acquiescence of the crown, and the introduction by statute of new penalties, this prerogative is little attended to; every one exempted from the modern penalties considering himself at liberty to kill game. The game laws, however, in fact, qualify no one except a game-keeper. They inflict additional penalties, but do not authorize the killing of game. The circumstance of having 100%. a-year, and the rest, are not properly qualifications, but exemptions, the persons exempted being liable to actions of trespass from the owners of the land; and if they kill game in any royal franchise, being liable to the actions of such who have a right of chase, or free-warren therein. Co. Litt. 391. 2 Inst. 316. Inst. 320. Another method, whereby a title to goods and chattels may Forfeiture. be acquired and lost, is that of forfeiture, as a punishment for some crime or misdemeanor in the party forfeiting. Goods and chattels are totally forfeited by conviction of high treason or misprision of treason; of petit treason; of felony in general, and particularly of felony de se, and of manslaughter; by conviction of excusable homicide (c); by outlawry for treason or felony; by conviction of petit larceny; by flight in treason or felony, 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, &c. This forfeiture commences from the time of conviction, not the time of committing the fact, as in forfeitures of real property. Yet a fraudulent conveyance of them to defeat the interest of the crown is made void by the statute 13 Eliz. c. 5. (c) By 9 Geo. 4, c. 31, s. 10, no punishment or forfeiture shall be incurred by any person who shall kill another by misfortune, or in his own defence, or in any other manner, without felony. CHAPTER XXVIII. By custom. Heriots. 2 Saund. 166. Co. Cop. s.24. Hob. 60. OF TITLE BY CUSTOM. THERE are three sorts of customary interests, viz., heriots, mortuaries, and heir-looms. Heriots are divided into heriot service, and heriot custom. The former are such as are due upon a reservation upon a grant of lands; the latter depend upon immemorial custom. They are a customary tribute of goods and chattels payable to the lord of the fee on the decease of the owner of the land. The heriots which now continue are mostly confined to copyholds. They were originally voluntary, as a legacy from the tenant, and are now due by custom only. It is sometimes the best live beast which the tenant dies possessed of, or the best good, such as a jewel or a piece of plate, &c. It is ascertained at the option of the lord, and becomes vested in him at the tenant's death. It is always a personal chattel. It 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. In some places there is a customary composition in money, in lieu of a heriot, by which the lord and Co. Cop. s. 31. tenant are both bound, if it be an indisputably ancient custom. Keilw. 84. 4 Leon. 239. Mortuaries. Heir-looms. Mortuaries are a sort of ecclesiastical heriots, being a customary gift, anciently voluntary, due to the minister in many parishes, on the death of his parishioners. By 21 Hen. 8, c. 6, all mortuaries, unless where by custom none are due, are regulated; and no mortuary shall be paid for the death of any feme covert; nor for any child; nor for any one of full age not being a housekeeper; nor for any way-faring man; but such way-faring man's mortuary shall be paid by the parish to which he belongs. Heir-looms are such goods and personal chattels as, contrary to the nature of chattels, 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 Spelm. Gloss. which language it signifies a limb or member; so that an heirloom is nothing else but a limb or member of the inheritance. Deer in a park, fishes in a pond, &c., though personal chattels, 227. OF TITLE BY CUSTOM. accompany the land wherever it vests, by descent or pur chase. By special custom, carriages, and household implements Co. Litt. 8. may be heir-looms; and by general custom, whatever is Ibid. 18, 185. strongly fixed to the freehold, and cannot be severed without 12 Mod. 520. violence or damage thereto, shall pass to the heir; as chimneypieces, pumps, old fixed or dormant tables, benches, and the like (a); a monument or tombstone will also descend to the heir as an heir-loom, and a pew in the church (6) may descend to him by custom. 3 Inst. 202. 12 Rep. 105. Co. Litt. 185. CHAPTER XXIX. OF TITLE BY SUCCESSION, MARRIAGE, AND JUDGMENT. succession THE method of gaining a property in chattels, either personal Of title by or real, by succession, is in strictness only applicable to corporations aggregate, because in judgment of law a corporation never dies. But a distinction must be made as to sole cor- 4 Rep. 65. porations. For, if such sole corporation be the representative of a number of persons; as the dean of a cathedral, who re (a) The machinery of a mill is part of the freehold, and cannot be legally removed by the tenant; Farrant v. Thomson, 2 D. & R. 1; 5 B. & A. 626. Things fixed to the freehold by and at the expense of the tenant in fee, which are removable, but necessary to the enjoyment of the inheritance, go to the heir, and not to the executor; Lawton v. Salmon, 1 H. Black. 259. A sheriff cannot take in execution fixtures, consisting of ranges, ovens, and set pots affixed to a freehold house, which was built by the person against whom the execution issued; Wynne v. Ingleby, 1 D. & R. 247; 5 B. & A. 625. A conservatory erected on a brick foundation affixed to, and communicating with rooms in a dwelling-house by windows and doors, cannot be removed by a tenant for who years, had erected it during his tenancy, although he had a reversion in fee after the death of the lessor; Blackland v. Butterfield, 4 Moore, 440; 2 B. & B. 54. If tenant for life or in tail erects a fire engine to work a colliery, it shall on his death be considered as part of his personal estate, and not go with the estate to the remainder-man; Dudley v. Warde, Ambl. 113. A pump erected by a tenant, and so fixed as to be removable without injury to the freehold, may be taken away by him at the expiration of his term, as being an article of domestic use or convenience; Grymes v. Boweren, 4 M. & P. 143; 6 Bing. 437. (b) A right to a pew in a church can only exist by faculty or by prescription. Where the prescription is interrupted, the jury are not bound to presume a faculty from long undisturbed possession; Morgan v. Curtis, 3 M. & R. 389. A faculty to a man and his heirs is not good; Storks v. Booth, 1 T. R. 432. A pew in the aisle of a church may be prescribed for as appurtenant to a house out of the parish; Davis v. Wit, Forrest, 14; and a pew in the body of a church may be also prescribed for in the same manner; Linsley v. Hayward, 1 Y. & J. 583. Co. Litt. 46. presents the chapter; it has the same powers to take personal property or chattels in succession, as a corporation aggregate. Dyer, 48. But in the case of sole corporations, who represent no others but Cro. Eliz. 464. themselves, as bishops and parsons, no chattel interest can regularly go in succession; and therefore if a lease for years be made to the bishop of Oxford and his successors, his executors and administrators, and not his successors, shall have it; for the word successors, when applied to a person in his political capacity, is equivalent to the word heirs in his natural; and as such a lease for years, if made to John and his heirs, would not vest in his heirs but his executors; so if it be made to John Bishop of Oxford and his successors, who are the heirs of his body politic, it shall vest in his executors and not in his successors (c). Yet a chattel may vest in the king by a grant of it made to a preceding king and his successors; and by particular custom, some particular corporations sole have acquired a power of taking particular chattel interests in succession, but this custom must be strictly proved and interpreted. Ibid. 90. Of title by marriage to chattels personal. To chattels real only sub modo. By marriage, all chattels which belonged to the wife are by act of law vested absolutely in the husband. This depends on the unity of person between the husband and wife, it being held that they are one person in law, so that the very being and existence of the woman is suspended during the coverture, or entirely merged in that of the husband. In a real estate, he only gains a title to the rents and profits during coverture; for that, depending upon feodal principles, remains entire to the wife after the death of her husband, or to her heirs if she dies before him; unless, by the birth of a child, he becomes tenant for life by the curtesy. But in chattel interests, the sole and absolute property vests in the husband, to be disposed of at his pleasure, if he chooses to take possession of them; for unless he reduces them to possession, by exercising some act of ownership upon them, no property vests in him, but they shall remain to the wife, or to her representatives, after the coverture is determined. There is therefore, a considerable difference between chat in the acquisition by marriage of property by the husband, tels personal in possession and according to the subject matter; viz. whether it be a chattel those in action. real, or chattel personal: and, of chattels personal, whether they are in possession, or in action only. A chattel real vests in the husband, not absolutely, but sub modo. As in case of a Distinction (c) See F. 92. Co. Litt. 46. Co. Litt. 351. Ibid. 300. lease for years, the husband shall receive all the rents and profits of it; and may, if he pleases, sell, surrender, or dispose of it during coverture; if he be outlawed or attainted, it shall be forfeited to the king: it is liable to execution for his debts, and, if he survives his wife it becomes his own property. Yet, if he has made no disposition of it in his lifetime, and dies before his wife, he cannot dispose of it by will; for not having Poph. 5. made any alteration in the property during his life, it never Co. Litt. 351. was transferred from the wife; but after his death she shall remain in her ancient possession, and it shall not go to his executors. So it is also of chattels personal (or choses) in action; as debts upon bond, and contracts; these the husband is entitled to if he reduces them into possession by receiving or recovering them at law; but otherwise they shall continue choses in action, and survive to the wife. If the husband sur- Ibid. vives the wife, he shall have the chattel real by survivorship, but not the chose in action; except arrears of rent due to the 3 Mod. 186. wife before coverture, which in case of her death are given to the husband by 32 Hen. 8, c. 37. The reason for this law is, that the husband is in absolute possession of the chattel real during the coverture, by a kind of joint tenancy with his wife: therefore the law will not wrest it from him, and give it to her representatives; though, in case he had died first it would have survived to the wife, unless he had in his life time altered the possession. But a chose in action shall not survive to him, because he was not in possession of it during the coverture; and the only method he had to gain possession of it, was by suing in his wife's right; but as, after her death, he cannot (as husband) bring an action in her right, because they are no longer one and the same person in law, therefore he can never (as such) recover the possession. But he still will be entitled to be her administrator; and may in that capacity recover such things in action as became due to her before or during the coverture (d). As to chattels personal, which the wife has in her right, as ready money, jewels, and household goods, own Chattels per the sonal which the wife has in her own right. (d) By 29 Car. 2, c. 3, s. 25, the husband shall have administration of all his wife's personal estate, which he did not reduce into his possession before her death, and shall retain it to his own use; and if he dies before administration is granted to him, or he has recovered his wife's property, the right to it passes to his personal representative, and not to his wife's next of kin; 1 P. Wms. 378; Butl. Co. Litt. 351.-Mr. Christian's note to Bl. Comm. v. 2, p. 435. This right belongs to the husband exclusively of all other persons; Humphrey v. Bullen, 1 Atk. 459, and the ordinary has no power or election to grant it to any other; Sir Geo. Sand's case, 3 Salk. 22; Williams' Ex. & Ad. 267. |