death of the ancestor) been allowed to take as a purchasor originally nominated in the deed, as must have been the case if the remainder had been expressly limited to Matthew or Thomas by name; then, in the times of strict feodal tenure, the lord would have been defrauded by such a limitation of the fruits of his signiory arising from a descent to the heir.

What we call purchase, perquisitio, the feudists called conquest, conquaestus, or conquisitio: (1) both denoting any means of acquiring an estate out of the common course of inheritance. And this is still the proper phrase in the law of Scotland: (m) as it was among the Norman jurists, who styled the first purchasor (that is, he who brought the es- [243] tate into the family who at present owns it) the conqueror or conquereur. (n) Which seems to be all that was meant by the appellation which was given to William the Norman, when his manner of ascending the throne of England was, in his own and his successor's charters, and by the historians of the times, entitled conquaestus, and himself conquaestor or conquisitor; (0) signifying that he was the first of his family who acquired the crown of England, and from whom therefore all future claims by descent must be derived: though now, from our disuse of the feodal sense of the word, together with the reflection on his forcible method of acquisition, we are apt to annex the idea of victory to this name of conquest or conquisition: a title which, however just with regard to the crown, the conqueror never pretended with regard to the realm of England; nor, in fact, ever had. (p)

The difference, in effect, between the acquisition of an estate by descent and by purchase, consists principally in these two points: 1. That by purchase the estate acquires a new inheritable quality, and is descendible to the owner's blood in general, and not the blood only of some particular ancestor. For, when a man takes an estate by purchase, he takes it not ut feudum paternum or maternum, which would descend only to the heirs by the father's or the mother's side: but he takes it ut feudum antiquum, as a feud of indefinite antiquity, whereby it becomes inheritable to his heirs general, first of the paternal, and then of the maternal line. 2. An estate taken by purchase will not make the heir answerable for the acts of the ancestor, as an estate by descent will. For if the ancestor, by any deed, obligation, covenant, or the like, bindeth himself and his heirs, and dieth; this deed, obligation, or covenant, shall be binding upon the heir, so far forth only as he (or any other in trust for him) (9) had any estate of inheritance vested in him by descent from, (or any estate per auter vie coming to him by special occupancy, as heir to) (r) that ancestor, sufficient to answer the charge; (s) whether he remains in possession, or hath alienated it before action brought; (t) which sufficient estate is in [244] the law called assets; from the French word, assez, enough. (u) Therefore if a man covenants, for himself and his heirs, to keep my house in repair, I can then (and then only) compel his heir to perform this covenant, when he has an estate sufficient for this purpose, or assets, by descent from the covenantor: for though the covenant descends to the heir, whether he inherits any estate or no, it lies dormant, and is not compulsory, until he has assets by descent. (v) 5

m Dalrymple of feuds, 210.
p See Book I. chap. 3.
$1 P. Wms. 777.

1 Craig. l. 1. t. 10. 18.
o Spelm. Glos. 145,
r ibid. § 12.

u Finch. law, 119.

n Gr. Coustum. Closs. c. 25, pag. 40. q Stat. 29 Car. II. c. 3. § 10.

1 Stat. 3 & 4 W. & M. c. 14.

v Finch. Rep. 86.

(4) See ante 201. note 2., and 242. n. 2.; Cruise Dig. title xxx. 4.

(5) Copyhold estates are not liable as assets, either in law or equity, to the testator's debts, farther than he subjected them thereto. Aldrich v. Cooper, 8 VBs, 393.

This is the legal signification of the word perquisitio, or purchase; and in this sense it includes the five following methods of acquiring a title to estates: 1 Escheat. 2. Occupancy. 3. Prescription. 4. Forfeiture. Alienation. Of all these in their order.

5.

I. Escheat, 6 we may remember, (w) was one of the fruits and consequences of feodal tenure. The word itself is originally French or Norman, (x) in which language it signifies chance or accident; and with us it denotes an obstruction of the course of descent, and a consequent determination of the tenure, by some unforeseen contingency: in which case the land naturally results back, by a kind of reversion, to the original grantor or lord of the fee. (y)

Escheat therefore being a title frequently vested in the lord by inheritance, as being the fruit of a signiory to which he was entitled by descent (for which reason the lands escheated shall attend the signiory, and be inheritable by such only of his heirs as are capable of inheriting the other), (z) it may seem in such cases to fall more properly under the former general head of acquiring title to estates, viz. by descent (being vested in him by

act of law, and not by his own act or agreement), than under the [245] present, by purchase. But it must be remembered that, in order

to complete this title by escheat, it is necessary that the lord perform an act of his own, by entering on the lands and tenements so escheated, or suing out a writ of escheat: (a) on failure of which, or by doing any act that amounts to an implied waiver of his right, as by accepting homage or rent of a stranger who usurps the possession, his title by escheat is barred. (b) It is therefore in some respect a title acquired by his own act, as well as by act of law. Indeed this may also be said of descents themselves, in which an entry or other seisin is required, in order to make a complete title and therefore this distribution of titles by our legal writers, into those by descent and by purchase, seems in this respect rather inaccucurate and not marked with sufficient precision: for, as escheats must follow the nature of the signiory to which they belong, they may vest by either purchase or descent, according as the signiory is vested. And, though sir Edward Coke considers the lord by escheat as in some respects the assignee of the last tenant, (c) and therefore taking by purchase; yet, on the other hand, the lord is more frequently considered as being ultimus haeres, and therefore taking by descent in a kind of caducary succession.

The law of escheats is founded upon this single 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 consanguinity, it follows as a regular consequence, that when such blood is extinct, the inheritance itself must fail, the land must become what the feodal writers denominate feudum apertum; and must result back again to the lord of the fee, by whom, or by those whose estate he hath, it was given.

Escheats are frequently divided into those propter defectum sanguinis, and those propter delictum tenentis: the one sort, if the tenant dies without heirs; the other, if his blood be attainted. (d) But both these species may

(6) As to title by escheat in general, see Cruise Dig, title xxx. S vol. 490. Com. Dig. tit. Escheat; quære as to necessity for an office to vest right and possession in crown. 12 East, 96.

well be comprehended under the first denomination only; for he that is attainted suffers an extinction of his blood, as well as he that [246] dies without relations. The inheritable quality is expunged in one instance, and expires in the other; or, as the doctrine of escheats is very fully expressed in Fleta, (e) " dominus capitalis feodi loco hæredis habetur, "quoties per defectum vel delicium extinguitur sanguis tenentis."

Escheats therefore arising merely upon the deficiency of the blood, whereby the descent is impeded, their doctrine will be better illustrated by considering the several cases wherein hereditary blood may be deficient, than by any other method whatsoever.

1, 2, 3. The first three cases wherein inheritable blood is wanting, may be collected from the rules of descent laid down and explained in the preceding chapter, and therefore will need very little illustration or comment. First, when the tenant dies without any relations on the part of any of his ancestors: secondly, when he dies without any relations on the part of those ancestors from whom his estate descended: thirdly, when he dies without any relations of the whole blood. In two of these cases the blood of the first purchasor is certainly, in the other it is probably, at an end: and therefore in all of them the law directs, that the land shall escheat to the lord of the fee; for the lord would be manifestly prejudiced, if, contrary to the inherent condition tacitly annexed to all feuds, any person should be suffered to succeed to the lands, who is not of the blood of the first feudatory, to whom for his personal merit the estate is supposed to have been granted. "

7

4. A monster, which hath not the shape of mankind, but in any part evidently bears the resemblance of the brute creation, hath no inheritable blood, and cannot be heir to any land, albeit it be brought forth in marriage: but, although it hath deformity in any part of its body, yet if it hath human shape it may be heir. (f) This is a very ancient rule in [247] the law of England; (g) and its reason is too obvious, and too shocking to bear a minute discussion. The Roman law agrees with our own in excluding such births from successions: (h) yet accounts them, however, children in some respects, where the parents, or at least the father, could reap any advantage thereby : (i) (as the jus trium liberorum, and the like) esteeming them the misfortune, rather than the fault, of that parent. But our law will not admit a birth of this kind to be such an issue, as shall entitle the husband to be tenant by the curtesy; (k) because it is not capable of inheriting. And therefore, if there appears no other heir than such a prodigious birth, the land shall escheat to the lord.

5. Bastards are incapable of being heirs. Bastards, by our law, are such children as are not born either in lawful wedlock, or within a competent time after its determination. (1) Such are held to be nullius filii, the sons of nobody; for the maxim of law is, qui ex damnato coitu nascuntur,

e l. 6. e. 1.

f Co. Litt. 7, 8.

Qui contra formam humani generis converso more procreantur, ut si mulier monstrosum vel prodigiosum enixa sit, inter liberos non computentur. Partus tamen, cui natura aliquantulum addiderit vel diminuerit, ut si sex vel tantum quatuor digitos habuerit, bene debet inter liberos connumerari; et, si membra sint inutilia aut tortuosa, non tamen est partus monstrosus. Bract. 1. 1. c. 6. & l. 5. tr. 5. c. 30.

h Ff. 1. 5. i4.
Co. Litt. 29.

(7) In the great case of Burgess v. Wheate, the lord keeper determined, contrary to the opinions of lord Mansfield and of sir Thomas Clarke, master of the rolls, whose assistance he had requested, that where a cestuy que trust dies without heirs, the trust does not escheat to the crown, so that the lands may be recovered in a court of equity by the king, but that the trustee shall bold them for his own benefit. 1 Bl. Rep. 123. Christian.

inter liberos non computantur. (m) Being thus the sons of nobody, they have no blood in them, at least no inheritable blood; consequently, none of the blood of the first purchasor: and therefore, if there be no other claimant than such illegitimate children, the land shall escheat to the lord. (~) The civil law differs from ours in this point, and allows a bastard to succeed to an inheritance, if after its birth the mother was married to the father: (0) and also, if the father had no lawful wife or child, then, even if the concubine was never married to the father, yet she and her bastard son

were admitted each to one-twelfth of the inheritance: (p) and a bas[248] tard was likewise capable of succeeding to the whole of his mother's estate, although she was never married; the mother being sufficiently certain, though the father is not. (9) But our law, in favour of marriage, is much less indulgent to bastards.

8

There is, indeed, one instance, in which our law has shewn them some little regard; and that is usually termed the case of bastard eigne and mulier puisnè. This happens when a man has a bastard son, and afterwards marries the mother, and by her has a legitimate son, who, in the language of the law, is called a mulier, or, as Glanvil (r) expresses it in his Latin, filius mulieratus; the woman before marriage being concubina, and afterwards mulier. Now here the eldest son is bastard, or bastard eignè; and the younger son is legitimate, or mulier puisnè. If then the father dies, and the bastard eigne enters upon his land, and enjoys it to his death, and dies seized thereof, whereby the inheritance descends to his issue; in this case the mulier puisnè, and all other heirs (though minors, feme-coverts, or under any incapacity whatsoever), are totally barred of their right. (s) And this, 1. As a punishment on the mulier for his negligence, in not entering during the bastard's life, and evicting him. 2. Because the law will not suffer a man to be bastardized after his death who entered as heir and died seised, and so passed for legitimate in his lifetime." 3. Because the canon law (following the civil) did allow such bastard eignè to be legitimate on the subsequent marriage of his mother; and therefore the laws of England (though they would not admit either the civil or canon law to rule the inheritances of this kingdom, yet) paid such a regard to a person thus peculiarly circumstanced, that, after the land had descended to his issue, they would not unravel the matter again, and suffer his estate to be shaken. But this indulgence was shewn to no other kind of bastard; for, if the mother was never married to the father, such bastard could have no colourable title at all. (t)

[249]

As bastards cannot be heirs themselves, so neither can they have any heirs but those of their own bodies. For, as all collateral kindred consists in being derived from the same common ancestor, and as a bastard has no legal ancestors, he can have no collateral kindred; and, consequently, can have no legal heirs, but such as claim by a lineal descent from himself. And therefore if a bastard purchases land and dies seised

m Co. Litt. 8.
n Finch. law. 117.
p Ibid. c. 12.
q Cod. 6. 57. 5.
s Litt. § 599. Co. Litt. 244.

o Nov. 89. c. 8. rl. 7, c. 1.

t Litt. § 400.

(8) There must not only be a dying seised, but a descent to his issue. Co. Litt. 244. a. And if the bastard dieth seised, his wife enseint with a son, the mulier enter, the son is born, the issue of the bastard is barred. Ibid. Broke, tit. Descent, 41. Plow. 57. a. 372. a.

(9) The rule holds in this one case only of bastard eigne and mulier puisnè; for where a bas tard is such by reason of his mother having a husband living at the time of her marriage with his father, he cannot take advantage of the rule, the marriage under which he claims being void without any divorce. Pride v. Earls of Bath and Montague, 1 Salk. 120. Archbold,

thereof without issue, and intestate, the land shall escheat to the lord of the fee. (u)

10

6. Aliens, (v)1o also, are incapable of taking by descent, or inheriting: (w) for they are not allowed to have any inheritable blood in them; rather indeed upon a principle of national or civil policy, than upon reasons strictly feodal. Though, if lands have been suffered to fall into their hands who owe no allegiance to the crown of England, the design of introducing our feuds, the defence of the kingdoin, would have been defeated. Wherefore, if a man leaves no other relations but aliens, his land shall escheat to the lord.

As aliens cannot inherit, so far they are on a level with bastards; but as they are also disabled to hold by purchase, (x)" they are under still greater disabilities. And, as they can neither hold by purchase, nor by inheritance, it is almost superfluous to say that they can have no heirs, since they can have nothing for an heir to inherit; but so it is expressly holden, (y) because they have not in them any inheritable blood.

And farther, if an alien be made a denizen by the king's letters patent, and then purchases lands (which the law allows such a one to do), his son, born before his denization, shall not (by the common law) inherit those lands; but a son born afterwards may, even though his elder brother be living; for the father, before denization, had no inheritable blood to communicate to his eldest son; but by denization it acquires an he- [250] reditary quality, which will be transmitted to his subsequent posterity. Yet if he had been naturalized by act of parliament, such eldest son might then have inherited: for that cancels all defects, and is allowed to have a retrospective energy, which simple denization has not. (z)

al

Sir Edward Coke (a) also holds, that if an alien cometh into England, and there hath issue two sons, who are thereby natural-born subjects; and one of them purchases land, and dies; yet neither of these brethren can be heir to the other. For the commune vinculum, or common stock of their consanguinity, is the father; and as he had no inheritable blood in him, he could communicate none to his sons; and, when the sons can by no possibility be heirs to the father, the one of them shall not be heir to the other. And this opinion of his seems founded upon solid principles of the ancient law: not only from the rule before cited, (b) that cestuy, que doit inheriter pere, doit inheriter al fits: but also because we have seen that the only feodal foundation, upon which newly purchased land can possibly descend to a brother, is the supposition and fiction of law, that it descended from some one of his ancestors; but in this case, as the intermediate ancestor was an alien, from whom it could by no possibility descend, this should destroy the supposition, and impede the descent, and the land should be inherited ut feudum stricte novum; that is, by none but the lineal descendants of the purchasing brother; and on failure of them, should escheat to the lord of the fee. But this opinion hath been since over-ruled: (c) and it is now held for law, that the sons of an alien born here, may inherit to each other; the descent from one brother to another being an immediate descent. (d) And

(10) See cases and exceptions, 1 Chitty's Comm. Law, 162.

(11) If the purchase be made with the king's licence, it seems that he may hold. See 14 Hen. IV. 20. Harg. Co. Litt. 2. b. n. 2.

VOL. I.

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