century and a half ago, the homage (the tenants holding under the lord of the manor), being convened together eo nomine as the homage not for the purpose of extending their claims, either against the lord or strangers: but in order to ascertain those rights which were their own, in common with the rest of the tenants, and being possessed of all that information which either tradition or their own personal observations could furnish, proceeded to describe the several customs which regulated the descent of the different species of tenure within this manor. Now, can it be supposed that these persons, acting under the sanction of an oath, could, for no other purpose whatever, give a false representation of these customs? Or is it not more probable that their account was the true one? Common sense and common observation would induce us to believe the latter.

"The argument against the verdict seems to admit, that this document was a degree of evidence when it was produced to the jury; and, if it were admissible in evidence, it not being opposed by any other species of evidence, and the jury having given credit to it, it puts an end to the question. And that this was admissible cannot be doubted; for tradition and the received opinion are the evidence of the lex loci.

A distinction indeed prevails between a prescription, as applied to a particular tenement, and a custom affecting the whole district; and the latter has gone so far, that the custom of one manor has been given in evidence to shew the custom of another, where they are both governed by the border law. Now, here was full proof of a tradition respecting the custom of descent in this manor; it was the solemn opinion of twenty-four homagers, who are the constitutional judges of that court, delivered on an occasion when they were discussing the interests of all the tenants of the manor. cannot distinguish this from the instance of a terrier, which is certainly evidence. The case of Godwin v. Ante, § 36.

I

Spray is distinguishable from the present. Every thing, that was said by the Court in giving judgment, must be understood secundum subjectam materiem. That case first decided that such an instrument as the present is admissible; and then that part of it, which said that lands were not partible, either between males or females, in general terms, was to be explained by the custom, as it had existed in point of fact, which did not extend to nieces. And if that decision go farther, and determine that such a document is not admissible in evidence, unless instances in fact be previously proved to warrant the production of it, I must beg leave to dissent from it. In this case, supposing the defendant had demurred to this evidence, I think the Court must have drawn the same conclusion from it, which the jury have drawn; and therefore, on the law of the case, I think that the rule for a new trial should be discharged."

chase.

Or the two modes of acquiring a title to real property, Title by purthe first, namely, descent, has been treated of in the preceeding Title. We now therefore come to the second, that is, purchase, which is thus defined by Littleton, s. 12. :-" Purchase is called the possession of lands or tenements that a man hath by his deed or agreement, unto which possession he cometh, not by title of descent from any of his ancestors or cousins, but by his own deed."

2. Lord Coke in his comment on this section, ob- 1 Inst. 18 b. serves that a purchase is always intended by title, and most properly by some kind of conveyance, either for

Plowd. 47.

Lib. 7. c. 1.

Escheat.
Diss. c. 1.

money, or for some other consideration, or freely of gift; for that is, in law, also a purchase. And accordingly the makers of the statute 1 Hen. 5. c. 3. speak of those who have lands or tenements by purchase, or descent of inheritance.

3. The feudal writers call purchase conquestus or conquisitio, both denoting any means of acquiring an estate out of the common course of inheritance. The Norman jurists styled the first purchaser, or person who first acquired the estate, the conquereur; and Glanville uses the word questus to denote the property which a person has acquired by his own act, and not by de

scent.

4. The difference between the acquisition of an estate by descent and by purchase consists principally in two points. 1. That by purchase the estate acquires a new inheritable quality, and is descendible to the owner's blood in general, as a feud of indefinite antiquity. 2. That an estáte taken by purchase will not make the person who acquires it answerable for the acts of his ancestors, as an estate by descent will.

5. Sir W. Blackstone has enumerated the following modes of acquiring an estate,-by purchase, escheat, occupancy, prescription, forfeiture, and alienation. Of these we shall only treat of escheat, prescription, and alienation; occupancy having been already noticed in Title III. c. 1., and forfeiture being noticed in that and several other Titles.

6. It has been stated that, by the feudal law, when the tenant died without heirs, the lord became entitled to the feud. This law, which was introduced here by the Normans, is founded on the principle that the blood of the person last seised in fee simple is by some means or other utterly extinct and gone; and since none can inherit his estate but such as are of his blood and conWright's Ten. sanguinity, it follows as a regular consequence that the inheritance itself must fail; the land must become what the feudal writers call feodum apertum, and result

2 Inst. 64.

115.

back to the lord of the fee, from whom or from whose ancestor it was originally derived.

92 b.

7. This mode of acquiring an estate is called an 1 Inst. 13 a. escheat, which Lord Coke says is a word of art, derived from the French word eschier, quod est accidere; for an escheat is a casual profit, quod accidit domino ex eventu et ex insperato, which happens to the lord by chance, and unlooked for. An escheat is therefore, lu fact, a species of reversion, and is so called and treated by Bracton. When a power of alienation was intro- 23 a. duced, the change of the tenant changed the chance of the escheat, but did not destroy it; and when a general liberty of alienation was allowed, without the consent of the lord, this right became a sort of caducary succession, the lord taking as ultimus hæres.

8. Fitzherbert says, a writ of escheat lies where a N. B. 143. tenant in fee simple of any lands or tenements, which he holds of another, dies seised without any heir general or special, the lord shall have a writ of escheat against him who is tenant of the lands, after the death of his tenant, and shall recover the land; because he shall have the same in lieu of his services.

9. Mr. Hargrave has justly observed that an escheat, 1 Inst, 18 b.n.2. in appearance, participates in the nature both of a purchase, and of a descent. Of the former, because some act of the lord is requisite to perfect his title; and the actual possession of the land cannot be gained till he enters, or brings his writ of escheat. Of the latter because it follows the nature of a seignory, and is inheritable by the same person.

heirs.

10. An escheat may happen in two ways: 1. Per de- For default of fectum sanguinis, that is, for default of heirs; 2. per delictum tenentis, that is, for crime. Escheats arising from default of heirs, whereby the descent is at an end, can only be in the three following cases: 1. Where the tenant dies without any relations on the part of any of his ancestors. 2. Where he dies without any relations on the part of those ancestors from whom the estate descended. And