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A regular interlocutory judgment may be set aside by the judge of every inferor court, in order to let in a trial of the merits (f); but he cannot grant a new trial, or set aside a verdict, except for irregularity, fraud or surprise (g).

SECTION VI.

Of the Writ of Right Patent (h).

A writ of right patent, properly so called (i), was a writ brought by him who had the full and mere right of property in the fee simple of the land, to recover the right of possession, to which he could not have been restored without a judgment first had for him in the king's court, or some Court Baron (k).

The writ of right patent, like all other original writs in real actions, was sued out of the High Court of Chancery, and was directed to the lord of the manor, of whom the land was holden, commanding him to do right to the demandant in his court; but if the lord was not in England, the writ was directed to his bailiff (l); and then the Chancellor of England was to be certified thereof (m).

The original thus sued forth was to be brought to the steward of the manor, of which the land was holden, at some Court Baron, who after pledges to prosecute were given, and after entering the demand made by the writ, was to deliver the writ again to the demandant, with whom it was to remain, and which was not the case as to any other writ (n).

73 C. See as to the removal of plaints
in Courts Baron, post, p. 630, n. (1).
(f) Rex v. Peter, 1 Burr. 568.

(g) Bailey v. Bourne, 1 Str. 392; Blacquiere v. Hawkins, Dougl. 379; Jewell v. Hill, 1 Str. 499; Rex v. Urling, Fortesc.

198.

See further as to proceedings in plaints of debt, &c. in Court Baron, post, Append. to 2nd and 3rd parts.

(h) Vide ante, pt. 1, p. 473, n. (a), referring to the act of 3 & 4 Will. 4, c. 27, abolishing real actions and plaints in nature thereof, with some exceptions; and see the act in the Appendix, and the references to it, ante, pp. 566, n., 585, n.

(i) Writs of right were of several sorts, as the Writ of right patent, (of which we are now speaking:) Writ of right close of lands in ancient demesne, (already fully treated of, ante, tit. "Ancient Demesne: ")

Writ of right of Lordon, (concerning lands in London, and directed to the mayor and sheriffs,) F. N. B. 6 A.; Booth's Real Actions, 117; and Writs of right de rationabili parte and of advowson, Booth, 119, 121; F. N. B. 9, 30 B. All other writs of right, as the Writ of dower unde nihil habet, the Writs of escheat, formedon, de rationabilibus divisis, quo jure, &c. were writs of right in their nature only; Booth, 125.

(k) Bract. l. 5, c. 1, &c.; Booth, 85.

(1) Booth, 90; F. N. B. 1 H.; Com. Dig. Droit (B. 3.) Where the king was lord, the writ was directed to the bailiff; Capell v. Church, Mo. 1.

(m) F. N. B. 1 F. There must have been fifteen days at the least between the teste and the return of the writ; Booth, 1, 92.

(n) Booth, 90.

If the lord refused to hold his court, there should have been a writ to him to do it; and upon that an alias, pluries and attachment (o).

But where the lord remitted his court to the king (p), or had no court (q), then the writ was directed to the sheriff (r); and though it was formerly the practice to commence this action in the Court Baron, and to remove it afterwards into the County Court, by writ of tolt (s), and from thence into the Common Pleas by writ of pone (t), yet, without all this circuity, the demandant might have had his writ of right, immediately returnable into the Common Pleas, which was most safe and usual (u); but the writ must have stated that the lord of the fee had remitted his court, and it was not then material whether he gave licence or not; for if this was omitted, it would have been sufficient if the lord sent his licence to the king in Chancery afterwards (x).

The author has shown in treating of customary plaints in nature of real actions (y), that the grand writ of right must have been brought by the statute of limitations of 32 Hen. VIII. (z), within sixty years after the title had accrued, if the action was upon the seizin of the ancestor, and within thirty years if brought upon the demandant's own seizin, and has adverted also to the general principles governing the pleadings in a real suit (a), to which he would add, that in a real action the tenant was obliged to begin (b), for he

(0) F. N. B. 3 E.; Com. Dig. Droit (B. 3).

(p) See form of licence from the lord, Rast. 246 a; F. N. B. 3 A.

(9) But we read, that if the lord had no court for the poorness of his manor, the writ should have been directed to the lord Com. Dig.

paramount; F. N. B. 2 A.; Droit (B. 3).

(r) Sir Ed. Coke, [4 Inst. 271,] in treating of the jurisdiction of the coroner, says, "besides his judicial place, he hath also authority ministerial, as a sheriff, &c., viz. where there is just exception taken to the sheriff, judicial process shall be awarded to the coroner for the execution of the king's writs, in which cases he is locum tenens vicecomitis, and in some special cases the king's original writ shall be immediately directed unto him."

(s) See the form of a writ of tolt, 3 Bl. Com. App. No. 1, s. 2; in Rex v.

Morgan, 1 Sir W. Bl. 399, Wilmot, J., said "The writ (of tolt) ought to have been directed to the suitors of the court, and not to the steward, who is only the prothonotary of the court."

(t) Booth, 86, n. See the form of the writ of pone, 3 Bl. Com. App. No. 1, s. 3. (u) Booth, 91.

(x) F. N. B. 2 F., 3 A.; Booth, 91. (y) Ante, pt. 1, p. 490.

(z) C. 2.

(a) Ante, pt. 1, p. 486. To the cases there cited, showing that the demandant was not allowed to amend the proceedings in a writ of right, add Hull v. Blake, 4 Taunt. 572; Adams, demandant, Radway, tenant, 1 Marsh. 602.

(b) Co. Ent. 182; Hughes Abr. 86; Gilb. Ev. 146; Heydon v. Ibgrave, 3 Leo. 162; S. C. Gouldsb. 23; Dowland & Slade, 5 East, 288; Worley v. Blunt, 9 Bing. 635; Spiers v. Morris, ib. 687.

affirmed that he had more right than the demandant; but it was some compensation to the tenant for thus exposing his title to his opponent, that the demandant was bound to show his pedigree on the face of the count (c).

And the author would further observe, that in such actions the estate sought to be recovered should have been described with great precision, to enable the sheriff to deliver seizin thereof to the demandant (d); and further that the rule of pleading was, that every precipe quod reddat must have expressed the vill in which the land lay, and not the hamlet only (e), but every parish was considered, primâ facie, to be a vill, so that the contrary must have been shown (ƒ).

SECTION VII.

Of the Fruits of Tenure; and Seignioral Franchises. ESCHEAT (9). The word escheat is a feudal term importing a return of tenure (h), and there can be no escheat, the author apprehends, but per defectum sanguinis (i), that is, for default of heirs, or more correctly speaking, pro defectu tenentis (k); but lands may revert to the lord per delictum tenentis, that is, for felony (1); but this is rather a forfeiture than an escheat (m); and extends to lands pur

(c) Per Alderson, J., in Worley & Blunt, ubi sup. ; ante, pt. 1, p. 487.

(d) Ante, pt. 1, p. 488.

(e) 9 E. 4, 36; 8 E. 4, 6; 34 Hen. 6, 18; Booth, 3. But in dower it may be in an hamlet, as no certain land is demanded.

(f) 8 East, 176; and see Booth, 3, n. (e.) See the form of precipe, warrant, summons and sheriff's return in writ of dower, 2 Saund. by Serj. Williams, 43, n. (1).

(g) This royalty is specified in the 82nd clause of the 4 & 5 Vict, c. 35, among the manorial rights excluded from the operation of the act, unless expressly commuted.

(h) It is said that a foundership cannot escheat, nor be forfeited, being annexed to the blood; Br. Eschete, pl. 9; ib. Corodies, pl. 5, cites 24 E. 3, 33, 72; but again it has been said that a foundership may come to the king by escheat; Br. Peticion, pl. 26, cites 5 E. 4, 118.

(i) Sir G. Sands' case, Hardr. 494; S. C. 2 Freem. 129; 1 Sid. 403; Jenk, 203, pl. 27; but see Co. Lit. 13 a; Burgess v. Wheate, 1 Sir W. Bl. 133, &c., 141, &c.; ante, pt. 1, pp. 407, 408.

(k) Hardr. 494, 495; 1 Eden, 201. (/) Attainders that give escheat to the lord must be by judgment of death given in some court of record against the felon, found guilty, by verdict or confession, of the felony, or it must be by outlawry of him; Bacon's Use of the Law, 38; 10 Vin. 143, (A. 2,) pl. 3. N. B. by the 54 Geo. 3, c. 145, corruption of blood is taken away, except for the crime of treason, or of murder, or of abetting the same; ante, pt. 1, 440.

(m) The stat 25 Ed. 3, c. 2, makes this distinction between escheats and forfeitures, declaring that in the cases of high treason the forfeiture of escheats pertaineth to the king, as well of the lands and tenements holden of others as of himself; and that in cases of petit treason, the es

chased by or descending to the party after committing the felony (s).

And in the case of high treason, the forfeiture of freehold land is to the king by the common law, of whomsoever the land be holden (t), and not to the lord (u), who is considered to be deprived of his seigniory, as a punishment for his failing in that caution that was due to the public in the choice of his tenant (x); though of petit treason the forfeiture is to the lord (y); but even where the tenant, that is to say a tenant in fee simple, is guilty of felony only (z), the king is entitled to the land for a year and a day (a), to the prejudice of the lord (b).

But if the heir in fee simple commit treason in the lifetime of his father, the lord shall have the land by escheat, and not the king by forfeiture, as the son never was seized (c).

cheats ought to pertain to every lord of his own fee. See Sir Martin Wright's Treat. of Ten. p. 117, (n. x,) who adds, "So that in the clause relating to forfeitures for high treason, escheats and forfeitures are plainly distinguished; inasmuch as escheats themselves are for such treasons declared to be forfeited. And the Lord Coke, (2 Inst. 64,) observes this difference between them, saying, that where a lord is attainted of high treason, there the king hath the land by forfeiture, of whomsoever the land is held, and not in respect of any escheat, by reason of any seigniory; vide Bro. tit. Eschete; Mo. 160. Upon this differenee we may easily account for gavelkind lands being forfeitable for treason, though they do not escheat for felony; for though the lord may connive at or dispense with all the causes of escheat, (potest dominus feloniam remittere, Zasius in usus Feud. cap. 10, fol. 95,) or might remit the escheat itself as a perquisite of tenure; yet he could not dispense with the public laws of forfeiture, or with offences against any other person than himself." And see further as to the distinction between escheut and forfeiture, Sir W. Bl. pp. 143, 144, 145, &c., in Burgess & Wheate.

(s) Br. Eschete, pl. 3, cites 48 E. 3, 2 ; Finch, 71 b.

(t) Sup. n. (1); Br. Eschete, pl. 14,

cites 22 Ass. 49; Co. Lit. 13 a, cites Nicholl's case, Plow. Com.; and see Consider. on the Law of Forfeit. for High Treason, 4th ed., p. 60, 65; Hale, H. P. C. v. 1, c. 23.

(u) This, since the stat. 33 Hen. 8, c. 20, applies to lands held in fee tail as well as fee simple; and the forfeiture is before office found; Dowtie's case, 3 Co. 11 a. And the estate of a trustee was forfeited by attainder, as the king could not have been a trustee, Jenk. 190, pl. 2; but in such cases it was usual for the crown to re-grant the estate, ex. gr. to the cestuy que trust; Mo. 196; Vin. Abr. Uses, (C.); Co. Lit. 13 a, n. 7.

(x) Wright's Ten. 119; Consider. on the Law of Forfeit. for High Treason, 61. (y) Supra, n. (m).

(2) By which is to be understood felony punishable by death; 2 Inst. 38.

(a)" Where tenant in tail or tenant for life is attainted, then the king shall have the profits of the lands during the life of tenant in tail, or of the tenant for life;" 2 Inst. 37.

(b) Magna Charta, c. 22; 17 Ed. 2, c. 16; Standf. Pleas of the Crown, lib. 3, c. 30; Br. Corone, pl. 208; and see 2 Inst. 36, citing Glanv. Bract. Brit. Flet. and the Mirror.

(c) Br. Eschete, pl. 6, cites 11 H. 4, 10, 11; Co. Lit. 13 a.

And lands vested in the lord by attainder of felony are not divested by a subsequent act of high treason (d).

If a tenant be outlawed of felony, and the lord enter by escheat (or forfeiture), the tenant, on reversing the outlawry, may re-enter, but not without a scire facias against the lord, as he is in by title (e).

And if after outlawry of the principal on felony the accessary is convicted and executed, and the lord enter on the lands of the accessary for an escheat, and afterwards the principal reverses the outlawry and pleads to the felony and is acquitted, the heirs of the accessary shall re-enter on the lord (f).

If a person be outlawed on an indictment (g) for felony, a conveyance pending the process, and before outlawry, will not defeat the lord of his escheat, but a feoffee might traverse the time of the feoffment or the felony itself (h).

When a man having an estate in freehold lands for his own life or the life of another commits treason or felony, it is said that the whole estate is forfeited to the crown, and that there is no escheat to the lord (i).

A remainder or reversion in fee is capable of seizin, and may escheat as well as an absolute fee (k), and on the death of the tenant for life, if a stranger abated, the lord might have had a writ of intrusion (1). But as the lord by escheat was in by title and not by way of estate, he shall not have the benefit of a warranty made to the tenant, nor take advantage of a voucher or condition (m).

That which does not lie in tenure, as a rent charge, advowson, common or the like, cannot escheat (n); but if the grantee die without

(d) 3 Inst. 213.

(e) Br. scire facias, pl. 109, cites 8 H. 6, 2.

(f) 9 Co. 119 b, in Lord Sanchar's case; 3 Inst. 231.

(g) Contrà, on Appeal, as the writ does not contain the time when the felony was committed; Co. Lit. 13 a & b.

(h) 3 Inst. 230, cites 49 E. 3, 11; 7 E. 4, 1, 2; Co. Lit. 13 a, b: but on attainder upon verdict a feoffee could only traverse the time; 3 Inst. 231.

(i) Bacon's Use of the Law, p. 40. But copyholds, whether held in fee simple or for life, are forfeited to the lord; and if intailed, the forfeiture is to the lord during the life of the offender, ib. And see ante, pt. 1, pp. 439, n. (ƒ), 540.

(k) Br. Prerog. pl. 25, cites 15 H. 4,

11; Dy. 137, pl. 26, cites 3 H. 6. And the lord by escheat would be intitled to distrain for the rent reserved by a lease for life, but could not enter by force of condition broken; Co. Lit. s. 348.

(1) Br. Eschete, pl. 6, cites 11 H. 4, 10, 11; ib. Intrusion, pl. 4, cites 45 E. 3, 3; but it seems he might have had the writ of escheat instead of intrusion, if he pleased, Br. Intrusion, pl. 7; ib. Eschete, pl. 4, 6. Yet see 6 H. 7, 9; Br. Eschete, pl. 16, 22.

(m) Bulst. 164; 2 And. 148; sup. n.

(c).

(n) Br. Eschete, pl. 22, cites 13 E. 3; ib. pl. 7, cites 11 E. 4, 82; ib. pl. 9, c'tes 24 E. 3, 72; ib. Intrusion, pl. 8; ib. Corodies, &c., pl. 5; ib. Prerog. pl. 1.

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