moiety often goes to the informer, the poor, or sometimes to other persons; and as one total forfeiture, namely that by a bankrupt who is guilty of felony by concealing his [421] effects, accrues entirely to his creditors, I have therefore made it a distinct head of transferring property. For what offences goods Goods and chattels then are totally forfeited by conare forfeited, viction of high treason or misprision of treason; of felony in general, and particularly of felony de se, and of manslaughter; nay even by conviction of excusable homicide ;* by outlawry for treason or felony; by conviction of larceny; by flight in treason or felony; even though the party be acquitted of the fact, by standing mute, when arraigned of felony; by drawing a weapon on a judge, or striking any one in the presence of the king's courts; by præmunire; by pretended prophecies, upon a second conviction; and by challenging to fight on account of money won at gaming. All these offences, as will more fully appear elsewhere,' induce a total forfeiture of goods and when it commences. and chattels. And this forfeiture commences from the time of conviction, not the time of committing the fact, as in forfeitures of real property. For chattels are of so vague and fluctuating a nature, that to effect them by any relation back, would be attended with more inconvenience than in the case of landed estates: and part, if not the whole of them, must be expended in maintaining the delinquent, between the time of committing the fact and his conviction. Yet a fraudulent conveyance of them, to defeat the interest of the crown, is made void by statute 13 Eliz. c. 5. Co. Litt. 391; 2 Inst. 316; 3 Blackstone 1 See Public Wrongs. which was removed from our statute book by stat. 5 Geo. 4, c. 47; and the residing abroad of artificers, which is no longer punishable, 5 Geo. 4, c. 97. See Public Wrongs, pp. [154], [160]. CHAPTER THE THIRTIETH. OF TITLE BY CUSTOM. [ 422 ] custom. A FOURTH method of acquiring property in things per- Title by sonal, or chattels, is by custom; whereby a right vests in some particular persons, either by the local usage of some particular place, or by the 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 for- 1. Heriots. mer chapter, are usually divided into two sorts, heriotservice, 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 arise upon no special reservation whatsoever, but depend merely upon immemorial usage and custom. these therefore we are here principally to speak: and they 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. They may also be due by the custom of the manor on the alienation of the tenant.d Of them. The first establishment, if not introduction, of com- [423] pulsory heriots into England, was by the Danes: and we History of find in the laws of King Canute the several heregeates or heriots specified, which were then exacted by the king on the death of divers of his subjects, according to their respective dignities: from the highest eorle down to the c Co. Cop. s. 24. a Page 100, 176. • C. 69. Now due chiefly in most inferior thegne or landholder. These, for the most part, consisted in arms, horses, and habiliments of war; which the word itself, according to Sir Henry Spelman,f signifies. These were delivered up to the sovereign on the death of the vassal, who could no longer use them, to be put into other hands for the service and defence of the country. And upon the plan of this Danish establishment did William the Conqueror fashion his law of reliefs, as was formerly observed; when he ascertained the precise relief to be taken of every tenant in chivalry, and, contrary to the feudal custom and the usage of his own duchy of Normandy, required arms and implements of war to be paid instead of money." The Danish compulsive heriots, being thus transmuted into reliefs, underwent the same several vicissitudes as the feudal tenures, and in socage estates do frequently remain to this day, in the shape of a double rent payable at the death of the tenant: the heriots which now continue among us, and preserve that name, seeming rather to be of Saxon parentage, and at first to have been merely discretionary. These are now for the most part confined to copyholds. copyhold tenures, and are due by custom only, which is the life of all estates by copy; and perhaps are the only instances where custom has favoured the lord. For this payment was originally, according to Blackstone and the older authorities,' 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 [424] 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. An heriot may also appertain to free land, that is held by service and suit of court; in which case it is not unfrequently a copyhold enfranchised, whereupon the heriot is still due by custom. Bracton speaks of heriots as frequently due on the death of both species of tenants: est quidem alia praestatio quae nominatur he Of Feuds, c. 18. g Page 67. h LL. Guil. Conq. c. 22, 23, 24. i Lambard. Peramb. of Kent, 492. J This, however, is questioned in the case of Garland v. Jekyll, 2 Bing. 292. L. 2, c. 36, s. 9. riettum; ubi tenens, liber vel servus, in morte sua dominum suum, de quo tenuerit, respicit de meliori averio suo, vel ac secundo meliori, secundum diversam locorum consuetudinem." And this he adds, "magis fit de gratia quam de jure;" in which Fleta' and BrittonTM agree: thereby plainly intimating the original of this custom to have been merely voluntary, as a legacy from the tenant; though now the immemorial usage has established it as of right in the lord. heriot con sists. This heriot is sometimes the best live beast, or averium, of what the 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. The tenant must be the owner of it, else it cannot be due; and therefore on the death of a feme-covert no heriot can be taken; for she can have no ownership in things personal.° 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; but a new composition of this sort will not bind the representatives of either party: for that amounts to the creation of a new custom, which is now impossible. Where a copyhold tenement holden by heriot custom, becomes the property of several as tenants in common, or is otherwise divided, the lord is entitled to a heriot from each of them, and for each portion of the tenement; but if the several portions become re-united in one person, one heriot only is payable. The real property commissioners have expressed their disapprobation of heriots, and recommended their commutation, which the legislature has recently facilitated." 2. Mortuaries. [ 425 ] 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. They seem originally to have been, like lay heriots, only a voluntary bequest to the church; being intended, as Lyndewode informs us, from a constitution of archbishop Langham, as a kind of expiation and amends to the clergy for the personal tithes, and other ecclesiastical duties, which the laity in their life-time might have neglected or forgotten to pay. For this purpose, after the lord's heriot or best good was taken out, the second best chattel was reserved to the church as a mortuary: "si decedens plura habuerit animalia, optimo cui de jure fuerit debitum reservato, ecclesiae suæ sine dolo, fraude, seu contradictione, qualibet, pro recompensatione substractionis decimarum personalium, nec non et oblationum, secundum melius animal reservetur, post obitum, pro salute animae suae.' And therefore in the laws of king Canute" this mortuary is called soul-scot (paplpcead) or symbolum animae. And, in pursuance of the same principle, by the laws of Venice, where no personal tithes have been paid during the life of the party, they are paid at his death out of his merchandise, jewels, and other moveables. So also, by a similar policy, in France, every man that died without bequeathing a part of his estate to the church, which was called dying without confession, was formerly deprived of christian burial: or, if he died intestate, the relations of the deceased, jointly with the bishop, named proper arbitrators to determine what he ought to have given to the church in case he had made a will. But the parliament, in 1409, redressed this grievance." X W It was anciently usual in this kingdom to bring the mortuary to church along with the corpse when it came to be buried: and thence it is sometimes called a corsepresent: a term, which bespeaks it to have been once a [426] voluntary donation. However in Bracton's time, so early as Henry III. we find it rivetted into an established |