Thus, in both these species of property the law is the same, in case the wife survives the husband; but in case the husband survives the wife, the law is very different with respect to chattels real and choses in action: for he shall have the chattel real by survivorship, but not the chose in action. And the reason is this: that the husband is in possession of the chattel real during the coverture, by a kind of joint-tenancy with his wife; which the law will not wrest out of his hands. But a chose in action shall not survive to him, because he never was in possession of it at all, during the coverture. Yet he still will be entitled to be her administrator; and may, in that capacity, recover such things in action as became due to her before or during the coverture. With regard to a wife's reversionary choses in action, these cannot from their nature be reduced into possession; and consequently could not, until lately, be assigned or affected by the husband even with the concurrence of the wife; but this rule of law has now been altered.

As to chattels personal in possession, which the wife has in her own right, as ready money, jewels, household goods and the like, the husband has therein an immediate and absolute property, devolved to him by the marriage, not only potentially, but in fact, which never can again revest in the wife or her representatives.

In one instance the wife may acquire a property in some of her husband's goods; which shall remain to her after his death, and not go to the executors. These are called her paraphernalia; a term borrowed from the civil law, to signify the apparel and ornaments of the wife, suitable to her rank and degree; and, therefore, even the jewels of a peeress, usually worn by her, have been held to be paraphernalia. Neither can the husband devise by his will such ornaments and jewels of his wife; though during his life he has the power to sell them or give them away. But if she continues in the use of them till his death, she shall afterwards retain them against his executors and administrators, and all other persons except creditors where there is a deficiency of assets. And her necessary apparel is protected even against the claim of creditors.

VII. A judgment, in conséquence of some suit or action in a court of justice, is frequently the means of vesting the right and property of chattel interests in the prevailing party. Of this nature are:

1. Such penalties as are given, by particular statutes, to be recovered on an action popular; or, in other words, to be recovered by him or them that will sue for the same. Such as the penalty of 500l. which those persons are by several acts of parliament made liable to forfeit, that, being in particular offices or situations in life,

neglect to take the oaths to the government: which penalty is given to him or them that will sue for the same.

2. Another species of property that is acquired and lost by suit and judgment at law, is that of damages. Here the plaintiff has no certain demand till after verdict; but, when the jury has assessed his damages, and judgment is given thereupon, whether they amount to twenty pounds or twenty shillings, he instantly acquires, and the defendant loses at the same time, a right to that specific sum.

3. Hither also may be referred, upon the same principle, all title to costs and expenses of suit, which are often arbitrary, and rest entirely on the determination of the court, upon weighing all circumstances, both as to the quantum, and also, in the courts of equity especially, and upon motions in the courts of law, whether there shall be any costs at all. These costs, therefore, when given by the court to either party, may be looked upon as an acquisition made by the judgment of law.

CHAPTER XXVI.

OF TITLE BY GIFT, GRANT, AND CONTRACT.

Title by gift-grants-bills of sale-Title by contract-agreements-express or implied-consideration-nudum pactum―usual contracts-viz.,—Sale or Exchange-Bailment Hiring and Borrowing-Interest-Insurance— Annuities-Debts-by specialty-simple contract-Bills of Exchange. Two of the remaining methods of acquiring a title to property in things personal, are so much connected, that it will be convenient to consider them in one chapter. I allude to title by gift or grant, and by contract: whereof the former vests a property in possession, the latter a property in action.

VIII. Gifts or grants, the eighth method of transferring personal property, are thus to be distinguished from each other, that gifts are always gratuitous, grants are upon some consideration or equivalent: and they may be divided, with regard to their subject-matter, into gifts or grants of chattels real, and gifts or grants of chattels personal. Under the head of gifts cr grants of chattels real, may be included all leases for years of land, assignments, and surrenders of those leases; and all the other methods of conveying an estate less than freehold, which has been already considered. Yet these very seldom

carry the outward appearance of a gift, being usually expressed to be made in consideration of blood or natural affection, or of five or ten shillings nominally paid to the grantor; and in case of leases, always reserving a rent, though it be but a peppercorn; any of which considerations will, in the eye of the law, convert the gift, if executed, into a grant; if not executed, into a contract.

Grants or gifts of chattels personal, are the act of transferring the right and the possession of them; whereby one man renounces, and another man immediately acquires, all title and interest therein; which may be done either in writing, or by word of mouth accompanied by an actual delivery of possession to the donee. But this conveyance, when merely voluntary, is somewhat suspicious, and is usually construed to be fraudulent, if creditors or others become sufferers thereby. Accordingly by statute 13 Eliz. c. 5, every grant or gift of chattels, with an intent to defraud creditors or others, shall be void as against such persons to whom such fraud would be prejudicial; but, as against the grantor himself, shall stand good and effectual. And by 17 & 18 Vict. c. 36, bills of sale, the usual denomination of a grant of chattels personal, must be filed in the Court of Queen's Bench within twenty-one days after the making or giving them; otherwise they will, as against creditors, be null and void.

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IX. A contract which usually conveys an interest merely in action is thus defined: an agreement upon sufficient consideration to do For not to do a particular thing."

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First then it is an agreement, a mutual bargain or convention; and, therefore, there must at least be two contracting parties, of sufficient ability to make a contract; as where A contracts with B to pay him 1007., and thereby transfers a property in such sum to B: which property is, however, not in possession, but in action merely, and recoverable by suit at law; wherefore it could not be transferred to another person by the strict rules of the ancient common law; for no chose in action could be assigned or granted over, because it was thought to be a great encouragement to litigiousness, if a man were allowed to make over to a stranger his right of going to law. But this nicety is now disregarded; though, in compliance with the ancient principle, the form of assigning a chose in action is in the nature of a declaration of trust, and an agreement to permit the assignee to make use of the name of the assignor, in order to recover the possession. And, therefore, when in common acceptation a debt or bond is said to be assigned over, it must still be sued for in the original creditor's name, the person to whom it is transferred being rather an attorney than an assignee.

This contract or agreement may be either express or implied. Express contracts are where the terms of the agreement are openly

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uttered and avowed at the time of the making, as to deliver an ox, or ten loads of timber, or to pay a stated price for certain goods. Implied are such as reason and justice dictate, and which therefore the law presumes that every man undertakes to perform. As, if I employ a person to do any business for me, or perform any work, the law implies that I undertook, or contracted, to pay him as much as his labour deserves. If I take up wares from a tradesman without any agreement of price, the law concludes that I contracted to pay their real value. And there is also one species of implied contracts which runs through and is annexed to all other contracts, conditions, and covenants, viz., that if I fail in my part of the agreement, I shall pay the other party such damages as he has sustained by such my neglect or refusal.

A contract may also be either executed, as if A agrees to change horses with B, and they do it immediately; in which case the possession and the right are transferred together: or it may be executory, as if they agree to change next week; here the right only vests, and their reciprocal property in each other's horse is not in possession but in action; for a contract executed, which differs in nothing from a grant, conveys a chose in possession; a contract executory conveys only a chose in action.

Secondly; a contract is an agreement upon sufficient consideration. The civilians hold, that, in all contracts, either express or implied, there must be something given in exchange, something that is mutual or reciprocal. This thing, which is the price or motive of the contract, we call the consideration: and it must be a thing lawful in itself, or else the contract is void. A good consideration, we have before seen, is that of blood or natural affection between near relations; the satisfaction accruing from which, the law esteems an equivalent for whatever benefit may move from one relation to another. Yet it may sometimes be set aside, and the contract become void, when it tends in its consequences to defraud creditors or other third persons of their just rights. But a contract for any valuable consideration, as for marriage, for money, for work done, or for other reciprocal contracts, can never be impeached at law; and if it be of a sufficient adequate value, is never set aside in equity: for the person contracted with has then given an equivalent in recompense, and is therefore as much an owner, or a creditor, as any other person.

A consideration of some sort or other is so absolutely necessary to the forming of a contract, that a nudum pactum, or agreement to do or pay anything on one side, without any compensation on the other, is totally void in law: and a man cannot be compelled to perform it. As if one man promises to give another 1007., here there is nothing contracted for or given on the one side, and therefore there

is nothing binding on the other. And, however a man may or may not be bound to perform it, in honour or conscience, which the municipal laws do not take upon them to decide, certainly those municipal laws will not compel the execution of what he had no visible inducement to engage for: the maxim of our law being that ex nudo pacto non oritur actio. But any degree of reciprocity will prevent the pact from being nude: nay, even if the thing be founded on a prior moral obligation, as a promise to pay a just debt, though barred by the statute of limitations, it is no longer nudum pactum.

Thirdly, a contract is an agreement, upon sufficient consideration, to do or not to do a particular thing. The most usual contracts, whereby the right of chattels personal may be acquired in the laws of England, are, 1. That of sale or exchange. 2. That of bailment. 3. That of hiring and borrowing. 4. That of debt.

1. Sale or exchange is a transmutation of property from one man to another, in consideration of some price or recompense in value: for there is no sale without a recompense; there must be quid pro quo. If it be a commutation of goods for goods, it is more properly an exchange; but, if it be a transferring of goods for money, it is called a sale: which is a method of exchange introduced for the convenience of mankind, by establishing a universal medium, which may be exchanged for all sorts of other property; whereas if goods were only to be exchanged for goods, by way of barter, it would be difficult to adjust the respective values, and the carriage would be intolerably cumbersome.

If a man agrees with another for goods at a certain price, he may not carry them away before he has paid for them; for it is no sale without payment, unless the contrary be expressly agreed. And therefore, if the vendor says the price of a beast is four pounds, and the vendee says he will give four pounds, the bargain is struck; and they neither of them are at liberty to be off, provided immediate possession be tendered by the other side. But if neither the money be paid, nor the goods delivered, nor tender made, nor any subsequent agreement be entered into, it is no contract, and the owner may dispose of the goods as he pleases. But if any part of the price is paid down, if it be but a penny, or any portion of the goods delivered by way of earnest, the property of the goods is absolutely bound by it: and the vendee may recover the goods by action, as well as the vendor may the price of them. And such regard does the law pay to earnest as an evidence of a contract, that, by the Statute of Frauds, 29 Car. II. c. 3, no contract for the sale of goods, to the value of 107. or more, shall be valid, unless the buyer actually receives part of the goods sold, by way of earnest on his part; or unless he gives part of the price to the vendor by