in expelling him; and that the act of locking the outer door being unlawful, the prosecutor could confer no privilege upon himself by that unlawful act. In the above case, it was further held, that a demand of re-entry by the officer was not, under the circumstances, requisite to justify him in breaking open the outer door; for "the law, in its wisdom, only requires this ceremony to be observed, when it possibly may be attended with some advantage, and may render the breaking open of the outer door unnecessary.”

*5thly, it was resolved, that a man's house is not a castle [*328] for any one but himself, and shall not afford protection to a third party who flies thither, or to his goods, if brought or conveyed into the house to prevent a lawful execution, and to escape the ordinary process of law. In these latter cases, therefore, the sheriff may, after request and denial, break open the door, or he may enter if the door be open. It must be observed, however, that he does so at his peril; and, if it turn out that the defendant was not in the house, or had no property there, he is a trespasser.3

The distinction being now clearly established, that, if a sheriff enters the house of the defendant himself for the purpose of arresting him or taking his goods, he is justified, provided he has reasonable grounds for believing that the party is there or his goods; but if he enters the house of a stranger with the like object in view, he can be justified only by the event.1

It may not be inappropriate to add, in connexion with the maxim under consideration, that, according to a recent case, although as a general rule, where a house has been unlawfully erected on a common, a commoner, whose enjoyment of the common has been thus interrupted, may pull it down; he is, nevertheless, not justified in so doing, if there are persons actually in it at the time, by reason of the imminent risk of a breach of the peace to which such a proceed

[*329]ing would give rise: and the same reason seems *also appli

cable to the case of a forcible entry by a freeholder upon his

1 Aga Kurboolie Mahomed v. The Queen, 4 Moore, P. C. Cas. 239.

2 Semayne's case, supra; per Tindal, C. J., Cook v. Clark, 10 Bing. 21; E. C. L.

R. 25; Com. Dig., "Execution," (C. 5); Penton v. Browne, 1 Sid. 186.

3 Johnson v. Leigh, 6 Taunt. 246; E. C. L. R. 1; Morrish v. Murray, infra; Com. Dig., "Execution," (C. 5.)

Morrish v. Murray, 13 M. & W. 52, 57;(*) Cooke v. Birt, 5 Taunt. 765; E. C. L. R. 1.

5 Perry v. Fitzhowe, 15 L. J., Q. B. 239.

own freehold, which is wrongfully and against his own will in the possession and occupation of another party; although it has been said that the freeholder would not in such a case be responsible, except to the public by indictment for a forcible entry.2

We may conclude these remarks with observing, that, although the law of England has so particular and tender a regard to the immunity of a man's house, that it will not suffer it to be violated with impunity, and although, for this reason, outward doors cannot, in general, be broken open to execute any civil process (the principal exception which occurs to the rule, viz., in criminal cases, resulting from the principle, that the public safety should supersede the private), yet, in the words of an eminent lawyer, "This rule, that every man's house is his castle, when applied to arrests in legal process, hath been carried as far as the true principles of political justice will warrant-perhaps beyond what in the scale of sound reason and good policy, they will warrant."

* III. THE TRANSFER OF PROPERTY.

[*330]

The two most important maxims relative to the transfer of property are, first, that alienation is favoured by the law; and, secondly, that the assignee holds property subject to the same rights and liabilities as attached to it whilst in the possession of the grantor. Besides the above very general principles, we have included in this section several minor maxims of much practical importance connected with the same subject; and each of these, according to the plan pursued in this treatise, has been briefly illustrated by decided

cases.

ALIENATIO REI PRÆFERTUR JURI ACCRESCENDI.
(Co. Litt. 185, a.)

Alienation is favoured by the law rather than accumulation.

Alienatio is defined to be, omnis actus per quem dominium transfertur," and it is the well-known policy of our law to favour aliena

I Newton v. Harland, 1 Scott, N. R. 474; per Patteson, J., Doe d. Stevens v. Lord, 6 Dowl. 256. 2 See Harvey v. Brydges, 14 M. & W. 442, 443.(*) 4 Sir M. Foster, Discourse of Homicide, p. 319.

34 Bla. Com. 223.

5 Brisson. ad verb., "Alienatio."

tion, and to discountenance every attempt to tie up property unreasonably, or, in other words, to create perpetuities.

The reader will at once remark, that the feudal policy was directly opposed to those more wise and liberal views which have now long prevailed. It is, indeed, generally admitted,' that under the Saxon sway, the power of alienating real property was altogether unrestricted; and that land first ceased to be alienable when the feudal system *was introduced into this country, shortly after [*331] the Norman conquest; for, although the Conqueror's right to the Crown of England seems to have been founded on title, and not on conquest, yet, according to the fundamental principle of that system, all land within the king's territory was held to be derived, either mediately or immediately, from him as the supreme lord, and was subjected to those burthens and restrictions which were incident. to the feudal tenure. Now this tenure originated in the mutual contract between lord and vassal, whereby the latter, in consideration of the feud with which he was invested, bound himself to render certain services to the former, and as the feudatory could not, without the consent of his lord, substitute the services of another for his own,2 so, neither could the lord, without the feudatory's consent, transfer his fealty and allegiance to another.3 It is, however, necessary to bear in mind the distinction which was recognised by the feudal laws between alienation and subinfeudation; for, although alienation, meaning thereby the transfer of the original feud, and substitution of a new for the old feudatory, was strictly prohibited, yet subinfeudation, whereby a new and inferior feud was carved out of that originally created, was practised and permitted. Moreover, as feudatories did, in fact, under colour of subinfeudation, frequently dispose of their lands, this practice, which was in its tendency opposed to the spirit of the feudal institutions, was expressly restrained by the 32d chap. of Magna Charta, which was merely in affirmance of the common law on this subject, and which allowed the tenants of common or mesne lords-though not, it seems, such as *held [*332] directly of the Crown-to dispose of a reasonable part of their lands to subfeudatories.

The right of subinfeudation to the extent thus expressly allowed by statute, evidently prepared the way for the more extensive power of alienation which was conferred on mesne feudatories by the statute

I Wright, Tenures, 154 et seq.

2 See Bradshaw v. Lawson, 4 T. R. 443.

3 Wright, Tenures, 171; Mr. Butler's note, Co. Litt. 309, a. (1).

This statute, which effected,

Quia Emptores, 18 Edw. 1, st. 1, c. 1. indeed, a most material change in the nature of the feudal tenure, by permitting the transfer or alienation of lands in lieu of subinfeudation, after stating, by way of preamble, that, in consequence of this latter practice, the chief lords had many times lost their escheats, marriages, and wardships of lands and tenements belonging to their fees, enacted, "that from henceforth it shall be lawful to every freeman to sell at his own pleasure his lands and tenements, or part of them, so that the feoffee shall hold the same lands and tenements of the chief lord of the same fee, by such service and customs as his feoffee held before."

This statute, it will be observed, did not extend to tenants in capite; and although by the subsequent act, 17 Edw. 2, c. 6, De Prærogativa Regis, it was declared, that no one holding of the Crown by military service, can, without the king's license, alien the greater part of his lands, so that enough shall not remain for the due performance of such service: from which it has been inferred, that, prior to this enactment, tenants in capite possessed the same right of subinfeudation as ordinary feudatories possessed prior to the stat. Quia Emptores. Yet it does not appear that even after the stat. De Prærogativa, alienation of any part of lands held in capite ever occurred without the king's license; and, at all events, this question was set at rest by the subsequent stat. 34 Edw. 3, c. 15, which rendered valid such *alienations as had been made by tenants

holding under Hen. 3, and preceding sovereigns, although [*333] there was a reservation of the royal prerogative as regarded alienations made during the reigns of the first two Edwards.

Having thus remarked, that, by a fiction of the feudal law, all land was held, either directly or (owing to the practice of subinfeudation) mediately of the Crown, we may next observe, that gifts of land were in their origin simple, without any condition or modification annexed to them; and although limited or conditional donations were gradually introduced for the purpose of restraining the right of alienation, yet, since the Courts construed such limitations liberally, in order to favour that right which they were intended to restrain, the stat. of Westm. 2, 13 Edw. 1, usually called the statute De Donis, was passed, which enacted, "That the will of the giver, according to the form in the deed of gift manifestly expressed, shall be from henceforth observed, so that they to whom the land was given under such condition shall have no power to alien the land so given,

but that it shall remain unto the issue of them to whom it was given after their death, or shall revert unto the giver, or his heir, if issue fail." The effect, therefore, of the above statute was to prevent a tenant in tail from alienating his estate for a greater term than that of his own life, or, rather, its effect was to render the grantee's estate certain and indefeasible during the life of the tenant in tail only, upon whose death it became defeasible by his issue or the remainderman or reversioner.1

Prior to this act, indeed, where land was granted to a man and the heirs of his body, the donee was held to take a conditional fee-simple, which became absolute the instant *issue was born; but after

[*334] the passing of the statute De Donis, the estate was, in contemplation of law, divided into two parts, the donee taking a new kind of particular estate, which our judges denominated a fee-tail, the ultimate fee-simple of the land expectant on the failure of issue remaining vested in the donor.2

"At last," says Lord Mansfield, C. J.,3 "the people having groaned for two hundred years under the inconveniences of so much property being unalienable, and the great men to raise the pride of their families, and (in those turbulent times) to preserve their estates from forfeitures, preventing any alteration by the legislature, the judges adopted various modes of evading the statute De Donis, and of enabling tenants in tail to charge or alien their estates. The first of these was founded on the idea of a recompense in value; in consequence of which it was held, that the issue in tail was bound by the warranty of his ancestor, where assets of equal value descended to him from such ancestor. In the next place, they held, in the reign of Edw. 4, that a feigned recovery should bar the issue in tail and the remainders and reversion. And, lastly, the legislature, by the stat. 32 Hen. 8, c. 36, expressly declared that a fine should be a bar to the issue in tail."

And now, under the late act for abolishing fines and recoveries, 3

11 Cruise, Dig., 4th ed. 77, 78.

3 Taylor v. Horde, 1 Burr. 115.

2 2 Bla. Com. 112.

4 Taltarum's case, Yr. Bk. 12 Edw. 4, 14, 19, where the Court expressly founded their argument upon the assumption that a recovery properly suffered would destroy an entail, although they decided, that, under the particular circumstances of that case, the entail had not been destroyed.

5 Except where the reversion was in the Crown, 34 & 35 Hen. 8, c. 20. As to the respective effects of the stats. 4 Hen. 7, c. 24, and 32 Hen. 8, c. 36, see Mr. Hargrave's note (1), Co. Litt. 121, a.