is attainted in the life of the father, and dies without issue in the life of the father, the younger son shall inherit the father, for he need not mention his elder brother in the conveying of his title; but if the elder son attaint survive the father but a day, and die without issue, the second son cannot inherit, but the land shall escheate pro defectu hæredis, for the corruption of blood in the elder son surviving the father impedes the descent. But otherwise,' &c., and then Hobbey's case, Co. Litt. 8 a, is stated. So also in Foster's C. L. p. 63, it is said, that to kill a person under attainder without warrant of law is murder, for which the murderer is liable to an appeal at the suit of the widow. "For though his heir is barred by the attainder, which corrupteth his blood, and dissolveth all relations grounded on consanguinity, yet the relation grounded on the matrimonial contract continueth till death." [The Attorney-General mentioned Foster v. Ramsey, the arguments in which are reported 2 Sid. 23-52, and the judgment at p. 148; at p. 25 cases are cited, and amongst them Hobbey's, to show that where a man derives a title or seisin from his ancestor, there it behoves him to convey his title by the said ancestor, but where he claims only by resort and pedigree, there the father's disability shall not be prejudicial to the son; and at p. 148 the Court expressly deny the proposition, that so far as relates to corruption of blood, the birth of the child of an attainted person after the attainder makes any difference.] In Hobbey's case, as reported in Palmer, 19, it appears that the son and daughter were both born before the attainder and so had loyal blood which a subsequent attainder could not corrupt; that is the root of that decision. The authority, however, of that case is questionable; an accurate account of it is given in Sir Orlando Bridgman's report of Collingwood v. Pace, 410, 448-450, where it appears that a writ of error was brought; but that the Queen having recovered those very lands upon another title 1866. KYNNAIRD v. LESLIE. 1866. KYNNAIRD v. LESLIE. against the judgment of the Exchequer, it was to no purpose to proceed with the writ, and a non vult prosequi was entered. But, assuming the exception founded on Hobbey's case to exist, it is limited to a descent between brothers born before attainder. Ratcliff's case (a) confirms this view. Britton, cap. 5, is there cited as an authority that "if a man be attainted of felony by judgment, the heirs begotten after the attainder are excluded of all manner of succession of heritage, as well on the part of the mother, as on the part of the father; and the reason thereof was, that the son begotten after the judgment had not two heritable bloods in him; for, at the time of the begetting of him, the blood of the father was corrupted; for ex leproso parente leprosus generatur filius; and when the father is attainted of felony, the blood, in respect of which he should be heritable, being corrupted, the son, as seemed to him, had but half blood; &c. And with him agrees Bracton, lib. 3, cap. 13, Non valebit felonis generatio, nec ad hereditatem paternam, vel maternam; si autem ante feloniam generationem fecerit, talis generatio succedit in hereditatem patris, vel matris, a quo non fuerit felonia perpetrata; because," &c. Hobbey's case is constantly treated as exceptional. In Godfrey and Dixon's case (b), Mr. Justice Dodderidge said, "That if a man claim as cousin and heir, he must show how he is cousin and heir; but not when he claims as brother, or son and heir." In York's Considerations on the Law of Forfeiture (c), it is said, "But, wherever he need not be mentioned in the conveyance of descent, as between two sons of an attainted father, nothing hinders one brother from inheriting to the other; since, agreeably to the rule of law, the descent is immediate: he can make himself heir to the person last seised, without the mention of the father." In Stephen's Commentaries (d), (a) 3 Co. Rep. 37, 41. (c) 4th ed. P. 87. it is remarked, that though the opinion of Sir Edward Coke (a) was overruled in Collingwood v. Pace, "it was only on the ground that the descent from one brother to the other might be considered as immediate, and without regard to the commune vinculum; an exception from the general law of inheritance," &c. In In re Dons Estate (b), Kindersley, V. C., says at p. 102, "Another rule was this: that between brothers the descent was immediate, but as between other collateral relations you traced up to the common ancestor and down again, in order to see what the descent was. It is not very easy, perhaps, to say why it should be so, except from some principle of feudal law, but the rule was, that between brothers the inheritance was immediate, that it was one single descent-one step only in the pedigree." The exception is expressly admitted by Hale, C. B., in Collingwood v. Pace (c); and the second reason given by Windham, J., in the same case, is stated in the Hargrave MSS. now in the library of the British Museum, No. 56, p. 112, to be "Because the descent from one brother to another is an immediate descent: that is, well and clearly proved by the forms of pleading, fratri et hæredi' as 'filio et hæredi,' and no pedigree to be further set forth as in remoter degrees:" Collingwood v. Pace (d); Anonymous case (e); Courtney's case (f); Davies v. Lowndes (g); Hardman v. Clegg (h); 3 & 4 Will. 4, c. 106, ss. 4, 6, 10; and Shelford's Real Property Statutes, note to the last section. [Willes, J. Is there any decision in which it has been held that a person attainted, who, though there had been no such attainder, could not have inherited the land, would nevertheless block the descent?] A further objection is that the marriage (a) Co. Litt. 8 a. (b) 27 L. J., Ch. 98; S. C. 4 Drew. 194. (c) Vent. 413, 424. (d) 0. Bridg. 450. (e) Dyer, 274. (ƒ) 3rd Inst. c. 106, p. 241. (g) 1 Bing. N. C. 597. (h) Holt, N. P. R. 657, 1866. KYNNAIRD v. LESLIE. 1866. KYNNAIRD v. LESLIE. here of the testator's grandfather after the attainder was invalid. A man attainted is civiliter mortuus (a). [Willes, J., referred to Perkins' Prof. Book, s. 28, which shows that attainder by outlawry relates to the exigent as to lands and tenements; so that a feoffment of land or grant of a rent made by him that is attainted in such manner before the exigent awarded is good.] With respect to the French law: in the Cod. Civil, lib. 1, tit. 1, ch. 2, sec. 2, § 25, as to the effect of the civil death of a man, it is stated, "Il est incapable de contracter un mariage qui produise aucun effet civil." [The first point argued by the Attorney-General was not argued on the other side, and the Court, without calling on him to reply, now gave judgment.] ERLE, C. J. We have been very much impressed by the learning, research and powerful arguments brought before us on behalf of the Plaintiff, to which we have applied our minds, but we have come to the conclusion that they are not sufficient to entitle him to have this rule made absolute. This is an action of ejectment by which the Plaintiff claims certain lands of which Anthony James Earl of Newburgh died seised; and I need not go any farther into the title of either the Plaintiff or Defendant than to say that I take it to be admitted between these parties that the Defendant is entitled to the property unless his apparent title, derived from Francis Eyre the younger as heir of Anthony James, be defeated by the objections which have been relied on in the argument. According to the pedigree Francis Eyre the younger was naturally collateral heir; and one who claimed through him would, ordinarily speaking, be entitled to the lands in question. The reason why it is said the Defendant is not entitled, is because Francis Eyre the younger through whom (a) Co. Litt. (2b.); ibid. (132 a). he claims, is connected in consanguinity with Anthony James through the common ancestor Charles Radcliffe, who was attainted before he was married. One main ground of contention is, that the Defendant, in tracing his title, is compelled by law to name the common ancestor who was attainted as a person through whom the inheritance descended to him. The other ground relied on for the Plaintiff is, that the marriage of the common ancestor took place after he was attainted; that therefore it was no marriage, and that the children were not legitimate, and so no consanguinity. I admit the rule of law is that an inheritance cannot pass through an attainted person; but between collateral consanguinei it passes directly from brother to brother, and it so passes whether the claim is made on behalf of one brother to succeed to a deceased brother, or on behalf of a descendant of one brother to succeed to the descendant of another brother. The common ancestor is named only for the purpose of proving consanguinity, and not because the inheritance passes through him. This rule of law has been the subject of most remarkable legal disputes, and Lord Hale and Sir Orlando Bridgman, and other judges of that day, seem to have put forth all their powers of research and argument upon the matter, and they came to the conclusion that the inheritance passes directly from brother to brother; from the date of Collingwood v. Pace (a), the law has been taken to be so; and it is so expressed in direct terms in Blackstone, whose authority in many respects is great, especially upon matters relating to real property. In the 2nd book of his Commentaries, p. 226, after explaining that the common ancestor is the root of the inheritance, and that the consanguinity must be traced through him, he goes on to say, "But though the common ancestor be thus the root of the inheritance, yet with us it is not necessary to name him in making out the pedigree or descent. For the descent be(a) 0. Bridg. 410; S. C. 1 Vent. 413; 1 Sid. 193. 1866. KYNNAIRD V. LESLIE. |