This species of heriot is said (x) to lie in prender, and not in render; for it is not, by the terms, a service, or in the nature of a rent. It may be due on the death or alienation of a tenant for life or years, as well as on that of a tenant in fee-simple (y).` [ 133 ] It may be payable on the death of a tenant only, or on his alienation only, or on either of those events, according as the usage prescribes (z).

vice.

Heriot-service is always due by a parti- Heriot-sercular and express reservation in the grant or lease (a); or is claimed by prescription, which implies, or supposes, or presumes, such grant containing such reservation (b); and therefore lies in render (c), being in the

(x) Co. Copyh. s. 25. Tr. 33. & 3 Bl. Comm. 15. ch. 1.

(y) Hil. 21. Hen. 7. fol. 13. a. pl. 15. & see Kitch. 133. a. & b.

(z) Vide Hil. 8. Hen. 7. fol. 10. a. & b. pl. 3. Kitch. 133. b.

(a) Co. Copyh. s. 24. Tr. 24. 3 Salk. 332.

(b) See Gilb. on Distresses, 8-9. & post. [134]. &c.
(c) But it seems to be now settled that it lies in pren-

[134]

nature of a rent (d), or founded in ancient tenure (e); and, consequently, is incident to, and shall always follow, the reversion, if the grant be for a particular estate; or the seigniory, if the grant be in fee (ƒ).

It is said in some of the ancient books that this species of heriot is due only on the death of a tenant in fee simple (g).. But, as it is due by reservation, it is manifest, that it may be of a less estate (h).

reserved on the grant Perhaps a distinction may be thus made: if the heriot be claimed after the death of a tenant for life or years,

who was in by the grant of the lord, the lord

der also. See post. & Cro. Eliz. 32. Sir John Peter v. Knoll. 1 Show. 81. Parker v. Gage.

(d) 2 Keb. 677. Lemal. v. Cara. S. C.

2 Saund. 165.

(e) Kitch. 133. b. 1 Show. 81. Parker v. Gage. Gilb. Distresses, 9.

(f) Roll. Abr. Heriot, pl. 1. 2 Saund. 165. Lanyon v. Carne. 2 Keb. 505. 677, &c. 3 Salk. 181. Os

borne v. Sture. Ibid. 332.

(g) Hil. 21. Hen. 7. pl. 15. fol. 13. a. & pl. 24. fol.

15. a. Kielw. 84. a. & b. & see 3 Salk. 332.

(h) 2 Saund. 165. Lanyon v. Carne, &c.

must shew the deed by which it was reserved, or otherwise prove the express reservation: but if the grant of the lands was so distant that the deed of creation cannot be shewn, nor the precise terms of reservation be otherwise proved, the lord must prescribe (i); for it is not (by the terms) [135] due by custom, as it is only claimed on the death of the tenant of particular lands (k), and not on the death of the tenants, gene. rally, of the manor. And as the grant. must of necessity have been in fee, (for any particular estate must be of known beginning, as well as of definite continuance and termination), the heriot shall be considered as due only on the death of such tenant in fee. And no mischief could here ensue: for if the tenant in fee should make a grant or lease to another in tail, for life, or for years, the donee, grantee, or lessee, would be tenant to the donor, grantor, or lessor; and no heriot would be due on his death:

(i) See Gilb. on Distresses, 8-9. 3 Şalk. 332. Kitch. 134. a.

(k) Vide Hil. 21. Hen. 7. pl. 24. fol. 15. b. 16. a.

but the donor, or tenant in fee, would still continue tenant to the lord; and therefore, on his death, the heriot would equally be due. So that the lord would not be deprived of his rightful and original heriot, nor should the heriot be multiplied in prejudice of the donee or grantee. And [136] although the tenant in fee should thus part with the possession of the premises, yet, as the heriot is an heriot-service, the premises would be still subject to a distress (1)..

But if the tenant in fee grant to A. for life, or in tail, with remainder over in fee to a stranger, so that the whole fee pass from the grantor, there A. the particular tenant, shall hold of the lord, and not of him who made the grant or gift (m).

The heriot here, then, is due on the death of that person who is tenant to the lord, and not on the death of him who is tenant to

(1) See post.

(m) Bro. Ten. 21. Dyer. 362. b. pl. 19. 2 Inst. 505. Co. Litt. 21. b. Godb. 18. Webbe & Potter.

that (the lord's) tenant. And here, therefore, a distinction again arises with respect to those who take a portion of the fee by the act of law or by the act of the party. The donee in tail, the grantee for life, and the lessee for years, take by the act of the party, and do not become tenants to the lord; and, consequently, as we have seen, no heriot is, [137] in such case, due on their death. The husband taking his curtesy, or the widow her dower, are in by the act of the law. The husband (at least in cases where he takes the whole estate) is tenant to the lord (n). The widow (except she does take the whole (0)), is tenant to the heir (p).. It should seem, therefore, that, in the present case, the heriot would be due on the death of the former, though not of the latter. The distinction between the persons taking by act of law or of the party, does not seem to have been sufficiently attended to in the case in

(n) 2 Inst. 301. Watk. on Desc. 83.

(o) See Wath. on Dese. 81. & Watk. N. xxv, tơ Gilb. Ten, 373. & Gilb. Ten. 172-4.

(p) Bro. Ten. 84. & Watk. on Desc. 83.