heir to the other, because they could not be heir to the father, for that they never had any inheritable blood (13) in them (14). (11) Besides the authorities in the margin, see W. Jo. 34.—[Hargr. n. 3. 8 a.] (12) S. P. acc. Noy. 158. 4 Leon. 5.[Hargr. n. 4. 8 a.] (13) The principle, on which it has been adjudged that the children of an alien may be heirs as between themselves, though not to their father, seems to reach the case of children born after their father's attainder. See the cases cited in n. 2. ante, (vol. 1. p. 91. n. 6.)—[Hargr. n. 5. 8 a. (38).] (G) See n. (c) ant. p. 189.—[Ed.] 1 le case de (1) Bract. lib. 3. fol. 130. Britton, fol. 15. Fleta, lib. cap. 58. (1 Sid. 193. Lev. 60. Vaugh. 274. 1 Ventr. 414. [See also ante, p. 189. h. (c). And the reason is, because the descent between brothers is immediate. Collingwood v. Pace, 1 Vent. 413. 3 Salk. 129. Note, that a person may inherit from one of his parents, though the other is attainted of treason or felony; for duplicatus sanguis is not necessary in descents. Jenk. Cent. 1. Ca. 2. Cent. 5. Ca. 2.]-[Ed.] (14) See 11 and 12 W. 3. c. 4, which disables persons educated in the popish religion, (H) So if a man has two sons, and the eldest is attainted, and then the father dies, the younger brother cannot inherit from his father; for the elder brother, though attainted, is still a brother, and no other can be heir to the father, while he is alive. But if the elder brother dies in the life-time of the father, without leaving issue (Hob. 334. Cro. Car. 435.), the younger brother will then inherit from his father, because he can derive his descent from him, without mentioning his elder brother, or claiming through him, Dyer, 48 a: and it is a general rule, that the attainder of a person who need not be mentioned in the derivation of the descent, does not prejudice, let the ancestor be never so remote. 3 Cru. Dig. 379.-[Ed.] (m) Bracton, lib. 5. fol. 421. 2. fol. 12. Fleta, lib. 6. (m) One that is born deaf and dumb may be heir to another, albeit 430. 434. lib. it was otherwise holden in ancient time. And so if born deaf, dumb, and blind, for in hoc casu vitio parcitur naturali. But contract they cannot. Idiots, lepers, madmen, outlaws in debt trespasses or the like, persons excommunicated, men attainted in a præmunire, or convicted of heresy, may be heirs. cap. 39. 47. 14 H.3. Bre. 877. 32 E 3. Age 8. 10 E. 3. 535. 18 E. 3. 53. 13 E. 3. Ley 49. (1Rol. Abr. 626.) (n) Mirror (n) It is to be cap. 1. sec. 3. of his ancestor. 8 b. (194) (0) Bract. Heoef. p. 8. rent. noted, that one cannot be heir till after the death Before, he is called haeres apparens, heir appa In our old books and records there is mention made of another heir, viz. haeres astrarius, so called of astre, that is, *an hearth of lib. 85. a house; because the ancestor by conveyance hath set his heir E... 80. apparent, and his family, in a house and living in his life-time, of de Banco. whome Bracton saith thus: (0) Item esto quòd haeres sit astrarius, Mirr. cap 2. sect.18. Brit. vel quòd aliquis antecessor restituat haeredi in vita suâ haereditatem, et se dimiserit, videtur, quòd nullo temporejacebit haereditas, et ideo quòd nec relevari possit, nec debeat, nec relevium dari. 151 b. 13 a. To whom lands escheat. (p) Pl. Com. in Nichol's case. (p) The father is seised of lands in fee holden of I. S., the son is attainted of high treason, the father dieth, the lands shall escheat to I. S. propter defectum sanguinis, for that the father dieth without heir. And the king cannot have the land, because the son never had any thing to forfeit. But the king shall have the escheat of all the lands whereof the person attainted of high treason was seised (1), of whomsoever they were holden (15). or professing it, from inheriting, but in re- Cas. [The stat. 11 and 12 W. 3. c. 4. was repealed by the 18 Geo. 3. c. 6. so far as to permit such Roman Catholics to inherit real property, as would take the oath of allegiance prescribed in this act. The 13 G. 3. c. 32. repealed some of the other restrictions upon those who profess the Roman Catholic religion, on their taking the oath of allegiance therein prescribed; which oath, by the 43 Geo. 3. c. 30. gives the same benefits, and operates in like manner, as the oath prescribed in the 18 Geo. 3. c. 6.]—[Ed.] (1) For where a person attainted of treason dies seised of lands the superior law of forfeiture intervenes, and prevents the escheat to the lord. Ant. n. (c), p. 189. With respect to the person to whom lands escheat, it is observable, that by the stat. 12 Cha. 2. c. 24. for changing all the ancient tenures into free and common socage, the rents and services (among which fealty is accustomably due) are preserved to the lord of him therefore the lands are still held, and to him they may escheat. But, if all these badges of tenure have been neglected to be preserved, and it be no longer known of whom the lands are mediately held; then the king, as the great and chief lord, shall have them by escheat: for to him fealty belongs, and of him they are certainly held by presumption of law, and without the necessity of proof. Booth, 135. May v. Street, Cro. Eliz. 120. 3 Cru. Dig. 496. But in a late case it was considered as doubtful, whether, at common law, upon the On attainder the escheat tion to the offence com mesne con secus as to an *(q) In an appeal of death or other felony, &c. process is awarded (195) against the defendant, and, handing the process, the defendant for outlawry conveyeth away the land, and after is outlawed, the conveyance is in an appeal, good (16) and shall defeat the lord of his escheat, but, if a man be has not relaindicted of felony, and, hanging the process against him, he convey- time of the eth away the land, and after is outlawed, the conveyance shall not mitted, so as in that case prevent the lord of his escheat. And the reason of this to avoid diversity is manifest: for, in the case of the appeal, the writ con- veyances; taineth no time when the felony was done, and therefore the indictment. escheat can relate but to the outlawry pronounced. But the indictment containeth the time when the felony was committed, and therefore the escheat upon the outlawry shall relate to that time (17). Which cases I have added, to the end the student may conceive, that the observation of writs, indictments, process, judgments, and other entries, doth conduce much to the understanding of the right reason of the law (K). *13 b. (q) 38 E. 3. 6. 5. Bract. fol. 37. 30H. lib. 2. tit. de Pl. Cor. 192. and accord versity was it Forf. Stamf resolved in 5 E. 6. as it appeareth by my Lord Dy. er's Manuscript. (Post, 390 b.) (W. Jo. 217. Cro. Cha. 172.) Moore. See Mo. 196. But note, that according to Moore, B., at the time of the conveyance to him, had only committed treason, and was not attainted till after; and it was by relation to the time of committing the of fence, that the case was construed to be the same as if the conveyance had been to a person actually attainted. The doctrine in Pym's case sounds peculiarly harsh; for first the legal estate in the land was given to the queen by a constructive relation, and then she was deemed to hold the land discharged of the use, because the king cannot be a trustee. However, it is but justice to mention, that the case being represented to queen Elizabeth, she, much to her honour, granted the land to cestuique use by patent. As to the king's holding land discharged of all uses and trusts where the legal estate vests in him, and the sense in which that doctrine is to be understood, see Vin. Abr. Uses, C. where most of the authorities on the subject are stated or referred to.-[Hargr. n. 7. 13 a. (68).] [The king is clearly not subject to a trust in case of an escheat to the crown. But, by the 39 & 40 Geo. 3. c. 88. s. 12. (amended by stat. 47 Geo. 3. s. 2. c. 24) his majesty is enabled by warrant, under the sign manual, to direct the execution of any trusts, to which lands escheated are liable; and to make any grants of such lands to any trustee or trustees, or otherwise, for the execution of such trusts.]-[Ed.] (16) "But if the party appears on an appeal, and the plaintiff counts, and the defendant is convicted by verdict or confession, it is all one." Hal. MSS.-[Hargr. n. 8. 13 a. (69).] (17) “Nota, if one be attainted by outlawry or confession of a felony, which is precedent to the feoffment of the party attainted, the feoffee may falsify the attainder by traverse to the felony or to the time of the felony. But if he be attainted by verdict, it seems, that he cannot falsify by traverse to the felony; but he may traverse the time of the felony, for that is not material; for if he be guilty on another day, the jury ought to find him guilty." Hal. MSS. which cites 3 Inst. 230.-[Hargr. n. 1. 13 b. (70).] death of the tenant last seised of the land, without heirs, the right and possession must be presumed to be immediately in the crown, without office, as though the person last seised were the king's immediate tenant; the king's title not appearing by any matter of record, and the possession not having been vacant from the death of the tenant last seised. See Doe, d. Hayne and Rex v. Redfern, 12 East, 96. Infra, n. (L).—[Ed.] (K) There is one instance in which lands held in fee-simple are not liable to escheat; for, if lands held of J. S. be given to a dean and chapter, or to a mayor and commonalty, and to their successors; if such corporation be dissolved, the land shall not escheat to the lord, but shall revert to the donor.. Ant. 13 b. vol. 1. p. 195. As the lord's right to an escheat arises solely from the want of a tenant to do the services, it follows, that whenever there is a tenant, the lord cannot claim the lands by escheat. And therefore if the lord enter on the death of the disseisor's alienee without heirs, the (196)* Of the office of escheator. (r) Mirror, cap. 1. sect. 5. tutum de *Of this word (eschaeta), here used by our author, cometh (r) Eschaetor, an ancient officer, so called because his office is properly to look to escheats, wardships, and other casualties belonging to the 51 H.3. Sta- crown. In ancient times there were but two escheators in England, the one on this side of Trent, and the other beyond Trent, at which time they had subescheators. But in the reign of Edward the Second, the offices were divided, and several escheators made in every county for life, &c. and so continued until the reign of gist. 301. his Edward the Third. And afterwards by the statute of 14 E. 3. it is (197)* enacted by authority of parliament, that there should be as *many Scac. Britton, fol. 33, 34. Fleta, lib. 1. cap. 36. & lib. 2. cap. 34, 35. Re Oath. 18 E. 1. disseisee may enter upon the lord; for the disseisee, notwithstanding the disseisin, continues the rightful tenant. Post, 240 a. Gilb. Ten. 25. So if the disseisee dies without heir, and afterwards the lord accepts homage or fealty of the disseisor, he is barred of his writ of escheat, because he has accepted him as his tenant: so if the lord accepts rent from the heir or feoffee of the disseisor, this shall bar him of his escheat; because they are in by title: which is to be understood of a descent or feoffment, after the title of escheat accrued; for, if the disseisor make a feoffment in fee, or die seised, and after the disseisee die without heir, then there is no escheat at all, because the lord has a tenant in by title. Post, 268 a & b. In consequence of this principle, any alienation of the tenant will bar the lord of his escheat and it has been held, that a feoffment made by an infant in person will have this effect. See Dyer, 10 b. 4 Co. 125 a. Whittingham's case, 8 Co. 42 b. So a devise, although it only takes effect at the moment of the testator's death, will prevent an escheat. 1 Rol. Rep. 214. Et vid. ant. 236 a. n. (182.) p. 118. Secus as to a void devise. Vaugh. 270. : The lord by escheat is subject to all the incumbrances of the last tenant; as to a grant of a rent, to dower, and curtesy; because they are annexed to the possession of the land, without respect to any privity. Rol. Rep. 402. 7 Co. 7 b. So, if a copyhold estate escheats to the lord of the manor, he will hold it subject to any lease made by the copyholder with the lord's license; and also to the free bench of the widow. Turner v. Hodges, Hut. 102. But the lord by escheat is not subject to any incumbrances annexed to the privity of the estate, because he comes in, in the post, and therefore he was not bound to execute an use, for his title was paramount, namely, by force of the condition in law tacitly annexed to the land, at the time of the creation of the seignory; and the tenancy comes in lieu of the seignory which he had to his own use. And as trusts are now, what uses were before the 27 H. 8., it should seem, that a lord by escheat is not subject to a trust, 1 Stra. 454: 2 Fonbl. Eq. b. 2. c. 7. s. 1. n. (a); however, this point is considered to be doubtful. See 3 Cru. Dig. 497. Burgess v. Wheate, 1 Bl. Rep. 178. The lord by escheat may distrain for rent due to the last tenant, for it is incident to the reversion; but he cannot take advantage of a condition of re-entry, because he is not heir to the lessor. Ant. 215 b. p. 85, 86. It should also be observed, that, where there is an outstanding term attendant on the inheritance, the lord by escheat will be entitled to such term. Thruxton v. Attorney-General, 1 Vern. 340. And he is likewise entitled to all the charters concerning the lands escheated. Bro. Abr. tit. Chart. pl. 59. 3 Cru. Dig. 498, 499. With respect to what things are subject to escheat: it has been already mentioned, that all lands and tenements held in socage, whether of the king, or of a subject, and all estates by copy of court roll, are liable to escheat. But lands in gavelkind do not escheat for felony, but descend to the heir of the felon: from which Sir William Blackstone concludes, that the tenure of gavelkind is of Saxon, and not of Norman origin. 2 Bl. Com. 252., No species of real property however is subject to escheat, but what lies in tenure; for escheat is a consequence and fruit of tenure. 3 Inst. 21. And therefore a trust estate is not liable to escheat; but where cestui que trust dies without heirs, the trustee shall retain the lands for his own benefit. Burgess v. Wheate, 1 Bl. Rep. 123. And it seems that an equity of redemption is not liable to escheat, S. C.: nor money directed to be laid out in lands. 3 Cru. Dig. 522. Where there is an escheat for want of heirs, and the fact is not communicated, it is usual to petition the king, stating that there is such an interest, and praying some reward upon the ground of the discovery, if it can be made out; and the ordinary rule, upon an escheat, is, for the crown to give a lease, as good as it can give, to the person making the discovery. Per Lord Elden, C. Moggridge v. Thackwell, 7 Ves. 71.-[Ed.] escheators assigned, as when King Edward the Third came to the crown, and that was one in every county, and that no escheator could tarry in his office above a year; and by another statute, to be in office but once in three years (L). The lord treasurer nameth chaetoribus. him. 14 E. 3. c.8. 28 E. 1. ca. 18. F.N. B. 100 c. Stamf. Prær. what C. 3 Hi And hereof also cometh eschaetria, which signifieth the eschea- st. 11. 8. torship, or the office of the escheator. But now let us hear our author will further say unto us. c. 2. Capitu- CHAP. XXXI.* OF TITLE BY PRESCRIPTION. (198)* 113 a. PRESCRIPTION is a title taking his substance of use and time Definition of allowed by the law. Præscriptio est titulus ex usu et tempore prescription. substantiam *capiens ab authoritate legis (A). In the common (4 Co. Lut 113 b. (1) The office of escheator is an ancient office, and was formerly of great use to the crown; but, having its chief dependance on the court of wards, which is taken away by act of parliament, it is now in a manner out of date. 4 Inst. 225. Before the statute of Westm. 1. c. 24. escheators, sheriffs, &c. would seise into the king's hands the freehold of the subjects, and thereby disseise them; but by that act it is provided that no seisure shall be made of lands or tenements into the king's hands, before office found. 2 Inst. 206. And the stats. 8 H. 6. c. 16. and 18 H. 6. c. 6. prohibit the granting to farm of lands seised into the king's hands, upon inquest before escheators, until such inquest be returned in the chancery or exchequer, and for a month afterwards (extended to three months, by stat. 1 H. 8. c. 110.) if the king's title in the same be not found of record, unless to the party grieved, who shall have tendered bis traverse to such inquest; and avoid all grants made contrary thereto. In Doe, d. Hayne and Rex v. Redfern, (cited in n. (1), sup. p. 194, 195.), it was held, that the 8 H. 6. c. 16. and 18 H. 6. c. 6. extended to the case of an escheat upon the death of the tenant last seised, without heirs, where no immediate tenure of the crown was found by the inquest. And that as the crown could not grant to a stranger in such a case, without cffice, neither could the plaintiff in ejectment recover upon the demise of the crown. And that the 8th sect. of stat. 2 & 3 Edw. 6. c. 8. (which is in general terms and not confined to the particular inquisitions mentioned in other clauses of the acts) extended to avoid any such inquisition or office before escheators, not finding of whom the lands are holden; in the same manner as if the jury had expressly found their ignorance of the tenure. 12 East, 96. See also ant. 77 b. vol. 1. p. 303, 304, 305, and the notes there.-[Ed.] (4) Every species of prescription, by which property is acquired or lost, is founded on the presumption, that he, who has a quiet and uninterrupted possession for a certain number of years, is supposed to have a just right, without which he could not have been suffered to continue in the enjoyment of it; for a long possession may be considered as a better title than can commonly be produced; it supposes an acquiescence in all other claimants; and that acquiescence also supposes some reason, though perhaps unknown, for which the claim was foreborne. 3 Cru. Dig. 524. 1 Domat. b. 3. t. 7. s. 4. p. 483. 2 Bl. Com. c. 17. The doctrine of prescription appears to have been very soon established in England; and, from what is said of it by Bracton, seems to have been derived from the Roman law; for Bracton, in the passage cited infra by Lord Coke, lays it down, that a title may be gained both to corporeal and incorporeal hereditaments, by a long and uninterrupted possession. Our modern writers, however, have only allowed a positive prescription to operate in the case of incorporeal hereditaments; such as rights of common, rents, &c. where the person, who claims, can show no other title, than that he and those, under whom he claims, have immemorially used to enjoy them. But there is another kind of prescription adopted by the English law, extending to lands; by which an uninterrupted possession, for a certain 23 VOL. II. |