make an actual arrest, was forcibly expelled from the house, and the outer door fastened against him. The officer thereupon, having obtained assistance, broke open the outer door and made the arrest; and it was held that he was justified in so doing; for, the outer door being open in the first instance, the officer was entitled to enter the house under civil process, and, being lawfully in the house, the prosecutor was guilty of a trespass 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 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 [*440] *open. It must be observed, however, that the sheriff

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 connection with the

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; Com. Dig., "Execution" (C. 6); Penton v. Browne, 1 Sid. 186.

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

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

maxim under consideration, that 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 doing so without previous notice or request,' if there are persons actually in it at the time. But, as remarked by Lord Campbell, C. J.,3 it would be giving a most dangerous extension to the doctrine thus laid down "to hold that the owner of a house could not exercise the right of pulling it down because a trespasser was in it." And notwithstanding some conflict amongst judicial dicta upon the subject, *it seems that in trespass "it is a perfectly good justifica[*441] tion to say that the plaintiff was in possession of the land against the will of the defendant, who was owner, and that he entered upon it accordingly, even though in so doing a breach of the peace was committed." The learned judge, whose words have been just quoted, further intimates an opinion that "where a breach of the peace is committed by a freeholder who, in order to get into possession of his land, assaults a person wrongfully holding possession of it against his will, although the freeholder may be responsible to the public in the shape of an indictment for a forcible entry, he is not liable to the other party."

We may conclude these remarks with observing, that, although the law of England has so particular and tender a regard to the

1 Davies v. Williams, 16 Q. B. 546, 556.

2 Perry v. Fitzhowe, 8 Q. B. 757 (55 E. C. L. R.); Jones v. Jones, 1 H. & C. 1.

3 Burling v. Read, 11 Q. B. 904, 908 (63 E. C. L. R.); Davison v. Wilson, Id. 890.

* See Newton v. Harland, 1 M. & Gr. 644 (39 E. C. L. R.); Pollen v. Brewer, 7 C. B. N. S. 371 (97 E. C. L. R.); per Cresswell, J., Davis v. Burrell, 10 C. B. 825 (70 E. C. L. R.), per Parke, B., and Alderson, B., 14 M. & W. 437. In Delaney v. Fox, 1 C. B. N. S. 166 (87 E. C. L. R.), the point above mentioned was also raised. See Butcher v. Butcher, 7 B. & C. 399 (14 E. C. L. R.).

Per Parke, B., Harvey v. Brydges, 14 M. & W. 442; s. c., 1 Exch. 261. See per Cresswell, J., Meriton v. Coombes, 9 C. B. 789.

* 14 M. & W. 442: cited judgm., Blades v. Higgs, 10 C. B. N. S. 721 (100 E. C. L. R.); s. c., 11 H. L. Cas. 621 (where the principle laid down supra was applied to the retaking of chattels); Pollen v. Brewer, 7 C. B. N. S. 371 (97 E. C. L. R.).

* See

per Lord Kenyon, C. J., Taunton v. Costar, 7 T. R. 432.

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 main exception which occnrs 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,1 “This rule, that every man's house is his castle, when applied to [*442] 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.

The two leading maxims relative to the transfer of property are, first, that alienation is favored by the law: and, secondly, that an 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 throughout this Work, has been briefly illustrated by decided

cases.

ALIENATIO REI PRÆFERTUR JURI ACCRESCENDI.

(Co. Litt. 185 a.)

Alienation is favored 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 favor alienation, and to discountenance every attempt to tie up property unreasonably, or, in other words, to create a perpetuity.

The reader will at once remark, that the feudal policy was directly

1 Sir M. Foster, Discourse of Homicide, p. 319.

2 Brisson. ad verb. " Alienatio."

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opposed to those more wise and liberal views *which have now long prevailed. It is, indeed, generally admitted,1 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 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 territories 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, so neither could the lord, without the feudatory's consent, transfer his fealty and allegiance to another. 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 color of subinfeudation, frequently dispose of their lands, this practise, 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 directly of the Crown-to dispose of a reasonable part of their lands to subfeudatories.

[*444]

The right of subinfeudation to the extent thus expressly allowed by statute, evidently prepared the way for the more extensive power alienation which was conferred on mesne feudatories by the statute Quia Emptores, 18 Edw. 1, st. 1, c. 1. This statute, which effected,

1 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).

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 [*445] to the stat. Quia Emptores; yet it does not appear that even after the stat. of 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 Henry 3, and preceding sovereigns, although there was a reservation of the royal prerogative as regarded alienations made during the reigns of the two first 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 favor 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