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CHAPTER THE TWENTY EIGHTH.
OF TITLE BY CUSTOM.

A FOURTH method of acquiring property in things perfonal, or chattels, is by cuftom: whereby a right vefts in fome particular perfons, either by the local ufage of fome particular place, or by the almoft general and univerfal ufage of the kingdom. It were endlefs, fhould I attempt to enumerate all the feveral kinds of fpecial cuftoms, which may entitle a man to a chattel intereft in different parts of the kingdom: I shall therefore content myfelf with making fome obfervations on three forts of cuftomary interefts, which obtain pretty generally throughout moft parts of the nation, and are therefore of more univerfal concern; vi. heriots, mortuaries, and heir-looms.

1. HERIOTS, which were flightly touched upon in a former chapter ^a, are ufually divided into two forts, herio-fervice, and heriot-cuftom. The former are fuch as are due upon a fpecial refervation in a grant or leafe of lands, and therefore amount to little more than a mere rent ^b: the latter arife upon no fpecial refervation whatfoever, but depend merely upon immemorial ufage and cuftom ^c. Of thefe therefore we are here principally to fpeak: and they are defined to be a cuftomary tribute of goods and chattels, payable to the lord of the fee on the deceafe of the owner of the land.

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^a pag. 97.
^b 2 Saund. 166.
^c Co. Cop, §. 24.
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THE firft eftablifhment, if not introduction, of compulfory heriots into England, was by the Danes: and we find in the laws of king Canute ^d the feveral heregeates or heriots fpecified, which were then exacted by the king on the death of divers of his fubjects, according to their refpective dignities; from the higheft eorle down to the moft inferior thegne or landholder. Thefe, for the moft part, confifted in arms, horfes, and habiliments of war; which the word itfelf, according to fir Henry Spelman^e, fignifies. Thefe were delivered up to the fovereign of the death of the vafal, who could no longer ufe them, to be put into other hands for the fervice and defence of the country. And upon the plan of this Danifh eftablifhment did William the conqueror fafhion his law of reliefs, as was formerly obferved ^f; when he afcertained the precife relief to be taken of every tenant in chivalry, and, contrary to be feodal cuftom and the ufage of his own duchy of Normany, required arms and implements of war to be paid inftead of money ^g.

THE Danifh compulfive heriots, being thus tranfmuted into reliefs, underwent the fame feveral viciffitudes as the feodal tenures, and in focage eftates do frequently remain to this day, in the fhape of a double rent payable at the death of the tenant: the heriots which now continue among us, and preferve that name, feeming rather to be of Saxon parentage, and at firft to have been merely difcretionary^h. Thefe are now for the moft part confined to copyhold tenures, and are due by cuftom only, which is the life of all eftates by copy; and perhaps are the only inftance where cuftom has favored the lord. For this payment was originally a voluntary donation, or gratuitous legacy of the tenant; perhaps in acknowlegement of his having been raifed a degree above villenage, when all his goods and chattels were quite at the mercy of the lord: and cuftom, which has on the

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^d c. 69.
^e of feuds. c. 18.
^f pag. 65.
^g LL. Guil. Conqu. C. 22, 23, 24.
^h Lambard. Peramb. of Kent. 492.
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one hand confirmed the tenant's intereft in exclufion of the lord's will, has on the other hand eftablifhed this difcretional piece of gratitude into a permanent duty. An heriot may alfo appertain to free land, that is held by fervice and fuit of court; in which cafe it is moft commonly a copyhold enfranchifed, whereupon the heriot is ftill due of cuftom. Bractonⁱ fpeaks of heriots as frequently due on the death of both fpecies of tenants: “eft quidem alia praeftatio quae nominatur heriettum; ubi tenens, liber vel fervus, in morte fua dominum fuum, de quo tenuerit, refpicit de meliori averio fuo, vel de fecundo meliori, fecundum diverfam locorum confuetudinem.” And this, he adds, “magis fit de gratia quam de jure;” in which Fleta^k and Britton ^l agree: thereby plainly intimating the original of this cuftom to have been merely voluntary, as a legacy from the tenant; though now the immemorial ufage has eftablifhed it as of right in the lord.

THIS heriot is fometimes the beft live beaft, or averium, which the tenant dies poffeffed of, (which is particularly denominated the villein's relief in the twenty ninth law of king William the conqueror) fometimes the beft inanimate good, under which a jewel or piece of plate may be included: but it is always a perfonal chattel, which, immediately on the death of the tenant who was the owner of it, being afcertained by the option of the lord ^m, becomes vefted in him as his property; and is no charge upon the lands, but merely on the goods and chattels. The tenant muft be the owner of it, elfe it cannot be due; and therefore on the death of a feme-covert no heriot can be taken; for fhe can have no ownerfhip in things perfonalⁿ. In fome places there is a cuftomary compofition in money, as ten or twenty fhillings in lieu of a heriot, by which the lord and tenant are both bound, if it be an indifputably antient cuftom: but a new compofition of this fort will not bind the reprefentatives of either party; for that amounts to the creation of a new cuftom, which is now impoffible ^o.

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ⁱ l. 2. c. 36. §. 9.
^k l. 3. c. 18.
^l c. 69.
^m Hob. 60.
ⁿ Keilw. 84. 4 Leon. 239.
^o Co. Cop. §. 31.
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2. MORTUARIES are a fort of ecclefiaftical heriots, being a cuftomary gift claimed by and due to the minifter in very may parifhes on the death of his parifhioners. They feem originally to have been, like lay heriots, only a voluntary bequeft to the church; being intended, as Lyndewode informs us from a conftitution of archbifhop Langham, as king of expiation and amends to the clergy for the perfonal tithes, and other ecclefiaftical duties, which the laity in their life-time might have neglected or forgotten to pay. For this purpofe, after ^p the lord's heriot or beft good was taken out, the fecond beft chattel was referved to the church as a mortuary: “fi decedens plura habuerit animalia, optimo cui de jure fuerit debitum refervato, ecclefiae fuae fine dolo, fraude, fue contradictione qualibet, pro recompenfatione fubtractionis decimarum perfonalium, necnon et oblationum, fecundum melius animal refervetur, poft obitum, pro falute animae fuae^q.” And therefore in the laws of king Canute^r this mortuary is called foul-fcot (raplrcea) or fymbolum animae. And, in purfuance of the fame principle, by the laws of Venice, where no perfonal tithes have been paid during the life of the party, they are paid at his death out of his merchandize, jewels, and other move-ables ^s. So alfo, by a fimilar policy, in France, every man that died without bequeathing a part of his eftate to the church, which was called dying without confeffion, was formerly deprived of chriftian burial: or, if he died inteftate, the relations of the deceafed, jointly with the bifhop, named proper arbitrators to determine what he ought to have given to the church, in cafe he had made a will. But the parliament, in 1409, redreffed the grievance ^t.

IT was antiently ufual in this kingdom to bring the mortuary to church along with the corpfe when it came to be buried; and thence ^u it is fometimes called a corfe-prefent: a term, which

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^p Co. Litt. 185.
^q Provinc. l. 1. tit. 3.
^r c. 13.
^s Panormitan. ad Decretal. l. 3. t. 20. c. 32.
^t Sp. L. b. 28. c. 41.
^u Selden. hift, of tithes. c. 10.
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befpeaks it to have been once a voluntary donation. However in Bracton's time, fo early as Henry III, we find it riveted into an eftablifhed cuftom: infomuch that the bequefts of heriots and mortuaries were held to be neceffary ingredients in every teftament of chattels. “Imprimis autem debet quilibet, qui teftamentum fecerit, dominum fuum de meliori re quam habuerit recognofcere; et poftea ecclefiam de alia meliori:” the lord muft have the beft good left him as an heriot; and the church the fecond beft as a mortuary. But yet this cuftom was different in different places: “in quibufdam locis habet ecclefia melius animal de confuetudine; in quibufdam fecundum, vel tertium melius; et in quibufdam nihil: et ideo confideranda eft confuetudo loci^w.” This cuftom ftill varies in different places, not only as to the mortuary to be paid, but the perfon to whom it is payable. In Wales, a mortuary or corfeprefent was due upon the death of every clergyman to the bifhop of the diocefe; till abolifhed, upon a recompenfe given to the bifhop, by the ftatute 12 Ann. ft. 2. c. 6. And in the archdeaconry of Chefter a cuftom alfo prevailed, that the bifhop, who is alfo archdeacon, fhould have at the death of every clergyman dying therein, his beft horfe or mare, bridle, faddle, and fpurs, his beft gown or cloak, hat, upper garment under his gown, and tippet, and alfo his beft fignet or ring ^x. But by ftatute 28 Geo. II. c. 6. this mortuary is directed to ceafe, and the act has fettled upon the bifhop an equivalent in it's room. The king's claim to many goods, on the death of all prelates in England, feems to be of the fame nature; though fir Edward Coke ^y apprehends, that this is a duty due upon death and not a mortuary: a diftinction which feems to be without difference. For not only the king's ecclefiaftical character, as fupreme ordinary, but alfo the fpecies of the goods claimed, which bear fo near a refemblance to thofe in the archdeaconry of Chefter, which was an acknowleged mortuary, puts the matter out of difpute. The king, according to the record vouched by fir Edward Coke, is entitled to fix things; the bifhop's beft horfe or palfrey, with his furniture: his cloak,

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^w Bracton. l. 2. c. 26. Flet. l. 2. c. 57.
^x Cro. Car. 237.
^y 2 Inft. 491.
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or gown, and tippet: his cup, and cover: his bafon, and ewer: his gold ring: and, laftly, his muta canum, his mew or kennel of hounds; as was mentioned in the preceding chapter ^z.

THIS variety of cuftoms, with regard to mortuaries, giving frequently a handle to exactions on the one fide, and frauds or expenfive litigations on the other; it was thought proper by ftatute 21 Hen. VIII. c. 6. to reduce them to fome king of certainty. For this purpofe it is enacted, that all mortuaries, or corfe-prefents to parfons of any parifh, fhall be taken in the following manner; unlefs where by cuftom lefs or none at all is due: viz. for every perfon who does not leave goods to the value of ten marks, nothing: for every perfon 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 foever they may be, 10 s. and no more. And no mortuary fhall thoughout the kingdom be paid for the death of any femecovert; nor any child; nor for any one of full age, that is not a houfekeeper; nor for any wayfaring man; but fuch wayfaring man's mortuary fhall be paid in the parifh to which he belongs. And upon this ftatute ftands the law of mortuaries to this day.

3. HEIR-LOOMS are fuch goods and perfonal chattels, as, contrary to the nature of chattels, fhall go by fpecial cuftom to the heir along with the inheritance, and not to the executor of the laft proprietor. The termination, loom, is of Saxon original; in which language it fignifies a limb or member ^a; fo that an heirloom is nothing elfe, but a limb or member of the inheritance. They are generally fuch things as cannot be taken away without damaging or difmembering the freehold; otherwife the general rule, is that no chattel intereft whatfoever fhall go to the heir, notwithftanding it be expreffly limited to a man and his heirs, but fhall veft in the executor ^b. But deer in a real authorized park, fifhes in a pond, doves in a dove-houfe, &c, though in

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^z pag. 413.
^a Spelm. Gloff. 277.
^b Co. Litt. 388.
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themfelves perfonal chattels, yet they are fo annexed to and fo neceffary to the well-being of the inheritance, that they fhall accompany the land wherever it vefts, by either defcent or purchafe ^c. For this reafon alfo I apprehend it is, that the antient jewels of the crown are held to be heir-looms ^d: for they are neceffary to maintain the ftate, and fupport the dignity, of the fovereign for the time being. Charters likewife, and deeds, court-rolls, and other evidence s of the land, together with the chefts in which they are contained, fhall pafs together with the land to the heir, in the nature of heir-looms, and fhall not go to the executor ^e. By fpecial cuftom alfo, in fome places, carriages, utenfils, and other houfehold implements may be heir-looms ^f; but fuch cuftom muft be ftrictly proved. On the other hand, by almoft general cuftom, whatever is ftrongly affixed to the freehold or inheritance, and cannot be fevered from thence without violence or damage, “quod ab aedibus non facile revellitur ^g,” is become a member of the inheritance, and fhall thereupon pafs to the heir; as marble chimney-pieces, pumps, old fixed or dormant tables, benches, and the like ^h. A very fimilar notion to which prevails in the duchy of Brabant; where they rank certain things moveable among thofe of the immoveable king, calling them, by a very peculiar appellation, praedia volantia, or volatile eftates: fuch as beds, tables, and other heavy implements of furniture, which (as an author of their own obferves) “dignitatem iftam nacta funt, ut villis, fylvis, et aedibus, aliifque praediis, comparentur; quod folidiora mobilia ipfis aedibus ex deftinatione patrisfamilias cohaerere videantur, et pro parte ipfarum aedium aeftimentur ⁱ.”


OTHER perfonal chattels there are, which alfo defcend to the heir in the nature of heir-looms, as a monument or tombftone in a church, or the coat-armor there hung up,

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^c Co Litt. 8.
^d Ibid. 18.
^e Bro. Abr. tit. chatteles. 18.
^f Co. Litt. 18. 185.
^g Spelm. Gloff. 277.
^h 12 Mod. 520.
ⁱ Stockmans de jure devolutionis. c. 3. §. 16.
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with the pennons and other enfigns of honor, fuited to his degree. In this cafe, albeit the freehold of the church is in the parfon, and thefe are annexed to that freehold, yet cannot the parfon or any other take them away or deface them, but is liable to an action from the heir ^k. Pews in the church are fomewhat of the fame nature, which may defcend by cuftom immemorial (without any ecclefiaftical concurrence) from the anceftor to the heir^l. But though the heir has a property in the monuments and efcutcheons of his anceftors, yet he had none in their bodies or afhes; nor can he bring any civil action againft fuch as indecently at leaft, if not impioufly, violate and difturb their remains, when dead and buried. The parfon indeed, who has the freehold of the foil, may bring an action of trefpafs againft fuch as dig and difturb it: and, if any one in taking up a dead body fteals the fhrowd or other apparel, it will be felony ^m; for the property thereof remains in the executor, or whoever was at the charge of the funeral.

BUT to return to heir-looms: thefe, though they be mere chattels, yet cannot be devifed away form the heir by will; but fuch a devife is void ⁿ, even by a tenant in fee-fimple. For, though the owner might during his life have fold or difpofed of them, as he might of the timber of the eftate, fince as the inheritance was his own, he might mangle or difmember it as he pleafed; yet, they being at his death inftantly vefted in the heir, the devife (which is fubfequent, and not to take effect till after his death) fhall be poftponed to the cuftom, whereby they have already defcended.

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^k 12 Rep. 105. Co. Litt. 18.
^l 3 Inft. 202. 12 Rep. 105.
^m 3 Inft. 110. 12 Rep. 113. 1 Hal. P. C. 515.
ⁿ Co. Litt. 185.
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