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may be taken (h). But it must, however, be always a personal chattel (i); it cannot be a real chattel, or a thing in action. And as the law, as already noticed, relative to an animate or living good, is equally applicable to the dead, it will be unnecessary, to repeat it here.

[143] pay Sum certain But heriot.

In some manors it is customary to a sum certain in lieu of heriot (k). such custom, like all other customs, must be beyond time of memory; for if the lord and tenants enter at this day into a new composition, it will not bind the representatives of either party (1).

.. However, on a grant or lease made at this day, a sum certain may be reserved in the name of an heriot (m); for this would have no relation to any former custom, but be a new render on an express reservation in the deed.

(h) 2 Bl. Comm. 424.

(i) Ibid. 424.

(k) Kitch. 103. a.

(1) 2 Bl. Comm. 424. Co. Copyh. s. 31. Tr. 46. But quære.

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(m) 2 Saund. 165. Lanyon v. Carnè. & al. Ex. Cara. 2 Keb. 505. pl. 75. 677. pl. 59. S. C. 1) Lev. 294. S. C. 1 Vent. 91. S. C.

in lieu of

Sum certain,

or beast.

It sometimes happens that the lord is to or best good have an heriot of the best beast or good, or a sum certain. It is then in the election of the lord which of them he will have; and it has been thought that the lord could not distrain for the former till he had expressly [144] made his election (n): but it should seem that, by the very act of distraining his election would be made.

Sum certain, if no beast.

Heriot-due
on whose
death.
[145]

In some manors the lord is to have the best beast, if the tenant die possessed of a beast; but if the tenant have no beast at his death, then the best dead good (o); or a sum certain, as five shillings (p).

As the reservation of an heriot, on a particular grant or lease, is merely the agree ment of the contracting parties, it most cer

(n) Litt. Rep. 33. 35. Beare & Hodges.

(0) "If the tenant that deceseth dyeth having no cattle of his owne, then to pay his best ymplement of household-stuff for the heriott." Customs of the manor of Dymock; Co. Glo. Or, best good. Manors of Berkeley and Thornbury; in Co. Glo. &c. And see Mich. 7. Ed. 4. fol. 18. b. pl. 16. and Cowp. 62. Grif fin v. Blandford.

(p) "Burgensis cu. caballo. seruien, cu. moriebat.

tainly may be reserved on any particular event. But when an heriot is claimed by

custom, it can only be so on the death or

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alienation (q) of a tenant. To claim an Tenant. heriot by custom, on the death of every person dying within the manor, or on that of a stranger, would not be good (r).

Stranger.

habeb. rex equum & arma ejus. De eo qui equu. n. habeb. si moreret. habeb. rex aut. X. Solid. aut terra. ejus cu. domib. Siq. morte præuent. non diuisisset quæ sua era. rex habeb. omem. ej. pecuniam.” Doomsd. Herefordscire. tit. Hereford Civitate.

By the 24th law of William the Conqueror, the vavasor, in case he had no horse or arms, was to pay one hundred shillings. "Sil fust des Apeille, quil ne' ont ne chival ne les armes per C. solz." LL. Gul. ap. Seld.

ad Eadm. Kelh. & Wilk.

(q) See 2 Roll. Abr. 518. Tenure (H.) pl. 8. Custom of Cornwall for purchaser to pay relief; & see I. pl. 5. Bosanquet & Puller. C. P. 282. Trin. 38. Geo. 3. Parkin v. Ratcliff, where a custom was alleged to have an heriot on the in-coming of a purchaser. This, if supportable,* may bear some analogy to the fine on alienation, which became payable by the feoffee. See Watk. N. xxxii. to Gilb. Ten. 377.

(r) Cro. Eliz. 725. Parker v. Combleford.

* For the heriot was given to the lord when the person who had it could no longer use it; but here it seems to be taken away from the person who ought to have it, for the purpose of defence or agriculture. C. W.

Tenant in

fee, for life,

will.

But, on the death of a tenant, an heriot

for years, at (either by custom or service) may be claimed, whether such tenant be a tenant Við art in fee (s), for life (t), for years (u), or at will (x).

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[146] It is not, however, necessary that such tenant be the tenant paravail; for a person

Mesne. having the mesnalty may equally hold by heriot (y). For the lord mesne is tenant to the lord above, though he be lord to the tenant paravail.

Disseisee.

If A. disseise B. yet B. will continue tenant to the lord by right*; and, there fore, an heriot will be due on the death of the disseisee, and not on that of the disseisor (z). But, according, to the distinc

(s) Bro. Har. 5. (t) Bro. Har. 5. nyon & Carne, &c. (u) Kich. 133. a.

See Gilb. on Distresses. 8-10. Kich. 133. a. 2 Saund. 165. La3 Salk. 181. Osborne v. Sture.

2 Saund. 165. Lanyon v. Carne.

(x) 2 Bulst. 196. in Hix v. Gardiner.

(y) Pasch. 44 Ed. 3. pl. 24. fol. 13. a. & cited Bro. Har. 1.

*So of Copyh. see Co. Copyh. s. 56. Tr. 129.

(z) Vide Pasch. 44 Ed. 3. pl. 24. fol. 13. a. 2 Roll.

Abr. Her. 2. Kich. 134. a.

Unless the custom require a dying seized. See 2

tion noticed by Littleton J. in the Yearbook of 32 Hen. VI. (a), as the lord would be obliged to take the disseisor for his tenant, after the entry of the disseisee or his heir be tolled, it should seem that, after the tolling of such entry, the heriot would be due on the death of the disseisor or his heir; and not on the death of the disseisee or his heir.

A copyholder, indeed, cannot, properly, be disseised (b); and, therefore, this doc trine may not be considered as strictly applicable to a person holding by copy (c). Yet it will at least be serviceable by way of analogy in illustrating a point which frequently occurs.

[147]

Thus if a copyholder surrender to the Surrenderor of a copyhold.

Lord Raym. 994, Smartle v. Penhallow. 1 Salk. 188.
S. C. But in that case a seisin in law will be sufficient.
See Co. Litt. 239. b. & Watk. N. xxiii. & xxiv. to
Gilb. Ten. 372-3.

(a) Hil. 32. Hen. 6. pl. 16. fol. 27. & Watk. N. xxiv. to Gilb. Ten. 372.

(b) Ante, vol. 1. p. [61].

(c) But see 2 Roll. Abr. Her. 2, & Co. Copyh, s. 56. Tr. 129. & March, 23. Norris v. Norris.

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