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Kielwey (q). Mr. Viner has told us (r), that according to Frowike in the case in Kielwey, the heriot was not payable on the death of a tenant by the curtesy. But Mr. Viner has [138] not told us that Kingsmil was of a contrary opinion (s); nor has he told us that Frowike was answered in a manner to which he could not satisfactorily reply. For the instance which Frowike gave of the tenant for life and remainder-man differed materially from the principal case; in that the tenant for life and remainder-man were in by the act of the party, and the tenant by the curtesy was in by the act of law. Besides, the estate for life and remainder in fee, formed, in consideration of law, but one estate; while the estate of the tenant by the curtesy could not possibly form one with the reversion in the heir.

Heriot, what.

We have already seen that the heriot of the military tenant orginally consisted of arms, horses, or habiliments of war; and that of the villein, ceorl, or husbandman, either of some beast used for the purposes

(q) Kielw. 84. a. & b.

(r) 14 Abr. 296. Heriot. (B.) pl. 1.

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(s) See Kielw. 84. a.

of agriculture, or which formed part of his stock, or of some inanimate good: and as the latter (or villein heriot) is the only species of heriot now remaining among us [139] (t), we will here chiefly confine our remarks to it.

The most usual thing rendered as an Best animal. heriot of the latter kind is that of the best animal of which the tenant died possessed. And in an avowry it is necessary to allege of what nature the heriot be, whether an animal or dead good (u).

Which is the best animal, in case the

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(t) The military heriot must have fallen with the military tenures. See 12 Car. 2. c. 24. Though, indeed, it seems to have been long before lost in the relief,

(u) See Hutt. 4 Shaw v. Taylor. Hob. 176. S. C. "Best animal." Manor of Basset fee in Sussex. The homage present that died seized, &c. Whereupon there happened to the lord for an heriot the best animal, viz. una galina of the value of tenpence, seized into the lord's hands. Presentment in 1627. "Best good," without saying live or dead. 3 East. 260; and see 1 Bosanq. & Pull. 393-4. Parkin v. Ratcliffe. and Adderley v. Hart, cited in note (u). 394.

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tenant dies possessed of several, is to be ascertained by the lord, for he may take which he pleases as such: but if he seise the one which in reality is the worst, he must be content; for it will be his own folly to make such a choice; and immediately on his election the property shall vest in him (x).

But, whatever the best beast may be, it must be remembered that it is the best beast of his tenant which the lord is entitled to; for he cannot seize, or prescribe to have, the best beast of a stranger (y).

(x) Hil. 16. Hen. 7. pl. 3. fol. 4-5. Hob. 60. & Bro. Har. pl. 11. Cro. Eliz. 589. Odiham v. Smith. But it was resolved in the latter case, that if the tenant hold by rendering an ox as an heriot, and the tenant have several oxen, the lord cannot take which he pleases; but the election is in the tenant, who may render which ox he will; for if the tenant do render an ox (whether it be the best or the worst), the render will be satisfied. & see Plowd. 96.

(y) Dyer. 199. b. Parton v. Mason & Marg. (58). Cro. Eliz. 725. Parker v. Combleford. Moore 16. Wilson v. Wise.

And as it must be the best beast of the tenant, so it must be the best beast of the tenant at the time of his death or alienation. For if the property in the beast was not at that time in the tenant, the lord can have no title to it (z). But if the property in such beast was in the tenant at that time, the title of the lord is complete. And, therefore, if the tenant die on the first of January, and the lord do not seize till the first of December, the lord must not take that beast which may be the best on the latter day, but that which was the best on the day on which the tenant died or aliened (a).

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If the tenant, at the time of death or alienation, have no beast, the lord must of necessity lose his heriot; for where there is nothing, nothing can be had (b). If the

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(z) Bro. Har. 8. Kich. 135. b. 136. a. Hutt. 4-5. Shaw. v. Taylor.

(a) Mich. 6 Ed. 3. pl. 3. fol. 36. a. Plowd. Quæries. Qu. 64.

(b) Kielw. 84. b. Hutt. 4. Shaw v. Taylor. Carter. 86. 4 Leon. 239. pl. 377. 2 Bl. Comm. 424. ch.

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tenant, therefore, parted with his property in his beasts, before his death or alienation, he would have prevented the lord's claim. This was frequently done in order to de fraud the lords of their rights, till the statute of Elizabeth was enacted to remedy the evil of which statute we shall presently say more (c). But the tenant cannot defeat the lord of his claim by will, as the devise will not take effect till his decease, [142] and then the lord's title shall be preferred (d).

Dead good.

The heriot, therefore, can only be taken from the chattels of the tenant; and is no charge on the lands (e), any more than a relief (ƒ), or the fine of a copyholder (g).

When the heriot is of the best dead or inanimate good, a jewel or piece of plate

(c) Post. at the close of this chapter.

(d) Plowd. Quæries. Qu. 64. Co. Litt. 185. b.
(e) Bract. lib. 2 cap. 36. s. 9. fol. 86. a. Fleta. lib.
3. cap. 18. fol. 212. Britt. cap. 69. Fitzh. Avowrie,
pl. 233. 2 Bl. Comm. 424. Co. Copyh. s. 24. Tr. 24.
But see Hil. 8. Hen. 7. 10. b. 11. a. pl. 3. contra as to
heriot-service; & Post.

(f) Fitzh. Avowrie. pl. 233.
(g) Ante, vol. 1. p. [321].

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