Monuments or tomb-stones. the executor (e). By special custom, also, in some places, carriages, utensils, and other household implements, may be heir-looms (f); but such custom must be strictly proved. On the other hand, by almost general custom, whatever is strongly affixed to the freehold or inheritance, and cannot be severed from thence without violence or damage, “ quod "ab ædibus non facile revellitur" (g), is become a member of the inheritance, and shall thereupon pass to the heir; as chimney-pieces, pumps, old fixed or dormant tables, benches, and the like (h) (8). A very similar notion to which prevails in the duchy of Brabant; where they rank certain things moveable among those of the immoveable kind, calling them by a very particular appellation, prædia volantia, or volatile estates such as beds, tables, and other heavy implements of furniture, which (as an author of their own observes) "dignitatem istam nacta sunt, ut villis, sylvis, et "ædibus, aliisque prædiis, comparentur; quod solidiora "mobilia ipsis ædibus ex destinatione patrisfamilias co"hærere videantur, et pro parte ipsarum ædium æstimen"tur" (i). Other personal chattels there are, which also descend to the heir in the nature of heir-looms, as a monument or tombstone (9) in a church, or the coat-armor of his ancestor [* 429] there *hung up, with the pennons and other ensigns of honour, suited to his degree. In this case, albeit the freehold of the church is in the parson, and these are annexed to that freehold, yet cannot the parson or any other take them away or deface them, but is liable to an action from the heir (k). Pews in the church are somewhat of the same nature, which may descend by custom immemorial (without any ecclesiastical concurrence) from the ancestor to the heir (1)(10). But (e) Bro. Abr. tit. Chatteles, 18. (8) See p. 281.-CH. (9) The doctrine laid down in the text was confirmed in Spooner v. Brewster, (3 Bingh. 138; 10 Moore, 494,) where it was held, that trespass was the proper form of action for the (i) Stockmans De Jure Devolutionis, c. 3, s. 16. (k) 12 Rep. 105; Co. Litt. 18. (1) 3 Inst. 202; 12 Rep. 105. heir to adopt, if his ancestor's tombstone was removed or defaced. (10) The right to sit in a particular pew in a church may arise, either from prescription as a right appurtenant to an ancient messuage, or from though the heir has a property in the monuments and escutcheons of his ancestors, yet he has none in their bodies or a faculty or grant from the ordinary, who has the disposal of all pews to which there is not a title by prescription. The distribution of seats not so appropriated rests with the churchwardens, as the officers, and subject to the control of the ordinary. Neither the minister nor the vestry, unless by virtue of particular local acts, have any right to interfere with the churchwardens, as to seating and arranging the parishioners; though the advice of the minister, and even sometimes the opinions and wishes of the vestry, may be fitly invoked by the churchwardens. The general duty of the churchwardens is to look to the general accommodation of the parish, consulting, as far as may be, that of all its inhabitants. But the actual exercise of the churchwarden's office, in this particular, is too frequently interfered with by faculties, appropriating certain pews; and by prescriptive rights to pews, which rights most probably originated in faculties now lost. In the latter case, the parties claiming must show the annexation of the pews to ancient messuages, time out of mind; and also (if the contest is not with a mere intruder, see infra) the reparation of the particular pews by the tenants of such messuages. (Fuller v. Lane, 2 Addams, 425; Woollocombe v. Ouldridge, 3 Addams, 6; Pettman v. Bridger, 1 Phillim. 323; Clifford v. Wicks, 1 Barn. & Ald. 507.) In Davis v. Witts, (Forrest. 18,) it was held, that a pew in the aisle of a church might be prescribed for as appurtenant to a house out of the parish. And in Lousley v. Hayward, (1 Younge & Jerv. 585,) Chief Baron Macdonald held, that such prescription might also lie for a pew in the body of a church: for, very probably, the house, as appurtenant to which the pew was claimed, though not now within the parish, according to its present boundaries, was formerly within the ecclesiastical limits of the church; and therefore it could not be assumed that the prescription must, of necessity, be bad in law. However, from one passage of the judgment pronounced in Byerley v. Windus, (as that case is reported in 5 Barn. & Cress. 18,) Mr. Justice Bayley may be thought to have held, that a nonparishioner could not claim a seat in a church by prescription; but that, if a man does not reside in the parish, his right to use a seat, whatever was the nature and origin of that right, is at an end, That, however, would be inconsistent with other passages in the same judgment, and also with the report of the same case in 7 Dowl. & Ryl. (see pp. 591, 595,) where the learned judge seems to have admitted that such a claim might be good by prescription or immemorial custom : so that this case cannot be cited as in direct opposition to the decisions in Davis v. Witts, and in Lousley v. Hayward. For a pew in a church, appurtenant by prescription to an ancient messuage, an action on the case lies; and against an intruder, long possession may be, prima facie, a sufficient title. (Stocks v. Booth, 1 T. R. 430.) Mr. Justice Willes, indeed, said he would presume any thing in favour of the right of a family which was proved to have sat in a pew between thirty and forty years, without interruption. (Rogers v. Brooks, 1T. R. 432; and see Griffiths v. Matthews, 5 T. R. 298, as also statute 2 & 3 Gul. IV. c. 71.) But though there is no doubt an action on the case lies for a seat in a church, as appendant to a house; and as, against a mere intruder, no allegation that the plaintiff has been Heir-looms can ashes; nor can he bring any civil action against such as indecently at least, if not impiously, violate and disturb their remains, when dead and buried. The parson, indeed, who has the freehold of the soil, may bring an action of trespass against such as dig and disturb it: and, if any one, in taking up a dead body, steals the shroud 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 (11). But to return to heir-looms: these, though they be mere away from the chattels, yet cannot be devised away from the heir by will; but such a devise is void (n), even by a tenant in fee-simple. For, though the owner might, during his life, have sold or disposed of them, as he might of the timber of the estate, since, as the inheritance was his own, he might mangle or dismember it as he pleased; yet, they being at his death instantly vested in the heir, the devise (which is subsequent, and not to take effect till after his death) shall be postponed to the custom, whereby they have already descended. not be devised heir, by will. (m) 3 Inst. 110; 12 Rep. 113; 1 Hal. P. C. 515. (n) Co. Litt. 185. accustomed to repair the same is ne- Rolle's Rep. 140; S. C. Palm. 48; Spooner v. Brewster, 10 Moore, 494; 3 Bingh. 138.) (11) Mr. Christian observes, that "it has been determined, that stealing dead bodies, though for the improvement of the science of anatomy, is an indictable offence as a misdemeanor; it being a practice contrary to common decency, and shocking to the general sentiments and feelings of mankind. (2 T. R. 733.)" [The difficulty of procuring anatomical subjects, however, led to offences much more atrocious; and the detection of a course of systematical, cold-blooded murders, to supply the demand for dead bodies, caused the act of 2 & 3 Gul. IV. c. 75, to be passed, for regulating schools of anatomy. The statute, (which has been slightly altered by that of 4 & 5 Gul. IV. c. 26,) seems well calculated to insure a supply of subjects for the improvement in science, and to put down the nefarious system above alluded to.-ED.] 430 CHAPTER XXIX. OF TITLE BY SUCCESSION, MARRIAGE, AND JUDGMENT. IN the present chapter we shall take into consideration three other species of title to goods and chattels. sion-which is, plicable only to aggregate cor porations. V. The fifth method, therefore, of gaining a property in V. By succeschattels, either personal or real, is by succession: which is, in strictness, apin strictness of law only applicable to corporations aggregate of many, as dean and chapter, mayor and commonalty, master and fellows, and the like; in which one set of men may, by succeeding another set, acquire a property in all the goods, moveables, and other chattels of the corporation. The true reason whereof is, because in judgment of law a corporation never dies: and, therefore, the predecessors, who lived a century ago, and their successors now in being, are one and the same body corporate (a). Which identity is a property so inherent in the nature of a body politic, that, even when it is meant to give any thing to be taken in succession by such a body, that succession need not be expressed but the law will of itself imply it. So that a gift to such a corporation, either of lands or of chattels, without naming their successors, vests an absolute property in them so long as the corporation subsists (b). And thus a lease for years, an *obligation, a jewel, a flock of sheep, [*431 ] or other chattel interest, will vest in the successors, by succession, as well as in the identical members, to whom it was originally given. tions sole. But, with regard to sole corporations, a considerable as to corporadistinction must be made. For, if such sole corporation be the representative of a number of persons; as the master of (a) 4 Rep. 65. VOL. II. (b) Bro. Abr. t. Estates, 90; Cro. Eliz. 464. T T an hospital, who is a corporation for the benefit of the poor brethren; an abbot, or prior, by the old law before the reformation, who represented the whole convent; or the dean of some ancient cathedral, who stands in the place of, and represents in his corporate capacity, the chapter; such sole corporations as these have, in this respect, the same powers as corporations aggregate have, to take personal property or chattels in succession. And, therefore, a bond to such a master, abbot, or dean, and his successors, is good in law; and the successor shall have the advantage of it, for the benefit of the aggregate society, of which he is in law the representative (c). Whereas, in the case of sole corporations, which represent no others but themselves, as bishops, parsons, and the like, no chattel interest can regularly go in succession (1): and, therefore, if a lease for years be made to the bishop of Oxford and his successors, in such case his executors or administrators, and not his successors shall have it (d). 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 still vest in his executors and not in such his successors. The reason of this is obvious: for, besides that the law looks upon goods and chattels as of too low and perishable a nature to be limited either to heirs, or such successors as are equivalent to heirs; it would also follow, that, if any such chattel interest (granted to a sole corporation and his successors) were allowed to descend to such successor, the property thereof must be in abeyance from [*432 ] the *death of the present owner until the successor be appointed: and this is contrary to the nature of a chattel interest, which can never be in abeyance (2) or without an owner (e); but a man's right therein, when once suspended, is gone for ever. This is not the case in corporations aggregate, where the right is never in suspense; nor in the (c) Dyer, 48; Cro. Eliz. 464. (1) See Vol. I. p. 477. (d) Co. Litt. 46. (e) Brownl. 132. the note annexed thereto. |