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2. MORTUARIES are a fort of ecclefiaftical heriots, being a customary gift claimed by and due to the minifter 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 conftitution of archbishop Langham, as a kind 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 purpose, after the lord's heriot or best 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, feu "contradictione qualibet, pro recompenfatione fibtractionis deci "marum perfonalium, necnon et oblationum, fecundum melius ani"mal refervetur, poft obitum, pro falute animae fuae 9." And therefore in the laws of king Canute this mortuary is called foul-fcot (raplrcear) or fymbolum animae. And, in pursuance 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 moveables. 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 deceased, jointly with the bishop, named proper arbitrators to determine what he ought to have given to the church, in cafe he had made a will. But the parlia ment, in 1409, redressed this grievance t.

It was antiently ufual in this kingdom to bring the mor. tuary to church along with the corpfe when it came to be buried; and thence it is fometimes called a corfe-prefent: a term which bespeaks it to have been once a voluntary donation. However in Bracton's time, fo early as Henry III. we

P Co. Litt. 185.

• Provinc. l. 1. tit. 3. r c. 13.

Panormitan. ad Decretal. l. 3. t. 20. c. 32.
Sp. L. b. 28. c. 41.

u Selden. Hift. of tithes. c. 10.

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Book II. find it rivetted into an established cuftom: infomuch that the bequefts of heriots and mortuaries were held to be necellary ingredients in every teftament of chattels. Imprimis autent "debet quilibet, qui teftamentum fecerit, dominum fuum de me«licri re quam habuerit recognofcere; et poftea ecclefiam de alia "meliori" the lord must have the best good left him as an heriot; and the church the fecond best as a mortuary. But yet this custom was different in different places: “in qui"bufdam locis habet ecclefia melius animal de confuetudine; in qui"bufdam fecundum, vel tertium melius; et in quibufdam nikil "et ideo confideranda eft confuetudo low." This cuftom ftill varies in different places, not only as the mortuary to be paid, but the perfon to whom it is payable. In Wales a mortuary or corfe-prefent 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 Annft. 2 c. 6. And in the archdeaconry of Chester a custom allo prevailed, that the bifhop, who is alfo archdeacon, fhouid have, at the death of every clergyman dying therein, his beft horse or mare, bridle, faddle, and fpurs, his best gown or cloak, hat, upper garment under his gown, and tippet, and alfo his beft fignet or ring. But by ftatute 28 Geo. H. c. 6. this mortuary is directed to ceafe, and the act has fettled upon the bishop 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 apprehends, that this is a duty due upon death and not a mortuary: a diftinction which feems to be without a 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 Chester, which was an acknowleged mortuary, puts the watter out of difpute. The king, according to the record vouched by fir Edward Coke, is entitled to fix things; the bishop's beft horie or palfrey, with his furniture: his cloak, or gown, and tippet: his cup, and cover: his bafon and ewer:

w Fration. I. 2. c. 26. Flet. 1. 2. c. 57. * Cro. Car. 237.

y 2 Inf. 491.

his gold ring: and laftly, his muta canum, his mew or kennel of hounds; as was mentioned in the preceding chapter 2.

This variety of customs, 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 kind 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; unless where by custom kefs or none at all is due: viz. for every person 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, 35. 4d. if above thirty pounds, and under forty pounds, 6s. 8d. if above forty pounds, of what value foever they may be, 1os. an no more. And no mortuary fhall throughout the kingdom be paid for the death of any femecovert; 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 fhall be paid in the parish to which he belongs. And upon this ftatute stands 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 custom to the heir along with the inheritance, and not to the execu tor of the laft proprietor. The termination, loom, is of Saxon original; in which language it fignifies a lino or membera; so that an heir-loom is nothing elfe, but a limb or member of the inheritance. They are generally fuch things as cannot be taken away without damaging or difa.embering the freehold otherwife the general rule is, that no chattel intereft whatsoever thall go to the heir, notwithstanding it be exprefsly limited to a man and his heirs, but fhall vest in the executor (1). But deer in a real authorized park, fifhes in a

Z pag. 413.

a Spelm. G. 277.

b Co. Litt. 388.

(1) Or if any chattel be given to a man and the heirs of his body, he takes the entire and abfolute intereft in it. There have

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BOOK II. pond, doves in a dove-house, &c. though in themselves 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. For this reafon alfo I apprehend it is, that the antient jewels of the crown are held to be heir-looms"; for they are neceflary to maintain the state, and support the dignity, of the fovereign for the time being. Charters likewise, and deeds, court rolls, and other evidences of the land, together with the chefts in which they are contained, shall pafs together with the land to the heir, in the nature of heirlooms, and shall not go to the executor. By special custom alfo, in fome places, carriages, utenfils, and other household implements, may be heir-looms f; but fuch custom must be strictly proved. On the other hand, by almoft general custom, whatever is ftrongly affixed to the freehold or inheritance, and cannot be fevered from thence without violence or damage, "quod ab acdibus non facile revellitur §,” is become a member of the inheritance, and shall thereupon pafs to the heir; as chimney-pieces, pumps, old fixed or dormant tables, benches, and the like" (2). A very similar notion to which prevails in the duchy of Brabant; where they rank certain things moveable among those of the immoveable

c Co. Litt. 8.
d Ibid. 18.

e Bro. Abr. tit. chatteles. 18.

f Co. Litt. 18. 185.
& Spelm. Gloff. 277.
h 12 Mod. 520.

been many fruitless attempts to make pictures, plate, books, and household furniture, defcend to the heir with a family manfion. Where they are left to be enjoyed as heir-looms by the perfons who shall refpectively be in poffeffion of a certain houfe, or to defcend as heir-looms as far as courts of law and equity will admit, the abfolute intereft of them, fubject to the life-interests of those who have life-eftates in the real property, will veft in that perfon who is entitled to the first estate tail or estate of inheritance, and upon his death that intereft will pafs to his perfonal reprefentative. 1 Bro. 274. 3 Bro. 101.

(2) See p. 281, n. 10, ante.

kind, calling them by a very particular 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 mo"bilia ipfis aedibus ex deftinatione patrisfamilias cohaerere vi"deantur, et pro parte ipfarum aedium aeftimentur.”

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 of his ancestor there hung up, 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 these are annexed to that free- [ 429 ] hold, yet cannot the parfon or any other take them away or deface them, but is liable to an action from the heir. Pews in the church are fomewhat of the fame nature, which may defcend by custom immemorial (without any ecclefiaftical còncurrence) from the ancestor to the heir '(5). But though the heir has a property in the monuments and efcutcheons of his ancestors, yet he has none in their bodies or afhes; nor can he bring any civil action against fuch as indecently at least, if not impiously, violate and disturb their remains, when dead and buried. The parfon indeed, who has the freehold of the

i Stockmans de jure devolutionis. c. 3.

$16.

k 12 Rep. 105.
Co. Litt. 18.
13 Init. 202.
12 Rep. 105.

(3) The right to fit in a particular pew in a church arifes either from prefcription as appurtenant to a meffuage, or from a faculty or grant from the ordinary, for he has the difpofition of all pews which are not claimed by prescription. Gibf. Cod. 221.

In an action upon the cafe for a disturbance of the enjoyment of a pew, if the plaintiff claims it by prefeription, he must state it in the declaration as appurtenant to a meiluage in the parish. This prefcription may be supported by an enjoyment for thirty-fix years, and perhaps any time above twenty years. 1 T. R. 428. In fuch an action against the ordinary, the plaintiff muft allege and prove repairs of the pew. 1 Wilf. 326.

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