An infant en ventre sa mere may be vouched if God give him birth, and if not, such a one heir to the warranty; but he cannot be vouched alone without the heir at the common law, for process shall be presently awarded against him.

But is put in suspense.] Tenant in tail makes a feoffment in fee with warranty, and disseises the discontinuee, and dies seised leaving assets to his issue. Some hold that in respect of this suspended warranty and assets, the issue in tail shall not be remitted, but that the discontinuee shall recover against the issue in tail, and he take advantage of his warranty, if any he has, and after in a formedon brought by the issue, the discontinuee shall bar him in respect of the warranty and assets; and so every man's right is saved.

[390b]

SECTION 745.

ALSO, if after a feoffment or release with warranty the person who warranted is attainted of felony, or is outlawed for felony, such Warranty destroyed by atwarranty shall not bar or aggrieve the issue, for by the attainder tainder for of felony the blood is corrupted [and the warranty descends not on them].

felony.

Be attainted of felony, or outlawed &c.] Note, according to Little- Forfeiture for ton here, there are two manner of attainders: the one is after ap- the day of offelony relates to pearance, which is in three ways; by confession, by battle, or by fence committed. verdict: the other upon process of outlawry, which is an attainder in law. But there is a great diversity, as to the forfeiture of land, between an attainder of felony by outlawry upon an appeal, and upon an indictment: for in the case of an appeal the defendant shall forfeit no lands but such as he had at the time of the outlawry pronounced; but in case of an indictment, he shall forfeit such land as he had at the time of the felony committed. And the reason of this diversity is evident; for that in the case of appeal there is no time alleged in the writ when the felony was done, and therefore of necessity it must relate in that case only to the judgment of outlawry: but in the case of an indictment there is a certain time alleged, and therefore in that case it shall relate to that time, viz. to the time when the felony was committed. In the case of the indictment there is this further diversity: that it relates to the time alleged in the indictment for avoiding of estates, charges,

Conviction and attainder distinguished.

[391a]

Goods forfeited on conviction; lands on attainder.

Standing mute.

and incumbrances made by the felon after the felony committed; but as to the mean profits of the land it relates only to the judgment, as well in the case of outlawry as in other cases.

Upon attainder for felonies there lie three several writs of escheat, viz. first, when the felon has judgment to be hanged. 2dly. When he is outlawed. 3dly. When he abjures the realm. The defendant in an appeal of death waged battle &c., and was slain in the field, yet judgment was given that he should be hanged; and the justices said, that it was altogether necessary that such a judgment should be given, for otherwise the lord could not have a writ of escheat. The difference between a man attainted and convicted is, that a man is said to be convicted before judgment of death is passed upon him. But when he has received judgment upon the verdict, confession, outlawry, or abjuration, then is he said to be attainted.

If a felon be convicted by verdict, confession, or recreancy, he forfeits his goods and chattels &c. presently [that is, on conviction before attainder]. And Stanford (speaking of a felon convict by verdict) says, that he shall forfeit his goods which he had at the time of the verdict given, which is the conviction in that case; and by the statute of 1 R. 3. c.3. no sheriff, bailiff &c. shall seise the goods of a felon before he be convicted of the felony; whereby it appears, that the goods may be seised as forfeited after conviction. So that by conviction of felony the goods and chattels of a felon are forfeited; and by attainder, that is, by judgment given, his lands and tenements are forfeited, and his blood corrupted, but not before. [But though the goods and chattels of a felon are forfeited only from the time of conviction, yet if he dispose of them between his committal to prison and conviction, otherwise than for the necessary sustenance of himself and family, such assignment is open to impeachment as a fraudulent conveyance under the statute 13 Eliz. c. 5. Pauncefoot's case, 3 Co. 82 a. b. Skin. 357. Ch. C. L. 723.]

If the party upon his arraignment refuse to answer according to law, he shall not be adjudged to be hanged, but for his contempt, to peine fort et dure, which works no attainder for the felony, or forfeiture of his lands, or corruption of blood. But in case of high treason, if the party refuse to answer according to law, he shall

receive such judgment by attainder, as if he had been convicted by verdict or confession [and a similar judgment is now awarded to persons standing mute, 12 Geo. 3. c. 20.]

occasion a fo

Felony.] In ancient times this word was of so large an extent What felonies that it included high treason; and therefore in our ancient books, feiture of lands by the pardon of all felonies, high treason was included. But and goods. afterwards it was resolved, that in the king's pardon or charter, this word (felony) should not only extend to common felonies, and ́ that high treason should not be comprehended under the same but ought to be specially named. Yet it was held that a pardon of all felonies should extend to petit treason: wherefore by the law at this day under the word (felony) in commissions &c. is included petit treason, murder, homicide, burning of houses, burglary, robbery, rape &c., chance-medley se defendendo, and petit larceny. And for such of these crimes for which any shall have judgment to be hanged by the neck till he be dead, he shall forfeit all his lands in fee-simple, and his goods and chattels for felony by chancemedley, or se defendendo, or petit larceny, he shall forfeit his goods and chattels, but not his lands of freehold or inheritance. And all felonies punishable according to the course of the common law, are either by the common law or by statute.*

:

*And as to felonies created by statute, the forfeiture ensues the nature of the punishment; if the offender receive sentence of death then is he attainted, and he forfeits all his lands and goods, that is, his lands to the king for a year, day, and waste, and after the year and day the king is further entitled to the profits of the land for the residue of the felon's life; on his death the lands now go to the felon's heir (corruption of blood being taken away by the stat. 54 Geo. 3. c. 45. which has consequently deprived the lord and the king of their escheats, but not the king of his year, day, and waste); if the offence be any other than treason or murder the goods go to the king absolutely, but if the offence be treason, then the lands and goods go to the king absolutely; if murder, the lands on the tenant's death (subject to the king's year, day, and waste) escheat to the lord of the fee whereof they are holden, for want of an heir, if the lord, by shewing the existence of a court baron and manor, can prove that the lands are holden of his lordship; if not, the lands escheat to the king absolutely, for, in default of any mesne legal tenure, all lands are holden of the king as lord paramount, which is now the case with nineteen-twentieths of the manors in the kingdom; and in that case also the goods are forfeited to the king absolutely. But if the offender receive a lesser punishment than attainder, whether the felony be a grand or petit larceny, then he forfeits all his goods to the king absolutely, and rents in arrear, being part of his goods, are forfeited also, but subsequent rents, it is presumed, belong to the convict.

Ferjetture, modern doci ine

of.

Piracy, con

no forfeiture,

er ept when.

There is also a felony punishable by the civil law, because it is viction for works done upon the high sea, as piracy, robbery, or murder, whereof the common law took no notice, because it could not be tried by twelve men. en. If this piracy be tried before the lord admiral in the court of the admiralty, according to the civil law, and the delinquent be there attainted, yet shall it work no corruption of blood, or forfeiture of his lands; otherwise it is if he be attainted before commissioners by force of the statute of 28 H. 8. By the express purview of that statute, about the end of the reign of queen Elizabeth, certain English pirates who had robbed on the sea certain merchants of Venice in amity with the queen, obtained a coronation pardon [their commission of the piracy not having been then discovered], whereby amongst other things, the king pardoned them all felonies. It was resolved by all the judges of England upon conference and advisement, that this did not pardon the piracy; for seeing it was no felony whereof the common law took conusance, and the statute of 28 H. 8. did not alter the offence, but only ordained a trial and inflicted punishment, therefore it ought to be pardoned specially, or by words which were tantamount, and not by the general name of felony; and according to this resolution the delinquents were attainted and executed.

Corruption of blood includes

what.

[3916]

Pardon makes

heir.

The blood is corrupted.] Aptly is a man said to be attainted, attinctus, for that by his attainder of treason or felony his blood is so stained and corrupted, as, first, his children cannot be heirs to him, nor to any other ancestor [through him], and therefore the warranty cannot bind; for thereby heirs only are bound. 2dly. If he were noble or gentle before, he and all his children and posterity are by this attainder made base and ignoble, in respect of any nobility or gentry which they had by their birth. 3dly. This corruption of blood is so high, that regularly it cannot be absolutely salved and taken away but by authority of parliament. [It is now taken away, except in cases of treason, petit treason, and murder, by 54 Geo. 3. c. 45.]

And it is a general rule, that having respect to all those whose subsequent issue blood was corrupted at the time of the attainder, the pardon does inheritable, if not remove the corruption of blood neither upward nor downward. As if there be grandfather, father, and son, and the grandfather and father have divers other sons, if the father be attainted of felony and pardoned, yet his blood remains corrupted not only

[392 a]

above him and about him, but also to all his chldren born at [or before] the time of his attainder. But issue had after the pardon, is inheritable [provided it be the eldest and heir]. But if the issue had after the pardon be the youngest, nothing can descend to him, for that his eldest brother is living and disabled. But if the eldest son dies in the lifetime of the father without issue, then the youngest shall inherit.

Judgment of

death includes

what five

[3926]

It is also to be observed, that judgment against a man for felony that he be hanged by the neck until he be dead, includes five other punishments; 1st. In his wife, who shall lose her dower. punishments. 2dly. In his children, who shall become base and ignoble. 3dly. In his posterity, for his blood shall be corrupted, so that they cannot inherit unto him or any other ancestor [through him.] 4thly. He shall forfeit all his lands and tenements which he has in fee, and all his lands which he has in tail for term of his life. 5thly. All his goods and chattels.

And

But some acts of parliament have altered the common law in some of these points: 1st. The statute de donis conditionalibus, by which lands entailed are not to be forfeited absolutely, either for felony or treason, but for the life of tenant in tail only. And the cause wherefore this statute was made was to preserve the inheritance in the blood of those to whom the gift was made notwithstanding any attainder for felony or treason. And this act in history is called gentilitium municipale; for that thereby the families of many noblemen and gentlemen were continued and preserved to their posterities. And this law continued in force from the thirteenth year of king Edward the first, until the twenty-sixth year of king Henry the eighth, when by act of parliament estates in tail are forfeited absolutely by attainder of high treason. But as to felonies, the statute de donis conditionalibus yet remains in force, so that for attainder of felony, lands or tenements entailed are not forfeited but only during the life of tenant in tail, and the inheritance is preserved to the issue.

SECTIONS 748, 749.

ALSO, a warranty, whether lineal or collateral, may be discharged or defeated by a release of all warranties, or of all covenants real, or of all demands.