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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 cohærere videantur, et pro parte ipsarum ædium æstimen" tur" ).

Other personal chattels there are, which also descend to the heir in the nature of heir-looms, as a monument or tomb

stone (9) in a church, or the coat-armor of his ancestor [ * 429 ) there *hung up, with the pennons and other ensigns of ho

nour, 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. (i) Stockmans De Jure Devolutio(f) Co. Litt. 18, 185.

nis, c. 3, s. 16. (9) Spelm. Gloss. 277.

(K) 12 Rep. 105; Co. Litt. 18. (h) 12 Mod. 520.

(1) 3 Inst. 202 ; 12 Rep. 105.

Monuments or tomb-stones.

(8) See p. 281.-Ch.

heir to adopt, if his ancestor's tomb(9) The doctrine laid down in the stone was removed or defaced. text was confirmed in Spooner v. (10) The right to sit in a particular Brewster, (3 Bingh. 138; 10 Moore, pew in a church may arise, either 494,) where it was held, that trespass from prescription as a right appurtewas the proper form of action for the nant 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, the pew was claimed, though not now who has the disposal of all pews to within the parish, according to its which there is not a title by prescrip- present boundaries, was formerly tion. The distribution of seats not within the ecclesiastical limits of the so appropriated rests with the church. church; and therefore it could not be wardens, as the officers, and subject assumed that the prescription must, to the control of the ordinary. Nei. of necessity, be bad in law. Howther the minister nor the vestry, unless ever, from one passage of the judgby virtue of particular local acts, have ment pronounced in Byerley v. Winany right to interfere with the church- dus, (as that case is reported in 5 Barn. wardens, as to seating and arranging & Cress. 18,) Mr. Justice Bayley may the parishioners; though the advice be thought to have held, that a nonof the minister, and even sometimes parishioner could not claim a seat in the opinions and wishes of the vestry, a church by prescription; but that, if may be fitly invoked by the church- a man does not reside in the parish, wardens. The general duty of the his right to use a seat, whatever was churchwardens is to look to the gene- the nature and origin of that right, is ral accommodation of the parish, con- at an end, That, however, would be sulting, as far as may be, that of all inconsistent with other passages in its inhabitants. But the actual exer- the same judgment, and also with the cise of the churchwarden's office, in report of the same case in 7 Dowl. & this particular, is too frequently inter- Ryl. (see pp. 591, 595,) where the fered with by faculties, appropriating learned judge seems to have admitted certain pews; and by prescriptive that such a claim might þe good by rights to pews, which rights most prescription or immemorial custom : probably originated in faculties now so that this case cannot be cited as in · lost. In the latter case, the parties

direct opposition to the decisions in claiming must show the annexation Davis v. Witts, and in Lousley v. of the pews to ancient messuages, Hayward. time out of mind ; and also (if the For a pew in a church, appurtenant contest is not with a mere intruder, by prescription to an ancient messee infra) the reparation of the parti. suage, an action on the case lies ; and cular pews by the tenants of such against an intruder, long possession messuages. (Fuller v. Lane, 2 Addams, may be, prima facie, a sufficient title. · 425; Woollocombe v. Ouldridge, 3 (Stocks v. Booth, 1 T. R. 430.) Mr.

Addams, 6; Pettman v. Bridger, I Justice Willes, indeed, said he would Phillim. 323; Clifford v. Wicks, 1 presume any thing in favour of the Barn. & Ald. 507.)

right of a family which was proved to In Davis v. Witts, (Forrest. 18,) it have sat in a pew between thirty and was held, that a pew in the aisle of a forty years, without interruption. church might be prescribed for as (Rogers v. Brooks, 1 T. R. 432; and appurtenant to a house out of the see Griffiths v. Matthews, 5 T. R. parish. And in Lousley v. Hayward, 298, as also statute 2 & 3 Gul. IV. c. (1 Younge & Jerv. 585,) Chief Baron 71.) But though there is no doubt Macdonald held, that such prescrip- an action on the case lies for a seat in tion might also lie for a pew in the a church, as appendant to a house ; body of a church: for, very probably, and as, against a mere intruder, no the house, as appurtenant to which allegation that the plaintiff has been

;

Heir-looms can. not be devised away from the heir, by will.

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 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.

(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 ;
cessary, as it would be if the contro- Spooner v. Brewster, 10 Moore, 494 ;
versy were with the ordinary; (Brad- 3 Bingh. 138.)
bury v. Burch, T. Jones, 3; Kenrick (11) Mr. Christian observes, that
v. Taylor, 1 Wils. 327 ;) nor need it “ it has been determined, that steal-
be alleged, that the messuage to which ing dead bodies, though for the im-
the right is appurtenant is an ancient provement of the science of anatomy,
messuage, for the claim of a prescrip- is an indictable offence as a misde.
tive appurtenant right necessarily in- meanor ; it being a practice contrary
cludes that fact; (Dawney v.Dee, Cro. to common decency, and shocking to
Jac. 605 ;) still, it is only in cases the general sentiments and feelings of
where a pew is annexed to a mes- mankind. (2 T. R. 733.)” [The dif-
suage by prescription, or where the ficulty of procuring anatomical sub-
pew is in a chancel the freehold of an jects, however, led to offences much
individual, that such a question is more atrocious; and the detection of
triable at common law. (May v. Gil- a course of systematical, cold-blooded
bert, 2 Bulstr. 151; Mainwaring v. murders, to supply the demand for
Giles, 5 Barn. & Ald. 360.) In Stocks dead bodies, caused the act of 2 & 3
v. Booth, (1 T. R. 430,) it was said, Gul. IV. c. 75, to be passed, for regu-
trespass will not lie for entering a lating schools of anatomy. The sta-
pew; but this seems at least doubt- tute, (which has been slightly altered
ful, as, against a wrong-doer, there is by that of 4 & 5 Gul. IV. c. 26,)
authority for holding trespass to be seems well calculated to insure a sup-
the right form of action. (Duke of ply of subjects for the improvement in
Newcastle v. Clark, 8 Taunt. 515; science, and to put down the nefa-
2 Moore, 666; Dawney v. Dee, 2 rious system above alluded to.-Ed.]

430

CHAPTER XXIX.

OF TITLE BY SUCCESSION, MARRIAGE, AND

JUDGMENT.

sion-which ,

In the present chapter we shall take into consideration three other species of title to goods and chattels.

V. The fifth method, therefore, of gaining a property in . By succesin chattels, either personal or real, is by succession: which is, in strictness, ap

plicable only to in strictness of law only applicable to corporations aggre- aggregate cor

porations. gate 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.

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

tions

(6) Bro. Abr. t. Estates, 90; Cro. Eliz. 464.

(a) 4 Rep. 65. VOL. II.

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

a

a

(c) Dyer, 48; Cro. Eliz. 464.

(d) Co. Litt. 46.

(e) Brownl. 132.

the note annexed thereto.

(1) See Vol. I. p. 477.
(2) See ante, p. 107, ch. 7, with

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