BOOK II. ground, because the property is local; nor yet to the owner of the second, because it was not started in his foil; but it vests in the person who started and killed it, though guilty of a trespass against both the owners (11). [420] III. I PROCEED now to a third method, whereby a title to goods and chattels may be acquired and lost, viz. by forfeiture; as a punishment for fome crime or mifdemefnor in the party forfeiting, and as a compenfation for the offence and injury committed against him to whom they are forfeited. Of forfeitures, confidered as the means whereby real property might be loft and acquired, we treated in a former chapter". 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 fubject is at prefent encumbered, it were a tedious and impracticable task to reckon up the various forfeitures, inflicted by special ftatutes, for particular crimes and mifdemefnors: fome of which are mala in fe, 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: fuch as is the forfeiture of 40s. per month by the ftatute 5 Eliz. c. 4. for exercising a trade without having ferved seven years as an apprentice thereto; and the forfeiture of 10. by 9 Ann. c. 23. for printing an almanack without a stamp. I fhall therefore confine myself to thofe offences only; by which all the goods and chattels of the offender are forfeited: referring the ftudent for fuch, where pecuniary mulets of different quantities are inflicted, to their feveral proper heads, under which 8 Farr. 18. Lord. Raym. ibid. h See page 267. very (11) Thefe diftinctions never could have existed, if the doctrine had been true that all the game was the property of the king; for in that cafe the maxim, In aquali jure potior eft conditio pofidentis, muft have prevailed. many 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 perfonal property, namely, by prerogative. But as, in the inftance of partial forfeitures, a moiety often goes to the informer, the poor, or fometimes to other perfons; 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 there- [ 421 ] fore made it a distinct head of transferring property. Goods and chattels then are totally forfeited by conviction of high treafon or misprision of treason; of petit treason; of felony in general, and particularly of felony de fe, and of man. Alaughter; nay even by conviction of excufable homicide 1; by outlawry for treason or felony; by conviction of petit larceny: by flight in treafon or felony, even though the party be ac quitted of the fa&; by standing mute, when arraigned of felony; by drawing a weapon on a judge, or striking any one in the prefence of the king's courts; by praemunire; by pretended prophecies, upon a fecond conviction; by owling; by the refiding abroad of artificers; and by challenging to fight on account of money won at gaming. All thefe 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 forfeitures of real property. For chattels are of fo vague and fluctuating a nature, that to affect them by any relation back, would be attended with more inconvenience than in the cafe of landed eftates: 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 intereft of the crown, is made void by flatute 13 Eliz. c. 5. 1 Co. Litt. 391. 2 luft. 316. 3 Inft. 320, CHAPTER THE TWENTY-EIGHTH. OF TITLE BY CUSTO M. A FOURTH method of acquiring property in things perfonal, or chattels, is by cuftom: whereby a right vests in some particular perfons, either by the local usage of fome particular place, or by the almoft general and univerfal ufage of the kingdom. It were endless, should I attempt to enumerate all the feveral kinds of fpecial cuftoms, which may entitle a man to a chattel interest in different parts of the kingdom: I fhall therefore content myself with making some obfervations on three forts of customary interests, which obtain pretty generally throughout most parts of the nation, and are therefore of more universal concern; viz. beriots, mortuaries, and heir-looms. 1. HERIOTS, which were flightly touched upon in a former chapter 2, are usually divided into two forts, heriot 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: the latter arise upon no fpecial refervation whatfoever, but depend merely upon immemorial ufage and cuftom. Of thefe 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. a pag. 97. b2 Saund. 166: cCo. Cop. § 24 THE 423 THE firft eflablishment, if not introduction, of compulfory heriots into England, was by the Danes: and we find in the laws of king Canute the feveral heregeates or heriots fpecified, which were then exacted by the king on the death of divers of his fubje&s, according to their refpective dignities; from the highest corle down to the most inferior thegue or landholder. Thefe, for the most part, confifted in arms, horfes, and habiliments of war; which the word itfelf, according to Sir Henry Spelman, fignifies. Thefe were delivered up to the fovereign on 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 Danish establishment did William the conqueror fafhion his law of reliefs, as was formerly obferved'; when he afcertained the precife relief to be taken of every tenant in chivalry, and, contrary to the feodal custom and the ufage of his own duchy of Normandy, required arms and implements of war to be paid inftead of money s. THE Danish 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 first to have been merely difcretionary ». These are now for the most 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 favoured the lord. For this payment was originally a voluntary donation, or gratuitous legacy of the tenant; perhaps in acknowlegement of his having been raised degree above villenage, when all his goods and chattels were quite at the mercy of the lord; and cuftom, which has on the one hand confirmed the tenant's intereft in exclufion of the dc. 69. e of feuds. c. 18. 1 page 65. a BIL Guil. Cong. 6. 22, 23, 24. VOL. II. Kk lord's lord's will, has on the other hand established this discretional 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 molt commonly a copyhold enfranchised, whereupon the heriot is ftill due by custom. Bracton speaks of heriots as frequently due on the death of both fpecies of tenants: " eft quidem alia praeftatio quae nomi"natur beriettum; ubi tenens, liber vel fervus, in morte fua ❝ dominum fuum, de quo tenuerit, refpicit de meliori averio fus, "vel de fecundo meliori, fecundum diverfam locorum confuetudi"nem." And this he adds, " magis fit de gratia quam de "jure" in which Fleta and Britton agree: thereby plainly intimating the original of this cuftom 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. k 1 THIS heriot it fometimes the best 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 must 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 ownership in things perfonal". In fome places there is a customary 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 ancient cuftom: but a new compofition of this fort will not bind the reprefentatives of either party; for that amounts the creation of a new cuftom, which is now impoffible . 2 1. 2. c. 36. § 9. k 1.3. c. 18. 1 c.69. m Hob. 6o. a Keilw. 84. 4 Leon. 239. 2. MOR |