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tom as to

stood.

custom insomuch that the bequests of heriots and mortuaries were held to be necessary ingredients in every testament of chattels. Imprimis autem debet quilibet, qui How the custestamentum, fecerit, dominum suum de meliori re quam mortuaries habuerit recognoscere; et postea ecclesiam de alia meliori:" the lord must have the best good left him as an heriot; and the church the second best as a mortuary. But yet this custom was different in different places: " in quibus"in dam locis habet ecclesia melius animal de consuetudine; in quibusdam secundum, vel tertium melius; et in quibusdam nihil; et ideo consideranda est consuetudo loci." y This custom still varies in different places, not only as to the mortuary to be paid, but the person to whom it is payable. In Wales a mortuary or corse present was due upon the death of every clergyman to the bishop of the diocese; till abolished, upon a recompense given to the bishop, by the statute 12 Ann. st. 2, c. 6. And in the archdeaconry of Chester a custom also prevailed, that the bishop, who is also archdeacon, should have, at the death of every clergyman dying therein, his best horse, or mare, bridle, saddle, and spurs, his best gown or cloak, hat, upper garment under his gown, and tippet, and also his best signet or ring. But by statute 28 Geo. II. c. 6, this mortuary is directed to cease, and the act has settled upon the bishop an equivalent in its room. The king's claim to many goods, on the death of all prelates in England, seems to be of the same nature: though Sir Edward Coke apprehends that this is a duty due upon death, and not a mortuary; a distinction which seems to be without a difference. For not only the king's ecclesiastical character, as supreme ordinary, but also the species of the goods claimed, which bear so near a resemblance to those in the archdeaconry of Chester, which was an acknowledged mortuary, puts the matter out of dispute. The king, according to the record vouched by Sir Edward Coke, is entitled to six things; the bishop's best horse or palfrey, with his furniture: his cloak, or gown, and tippet: his cup and cover: his basin [ 427 ]

C,

y Bracton, 1. 2, c. 26; Flet. 1. 2, 57.

2 Cro. Car. 237.

a 2 Inst. 491.

b But see Mirehouse v. Rennell, 8 Bing. 497, as to the correctness of this quotation.

Mortuaries regulated by

c. 6.

and ewer his gold ring and lastly, his muta canum, his mew or kennel of hounds; as was mentioned in the preceding chapter.c

This variety of customs, with regard to mortuaries, giv21 Hen. VIII. ing 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. And no mortuary shall throughout the kingdom be paid for the death of any feme covert; nor for any child; nor for any one of full age, that is not a housekeeper; nor for any wayfaring man; but such wayfaring man's mortuary shall be paid in the parish to which he belongs. And upon this statute stands the law of mortuaries to this day.

3. Heir

looms, what they are.

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. The termination, loom, is of Saxon original; in which language it signifies a limb or member; so that an heir-loom is nothing else but a limb or member of the inheritance. 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 to the heir, notwithstanding it be expressly limited to a man and his heirs, but shall vest in the executor. But deer in a real [428] authorised park, fishes in a pond, doves in a dove-house, &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

c Page 470.

d Spelm. Gloss. 277.

Co. Litt. 388.

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, courtrolls, 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. A very similar notion to which prevails in the Duchy of Brabant; where they rank certain things moveable among those of the immoveable kind, calling them by a very particular appellation, prædia volantia, or volatile estates: such as beds, tables, and other heavy implements of furniture, which (as an author of their own observes) "dignitatem istam nacta sunt, ut villis, sylvis, et ædibus, aliisque praediis, comparentur; quod solidiora mobilia ipsis ædibus ex destinatione patrisfamilias cohærere videantur, et pro parte ipsarum ædium æstimentur.'

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 coat-armour of his ancestor there hung up, with the pennons and other ensigns of [429 ] 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

f Co. Litt. 8.

Ibid. 18.

h Bro. Abr. tit. Chattels, 18.

i Co. Litt. 18, 185.

k 12 Mod. 520.

1 Stockman's De Jure Devolutionis. c. 3, s. 16.

m Spooner v. Brewster, 3 Bing. 138.

j Spelm. Gloss. 277.

A devise of heir-looms void.

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 their 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; although it is now an indictable offence to take up a dead body even for the purpose of dissection. 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-looms: 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, though the owner might during his life, have sold or disposed of them, as he might of the timber of the estate, since, as the inheritance was his own, he might mangle or dismember it as he pleased; yet, 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.

n 12 Rep. 105; Co. Litt. 18.

3 Inst. 202; 12 Rep. 105.

P 1 Russ. Crim. 415, 2d edit. By stat. 2 & 3 W. 4, c. 75, amended by 4 & 5 W. 4, c. 26, the custody of dead

bodies for the purpose of anatomy is provided for and regulated.

4 3 Inst. 110; 12 Rep. 113; 1 Hal. P. C. 515.

r Co. Litt. 185.

CHAPTER THE THIRTY-FIRST.

OF TITLE BY SUCCESSION, MARRIAGE,
AND JUDGMENT.

[ 430 ]

cesssion.

In the present chapter we shall take into consideration three other species of title to goods and chattels. V. The fifth method therefore of gaining a property in Title by succhattels, 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 when it is meant to give any thing to be taken in succession by such a body, that succession need not be expressed: but the law will of itself imply it. So that a gift to such a corporation, either of lands or of chattels, without naming their successors, vests an absolute property in them so long as the corporation subsists. And thus a lease for years, an obligation, a jewel, a flock of sheep, or other chattel interest, [ 431 ] will vest in the successors, by succession, as well as in the identical members, to whom it was originally given.

corporations

can take

chattels by

But, with regard to sole corporations, a considerable What sole distinction must be made. For if such sole corporation be the representative of a number of persons; as the master succession. of an hospital, who is a corporation for the benefit of the poor brethren; an abbot, or prior, by the old law before the reformation, who represented the whole convent; or b Bro. Abr. tit. Estates, 90; Cro. Eliz. 464.

a 4 Rep. 65.

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