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4. A monster, which hath not the shape of mankind, but in any part bears the resemblance of the brute creation, hath no heritable blood.
5. Bastards are incapable of being heirs.
6. Aliens, also, are incapable of taking by descent, or inheriting.
7. By attainder, also, for treason or other felony, the blood of the person attainted is so corrupted as to be rendered no longer heritable.
The first three of these cases, wherein heritable blood is wanting, may be collected from the rules of descent.
10. Is there an exception in case of bastards ?—248.
Yes ; in one instance the law has shewn them some little regard ; and that is usually termed the case of bastard eigne and mulier puisne. 11. Can aliens hold by purchase ?—249.
No; they cannot.
12. How does denization affect the rights of inheritance ?—249.
If an alien be made a denizen by the king's letter patent, and then purchase 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 afterward may, even though his elder brother be living. Yet if he had been naturalized by act of parliament, such eldest son might then have inherited.
13. If an alien cometh into England, and there hath issue tro sons, who are thereby natural born subjects, and one of them purchase land, and dies, can these brethren be heirs one to the other ? --250.
Formerly they could not, but now they can.
14. Why is this 80 8—250.
Reasonably enough, upon the whole ; for as, (in common parchases) the whole of the supposed descent from indefinite ancestors is but fictitious, the law may as well suppose the requisite ancestor, as suppose the requisite descent.
15. What is the difference between forfeiture of lands to the king and this species of escheat to the lord ?-251.
Forfeiture of lands, and of whatever else the offender posBessed, was the doctrine of the old Saxon law, as a part of the punishment for the offence ; and does not at all relate to the feodal system. Escheat operates in subordination to this more ancient and superior law of forfeiture.
16. Does corruption of blood obstruct the descent ?-254.
Yes ; the person attainted shall not only be incapable himself of inheriting, or transmitting his own property by heirship, but shall also obstruct the descent to his posterity, in all cases where they are obliged to derive their title through him from any remote ancestor.
17. How only can corruption of blood be absolutely removed 254.
By authority of parliament.
18. If a man attainted be afterward pardoned by the king, can his son inherit?-254.
He can never, if born before the pardon, inherit to his father, or father's ancestors; but if born after the pardon, he might inherit.
19. If a man hath issue a son, and be attainted, and afterward be pardoned, and then have issue a second son, and die ; why cannot either of these sons be his heir 3—255.
Because the corruption of blood is not removed from the eldest son, and therefore he cannot be heir ; neither can the youngest be heir, for he hath an elder brother living, of whom the law takes notice, as he once had the possibility of being heir ; and, therefore, the youngest shall not inherit, but the land shall escheat.
20. If the ancestor be attainted, may his sons be heirs to each other ?—255.
Sons born before the attainder may be heirs to each other, because the blood was inheritable when imparted to them from the father.
21, In what instance are lands held in fee-simple not liuble to cscheat, even when their owner is no more, and has left no heirs to inherit thern 2–256.
In the case of a corporation. For if that comes by accident to be dissolved, the donor, or his heirs, shall have the land again in reversion, and not the lord by escheat ; which is, perhaps, the only instance where a reversion can be expectant on a grant in fee-simple absolute.
OF TITLE BY OCCUPANCY.
1. What is occupancy ?-258.
Occupancy is the taking possession of those things which before belonged to nobody.
2. To what single instance have the laws of England confined the right of occupancy ?-258.
Where a man was tenant pour autre vie, or had an estate granted to himself only (without mentioning his heirs) for the life of another man, and died during the life of cestuy que vie, or him by whose life it was holden ; in this case, he that could first enter on the land might lawfully retain possession, so long as cestuy que vie lived, by right of occupancy.
3. Why was no right of occupancy allowed where the king had the reversion ?-259.
Because the reversioner hath an equal right with any other man to enter upon the vacant possession, and where the king's title and a subject's concur, the king's shall be always preferred: against the king, therefore, there could be no prior occupant, because nullum tempus occurrit regi.
4. What if the estate p:ir autre vie had been granted to a man and his heirs, during the life of cestuy que vie ?—259.
There the heir might, and still may, enter and hold possession, and is called in law a special occupant : as having a special exclusive right, by the terms of the original grant, to enter upon and occupy this hæreditas jacens during the residue of the estate granted.
5. Is the title of common occupancy abolished ?-260.
Almost by statute. Where there is no special occupant in whom the estate may vest, the tenant pour autre vie may devise it by will, or it shall go to the executors or administrators.
6. Does the title of special occupancy continue ?-260.
The title of special occupancy, by the heir at law, continues to this day ; such heir being held to succeed to the ancestor's estate, not by descent, but as an occupant specially marked out and appointed by the original grant.
7. What is the law as to islands rising in rivers ?—26).
Bracton tells us, that if an island arise in the middle of a river, it belongs in common to those that have lands on each side thereof; but if it be nearer to one bank than the other, it belongs only to him who is proprietor of the nearest shore : which is agreeable to, and probably copied from, the civil law.
8. If an island rise in the sea, to whom does the law give it! 261.
The civil law gives it to the first occupant, the common law gives it to the king.
9. What is the law, as to ownership, as to lands gained from the sea, either by alluvion, by the washing up of sand and earth, so as in time to make terra firma ; or by dereliction, as when the sea shrinks back below the usual watermark ?—262.
In these cases the law is held to be, that if this gain be by little and little, by small and imperceptible degrees, it shall go to the owner of the land adjoining. But, if the alluvion or dereliction be sudden and considerable, in this case it belongs to the king ; for, as the king is lord of the sea, and owner of the soil while it is covered with water, it is but reasonable he should have the soil when the water has left it dry.
OF TITLE BY PRESCRIPTION
1. What is title by prescription ?—264.
Title by prescription is when a man can show no other title to what he claims, than that he, and those under whom he claims, have immemorially used to enjoy it.
2. What is the distinction between prescription and custom 1— 283.
Custom is properly a local usage, and not annexed to any person ; prescription is merely a personal usage.
3. What is prescribing in a que estate ?--264.
All prescription must be either in a man and his ancestors, or in a man and those whose estate he hath; which last is called prescribing in a que estate.
4. What may be prescribed for ?—264.
Nothing but incorporeal hereditaments can be claimed by prescription. 5. Why cannot prescription give a title to lands ?—264.
Because this is clearly another sort of title ; a title by corporeal seizin and inheritance, which is more permanent, and therefore more capable of proof, than that of prescription.
6. In whom must a prescription be laid ?—265.
In him that is a tenant of the fee. A tenant for life, for years, at will, or a copyholder, cannot prescribe.
7. Can prescription be for a thing which cannot be raised by grant? -265.
No ; it cannot.
8. Can what is to arise by matter of record be prescribed for 1-. 265.
It cannot ; but must be claimed by grant, entered on record;