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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).
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 Writ of right of Lor.don, (concerning in Courts Baron, post, p. 630, n. (1). lands in London, and directed to the () Rex v. Peter, 1 Burr. 568.
mayor and sheriffs,) F. N. B. 6 A.; (g) Bailey v. Bourne, 1 Str. 392; Blac- Booth's Real Actions, 117; and Writs of quiere o. Hawkins, Dougl. 379; Jewell v. right de rationabili parte and of advowson, Hill, 1 Str. 499; Rex v. Urling, Fortesc. Booth, 119, 121; F. N. B. 9, 30 B. All 198.
other writs of right, as the Writ of dower See further as to proceedings in plaints unde nihil hubet, the Writs of escheut, of debt, &c. in Court Baron, post, Append. formedon, de rationabilibus divisis, quo jure, to 2nd and 3rd parts.
&c. were writs of right in their nature (h) Vide ante, pt. 1, p. 473, n. (u), re- only; Booth, 125. ferring to the act of 3 & 4 Will. 4, c. 27, (k) Bract. I. 5, c. 1, &c.; Booth, 85. abolishing real actions and plaints in na- (1) Booth, 90; F. N. B. 1 H.; Com. ture thereof, with some exceptions; and Dig. Droit (B. 3.) Where the king was see the act in the Appendix, and the re- lord, the writ was directed to the bailiff; ferences to it, ante, pp. 566, n., 585, n. Capell v. Church, Mo. 1.
(i) Writs of right were of several sorts, (m) f. N. B. 1 F. There must have as the Writ of right patent, (of which we been fifteen days at the least between the are now speaking :) Writ of right close teste and the return of the writ; Booth, of lands in ancient demesne, (already fully
1, 92. treated of, ante, tit. “ Ancient Demesne :") (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 (9), 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 (1), 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. (2), 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 (6), 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 paramount; F. N. B. 2 A.; Com. Dig. Droit (B. 3).
(r) Sir Ed. Coke, [4 Inst. 271,] in treating of the jurisdiction of the coroner,
“ besides bis 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 hiin.”
(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 toll) 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.
(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.
(6) 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 (f).
Of the Fruits of Tenure; and Seignioral Franchises. ESCHBAT (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 & (i) Sir G. Sands' case, Hardr. 494 ; Blunt, ubi sup.; ante, pt. 1, p. 487. S. C. 2 Freem. 129; 1 Sid. 403; Jenk, (d) Ante, pt. 1, p. 488.
203, pl. 27; but see Co. Lit. 13 a; Bur(e) 9 E. 4, 36; 8 E. 4, 6; 34 Hen. gess v. Wheate, 1 Sir W. Bl. 133, &c., 6, 18; Booth, 3. But in dower it may 141, &c.; ante, pt. 1, pp. 407, 408. be in an hamlet, as no certain land is de- (k) Hardr. 494, 495 ; 1 Eden, 201. manded.
(1) Attainders that give escheat to the 8 East, 176; and see Booth, 3, n. (e.) lord must be by judgment of death given See the form of precipe, warrant, in some court of record against the felon, summons and sheriff's return in writ of
found guilty, by verdict or confession, of dower, 2 Saund. by Serj. Williams, 43, the felony, or it must be by outlawry of n. (1).
him; Bacon's Use of the Law, 38; 10 (g) This royalty is specified in the Vin. 143, (A. 2,) pl. 3. N. B. by the 82nd clause of the 4 & 5 Vict, c. 35, among 54 Geo. 3, c. 145, corruption of blood is the manorial rights excluded from the taken away, except for the crime of treaoperation of the act, unless expressly com- son, or of murder, or of abetting the same; muted.
ante, pt. 1, 440. (h) It is said that a foundership cannot (m) The stat 25 Ed. 3, c. 2, makes this eseheat, nor be forfeited, being annexed distinction between escheats and forfeitto the blood ; Br. Eschete, pl. 9; ib. Co- ures, declaring that in the cases of high rodies, pl. 5, cites 24 E. 3, 33, 72; but treason the forfeilure of escheats pertaineth again it has been said that a foundership to the king, as well of the lands and tenemay come to the king by escheat; Br. ments holden of others as of himself; and Peticion, pl. 26, cites 5 E. 4, 118.
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 king by the cominon 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 cites 22 Ass. 49; Co. Lit. 13 a, cites his own fee. See Sir Martin Wright's Nicholl's case, Plow. Com.; and see ConTreat. of Ten. p. 117, (n. x,) who adds, sider. on the Law of Forfeit. for High “ So that in the clause relating to for- Treason, 4th ed., p. 60, 65; Hale, H. P. feitures for high treason, escheats and for- C. v. 1, c. 23. feitures are plainly distinguished; inas- (u) This, since the stat. 33 Hen. 8, much as escheats themselves are for such c. 20, applies to lands held in fee tail as treasons declared to be forfeited. And the well as fee simple; and the forfeiture is Lord Coke, (2 Inst. 64,) observes this before office found; Dowtie's case, 3 Co. difference between them, saying, that 11 a. And the estate of a trustee was forwhere a lord is attainted of high treason, feited by attainder, as the king could not there the king hath the land by forfeiture, have been a trustee, Jenk. 190, pl. 2; but of whomsoever the land is held, and not in such cases it was usual for the crown to in respect of any escheat, by reason of any re-grant the estate, ex. gr. to the cestuy seigniory; vide Bro. tit. Eschete; Mo. 160. que trust; Mo. 196; Vin. Abr. Uses, Upon this differenee we may easily ac- (C.); Co. Lit. 13 a, n. 7. count for gavelkind lands being forfeitable (r) Wright's Ten. 119; Consider. on for treason, though they do not escheat for the Law of Forfeit. for High Treason, 61. felony; for though the lord may connive (y) Supra, n. (m). at or dispense with all the causes of es- (z) By which is to be understood felony cheat, (potest dominus feloniam remittere, punishable by death; 2 Inst. 38. Zasius in usus Feud. cap. 10, fol. 95,) or (a) “Where tenant in tail or tenant for might remit the escheat itself as a per- life is attainted, then the king shall have quisite of tenure; yet he could not dis- the profits of the lands during the life of pense with the public laws of forfeiture, tenant in tail, or of the tenant for life;" 2 or with offences against any other person Inst. 37. than himself.” And see further as to the (6) Magna Charta, c. 22; 17 Ed. 2, distinction between escheut and forfeiture, c. 16; Standf. Pleas of the Crown, lib. 3, Sir W. Bl. pp. 143, 144, 145, &c., in c. 30; Br. Corone, pl. 208; and see 2 Burgess & Wheate.
Inst. 36, citing Glanv. Bract. Brit. Flet. (s) Br. Eschete, pl. 3, cites 48 E. 3, 2; and the Mirror. Finch, 71 b.
(c) Br. Eschete, pl. 6, cites 11 H. 4, (t) Sup. n. (1); Br. Eschete, pl. 14, 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.
(0) 9 Co. 119 b, in Lord Sanchar's case; 3 Inst. 231.
(8) 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 copybolds, 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. (f), 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.