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❝escheat, while there is a tenant de jure. In equity "there could be none, while trufts were called uses; " and a trust and an use are exactly the fame. How, "then, can I fay, the lord fhall lose his escheat, when any 66 man for his own convenience puts his estate in trust. "It seems, if I were to do so, that I should give law "and equity, and not pronounce upon law and ❝ equity."

Two centuries have paffed fince uses and trusts have been admitted, and I cannot find a dictum, that the crown fhall have an escheat of a trust: but I find in other books the contrary, and, by one of the most learned judges that ever adorned the profession.

Every writer of learning has tranfcribed and adopted this pofition, fo that it is confirmed by them, viz.: by attainder of felony of the feoffee, the lord fhall have the land by efcheat.

The information, on the part of the crown, was difmiffed.

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S 42. In the above cafe, the Lord Keeper is re- Nor an ported to have laid it down, that an equity of redemp- Redemption. Equity of

tion was not liable to efcheat. His words are: "It was faid, if a mortgagor die without heir, fhall the 66 mortgagee hold the land free? I answer, fhall it "efcheat to the crown? No: because, in that cafe, "the lord has a tenant to do his fervices; and that is "the whole he is entitled to, in law and equity. "What the justice might be between the mortgagee ❝ and executor, I shall not trouble myself about. "I think

I

Money to be laid out in Land.

Office of
Efcheator,
I Inft. 13 b.
4 Init. c. 43.

7 Vef. Jun. 71.

"I think the crown has not an equity, on which to "fue a fubpoena."

This point has never (I believe) been determined.

§ 43. Where money is directed to be laid out in land, but the quality of real estate is not imperatively and definitively fixed upon it by the instrument, and it remains ad arbitrium, whether it is to be confidered as land or money, the crown, on failure of heirs, has no equity against the next of kin to have it laid out in real estate, in order to claim the escheat.

S 44. There were formerly officers called efcheators, whose duty it was to look into efcheats, wardships, and other cafualties, belonging to the crown. Originally, there were but two efcheators, one on the north, and the other on the fouth of the Trent; but, in the time of Edward 3. there was an escheator in every county, who was named by the lord treasurer.

§ 45. In a modern cafe, Lord Eldon faid, it is perfectly familiar, that, where there is an escheat for want of heirs, and the fact is not communicated, it is ufual to petition the king; stating that there is fuch an intereft, and praying fome reward upon the ground of the discovery, if it can be made out: and the ordinary rule upon an escheat is, for the crown to give a lease, as good a leafe as it can give, to the person making the discovery.

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BY the law of nature, occupancy not only gave a Origin of right to the temporary use of the foil, but also a Prescription. permanent property in the fubftance of the earth itself; and to every thing annexed to, or iffuing out of it. Hence, poffeffion was the first act, from which the right of property was derived; and therefore it has been established as a rule of law, in every civilized country, that a long and continued poffeffion fhould give a title to the property thus poffeffed.

§ 2. This

§ 2. This mode of acquiring property was well known in the Roman law, by the name of ufucupio ;

because a person, who acquired a title in this manner, Vin. Lib. 2. might be faid ufu rem capere: it is thus defined by Modeftinus-Adjectio dominii per continuationem poffeffionis, temporis lege definiti.

Tit. 6.

In the English law it is called prescription, and is 1 Inft. 113. thus defined by Lord Coke-Prefcriptio eft titulus, ex usu et tempore substantiam capiens, ab authoritate legis.

Domat, vol. 1. 461.

Bract. Lib. 2.

c. 22.

§ 3. Every species of prescription, by which property is acquired or loft, is founded on this prefumption; that he, who has a quiet and uninterrupted poffeffion for a certain number of years, is supposed to have a just right, without which he could not have been fuffered to continue in the enjoyment of it; for a long poffeffion may be confidered as a better title than can commonly be produced; it supposes an acquiefcence in all other claimants; and that acquiefcence also supposes some reason, though perhaps unknown, for which the claim was forborn.

$ 4. The doctrine of prescription appears to have been very foon established in England; and, from what is faid of it by Bracton, feems to have been derived from the Roman law: for he lays it down, that a title may be gained both to corporeal and incorporeal hereditaments, by a long and uninterrupted poffeffion Dictum eft in præcedentibus, qualiter rerum corporalium dominia ex titulo, et jufta caufa acquirendi, transferuntur per traditionem. Nunc autem dicendum, qualiter trans

feruntur

feruntur fine titulo, per ufucaptionem; fcil. per longam, continuam, et pacificam poffeffionem ex diuturno tempore, et fine traditione.

§ 5. Our modern writers, however, have only allowed a positive prescription to operate in the cafe of incorporeal hereditaments; fuch as rights of common, rents, &c. where the perfon, who claims, can fhew no other title, than that he and those, under whom he claims, have immemorially used to enjoy them. But there is another kind of prescription adopted by the English law, extending to lands; by which an uninterrupted poffeffion, for a certain number of years, will give the poffeffor a good title, by taking away from all other persons the right of entering on the lands, or of bringing any fpecies of action for them.

§ 6. There are, therefore, two kinds of prefcription known to the English law. First, a prescription to incorporeal hereditaments by immemorial ufage; as, when a person fhews no other title to what he claims, than that he and those, under whom he claims, have immemorially used to enjoy it.

§ 7. Prescription by immemorial ufage differs from custom in this respect; that cuftom is properly a local ufage, and not annexed to the perfon; fuch as the cuf tom, that all the copyholders within a manor have common of pasture within a particular wafte; whereas prescription is always annexed to a particular person.

$ 8. This

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