Wife's Paraphernalia.

And, as the husband may thus generally acquire a property in all the personal substance of the wife, so in one particular 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 his executors. These are called her paraphernalia, which is a term borrowed from the civil law, and is derived from the Greek language, signifying something over and above her dower. Our law uses it 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. These she becomes entitled to at the death of her husband, over and above her jointure, or dower, and preferably to all other representatives. Neither can the husband devise by his will such ornaments and jewels of his wife; though during his life perhaps he hath the power (if unkindly inclined to exert it) 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.

Title by Judgment.

VII. A judgment, in consequence 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. And here we must be careful to distinguish between property, the right of which is before vested in the party, and of which only possession is recovered by suit or action; and property to which a man before had no determinate title or certain claim, but he gains as well the right as the possession by the process and the judgment of the law. Of the former sort are all debts and choses in action; as if a man gives bond for 20l., or agrees to buy a horse at a stated sum, or takes up goods of a tradesman upon an implied contract to pay as much as they are reasonably worth: in all these cases the right accrues to the creditor, and is completely vested in him, at the time of the bond being sealed, or the contract or agreement made; and the law only gives him a remedy to recover the possession of that right which already in justice belongs to him. But there is also a species of property to which a man, has not any claim or title whatsoever till after suit commenced and judgment obtained in a court of law: where the right and the remedy do not follow each other, as in common cases, but accrue at one and the same time; and where, before judgment had, no man can say that he has any absolute property, either in possession or in action. 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.

2. Another species of property that is acquired and lost by suit and judgment at law, is that of damages given to a man by a jury, as a compensation and satisfaction for some injury sustained; as for battery, for imprisonment. for slander, or for trespass, Here the plaintiff has no certain demand till after the 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 XXX.

OF TITLE BY GIFT, GRANT, AND CONTRACT.

440-471.

We are now to proceed according to the order marked out, to the discussion of two of the remaining methods of acquiring a title to property in things personal, which are much connected together, and answer in some measure to the conveyances of real estates; being those by gift or grant, and by contract; whereof the former vests a property in possession, the latter a property in action.

Gifts and Grants.

VIII. Gifts, then, or grants, which are 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.

Grants of Chattels Real.

Under the head of gifts or 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 were considered in the twentieth chapter

of the present book, and therefore need not be here again repeated: though these very seldom carry the outward appearance of a gift, however freely bestowed, 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 pepper-corn: 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 of Chattels Personal.

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, attested by sufficient evidence, of which the delivery of possession is the strongest and most essential. But this conveyance when merely voluntary, is somewhat suspicious; and is usually construed to be fraudulent, if creditors or others become sufferers thereby. And, particularly, by statute 3 Hen. VII. c. 4, all deeds of gift of goods, made in trust to the use of the donor, shall be void: because otherwise persons might be tempted to commit treason or felony, without danger of forfeiture; and the creditors of the donor might also be defrauded of their rights. And by statute 13 Eliz. c. 5, every grant or gift of chattels, as well as lands, 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 all persons partakers in, or privy to, such fraudulent grants, shall forfeit the whole value of the goods, one moiety to the king, and another moiety to the party grieved; and also on conviction shall suffer imprisonment for half a year.

A true and proper gift or grant is always accompanied with delivery of possession, and takes effect immediately. But if the gift does not take effect, by delivery of immediate possession, it is then not properly a gift but a contract; and this a man cannot be compelled to perform but upon good and sufficient consideration. A Contract.

IX. A contract which usually conveys an interest merely in action, is thus defined: "an agreement upon sufficient consideration to do or not to do a particular thing." From which definition there arise three points to be contemplated in all contracts: 1, The agreement; 2, the consideration; and 3, the thing to be done or omitted, or the different species of contracts.

The Agreement.

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 100l. 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 in the original creditor's name; the person to whom it is transferred being rather an attorney than an assignee. Express and Implied.

This contract or agreement may be either express or implied. Express contracts are where the terms of the agreement are openly uttered and avowed at the time of the making. 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. In short, almost all the rights of personal property (when not in actual possession) do in great measure depend upon contracts, of one kind or other, or at least might be reduced under some of them: which indeed is the method taken by the civil law; it having referred the greatest part of the duties and rights, which it treats of, to the head of obligations er contractu and quasi ex contractu.

Executed and Executory.

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 nothing from a grant) conveys a chose in possession; a contract executory conveys only a chose in action.

The Consideration.

Having thus shown the general nature of a contract, we are, secondly, to proceed to the consideration upon which it is founded; or the reason which moves the contracting party to enter into the contract. "It 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. This consideration may sometimes, however, 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 contract, 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.

Nudum Pactum.

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. 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. And as this rule was principally established to avoid the inconvenience that would arise from setting up mere verbal promises, for which no good reason could be assigned, it therefore does not hold in some cases, where such promise is authentically proved by written documents. For if a man enters into a voluntary bond, or gives a promissory note, he shall not be allowed to aver the want of a consideration in order to evade the payment; for every bond from the solemnity of the instrument, and every note from the subscription of the drawer, carries with it an internal evidence of a good consideration. Courts of justice