almost general and universal usage of the kingdom. It were endless, should I attempt to enumerate all the several kinds of special customs, which may entitle a man to a chattel interest in different parts of the kingdom: I shall therefore content myself with making some observations on three sorts of customary interests, which obtain pretty generally throughout most parts of the nation, and are therefore of more universal concern, viz. heriots, mortuaries, and heir-looms. 1. Heriots, which were slightly touched upon in a former chapter, are usually divided into two sorts, heriot-service, and heriot-custom. The former are such as are due upon a special reservation in a grant or lease of lands, and therefore amount to little more than a mere rent: the latter arises upon no special reservation whatsoever, but depend merely upon immemorial usage and custom; and are defined to be a customary tribute of goods and chattels, payable to the lord of the fee on the decease of the owner of the land. These are now for the most part confined to copyhold tenures, and are due by custom only, which is the life of all estates by copy; and perhaps are the only instance where custom has favoured the lord. For this payment was originally a voluntary donation, or gratuitous legacy of the tenant; perhaps in acknowledgment of his having been raised a degree above villenage, when all his goods and chattels were quite at the mercy of the lord: and custom, which has on the one hand confirmed the tenant's interest in exclusion of the lord's will, has on the other hand established this discretional piece of gratitude into a permanent duty. This heriot is sometimes the best live beast, or averium, which the tenant dies possessed of, (which is particularly denominated the villein's relief in the twenty-ninth law of king William the conqueror) sometimes the best inanimate good, under which a jewel or piece of plate may be included: but it is always a personal chattel, which, immediately on the death of the tenant who was the owner of it, being ascertained by the option of the lord, becomes vested in him as his property; and is no charge upon the lands, but merely on the goods and chattels. In some places there is a customary composition in money, as ten or twenty shillings in lieu of a heriot, by which the lord and tenant are both bound, if it be an indisputably ancient custom. 2. Mortuaries are a sort of ecclesiastical heriots, being a customary gift claimed by and due to the minister in very many parishes on the death of his parishioners. This custom varies in different places, not only as the mortuary to be paid, but the person to whom it is payable: which variety of customs, with regard to mortuaries, giving frequently a handle to exactions on the one side, and frauds or expensive litigations on the other; it was thought proper by statute 21 Hen. VIII. c. 6. to reduce them to some kind of certainty. For this purpose it is enacted, that all mortuaries, or corse-presents to parsons of any parish, shall be taken in the following manner; (unless where by custom less or none at all is due :) viz. for every person who does not leave goods to the value of ten marks, nothing: for every person who leaves goods to the value of ten marks and under thirty pounds, 3s. 4d. if above thirty pounds, and under forty pounds, 6s. 8d. if above forty pounds, of what value soever they may be, 10s. and no more. : 3. Heir-looms are such goods and personal chattels, as, contrary to the nature of chattels, shall go by special custom to the heir along with the inheritance, and not to the executor of the last proprietor. They are generally such things as cannot be taken away without damaging or dismembering the freehold otherwise the general rule is, that no chattel interest whatsoever shall go the heir, notwithstanding it be expressly limited to a man and his heirs, but shall vest in the executor. But deer in a real authorized park, fishes in a pond, doves in a dovehouse, &c. though in themselves personal chattels, yet they are so annexed to and so necessary to the well-being of the inheritance, that they shall accompany the land wherever it vests, by either descent or purchase. For this reason also I apprehend it is, that the ancient jewels of the crown are held to be heir-looms; for they are necessary to maintain the state, and support the dignity of the sovereign for the time being. Charters likewise, and deeds, court-rolls, and other evidences of the land, together with the chests in which they are contained, shall pass together with the land to the heir, in the nature of heir-looms, and shall not go to the executor. By special custom also, in some places, carriages, utensils, and other household implements, may be heir-looms; but such custom must be strictly proved. On the other hand, by almost general custom, whatever is strongly affixed to the freehold or inheritance, and cannot be severed from thence without violence or damage, "quod ab ædibus non facile revellitur," is become a member of the inheritance, and shall thereupon pass to the heir; as chimney-pieces, pumps, old fixed or dormant tables, benches, and the like. Other personal chattels there are, which also descend to the heir in the nature of heir-looms, as a monument or tombstone in a church, or the coatarmour of his ancestor there hung up, with the penons, and other ensigns of honour, suited to his degree. In this case, albeit the freehold of the church is in the parson, and these are annexed to that freehold, yet cannot the parson or any other take them away or deface them, but is liable to an action from the heir. Pews in the church are somewhat of the same nature, which may descend by custom immemorial (without any ecclesiastical concurrence) from the ancestor to the heir. But though the heir has a property in the monuments and escutcheons of his ancestors, yet he has none in their bodies or ashes; nor can he bring any civil action against such as indecently at least, if not impiously, violate and disturb their remains, when dead and buried. The parson indeed, who has the freehold of the soil, may bring an action of trespass against such as dig and disturb it: and, if any one in taking up a dead body steals the shroud or other apparel, it will be felony; for the property thereof remains in the executor, or whoever was at the charge of the funeral. But to return to heir-loom: these, though they be mere chattels, yet cannot be devised away from the heir by will; but such a devise is void, even by a tenant in fee-simple. For, they being, at his death, instantly vested in the heir, the devise (which is subsequent, and not to take effect till after his death) shall be postponed to the custom, whereby they have already descended. CHAPTER XXIX. OF TITLE BY SUCCESSION, MARRIAGE, AND THE fifth method of gaining a property in chattels, either personal or real, is by succession: which is, in strictness of law, only applicable to corporations aggregate of many, as dean and chapter, mayor and commonalty, master and fellows, and the like; in which one set of men may, by succeeding another set, acquire a property in all the goods, moveables, and other chattels of the corporation. The true reason whereof is, because in judgment of law a corporation never dies; and therefore the predecessors, who lived a century ago, and their successors now in being, are one and the same body corporate. Which identity is a property so inherent in the nature of a body politic, that, even |
