[ *419 ] *Upon the whole it appears, that the king, by his prerogative, and such persons as have, under his authority, the royal franchises of chase, park, free warren, or free fishery, are the only persons who may acquire any property, however fugitive and transitory, in these animals feræ naturæ, while living; which is said to be vested in them, as was observed in a former chapter, propter privilegium. (6) And it must also be remembered, that such persons as may thus lawfully hunt, fish, or fowl, ratione privilegii, have, (as has been said) only a qualified property in these animals; it not being absolute or permanent, but lasting only so long as the creatures remain within the limits of such respective franchise or liberty, and ceasing the instant they voluntarily pass out of it. It is held, indeed, that if a man starts any game within his own grounds, and follows it into another's and kills it there, the property remains in himself. (c) And this is grounded on reason and natural justice: (d) for the property consists in the possession; which possession commences by the finding it in his own liberty, and is continued by the immediate pursuit. And so if a stranger starts game in one man's chase or free warren, and hunts it into another liberty, the property continues in the owner of the chase or warren; this property arising from privilege, (e) and not being changed by the act of a mere stranger. Or if a man starts game on another's private grounds and kills it there, the property belongs to him in whose ground it was killed, because it was also started there; (f) the property arising ratione soli. Whereas, if, after being started there, it is killed in the grounds of a third person, the property belongs not to the owner of the first ground, because the property is local; nor yet to the owner of the second, because it was not started in his soil; but it vests in the person who started and killed it, (g) though guilty of a trespass against both the owners. (7)

*III. I proceed now to a third method, whereby a title to goods and [*420] chattels may be acquired and lost, viz.: by forfeiture; as a punishment for some crime or misdemeanor in the party forfeiting, and as a compensation for the offence and injury committed against him to whom they are forfeited. Of forfeitures, considered as the means whereby real property might be lost and acquired, we treated in a former chapter. (h) It remains, therefore, in this place only to mention by what means or for what offences, goods and chattels become liable to forfeiture.

In the variety of penal laws with which the subject is at present encumbered, it were a tedious and impracticable task to reckon up the various forfeitures, inflicted by special statutes, for particular crimes and misdemeanors; some of which are mala in se, or offences against the divine law, either natural or revealed; but by far the greatest part are mala prohibita, or such as derive their guilt merely from their prohibition by the laws of the land: such as is the forfeiture of 40s. per month by the statute 5 Eliz. c. 4, for exercising a trade without having served seven years as an apprentice thereto; and the forfeiture of 101. by 9 Ann. c. 23, for printing an almanack without a stamp. (8) I shall

(c) 11 Mod. 75.
(f) Lord Raym. 251.

(d) Puff, L. N. l. 4, c. 6.
(g) Farr. 18. Lord Raym, 251.

(e) Lord Raym. 251.

(h) See page 267.

In America no similar laws exist. There are laws prohibiting the destruction of game in the breeding season, or in seasons when it is unfit for market, but it is no part of their purpose to enforce discrimination against any class of persons, or to preserve game for auy other purpose than the general benefit.

(6) Mr. Christian controverts this doctrine-and Mr. Justice Coleridge thinks successfully—in a learned and somewhat lengthy note, but the importance of the subject does not appear sufficient to warrant its republication. Mr. Hovenden thinks the statute 1 and 2 Wm. IV, c. 32, in doing away with the qualification previously required, has recognized the correctness of Mr. Christian's position.

(7) [These distinctions never could have existed, if the doctrine had been true that all the game was the property of the king for in that case the maxim, in æquali jure potior est conditio possidentis, must have prevailed.]

(8) These forfeitures are now abolished.

therefore, confine myself to those offences only, by which all the goods and chattels of the offender are forfeited: referring the student for such, where pecuniary mulets of different quantities are inflicted, to their several proper heads, under which very many of them have been or will be mentioned; or else to the collections of Hawkins, and Burn, and other laborious compilers. Indeed, as most of these forfeitures belong to the crown, they may seem as if they ought to have been referred to the preceding method of acquiring personal property, namely, by prerogative. But as, in the instance of partial forfeitures, a 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 effects, accrues entirely to his creditors, I have therefore made it a distinct head of transferring property.

[ *421] Goods and chattels, then, are totalty forfeited by conviction of high treason or misprision of treason; (9) of petit treason; (10) of felony in general, and particularly of felony de se, and of manslaughter; nay, even by conviction of excusable homicide; (i) by outlawry for treason or felony; by conviction of petit larceny; (11) by flight, in treason or felony, even though the party be acquitted of the fact; (12) 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; by owling; by the residing abroad of artificers; (13) and by challenging to fight on account of money won at gaming. All these offences, as will more fully appear in the fourth book of these Commentaries, induce a total forfeiture of goods and chattels. And this forfeiture commences from the time of conviction, not the time of committing the fact, as in forfeiture of real property. For chattels are of so vague and fluctuating a nature, that to affect 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. (14)

CHAPTER XXVIII.

OF TITLE BY CUSTOM.

A FOURTH method of acquiring property in things personal, 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

(i) Co. Litt. 391. 2 Inst. 316. 3 Inst. 320.

(9) [This forfeiture extends to all the offenders personal property, including chattels real, whether legal or equitable, in possession or in action. Cro. Jac. 513; 2 B. and Ål. 258; 2 C. M. and R. 416; with the exception of contingent interests. 1 Keen, 145.

The goods vest in the crown immediately upon conviction; and, as a felon who is transported is not restored to his civil rights until he is pardoned, or the term expires, all personal property accruing to him in the interval is forfeited to the crown. 2 B. and Al. 258; 1 Myl. and K. 752.]

(10) Petit treason is now unknown to the law.

(11) [The distinction between grand and petit larceny is abolished. Statute 7 and 8 Geo. IV, c. 29, s. 2.

(12) [By statute 7 and 8 Geo. IV, c. 28, s. 5, on indictments for felony, the jury is no longer to be charged to inquire concerning the prisoner's land or goods, or whether he fled for the offence.] (13) [Owling is no longer an offence: 5 Geo. IV, c. 47. By the 5 Geo. IV, c. 97, all the laws relating to artificers or colliers going into foreign parts are repealed.]

(14) [A bona fide sale of goods and chattels by the offender, for good consideration, after the offence and before conviction, is good. 8 Rep. 171. See Skin. 357; 1 Stark. 319; 6 Car. and P. 145.] 609

VOL. I.-77

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 former chapter, (a) are usually divided into two sorts, heriot-service, 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: (b) the latter arise upon no special reservation whatsoever, but depend merely upon immemorial usage and custom. (c) Of 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.

*The first establishment, if not introduction, of compulsory heriots

[*423] into England, was by the Danes: and we find in the laws of King Canute (d) 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 earle down to the 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, (e) 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 relief, as was formerly observed; (f) 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. (g)

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. (h) These are now for the most part confined to copyhold tenures, and are due by custom only, which is the life of all estates by copy; and perhaps are the only instance where custom has favoured the lord. For this payment was originally a voluntary donation, or gratuitous legacy of the tenant; perhaps in acknowledgment of his having been raised a degree above villeinage, when all his goods and chattels were quite at the mercy of the lord; and *custom, which has on the one hand confirmed the tenant's interest [*424] 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 most commonly a copyhold enfranchised, whereupon the heriot is still due by custom. Bracton (i) speaks of heriots as frequently due on the death of both species of tenants: "est quidem alia præstatio quæ nominatur herriettum; ubi tenens, liber vel servus, in morte sua, dominum suum, de quo tenuerit, respicit de meliori averio suo, vel de secundo meliori, secundum diversam, locorum consuetudinem." And this he adds, "magis fit de gratia quam de jure; in which Fleta (k) and Britton (7) 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.

This heriot is sometimes the best live beast, or averium, which the tenant dies possessed of (which is particularly denominated the villein's relief in the twentyninth 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 per

(a) Page 97.

(f) Page 65,
(i) l. 2, c. 36, § 9.

(b) 2 Saund. 166.
(c) Co. Cop. § 24.
(g) LL. Gull. Conq. c. 22. 23, 24.
(k) l. 3, c. 18.
(1) C. 69.

(d) C. 69. (e) Of Fends, c. 18. (h) Lambard. Peramb. of Kent, 492.

sonal chattel, which, immediately on the death of the tenant who was the owner of it, being ascertained by the option of the lord, (m) 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. (n) 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. (0) (1)

2. Mortuaries are a sort of ecclesiastical heriots, being a customary [ *425] 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 lifetime might have neglected or forgotten to pay. For this purpose, after (p) 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, ecclesiæ suæ sine dolo, fraude seu contradictione qualibet, pro recompensatione subtractionis decimarum personalium, necnon et oblationum, secundum melius animal reservetur, post obitum, pro salute animæ suæ." (q) And therefore in the laws of King Canute (r) this mortuary is called soul-scotrarlɲce ator symbolum animæ. 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 movables. (8) 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. (t)

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 (u) it is sometimes called a corse-present: a *term which bespeaks it to have been once a voluntary donation. However, in Bracton's time, so early as Henry III, we find it [ *426] riveted into an established 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 testamentum fecerit, dominum suum de meliori re quam 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 quibusdam locis habet ecclesia melius animal de consuetudine; in quibusdam secundum vel tertium melius; et in quibusdam nihil: et ideo consideranda est consuetudo loci." (w) 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

(m) Hob. 60.
(n) Keilw. 84. 4 Leon. 239.
(p) Co. Litt. 185.
(q) Provine. l. 1, tit. 3.
(s) Panormitan. ad decretal. 1. 3t. 20, c. 32.
(u) Selden, Hist. of Tithes, e. 10.

(o) Co. Cop. 5 31. (r) C. 13.

(t) Sp. L. b. 28, c. 41.

(w) Bracton, I. 2, c. 26. Flet. l. 2, c. 57.

(1) [And indeed heroits themselves will in time cease to be exigible, one of the Copyhold Enfranchisement Acts, 15 and 16 Vic. c. 51, § 27, having enabled either lord or tenant to compel the extinguishment of this ancient feudal burden.]

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. (a) 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 (y) 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, [ *427 ] and tippet; his cup and cover; his basin and ewer; his gold ring; and, lastly, 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 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 persons 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, 38. 4d.; if above thirty pounds and under forty pounds, 6s. 8d.; if above forty pounds, of what valne 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 (2) 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; (a) 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. (b) But deer in a real *author[*428] ised park, fishes in a pond, doves in a dovehouse, &c., though in themselves personal chattels, yet they are so annexed to and so necessary to the wellbeing of the inheritance, that they shall accompany the land wherever it vests, by either descent or purchase. (c) For this reason also I apprehend it is, that the ancient jewels of the crown are held to be heir-looms; (d) for they are necessary to maintain the state, and support the dignity, of the sovereign for the time being. Charters likewise, (3) and deeds, court-rolls, 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. (e) By special custom, also, in some places carriages, utensils, and

(x) Cro. Car. 237. (b) Co. Litt. 388.

(y) 2 Inst. 491. (c) Ibid. 8.

(z) Page 413.

(d) Ibid. 18.

(a) Spelm. Gloss. 277.
(e) Bro. Abr, tit. chatteles, 18.

(2) Heir-looms do not seem to be recognized in the law of the United States. 1 Washb. Real Prop. 6.

(3) [In general the right to the custody of title-deeds descends or passes with the estate to the existing present owner, whether tenant for life or in fee, and he may retain or recover the deed from any other person. 4 Term R. 229.]