the estate tail, as his elder title. For if he should be in by force of the descent, then the discontinuee might have a writ of entry sur desseisin against him, and should recover the tenements. But inasmuch as he is in his remitter, by force of the tail, the title and interest of the discontinuee is taken away and defeated.

19. A principal cause why such heir, in the case Id. § 661. aforesaid, and in other like cases, shall be said in his remitter, is, because there is not any person against whom he may sue his writ of formedon; for against himself he cannot sue, and he cannot sue against any other, none other being tenant of the freehold. For this cause the law doth adjudge him in his remitter, scilicet, in such plight as if he had lawfully recovered the same land against another.

20. Sir W. Blackstone has observed, that if the 3 Comm. 20. subsequent estate or right of possession be gained by a man's own act or consent, as by immediate purchase, being of full age, he shall not be remitted. For the taking such subsequent estate was his own folly, and shall be looked upon as a waiver of his prior right; therefore it is to be observed, that to every remitter there are regularly these incidents. An ancient right, and a new defeasible estate of freehold, uniting in one and the same person; which defeasible estate must be cast upon the tenant; not gained by his own act or folly.

Moo. 115.

21. Lord Coke, however, says, that a man shall 1 Inst. 349 b. not be remitted to a right remedyless, for the which he can have no action: as if the issue in tail be barred by the fine or warranty of his ancestor, and the freehold is afterwards cast upon him, he shall not be remitted to his estate tail, because he could not have recovered it by any action.

Vide 1 Saun

ders' Uses, c. 2. § 6.

1 Inst. 18 b.

22. The modes of acquiring a title to real property are two only; descent and purchase. The former, where the title is vested in a person by the single operation of law: the latter, where the title is vested by the person's own act and agreement.

Descent.

ESCENT, or hereditary succession, is the title Nature of whereby a person, on the death of his ancestor, acquires his estate as his heir at law. An heir, therefore, is he upon whom the law casts the estate, immediately on the death of the ancestor; and an estate so descended on the heir, is, in law, called the inheritance.

2. Although the right of inheriting be known to the laws of every civilized country, and is founded on the best principles of reason, yet, it is not derived from natural law, or which can belong to any man in a state of nature. From which it follows, that the numerous and arbitrary rules by which its course is either directed or interrupted, can never properly be esteemed or objected to, as violations of natural justice.

3. Not only every thing which falls under the denomination of real estate descends to the heir, but also heir looms, and all such other chattels as are connected with the freehold as wainscots, benches, doors, windows, and the like.

4. Every species of tree, whether timber or not, standing at the death of the ancestor, as also their fruit, and grass actually growing, though ripe for cutting, descend to the heir; but corn, and every other vegetable, produced annually, by labour and cultivation, goes to the personal representative of the ancestor, as a compensation for the expence of raising them.

5. The doctrine of descents, or law of inheritance in the fee simple, depends on the nature of kindred, and the several degrees of consanguinity. It will therefore be first necessary to state the true notion of this kindred, or alliance in blood.

6. Consanguinity or kindred is defined to be, vinculum personarum ab eodem stipite descendentium ; the connexion or relation of persons descended from the same stock. This consanguinity is either lineal or collateral. Lineal consanguinity is that which subsists between persons of whom one is descended in a right line from the other; as between father, grandfather, and great grandfather. Every generation, in this direct lineal consanguinity, constitutes a degree, reckoning either upwards or downwards. Collateral consanguinity is that which subsists between persons lineally descended from the same ancestor, who is the stirps, trunk, or common stock, but who do not descend the one from the other.

7. The method of computing the degrees of consanguinity by the canon law, which our law has adopted, is as follows:-We begin at the common

ancestor, and reckon downwards; and in whatever degree the two persons, or the most remote of them, is distant from the common ancestor, that is the degree in which they are said to be related.

Heirs.

8. With respect to the persons who are capable of Who may be claiming an estate in fee simple, as the heirs of one who died seised thereof, they must be first legitimate; secondly, natural-born subjects, or naturalized, or made denizens; thirdly, not attainted of high treason. or felony, or claim through any ancestor who was attainted of treason or felony.

1

9. No person can succeed to an estate as heir, who They must be legitimate. is not born in lawful matrimony; for it is a maxim of law, that hæres legitimus est quem nuptiæ demon- 1 Inst. 7 b. strant; and a bastard, being filius nullius, can neither inherit from its father nor mother; consequently can have no heirs but his own children.

n. 2.

10. By the old law, if the husband was within the 1 Inst. 126 a. four seas, and his wife had issue, no evidence would be admitted to prove such issue a bastard, unless the husband was incapable of procreation. But Mr. Hargrave has observed, that this was never a universal rule; and that it has been long settled, that not only proof of being out of the kingdom, but also every other kind of evidence tending to prove the impossibility, Goodright v. Saul, or even improbability, of the husband's being the 4 Term R. father, is admissible. And in the late claim to the 356. earldom of Banbury, the House of Lords adhered to this principle.

11. With respect to posthumous children, the rule formerly was, that they must be born within nine months, or 40 weeks, after the death of the husband. But now the Courts consider nine months merely as the usual time, and do not decline exercising the dis

1 Inst. 123 b.

n. 1. Hargrave's Juris. Exer.

vol. 3. 409.