tame, yet if they were kept alive in any cage, room, or Chap. IV. s. 3. such like place, the executors shall have them (). The species of property spoken of in this division is sometimes considered by writers to pass with the inheritance as heir-looms. But it has been shown in a preceding page that the right of the heir in respect of heirlooms is founded, not upon the nature of the chattels themselves, but altogether upon special custom. OF THINGS ANNEXED TO THE FREEHOLD OF THE CHURCH. effigies, &c. It has been seen in a former page that the coat-armour Monuments, and ensigns of honour of an ancestor, such as pennons, armorial trophies, achievements, &c., hung up in a church, belong to the heir in the manner of heir-looms. The same rule holds as to monuments, tomb-stones, and effigies, &c., set up in the church. And notwithstanding these things may be absolutely affixed to the walls or fabric of the church, yet the parson shall not take them although the freehold of the church is in him. For Lord Coke says (s), “If a nobleman, knight, esquire, &c., be buried "in a church, and have his coat-armor and pennons with "his armes, and such other ensignes of honour as belong "to his degree or order, set up in the church, or if a grave-stone or tombe be laid or made, &c., for a monu66 ment of him, in this case albeit the freehold of the "church be in the parson, and that these be annexed to 66 (r) Went. Off. Executors, p. 143; Law of Test., p. 341. In this latter authority it is said that pigeons, though not tame, yet if they are not able to fly, shall belong to the executors; with which acc. 3 Bac. Ab. tit. Executors (H.), 494. But see a contrary rule in several of the authorities above referred to. It is larceny to steal tame pigeons which are kept in a dovecote, but have free access to the open air; R. (s) Co. Lit. 18 b. Part I. Tombstone. Coffin and shroud. "the freehold, yet cannot the parson or any take them or "deface them, but he is subject to an action to the heire "and his heires in the honour and memory of whose "ancestor they were set up (t). And so it was holden "Mich. 10 Ja. and herewith agree the lawes in other "countries. Note this kind of inheritance. And some "hold that the wife or executors that first set them up may have an action in that case against those that "deface them in their time" (u). It was held, however, in a case in the Court of Common Pleas (v), that the property of a tomb-stone remained in the party who erected it, and that he might maintain an action of trespass against a person who wrongfully removed it from the churchyard and afterwards erased the inscription (w). The property of a coffin and shroud remains, it is said, in the executors or other person who (t) Unless they were set up without the consent of the ordinary. See Gibson's Codex, 454; Palmer v. Bishop of Exon, 1 Str. 576. And see Ritchings v. Cordingley, L. R., 3 A. & Ë. at pp. 116, 122. (u) Corven's case, 12 Co. 105; 3 Inst. 110, 202; Roll. Ab. tit. Discent (E.); R. v. Crosse, 1 Sid. at p. 206; Frances v. Ley, Cro. Jac. 367; Dawtrie v. Dee, 2 Roll. Rep. 140; Doct. & Stud. pp. 305, 309; Degge, 217; Com. Dig. tit. Cemetery (C.). See also Hitchcock v. Walford, 5 Scott, 792. As to the right to erect monuments in a church, see 3 Inst. 202; Degge, supra. And see Beckwith v. Harding, 1 B. & Ald. 508; Bardin v. Calcott, 1 Consist. 14; Maidman v. Malpas, id. 205; Palmer v. Bishop of Exon, 1 Str. 576; Cart v. Marsh, 2 Str. 1080; Rosher v. Vicar of Northfleet, 3 Addams, 15; Hopper v. Davis, 1 Lee, 640; Breeks v. Woolfry, 1 Curteis, 880. And see Rich v. Bushnell, 4 Hagg. 164. (v) Spooner v. Brewster, 3 Bing. 136; S. C. 2 C. & P. 34. And see Com. Dig. tit. Cemetery (C.); Wright v. Wright, 9 R. 15. (w) As to the right of the incumbent to grant the privilege of making a vault, and erecting a tablet, &c. in the church, and the interest thereby conferred, see the authorities referred to in the preceding notes, and the case of Bryan v. Whistler, 8 B. & C. 288. See also Rogers's Eccl. Law, 187. As to the rights of the heir where there is a grant of a grave space by a Burial Board to A. and his heirs, see Matthews v. Jeffrey, 6 Q. B. D. 290. was at the charge of the funeral; and it may be laid as Chap. IV. s. 3. theirs in an indictment for stealing them (x). church, &c. But things that are fixed up in a church not in honour Mourning of individuals, but for other purposes, as when a church is hung in a hung in mourning, or when ornaments or erections, as scaffolding, scaffoldings, &c., are put up on public occasions, become the property of the parson, in consequence of his possession of the freehold, and on the ground of their being a tacit gift to him (y). With respect to pews and seats erected in a church, Pews and these become by annexation parcel of the freehold of the seats. incumbent; though the use of them is in those who have the use of the church (z). And therefore, if seats have been annexed to the church without legal authority, it is said that the property of the materials when pulled down is in the parson, who may sue the wrongdoer in trespass. But as to seats put up by the parishioners by good authority, it seems, according to the ecclesiastical writers, that the property of the materials upon removal will be in the parishioners, and that the churchwardens, and not the (x) Russell on Crimes, vol. 2, p. 256 (5th ed.). Semble, the same of a vase in which the ashes of a cremated body are buried; see the facts in the case of Williams v. Williams, 20 Ch. D. 659. (y) See Cases with Opinions, vol. 1, p. 277. Upon this point, however, see Cramp v. Bayley, Kent Lent. Ass. 1819, cited in the notes to the 7th edition of Degge's Parson's Counsellor, p. 218. And see Prideaux's Directions, p. 100, and the authorities there referred to. It is certainly true that the soil and freehold of the church and churchyard are in the parson; but the free- (z) Yr. Bk. 8 Hen. 7, p. 12; Part I. Bells. Bell-ropes. Organ. parson, may maintain an action for taking them away (a). With respect, however, to moveable seats in a church, it seems that the party who set them up may remove them at his pleasure (b). If a man hang up bells in the steeple, they become church goods, although they may not be expressly given to the church: he cannot therefore afterwards remove them; and if he does, he may be sued by the churchwardens, to whom the custody and possession of the goods of the church belong, though the property of them is in the parishioners (c). In the same manner the churchwardens are entitled to the possession of, and have therefore a special property in, the bell-ropes (d). So, if a man take the organ out of a church, the churchwardens may have an action of trespass against him; because the organ belongs to the parishioners and not to the parson, and the parson cannot sue the taker in the Ecclesiastical Court (e). And the succeeding church (a) Degge, p. 213; Burn's Eccl. Law, vol. 1, tit. Church, pp. 364, 376; Gibson v. Wright, Noy, 108. See Shaw's Parish Law, p. 37 (6th ed.); Prideaux's Directions, pp. 115, 116. (b) Degge, p. 211. See further Watson's Comp. Incumb. c. 39; Burn's Just. vol. 1, tit. Church, p. 693 et seq.; Prideaux's Directions, p. 117, in notis. (c) Yr. Bk. 11 Hen. 4, p. 12; Degge, p. 217; Burn's Eccl. Law, vol. 1, tit. Church, p. 377; Com. Dig. tit. Esglise (F. 3); Hadman v. Ringwood, Cro. Eliz. 145; Starky v. Churchwardens of Watlington, 2 Salk. 517; Welcome v. Lake, 1 Sid. 281, S. C. 2 Keb. 22. That bells are parcel of the freehold of the church, see Yr. Bk. 11 Hen. 4, p. 12; R. v. Crosse, 1 Sid. at p. 206; S. C. 1 Lev. 136. As to the origin of bells and chimes, and some curious observations upon them, see Watkyns v. Seaman, Lutw. Rep. by Nelson, at p. 327; Woodward v. Makepeace, 1 Salk. 164; Roll. Ab. tit. Prohibition (K.); R. v. Crosse, supra. See also Hook's Church Dictionary, tit. Bells. (d) Jackson v. Adams, 2 Bing. N. C. 402. (e) Roll. Ab. tit. Churchwardens (A.) It is not competent to the organist to play on the organ in defiance of wardens may sue, although the trespass was done in the Chap. IV. s. 3. time of their predecessors (ƒ). The incumbent has in the first instance the right to the possession of the keys of the church, and the churchwardens have only the custody of the church under him (g). The trees growing in a churchyard belong to the in- Trees in cumbent, and he may bring his action, if they be cut churchyard. down (h). OF EMBLEMENTS. It will be useful to advert, in the last place, to another species of property which has often been compared to fixtures, and respecting which, questions frequently arise between the heir and the personal representative of the deceased owner of the inheritance. There are certain Emblements between heir vegetable products of the earth, which, although they are and executor. annexed to and growing upon the land at the time of the proprietor's death, yet, as between his heir and his executor, are considered as a chattel interest, and will pass to the executor. the directions of the incumbent, Wyndham v. Cole, 1 P. D. 130. (f) Hadman v. Ringwood, Cro. Eliz. 145, 179. (g) Lee v. Matthews, 3 Hagg. Ecc. Rep. at p. 173; Dewdney v. Ford, 7 Jur., N. S. 637; Ritchings v. Cordingley, L. R., 3 A. & E. 113, 123. (h) Br. Ab. tit. Trespass, pl.210; Lyndw. 267; Strachyv. Francis, 2 Atk. 217. The preamble of the ancient stat. 35 Edw. I. st. 2, entitled "Statutum ne Rector prosternat Arbores in Camitario," recites, that "Forasmuch as a churchyard that is dedicated, is the soil of the church, and what- |