mortuaries by statute 21 Hen. 8, c. 6. Limitations of time of their death have had no property in any goods or chattels, and many times for travelling and wayfaring men in the places where they have fortuned to die; to the intent, therefore, that all doubt, contention and uncertainty herein may be removed, and as well the generality of the king's people therein remedied, as also the parsons, vicars, parish priests, curates and others having interest in such mortuaries and corse presents indifferently provided for," it is enacted, that "no parson, vicar, curate, nor parish priest, nor any other spiritual person, nor their farmers, bailiffs, nor lessees, shall take, receive or demand of any person within this realm, for any person dying within the same, any manner of mortuary or corse present, nor any sum of money nor any other thing for the same, more than is hereafter mentioned, nor shall convent or call any person before any judge spiritual for the recovery of any such mortuaries or corse presents, or any other thing for the same, more than is hereafter mentioned, on pain to forfeit for every time so demanding, receiving, taking or conventing or calling any such person before any spiritual judge, so much in value as they shall take above the sum limited by this act, and over that 40s. to the party grieved contrary to this act, to be recovered by action of debt." Sect. 2. "And no manner of mortuary shall be taken or demanded of any person whatsoever, which at the time of his death hath in moveable goods under the value of ten marks. "And no mortuary shall be given or demanded of any person, but only in such place where heretofore mortuaries have been used to be paid and given, and in those places none otherwise but after the rate and form hereafter mentioned. "And no person shall pay mortuaries in more places than one, that is to say, in the places of their most dwelling habitation, and there but one mortuary. "And no parson, vicar, curate, parish priest or other, shall, for any person dying or dead, and being at the time of his death of the value in moveable goods of ten marks or more, clearly above his debts paid, and under the sum of 301., take for a mortuary above 3s. 4d. in the whole. And for a person dying or dead, being at the time of his death of the value of 30l. or above, clearly above his debts paid, in moveable goods, and under the value of 401. there shall no more be taken or demanded for a mortuary than 6s. 8d. in the whole. And for any person dying or dead, having at the time of his death of the value in moveable goods of 401. or above, to any sum whatsoever it be, clearly above his debts paid, there shall be no more taken, paid or demanded for a mortuary than 10s. in the whole." " Sect. 3. Provided, that for no woman being covert, baron, nor child, nor for any person not keeping house, any manner of mortuary, nor any thing or money by way of mortuary, shall be paid: nor also for any wayfaring man or other that dwelleth not nor maketh residence in the place where they shall happen to die, but that the mortuary of such wayfaring persons be answerable in places where mortuaries be accustomed to be paid in manner and form and after the rate before mentioned, and none otherwise, in the place or places where such wayfaring persons at the time of their death had their most habitation, house and dwelling places, and no where else." Sect. 4. "Provided, that it shall be lawful to all parsons, vicars, curates, parish priests, and other spiritual persons, to take any sum of money or other thing, which by any person dying shall be disposed, given or bequeathed to them, or any of them, or to the high altar of the church." Sect. 5. "And no mortuaries nor corse presents, nor any sum of money or other thing for any mortuary or corse present, shall be demanded or taken in the parts of Wales, nor in the marches of the same, nor in the town of Berwick, but only in such places of the same where mortuaries have been accustomed to be paid; and in those places no mortuaries or corse prosents, nor any other thing for mortuary or corse present, shall be demanded or taken, but only after the form and manner above specified, and none otherwise, nor of any other person than is limited by this act, upon the pain contained therein." Sect. 7. "Provided, that it shall be lawful to the bishops of Bangor, Landaff, St. David's and St. Asaph, and likewise to the Archdeacon of Chester, to take such mortuaries of the priests within their dioceses and jurisdictions as heretofore have been accustomed. "Provided also, that in such places where mortuaries have been accustomed to be taken of less value than is aforesaid, no person shall be compelled to pay in such place any other mortuary, or more for any mortuary than hath been accustomed; nor that any mortuary in such place shall be demanded or taken of any person exempt by this act, nor in any wise contrary to this act, upon the pain afore limited." By 13 Ann. c. 6, the clause in the said statute so far as As to Welsh it relates to the taking of any mortuary or corse pre- dioceses. sent upon the death of any clergyman within the dioceses of Bangor, Landaff, St. David's, and St. Asaph, is repealed; And archdeaconry of Chester, As to archdeaconry of Richmond. How recoverable. and certain sinecures and prebends are annexed to the re- And as to the archdeaconry of Chester, it is said, that But by 28 Geo. 2, c. 6, the aforesaid clause, so far as it relates to the taking of any mortuary or corse present upon the death of any clergyman within the archdeaconry of Chester, shall immediately after the living of Wareton shall become void be repealed, and the said living shall be annexed to the see of Chester, in compensation of such mortuaries. And by 26 Hen. 8, c. 15, " Forasmuch as divers subjects inhabiting within the archdeaconry of Richmond in the county of York, be and of long time have been sore and greviously exacted and impoverished by the parsons, vicars, and others such as have benefices and spiritual promotions within the same, as by taking of every person when he dieth, in the name of a pension or of a portion, sometime the ninth part of all his goods and chattels, and sometime the third part, to the open and manifest impoverishing of most part of the king's poor subjects inhabiting and deceasing within the same;" it is enacted, that "no manner of spirtual person, or other, having any benefice or other spiritual promotion within the said archdeaconry, shall in any wise ask, levy, demand, or take, after the decease of any person, any such portions or pensions, or any other demand or duty in the name or lieu of the same, on pain of a præmunire; but that all the king's subjects of the said archdeaconry, and their executors and administrators, shall be ordered and used for their goods and chattels after their decease in like manner as is contained in the statute of the 21 Hen. 8, c. 5, for probate of testaments, and none otherwise; any use, custom, bull, composition, prescription, or ordinance to the contrary notwithstanding." By the statute of Circumspectè agatis, 13 Edw. 1, st. 4, "if a parson demand mortuaries, in places where a mortuary hath been used to be given, all such demands shall be made in the spiritual court; and in all such cases the (t) Cro. Car. 237. spiritual judge shall have power to take knowledge, notwithstanding the king's prohibition." Sir Simon Degge was of opinion, that an action also will now lie upon the aforesaid statute 21 Hen. 8, c. 6. But that statute plainly supposes that the recovery of the money shall be solely in the spiritual court, as the recovery of the mortuary was before (u). In the case of Johnson v. Oldham, in 12 Will. 3 (x), a prohibition was moved for, to be directed to the spiritual court, to stay a suit there for a mortuary, upon a suggestion of the statute, and that there was no custom in this case for the payment of it; and it was urged, that no mortuary was due but by custom, and therefore the custom here being denied, they ought not to proceed in the spiritual court. Against which, it was argued, that the statute has saved the jurisdiction to the spiritual court, where mortuaries have been usually paid; besides, they ought first to plead in the spiritual court, that there is not any such custom; and then, upon refusal to admit the plea there, is the time to move the court of King's Bench, and not before: but in this case they have not pleaded this matter in the spiritual court. And by Holt, Chief Justice: A prohibition cannot be granted, without a denying of the custom in the spiritual court, which is not done here (y). And the whole court seemed to be against the prohibition. And a rule was made to hear counsel on both sides. And afterwards the rule was discharged by the court. But if the custom be denied, and the spiritual court will not admit that plea, a prohibition will go; and they shall not try the custom there (z). But where the custom of paying a mortuary was owned, and the only question in the spiritual court was, whether it belonged to the vicar or impropriator, a prohibition in such case has been denied (a). In the case of Torrent v. Burley, in 13 Geo. 1 (b), in the Exchequer, a bill was brought to discover, whether the defendant's husband died worth 407. so as to be liable to pay the plaintiff a mortuary; and pray relief. Upon answer, admitting assets, but denying the custom, the plaintiff went into a proof of his right; and several witnesses were examined on both sides. And at the hearing, the bill was dismissed with costs, as to the relief, because that was properly at law, or in the spiritual court; and, in a (u) Wats. c. 53. (2) Cro. Eliz. 151. How recoverable. Fraudulent alienations to defeat mortuaries. As to commu tation of mortuaries. bill against one person only, the right could not be established. In Manby v. Curtis (c) it was said to be a moot question whether mortuaries can be recovered at law, and whether they must not be sued for in the spiritual court, under the foregoing statute of 21 Hen. 8, c. 6; and that it would be difficult to say that they would be recoverable in a court of equity (d). In Ayrton v. Abbott it was holden that mortuaries are not within 7 & 8 Will. 3, c. 6, s. 2, which authorizes justices of the peace to adjudicate upon complaints of subtraction of small tithes, offerings, oblations and obventions (e). By 13 Eliz. c. 5, all alienations of lands or goods to defraud creditors and others of their just debts, damages, penalties, forfeitures, heriots, mortuaries, and reliefs, shall (as against such claimants) be utterly void and of none effect. By the first Tithe Commutation Act, 6 & 7 Will. 4, c. 71, s. 90, it is enacted that— 66 Nothing in this act contained, unless by special provision to be inserted in some parochial agreement, and specially approved by the commissioners, in which case the same shall be valid, shall extend to any mortuaries" (f). But by 2 & 3 Vict. c. 62, s. 9, it is enacted that "it shall be lawful at any time before the confirmation of any apportionment after a compulsory award in any parish, for the landowners and titheowners, having such interest in the lands and tithes of such parish as is required for the making of a parochial agreement, to enter into a parochial agreement for the commutation of Funeral charges. Protection of bodies. SECT. 6.-Protection of the Dead. Funeral expenses, according to the degree and quality of the deceased, are to be allowed of the goods of the deceased, before any debt or duty whatsoever (g). The carcase that is buried belongs to no one, but is subject to ecclesiastical cognizance, if abused or removed (h). Though, as Lord Coke says, a corpse is nullius in bonis; yet taking up a dead body, though for |