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be for a thing which cannot be raised by grant. For the law allows prescription only in supply of the loss of a grant, and therefore every prescription presupposes a grant to have existed. A fourth rule is, that, what is to arise by matter of record cannot be prescribed for, but must be claimed by grant, entered on record; such as, for instance, the royal franchises of deodands, felons' goods, and the like. But the franchise of treasure-trove, waifs, estrays, and the like, may be claimed by prescription; for they arise from private contingencies, and not from any matter of record. 5. Among things incorporeal, which may be claimed by prescription, a distinction must be made with regard to the manner of prescribing; that is, whether a man shall prescribe in a que estate, or in himself and his ancestors. For, if a man prescribe in que estate, (that is, in himself and those whose estate he holds) nothing is claimable by this prescription, but such things as are incident, appendant, or appurtenant to lands; but, if he prescribes in himself and his ancestors, he may prescribe for any thing whatsoever that lies in grant; not only things that are appurtenant, but also such as may be in gross. 6. Lastly, we may observe, that estates gained by prescription are not, of course, descendible to the heirs general, like other purchased estates, but are an exception to the rule: and therefore, if a man prescribes for a right of way in himself and his ancestors, it will descend only to the blood of that line of ancestors in whom he so prescribes. But, if he prescribes for it in a que estate, it will follow

the nature of that estate in which the prescription is laid: for every accessory followeth the nature of its principal.

CHAPTER XVIII.

OF TITLE BY FORFEITURE.

FORFEITURE is a punishment annexed by law to some illegal act, or negligence, in the owner of lands, tenements, or hereditaments: whereby he loses all his interest therein, and they go to the party injured, as a recompense for the wrong which either he alone, or the public together with himself, hath sustained.

Lands, tenements, and hereditaments, may be forfeited in various degrees and by various means: 1. By crimes and misdemeanors. 2. By alienation contrary to law. 3. By non-presentation to a benefice, when the forfeiture is denominated a lapse. 4. By simony. 5. By non-performance of conditions. 6. By waste. 7. By breach of copyhold customs. 8. By bankruptcy.

I. The offences which induce a forfeiture of lands and tenements to the crown, are principally the following six: 1. Treason. 2. Felony. 3. Misprision of treason. 4. Præmunire. 5. Drawing a weapon on a judge, or striking any one in the presence of the king's principal courts of justice. 6. Popish recusancy, or non-observance of certain laws enacted in restraint of papists.

II. Lands and tenements may be forfeited by alienation, or conveying them to another, contrary to law. This is either alienation in mortmain, alienation to an alien, or alienation by particular tenants; in the two former of which cases the forfeiture arises from the incapacity of the alienee to take, in the latter from the incapacity of the alienor to grant.

1. Alienation in mortmain, in mortua manu, is an alienation of lands or tenements to any corporation, sole or aggregate, ecclesiastical or temporal. But these purchases having been chiefly made by religious houses, in consequence whereof the lands became perpetually inherent in one dead hand, this hath occasioned the general appellation of mortmain to be applied to such alienations, and the religious houses themselves to be principally considered in forming the statutes of mortmain.

By the common law any man might dispose of his lands to any other private man at his own discretion, especially when the feudal restraints of alienation were worn away. Yet, in consequence of these, it was always, and is still, necessary for corporations to have a licence in mortmain from the crown, to enable them to purchase lands. And, as during the times of popery, lands were frequently given to superstitious uses, though not to any corporate bodies; or were made liable in the hands of heirs and devisees to the charge of obits, chaunteries, and the like, which were equally pernicious in a well-governed state as actual alienations in mortmain; therefore, at the dawn of the

reformation, the statute 23 Hen. VIII. c. 10. declares, that all future grants of lands for any of the purposes aforesaid, if granted for any longer term than twenty years, shall be void.

But for the augmentation of poor livings, it was enacted by the statute 17 Car. II. c. 3. that appropriators may annex the great tithes to the vicarages; and that all benefices under L. 100. per annum may be augmented by the purchase of lands, without licence of mortmain in either case: and the like provision hath been since made, in favour of the governors of queen Anne's bounty. It hath also been held, that the statute 23 Hen. VIII. did not tend to any thing but superstitious uses; and that therefore a man may give lands for the maintenance of a school, an hospital, or any other charitable uses. But it is enacted, by the statute 9 Geo. II. c. 36. that no lands or tenements, or money to be laid out thereon, shall be given for or charged with any charitable uses whatsoever, unless by deed indented, executed in the presence of two witnesses twelve calendar months before the death of the donor, and enrolled in the court of chancery within six months after its execution, (except stocks in the public funds, which may be transferred within six months previous to the donor's death) and unless such gift be made to take effect immediately, and be without power of revocation and that all other gifts shall be void. The two universities, their colleges, and the scholars upon the foundation of the colleges of Eton, Winchester, and Westminster, are excepted out of this act :

but such exemption was granted with this proviso, that no college shall be at liberty to purchase more advowsons, than are equal in number to one moiety of the fellows or students, upon the respective foundations.

2. Secondly, alienation to an alien is also a cause of forfeiture to the crown of the lands so alienated; not only on account of his incapacity to hold, which occasions him to be passed by in the descents of land, but likewise on account of his presumption in attempting, by an act of his own, to acquire any real property.

3. Lastly, alienations by particular tenants, when they are greater than the law entitles them to make, and divest the remainder or reversion, are also forfeitures to him whose right is attacked thereby. The same law, which is thus laid down with regard to tenants for life, holds also with respect to all tenants of the mere freehold or of chattel interest; but if the tenant in tail alienes in fee, this is no immediate forfeiture to the remainder-man, but a mere discontinuance (as it is called) of the estatetail. But, in case of such forfeitures by particular tenants, all legal estates by them before created (as if tenant for twenty years grants a lease for fifteen) and all charges by him lawfully made on the lands, shall be good and available in law.

III. Lapse is a species of forfeiture, whereby the right of presentation to a church accrues to the ordinary by neglect of the patron to present; to the metropolitan by neglect of the ordinary; and to

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