10. The uses of a fine or recovery may be directed by, I. Deeds to lead such uses; which are made previous to the levying or suffering them. II. Deeds to declare the uses; which are made subsequent

Page 363

CHAPTER XXII.

OF ALIENATION BY SPECIAL CUSTOM.

1. ASSURANCES by special custom are confined to the transfer of copyhold estates 365

2. This is effected by, I. Surrender by the tenant into the hands of the lord to the use of another, according to the custom of the manor. II. Presentment, by the tenants, or homage, of such surrender. III. Admittance of the surrenderee by the lord, according to the uses expressed in such surrender 368-370

3. Admittance may also be had upon original grants to the tenant from the lord, and upon descents to the heir from the

ancestor

371

CHAPTER XXIII.

OF ALIENATION BY DEVISE.

1. DEVISE is a disposition of lands and tenements, contained in the last will and testament of the owner 373

2. This was not permitted by the common law, as it stood since the conquest; but was introduced by the statute law, under Hen. VIII.; since made more universal by the statute of tenures under Charles II., with the introduction of additional solemnities by the statute of frauds and perjuries in the same reign 375-6

3. The construction of all common assurances should be, I. Agreeable to the intention, II. to the words, of the parties. III. Made upon the entire deed. IV. Bearing strongest against the contractor. V. Conformable to law. VI. Rejecting the latter of two totally repugnant clauses in a deed, and the former in a will. VII. Most favourable in case of a devise

379-381

CHAPTER XXIV.

OF THINGS PERSONAL.

1. THINGS personal are comprehended under the general name of chattels; which include whatever wants either the duration, or the immobility, attending things real

384

2. In these are to be considered, I. Their distribution. II. The property of them. III. The title to that property 384-387 3. As to the distribution of chattels, they are, 1. Chattels real. 2. Chattels personal

386

4. Chattels real are such quantities of interest, in things immoveable, as are short of the duration of freeholds; being limited to a time certain, beyond which they cannot subsist. (See ch. IX.). Page 386 5. Chattels personal are things moveable; which may be transferred from place to place, together with the person of the

owner

387

CHAPTER XXV.

OF PROPERTY IN THINGS PERSONAL.

1. PROPERTY in chattels personal is either in possession, or in action 389 2. Property in possession, where a man has the actual enjoyment of the thing, is, I. Absolute. II. Qualified

389

3. Absolute property is where a man has such an exclusive right in the thing, that it cannot cease to be his, without his own act or default

389 4. Qualified property is such as is not, in its nature, permanent; but may sometimes subsist, and at other times not subsist

391

5. This may arise, I. Where the subject is incapable of absolute ownership. II. From the peculiar circumstances of the 391-396

owners

6. Property in action, is where a man hath not the actual occupation of the thing; but only a right to it, arising upon some contract, and recoverable by an action at law

396

7. The property of chattels personal is liable to remainders, expectant on estates for life; to joint-tenancy; and to tenancy

in common

398

CHAPTER XXVI.

OF TITLE TO THINGS PERSONAL BY OCCUPANCY.

1. THE title to things personal may be acquired or lost by, I. Occupancy. II. Prerogative. III. Forfeiture. IV. Custom. V. Succession. VI. Marriage. VII. Judgment. VIII. Gift, or grant. IX. Contract. X. Bankruptcy. XI. Testament.

XII. Administration

400

2. Occupancy still gives the first occupant a right to those few things which have no legal owner, or which are incapable of permanent ownership. Such as, I. Goods of alien enemies. II. Things found. III. The benefit of the elements. IV. Animals feræ naturæ. V. Emblements. VI. Things gained by accession; or, VII. By confusion. VIII. Literary property 400-407

CHAPTER XXVII.

OF TITLE BY PREROGATIVE, and forfeiture.

1. By prerogative is vested in the crown, or its grantees, the property of the royal revenue; (see book I. ch. 8); and also the property of all game in the kingdom, with the right of pursuing and taking it Page 408-419 2. By forfeiture, for crimes and misdemesnors, the right of goods and chattels may be transferred from one man to another, either in part or totally

420

3. Total forfeitures of goods arise from conviction of, I. Treason, and misprision thereof. II. Felony. III. Excusable homicide. IV. Outlawry for treason or felony. V. Flight. VI. Standing mute. VII. Assaults on a judge; and batteries, sitting the courts. VIII. Præmunire. IX. Pretended prophecies. X. Owling. XI. Residing abroad of artificers. XII. Challenges to fight for debts at play

421

CHAPTER XXVIII.

OF TITLE BY CUSTOM.

1. By custom, obtaining in particular places, a right may be acquired in chattels : the most usual of which customs are those relating to, I. Heriots. II. Mortuaries. III. Heir-looms

422

2. Heriots are either heriot-service, which differs little from a rent; or heriot-custom, which is a customary tribute, of goods and chattels, payable to the lord of the fee, on the decease of the owner of lands

422

3. Mortuaries are a customary gift, due to the minister in many parishes, on the death of his parishioners

425

4. Heir-looms are such personal chattels, as descend by special custom to the heir, along with the inheritance of his ancestor 427

CHAPTER XXIX.

OF TITLE BY SUCCESSION, MARRIAGE, AND JUDGMENT.

1. By succession the right of chattels is vested in corporations aggregate; and likewise in such corporations sole as are the heads and representatives of bodies aggregate 430

2. By marriage the chattels real and personal of the wife are vested in the husband, in the same degree of property, and with the same powers, as the wife when sole had over them; provided he reduces them to possession

433

3. The wife also acquires, by marriage, a property in her paraphernalia

Page 435 4. By judgment, consequent on a suit at law, a man may, in some cases, not only recover, but originally acquire, a right to personal property. As, I. To penalties recoverable by action popular. II. To damages. III. To costs of suit 436-439

CHAPTER XXX.

OF TITLE BY GIFT, GRANT, AND CONTRACT.

1. A GIFT, or grant, is a voluntary conveyance of a chattel persoual in possession, without any consideration or equivalent 440 2. A contract is an agreement, upon sufficient consideration, to do or not to do a particular thing: and, by such contract, any personal property (either in possession, or in action) may be transferred

442

3. Contracts may be either express, or implied;—either executed, or executory.

443

4. The consideration of contracts is, I. A good consideration. II. A valuable consideration; which is, 1. Do, ut des. 2. Facio, ut facias. 3. Facio, ut des. 4. Do, ut facias 444-5

5. The most usual species of personal contracts are, I. Sale or exchange. II. Bailment. III. Hiring or borrowing. IV. Debt

446

6. Sale or exchange is a transmutation of property from one man to another, in consideration of some recompence in value 446 7. Bailment is the delivery of goods in trust; upon a contract, express or implied, that the trust shall be faithfully performed by the bailee

451

8. Hiring or borrowing is a contract, whereby the possession of chattels is transferred for a particular time, on condition that the identical goods (or, sometimes, their value) be restored at the time appointed; together with (in case of hiring) a stipend or price for the use

453

9. This price, being calculated to answer the hazard, as well as inconvenience, of lending, gives birth to the doctrine of interest or usury, upon loans; and, consequently, to the doctrine of bottomry or respondentia, and insurance 453-464

10. Debt is any contract, whereby a certain sum of money becomes due to the creditor. This is, I. A debt of record. II. A debt upon special contract. III. A debt upon simple contract; which last includes paper credit, or bills of exchange, and promissory notes

464-470

CHAPTER XXXI.

OF TITLE BY BANKRUPTCY.

1. BANKRUPTCY (as defined in ch. 18) is the act of becoming a bankrupt

Page 471 2. Herein may be considered, I. Who may become a bankrupt. II. The acts, whereby he may become a bankrupt. III. The proceedings on a commission of bankrupt. IV. How his property is transferred thereby

471

3. Persons of full age, using the trade of merchandize, by buying, and selling, and seeking their livelihood thereby, are liable to become bankrupts; for debts of a sufficient amount 473

4. A trader who endeavours to avoid his creditors, or evade their just demands, by any of the ways specified in the several statutes of bankruptcy, doth thereby commit a bankruptcy 478

5. The proceedings on a commission of bankrupt, so far as they affect the bankrupt himself, are principally by, I. Petition. II. Commission. III. Declaration of bankruptcy. IV. Choice of assignees. V. The bankrupt's surrender. VI. His examination. VII. His discovery. VIII. His certificate. IX. His allowance. X. His indemnity 479-485

6. The property of a bankrupt's personal estate is, immediately upon the act of bankruptcy, vested by construction of law in the assignees: and they, when they have collected, distribute the whole by equal dividends among all the creditors 485-488

CHAPTER XXXII.

OF TITLE BY TESTAMENT AND ADMINISTRATION.

II.

1. CONCERNING testaments and administrations, considered. jointly, are to be observed, I. Their original and antiquity. Who may make a testament. III. Its nature and incidents. IV. What are executors and administrators. V. Their office and duty

489

2. Testaments have subsisted in England immemorially; whereby the deceased was at liberty to dispose of his personal estate, reserving anciently to his wife and children their reasonable part of his effects

491

3. The goods of intestates belonged anciently to the king; who granted them to the prelates to be disposed in pious uses: but, on their abuse of this trust, in the times of popery, the legislature compelled them to delegate their power to administrators expressly provided by law

493