Heriotcustom. Its nature. for non-payment (b). A separate distress must be made for each suit-heriot reserved (c). Heriot-custom is of a different kind, and is usually an incident of copyholds, though it is also found in freehold manors, where the tenants are subject to customary rules (d). It differs from the varieties already described in being no part of the actual tenure, but only its customary incident or fruit, and in not having the qualities which distinguish a payment in the nature of a rent (e). The custom may authorise the lord to take one heriot on the death or alienation of any tenant without respect. to the number of his tenements; or, as is more usual, to take a heriot on the death of every tenant for each of his copyhold tenements, and a heriot on every change of the tenancy of each tenement (f). The custom is sometimes. confined to the case of a tenant dying seised, and being succeeded by the heir; but it is often more extensive, and a heriot of this kind may by custom be payable on the death of any tenant, whether holding an estate of inheritance, or for life or years, or even a tenancy at will (g). It differs further from heriot-service and suitheriot in this respect, that heriot-service and suit-heriot are usually confined to a right of taking the best beast or chattel, but heriot-custom is more varied in its incidents, being entirely regulated by the local usage. It may extend to the best beast, or the second best, or to several, or to animals of a particular kind, as "claw-foot" or "cloven-footed" animals; or it may be confined to "dead" goods," excluding animals altogether; or the right may have been commuted in ancient times for some small fixed payment; and the custom may extend to some tenements in the manor and not to others, or to a particular class of tenements, there being no general rule in the matter (h). Where the custom is that every tenant shall be liable When due. to the payment of a heriot on death, it will be due on the death of a tenant in remainder as well as on that of the tenant in possession (i), and from the widow or widower upon the determination of his or her tenancy by death, whether the tenancy is of the whole or of a portion only of the estate, unless there is a custom to excuse them (k). Where there are joint-tenants or coparceners, no heriot will be due till the death of the last survivor, unless their estate is changed to a tenancy in common or in severalty (1); but as tenants in common are severally seised, a heriot will be due on the death of each of them (m). It was formerly the rule that where a female copyholder married, her husband and she became seised of the tenement as tenants by entireties, and so if she died in the lifetime of her husband, no heriot was due, because she had no heriotable chattels (n), and if her husband died in her lifetime no heriot was due on his death, because there was no change in the tenancy (o); but it would appear that as a woman married after the 31st of December, 1882, is now entitled to hold as her separate property all property, whether real or personal, belonging to her at the time of her marriage, or afterwards acquired by her, as if she were a feme sole, her separate estate might be held liable after her death to a claim for a heriot in respect of her real estate (p). No heriot is payable in respect of any (h) See Kitch. Jurisd. tit. Heriot, and Watk. Copyh. ii. c. 6. (i) Butler v. Archer, Owen, 152. (k) See Gilb. Ten. 172, 173; Chapman v. Sharpe, 2 Show. 184. (1) Padwick v. Tyndale, 1 E. & (m) Co. Copyh. s. 56. Separate heriots due for separate tenements. equitable estate (g). It has been held that by special custom a heriot might be due on the death of the head of a corporation (r). A heriot-custom upon alienation is of the same nature as a fine upon alienation, and may be due by special custom from one of several joint-tenants or coparceners, who alienes his share of the copyhold (8). No heriot of either kind is due from a surrenderee before admittance, but it has been suggested that his heir upon admission would be compellable in equity to make good to the lord the loss that he may have sustained by the neglect of the surrenderee to be admitted (t). This does not appear to be warranted by the authorities, which rather show that courts of equity persistently refrained from giving the lord any aid in getting a heriot (u). When the freehold inheritance of a copyhold is granted to a stranger, so that the copyhold is severed from the manor, it has been said that the grantee of the freehold. may seize heriots under the custom (a), but this seems to be doubtful. In the case of the Bishop of Gloucester v. Wood (y), it appeared that the bishop, who was seised of the manor of D., had demised certain lands to A. and B. during the lives of their three children, subject to the payment of rent, and to the delivery of two best beasts upon the death of every cestui-que-vie. Thereafter, the bishop demised all the manor to W., under render of the ancient rent. On the death of the cestui-que-vies, it was held that the right to the heriots went with the reversion. If a copyholder holds several heriotable tenements of the same manor, a heriot will be due for each tenement, (q) Trin. Coll., Cambr. v. Browne, 1 Vern. 441. (r) Yearb. Mich. 5 Edw. IV. fo. 72b; and see Fisher, Copyh. 81, n. (s) See Scriv. Copyh. 377. (t) See Watk. Copyh. ii. 147, n., and Scriv. Copyh. 377, n. (u) Wirty v. Pemberton, 2 Eq. Cas. Abr. 279; Basingstoke (Mayor of) v. Bolton (Lord), 3 Dr. 50. (x) Beale v. Langley, 2 Leon. 209; S. C. 4 Leon. 230; Murrell v. Smith, 4 Rep. 24 b. (y) Winch, 46, 57. unless there is a custom to the contrary, as in the manors of Framfield and Mayfield, in Sussex, where only one heriot is due by the custom, though the tenant dies seised of several tenements. heriot The lord cannot distrain for heriot-custom, except by Remedies for virtue of a special custom (3); but as the property in the custom. heriot vests in him immediately on the tenant's death, he may seize the heriot in any place (a). But if he is entitled to the best beast, the property will not vest in him until he has made his selection, and once he has selected, he will be bound, though it should turn out he did not take the best beast (b). A bonâ fide sale in market overt, by the executors of the deceased tenant, will defeat the lord's title to a particular beast or chattel, which might have been claimed as the best (c); but a bequest by the deceased tenant would not have the same effect (d). The lord will lose his heriot if the tenant has not any beast at the time of death or alienation (e); but if he is deprived of his heriot by the fraud of the tenant, he may bring an action to recover the value of the heriot under the provisions of sections 2 and 3 of 13 Eliz. c. 5 (f). If the heriot is eloigned or removed so that the lord cannot seize it, he may bring an action in the nature of trover or detinue against the person detaining it (g). In the case of heriot-custom, if the custom is that on the death of every tenant the lord shall have a heriot, the heriot will still be due, notwithstanding a purchase by the lord of part of the tenement, because the copyholder will (z) Roger v. Birkmire, Lee, temp. Hardw. 245; Hungerford v. Haviland, 3 Buls. 323, 325; Basingstoke (Mayor of) v. Bolton (Lord), 3 Dr. 50. (a) Parker v. Gage, 1 Show. 81; Bro. Abr. tit. Heriot, pl. 2, 6, and 7. (b) Odiham v. Smith, Cro. Eliz. 589; Abington v. Lipscombe, 1 Q. B. (c) Kitch. Jurisd. 265; and see (e) Shaw v. Taylor, Hob. 176. Effect of purchase of the land by the lord Extinguishment of heriots. When heriots multiplied. still be tenant as to the residue (e); and if the tenement escheats to the lord, and he grants it out again, he may reserve a heriot on such fresh grant, and it will not be an objection to such a grant that two heriots are expressed to be reserved, where in former grants only one had been so reserved, if it be by reason of the severance of the heriotable tenement (ƒ). The right to take heriots will be destroyed on enfranchisement of the land, or extinguishment of the copyhold tenure (g). And now, under the provisions in the Copyhold Acts, the lord or the tenant or owner of any land liable to any heriot may compel the extinguishment of the heriot (h). The question as to the effect of the Limitation Acts in barring the right to heriots will be discussed later (i). Where a heriot is due by custom for each tenement, the heriot will be multiplied if the tenement should be divided, as if the owner should devise or alienate by parcels (k); and it was at one time held that the estates will always be chargeable with the multiplied heriots, although the separate tenements may have afterwards come into the same hands (1). But a devise or alienation to joint-tenants or a descent to coparceners can have no such effect, until their estate is severed or altered in quality. Tenants in common will pay the multiplied heriot, whether their shares are separate or undivided; yet if before actual severance the common shares are reunited in the same hands, the tenement is considered not to have been divided, and the heriots will not be multiplied (m). The doctrine of multiplying heriots was established by (e) Chapman v. Pendleton, 2 Brownl. 293. (f) Doe d. Roberts v. Whitaker, 3 N. & M. 225. (9) See c. xi. post. (h) 50 & 51 Vict. c. 73, s. 7. (i) Post, p. 212. (k) Snag v. Fox, Palm. 342. (m) Garland v. Jekyll, 2 Bing. 273; Holloway v. Berkeley, 6 B. & C. 2. |