Page:Prerogatives of the Crown.djvu/253

CIi , XI. Sec. I.] Revenue, — Escheats. 23S the manor {a). But gavel-kind lands (b), and estates tail (c), do not escheat, though they are forfeitable for treason. And no species of real property, which does not lie m^enure, as a rent- charge, right of common, or free warren, is subject_to_es- cheat (d). So, if lands be given to a corporation, on the disso- lution thereof, the donor, or his heirs, shall have them again in reversion, and not the lord by escheat, which is a very pecu- liar case (e). Even the King, when he is lord, cannot claim by escheat contrary to the terms and conditions under which the tenant held (f). His Majesty's right, by escheat, stands on the same ground as every other legal right ; it arises out of th e seizin (y), and is, in general, governed by the same rules as govern es- cheats to the subject (g). W^J^^'^Y-^^iil^^I^foj'e, there _be a y^^ ;>^ tenant to perform the services (h), the Crowiij jthough jthe_lord y^ ^ of the fee, cannot claim by escheat, more than any other lord ; "^ as if cestui que trusty or a mortgagor, die without heirs, or be attainted of petit treason or murder, which seems to make no difference. The trustee in the one case, and the mortgagee in the other, and not the King, shall have the inheritance (?). y- (a) Co. Cop.s. 28. 2'Ves. jun. 170. I Chitty, Crlm. L. 728, 9. But the homage ought to present the death of the party without heirs, and proclama- tion ought to be made requiring claim- ants, if any, to appear, &c. Ibid. It hasjbeen holden, that if a surrender of a copyhold be made to a party who is executed before admittance, the land will not escheat to the lord, but return to the surrenderor and descend to his successors, 1 Wils. 13. (,b) Rob. Gav. 226. 2 Bla. Com. 252. (c) 3 Co. R. 10, b. Cro. El. 28. 3 Cruise Dig. 473, 4. (rf) 3 Inst 21. As to forfeiture there- of, ante, s. 1. («) 2 Bla. Com. 256. ^/y (/) 1 Bla. Rep. 165. (g) To what incumbrances the lord taking by escheat is liable in general, 3 Cruise, 496. 1 Bla. R. 134; may distrain for rent, 1 Inst. 215, 6; and entitled to all charters, &c. Bro. tit. Chart, pi. 59. 3 Cruise, 499. {h) As to this, see 1 Bla. Rep. 175. 3 Cruise Dig. 493, 515; what alienation prevents an escheat, 3 Cruise Dig. 495. (i) 1 Bla. Rep. 123. Ld. Mansfield, Diss. And this was somewhat doubted by Lord Thurlow; see 1 Bro. Ch. Cas. 204. But the law seems clearly to be so on the ground above stated. And I have MSS. opinions of Mr. Serjeant Hill, Mr. Serjeant Heywood, and Mr. Hughes, to the same effect; on the ground that there can be no want of a tenant to perform the services, in which case only an escheat takes place where there is a person seised of a legal estate in fee, capable of performing such ser- vices. On which ground also they thought there was no escheat in the case of a mortgagor's death, &c. ; but that the mortgagee was the tenant ac- cording to the opinions expressed by the Lord Keeper and the Master of the Rolls, in the case in Bla. Rep. see Ibid. 149, 170, 184. Sec Jcnk. 190. Hardr. 495. Sid. 403. But