Chapter XXVII.

OF TITLE BY PREROGATIVE AND FORFEITURE.

Tribute, Taxes, etc.

408-422.

The chapter treats of the method of acquiring property in personal chattels by the king's prerogative whereby a right may accrue either to the crown itself or to such as claim under the crown, by the king's grant or by prescription, which supposes an ancient grant.

Prerogative property comprises tributes, taxes, customs, forfeitures, fines, amercements, copyright in certain books, as liturgies, books of worship, law-books, grammars, Bibles, acts of state and government, certain species of game.

It is stated that the king cannot have a joint property with any person in one entire chattel.

The subject of forfeiture of goods and chattels for crime is briefly discussed.

Chapter XXVIII.

OF TITLE BY CUSTOM.

422-430.

A fourth method of acquiring property in things personal, or chattels, is by custom: whereby a right vests in some particular persons, either by the local usage of some particular place, or by the almost general and universal usage of the kingdom. I shall content myself with making some observations on three sorts of customary interests, which obtain pretty generally throughout most parts of the nation, and are therefore of more universal concern; viz., heriots, mortuaries, and heir-looms.

Heriots.

1. Heriots are usually divided into two sorts, heriot-service, and heriot-custom. The former are such as are due upon a special reservation in a grant or lease of lands, and therefore amount to little more than a mere rent; the latter arise upon no special reservation whatsoever, but depend merely upon immemorial usage and custom. They are defined to be a customary tribute of goods and chattels, payable to the lord of the fee on the decease of the owner of the land.

This heriot is sometimes the best live beasts, or averium, which the tenant dies possessed of, sometimes the best inanimate good, under which a jewel or piece of plate may be included: but it is always a personal chattel, which, immediately on the death of the tenant who was the owner of it, being ascertained by the option of the lord, becomes vested in him as his property; and is no charge upon the lands, but merely on the goods and chattels.

Mortuaries.

2. Mortuaries are a sort of ecclesiastical heriots, being a customary gift claimed by and due to the minister in very many parishes, on the death of his parishioners.

Heir-Looms.

3. Heir-looms are such goods and personal chattels as, contrary to the nature of chattels, shall go by special custom to the heir along with the inheritance, and not to the executor of the last proprietor. They are generally such things as cannot be taken away without damaging or dismembering the freehold: otherwise the general rule is, that no chattel interest whatsoever shall go to the heir, notwithstanding it be expressly limited to a man and his heirs, but shall vest in the executor. Charters and deeds, courtrolls, and other evidences of the land, together with the chests in which they are contained, shall pass together with the land to the heir, in the nature of heir-looms, and shall not go to the executor. By special custom also, in some places, carriages, utensils, and other household implements, may be heir-looms, but such custom must be strictly proved. On the other hand by almost general custom, whatever is strongly affixed to the freehold or inheritance, and cannot be severed from thence without violence or damage, is become a member of the inheritance, and shall thereupon pass to the heir; as chimney-pieces, pumps, old, fixed or dormant tables, benches, and the like.

These, though they be mere chattels, yet cannot be devised away from the heir by will; but such a devise is void, even by a tenant in fee-simple. For though the owner might during his life have sold or disposed of them, as he might of the timber of the estate, since, as the inheritance was his own, he might mangle or dismember it as he pleased; yet they being at his death instantly vested in the heir, the devise (which is subsequent and not to take effect till after his death) shall be postponed to the custom whereby they have already descended.

Chapter XXIX.

OF TITLE BY SUCCESSION, MARRIAGE, AND

JUDGMENT.

430-440.

In the present chapter we shall take into consideration three other species of title to goods and chattels.

Title by Succession.

V. The fifth method therefore of gaining a property in chattels either personal or real, is by succession; which is, in strictness

of law, only applicable to corporations aggregate; in which one set of men may, by succeeding another set, acquire a property in all the goods, movables, and other chattels of the corporation. The true reason whereof is, because in judgment of law a corporation never dies; and therefore the predecessors who lived a century ago, and their successors now in being, are one and the same body corporate. Which identity is a property so inherent in the nature of a body politic, that, even when it is meant to give anything to be taken in succession by such a body, that succession need not be expressed; but the law will of itself imply it. So that a gift to such a corporation, either of lands or of chattels, without naming their successors vests an absolute property in them so long as the corporation subsists.

But, with regard to sole corporations, a considerable distinction must be made. For if such sole corporation be the representative of a number of persons; as the master of an hospital, who is a corporation for the benefit of the poor brethren; an abbot, or prior, by the old law before the reformation, who represented the whole convent; or the dean of some ancient cathedral, who stands in the place of and represents, in his corporate capacity, the chapter; such sole corporations as these have, in this respect, the same powers as corporations aggregate have, to take personal property or chattels in succession. And therefore a bond of such a master, abbot, or dean and his successors, is good law; and the successor shall have the advantage of it, for the benefit of the aggregate society of which he is in law the representative. Whereas, in the case of sole corporations which represent no others but themselves, as bishops, parsons, and the like, no chattel interest can regularly go in succession; and therefore, if a lease for years be made to the bishop of Oxford and his successors, in such case his executors or administrators, and not his successor, shall have it. For the word successors when applied to a person in his political capacity, is equivalent to the word heirs in his natural, and as such a lease for years, if made to John and his heirs, would not vest in his heirs but his executors; so if it be made to John, bishop of Oxford, and his successors, who are the heirs of his body politic, it shall still vest in his executors and not in such his successors.

This is not the case in corporations aggregate, where the right is never in suspense, nor in the other sole corporations before mentioned, who are rather to be considered as heads of an aggregate body than subsisting merely in their own right. The chattel interest, therefore, in such a case is really and substantially vested in the hospital, convent, chapter, or other aggregate body, though the head is the visible person in whose name every act is carried on, and in whom every interest is therefore said, in point of form, to vest. But the general rule with regard to corporations merely

sole, is this, that no chattel can go to or be acquired by them in right of succession.

Yet to this rule there are two exceptions. One in the case of the king, in whom a chattel may vest by a grant of it formerly made to a preceding king and his successors. The other exception is where, by a particular custom, some particular corporation sole have acquired a power of taking particular chattel interests in succession. Wherefore, upon the whole, we may close this head with laying down this general rule: that such right of succession to chattels is universally inherent by the common law in all aggregate corporations, in the king, and in such single corporations as represent a number of persons; and may, by special custom, belong to certain other sole corporations for some particular purposes; although generally, in sole corporations, no such right can exist.

Title by Marriage.

VI. A sixth method of acquiring property in goods and chattels is by marriage; whereby those chattels, which belonged formerly to the wife, are by act of law vested in the husband, with the same degree of property and the same powers as the wife, when sole, had over them.

This depends entirely on the notion of a unity of person between the husband and wife; it being held that they are one person in law, so that the very being and existence of the woman is suspended during the coverture, or entirely merged or incorporated in that of the husband. And hence it follows, that whatever personal property belonged to the wife before marriage, is by marriage absolutely vested in the husband. In a real estate, he only gains the title to the rents and profits during coverture; for that depending upon feodal principles, remains entire to the wife after the death of her husband, or to her heirs, if she dies before him; unless, by the birth of a child, he becomes tenant for life by the curtesy. But, in chattel interests, the sole and absolute property vests in the husband, to be disposed of at his pleasure, if he chooses to take possession of them; for unless he reduce them to possession, by exercising some act of ownership upon them, no property vests in him, but they shall remain to the wife, or to her representatives, after the coverture is determined. There is therefore a very considerable difference in the acquisition of these species of property by the husband, according to the subject matter, viz., whether it be a chattel real or chattel personal; and, of chattels personal, whether it be in possession or in action only. A chattel real vests in the husband, not absolutely, but sub modo. As, in case of a lease for years, the husband shall receive all the rents and profits of it, and may, if he pleases, sell, surrender, or dispose of it during the coverture; if he be outlawed or attainted,

it shall be forfeited to the king; it is liable to execution for his debts; and, if he survives his wife, it is to all intents and purposes his own. Yet, if he has made no disposition thereof in his lifetime, and dies before his wife, he cannot dispose of it by will for, the husband having made no alteration in the property during his life, it never was transferred from the wife, but after his death she shall remain in her ancient possession, and it shall not go to his executors. So it is also of chattels personal (or choses) in action; as debts upon bond, contracts, and the like; these the husband may have if he pleases; that is, if he reduces them into possession by receiving or recovering them at law. And upon such receipt or recovery they are absolutely and entirely his own; and shall go to his executors or administrators, or as he shall bequeath them by will, and shall not revest in the wife. But if he dies before he has recovered or reduced them into possession, so that at his death they still continue choses in action, they shall survive to the wife; for the husband never exerted the power he had of obtaining an exclusive property in them. 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; except in the case of arrears of rent due to the wife before her coverture, which in case of her death are given to the husband by statute 32 Hen. VIII. c. 37. And the reason for the general law is this: that the husband is in absolute possession of the chattel real during the coverture, by a kind of joint tenancy with his wife; wherefore the law will not wrest it out of his hands, and give it to her representatives; though, in case he had died first, it would have survived to the wife, unless he thought proper in his lifetime to alter the possession. But a chose in action shall not survive to him, because he never was in possession of it at all during the coverture; and the only method he had to gain possession of it was by suing in his wife's right; but as after her death he cannot (as husband) bring an action in her right, because they are no longer one and the same person in law, therefore he can never (as such) recover the possession. But 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.

Thus, and upon these reasons, stands the law between husband and wife with regard to chattels real and choses in action; but as to chattels personal (or choses) in possession, which the wife hath in her own right, as ready money, jewels, household goods, and the like, the husband hath 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.