Every pre scription sup. What arises record cannot for. of the periods as may be applicable to the case, and without claiming in the name or right of the owner of the fee. 3. A poses a grant. prescription cannot be for a thing which cannot be raised by grant. For the law allows prescription only in supply of the loss of a grant, and therefore every prescription presupposes a grant to have existed. Thus the lord of a manor cannot prescribe to raise a tax or toll upon strangers; for, as such claim could never have been good by any grant, it shall not be good by prescription. 4. A fourth by matter of rule is, that what is to arise by matter of record cannot be be prescribed prescribed for, but must be claimed by grant, entered on record; such as for instance, the royal franchises of deodands, felons' goods, and the like. These not being forfeited till the matter on which they arise is found by the inquisition of a jury, and so made a matter of record, the forfeiture itself cannot be claimed by any inferior title. But the franchises of treasure-trove, waifs, estrays, and the like, may be claimed by prescription; for they arise from private contingencies, and not from any matter of record. 5. Among things incorporeal, which may be between pre- claimed by prescription, a distinction must be made with que estate & regard to the manner of prescribing; that is, whether a man shall prescribe in a que estate, or in himself and his ancestors. For, if a man prescribes in a que estate, (that is, in himself and those whose estate he holds) nothing is claimable by this prescription, but such things as are incident, appendant, or appurtenant to lands; for it would be absurd to claim any thing as the consequence, or appendix, of an estate, with which the thing claimed has no connexion but, if he prescribes in himself and his ancestors, he may prescribe for any thing whatsoever that lies in grant; not only things that are appurtenant, but also such as may be in gross. Therefore a man may prescribe, that he and those whose estate he hath in the manor of Dale, have used to hold the advowson of Dale, as appendant to that manor: but, if the advowson be a distinct inheritance, and not appendant, then he can only prescribe in his ancestors. So also a man may prescribe in a que estate for a common Distinction scription in a for ones self and ances tors. : j 1 Ventr. 387; Cowp. 102. 1 Litt. sec. 183; Finch. L. 104. gained by descend. appurtenant to a manor; but, if he would prescribe for a common in gross, he must prescribe in himself and his ancestors. 6. Lastly, we may observe, that estates gained How estates by prescription are not, of course, descendible to the heirs prescription general, like other purchased estates, but are an exception to the rule. For, properly speaking, the prescription is rather to be considered as an evidence of a former acquisition than as an acquisition de novo: and therefore, if a man prescribes for a right of way in himself and his ancestors, it will descend only to the blood of that line of ancestors in whom he so prescribes; the prescription in this case being indeed a species of descent. But, if he prescribes for it in a que estate, it will follow the nature of that estate in which the prescription is laid, and be inheritable in the same manner, whether that were acquired by descent or purchase: for every accessory followeth the nature of its principal. CHAPTER THE SIXTH. [267] OF TITLE BY FORFEITURE. Forfeiture, definition of. How lands may be for. feited. I. By crimes and misdemeanors. [268] II. By alienation. FORFEITURE is a punishment annexed by law to some illegal act, or negligence, in the owner of lands, tenements, or hereditaments: whereby he loses all his interest therein, and they go on to the party injured, as a recompense for the wrong which either he alone, or the public together with himself, hath sustained. Lands, tenements, and hereditaments, may be forfeited in various degrees and by various means: 1. By crimes and misdemeanors. 2. By alienation contrary to law. 3. By non-presentation to a benefice, when the forfeiture is denominated a lapse. 4. By simony. 5. By nonperformance of conditions. 6. By waste. 7. By breach of copyhold customs. 8. By bankruptcy. 4. I. The offences which induce a forfeiture of lands and tenements to the crown are principally the following six: 1. Treason. 2. Felony. 3. Misprison of treason. Praemunire. 5. Drawing a weapon on a judge, or striking any one in the presence of the King's principal courts of justice. But considerable alterations have recently been made in the law of forfeiture for crimes and misdemeanors, which have already been stated in a preceding chaptera. II. Lands and tenements may be forfeited by alienation, or conveying them to another, contrary to law. This is either alienation in mortmain, alienation to an alien, or alienation by particular tenants; in the two former of which cases the forfeiture arises from the incapacity of the alienee to take; in the latter, from the incapacity of the alienor to grant. a See ante, p. 165. I. By alienatiou in I. Alienation in mortmain, in mortui monu, is an alienation of lands or tenements to any corporation, sole or mortmain. aggregate, ecclesiastical or temporal. But these purchases having been chiefly made by religious houses, in consequence whereof the lands became perpetually inherent in one dead hand, this hath occasioned the general appellation of mortmain to be applied to such alienations, and the religious houses themselves to be principally considered in forming the statutes of mortmain. must have a the crown. them to pur [269] History of the of the monks law, and of the statutes of mortmain. By the common law any man might dispose of his lands Corporations to any other private man at his own discretion, especially licence from when the feodal restraints of alienation were worn away. Yet in consequence of these it was always, and is still, necessary, for corporations to have a licence in mortmain from the crown, to enable them to purchase lands: for as to enable the King is the ultimate lord of every fee, he ought not, un- chase lands. less by his own consent, to lose his privilege of escheats and other feodal profits, by the vesting of lands in tenants that they cannot be attainted or die. And if no such licence was obtained, the King might enter on the lands contrivances so aliened in mortmain, as a forfeiture. Yet such were to evade the the influence and ingenuity of the clergy, that (notwithstanding this fundamental principle) we find that the largest and most considerable dotations of religious houses happened within less than two centuries after the conquest. And (when a licence could not be obtained) their contrivance seems to have been this: that, as the for-feiture for such alienations accrued in the first place to the immediate lord of the fee, the tenant who meant to alienate first conveyed his lands to the religious house, and instantly took them back again, to hold as tenant to the monastery; which kind of instantaneous seisin was probably held not to occasion any forfeiture: and then, by pretext of some other forfeiture, surrender, or escheat, the society entered into those lands in right of such their newly acquired signiory, as immediate lords of the fee. But, when these dotations began to grow numerous, it was observed that the feodal services, ordained for the defence of the kingdom, were every day visibly withdrawn; that c F. N. B. 121. N 75. [270] the circulation of landed property from man to man began to stagnate; and that the lords were curtailed of the fruits of their signiories, their escheats, wardships, reliefs, and the like: and therefore, in order to prevent this, it was ordered by the second of King Henry III's great charters, and afterwards by that printed in our common statutebook, that all such attempts should be void, and the land 9 Hen. 3, c. forfeited to the lord of the fee. But, as this prohibition extended only to religious houses, bishops and other sole corporations were not included therein; and the aggregate ecclesiastical bodies (who, Sir Edward Coke observes, in this were to be commended, that they ever had of their counsel the best learned men that they could get) found many means to creep out of this statute, by buying in lands that were bona fide holden of themselves as lords of the fee, and thereby evading the forfeiture; or by taking long leases for years, which first introduced those extensive terms, for a thousand or more years, which are now so frequent in conveyances. This produced the statute de religiosis, 7 Edw. I, which provided, that no person, religious or other whatsoever, should buy, or sell, or receive, under pretence of a gift, or term of years, or any other title whatsoever, nor should by any art or ingenuity appropriate to himself, any lands or tenements in mortmain; upon pain that the immediate lord of the fee, or, on his default for one year, the lords paramount, and, in default of all of them, the King, might enter thereon as a forfeiture. This seemed to be a sufficient security against all alienations in mortmain: but as these statutes extended only to gifts and conveyances between the parties, the religious houses now began to set up a fictitious title to the land, which it was intended they should have, and to [271] bring an action to recover it against the tenant; who, by 7. Edw. 1, statute de religiosis. fraud and collusion made no defence, and thereby judgment was given for the religious house, which then recovered the land by sentence of law upon a supposed prior title. And thus they had the honour of inventing those fictitious adjudications of right, which were until lately A. D. 1217, cap. 43, edit. Oxon. h Mag. Cart. 9 Hen. III. c. 36. i 2 Inst. 75. |