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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. 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. Now here it is clear that no particular person, A or B, has any right, claim, or demand, in or upon this penal sum, till after action brought;a for he that brings his action, and can bona fide obtain judgment first, will undoubtedly secure a title to it, in exclusion of everybody else. He obtains an inchoate imperfect degree of property, by commencing his suit: but it is not consummated till judgment; for, if any collusion appears, he loses the priority he had gained." But, otherwise, the right so attaches in the first informer, that the king (who before action brought shall grant a pardon which shall be a bar to all the world) cannot after suit commenced remit anything but his own part of the penalty. For by commencing the suit the informer has made the popular action his own private action, and it is not in the power of the crown, or of anything but parliament to release the informer's

a 2 Lev. 141. Stra. 1169. Combe v. Pitt. B. R. Tr. 3 Geo. III. b Stat. 4 Hen. VII. c. 20.

c Cro. Eliz. 138. 11 Rep. 65.

+-* Quoted, 1 Ill. 158; 56111. 350.

interest. This therefore is one instance, where a suit and judgment at law are [438] not only the means of recovering, but also of acquiring, property. And what is said of this one penalty is equally true of all others, that are given thus at large to a common informer, or to any person that will sue for the same. They are placed as it were in a state of nature, accessible by all the king's subjects, but the acquired right of none of them: open therefore to the first occupant, who declares his intention to possess them by bringing his action; and who carries that intention into execution, by obtaining judgment to recover them.

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 a battery, for imprisonment, for slander, or for trespass. 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. It is true, that this is not an acquisition so perfectly original as in the former instance: for here the injured party has unquestionably a vague and indeterminate right to some damages or other, the instant he receives the injury; and the verdict of the jurors, and judgment of the court thereupon, do not in this case so properly vest a new title in him, as fix and ascertain the old one; they do not give, but define, the right. But, however, though strictly speaking the primary right to a satisfaction for injuries is given by the law of nature, and the suit is only the means of ascer*-† Quoted, 53 N. H. 368; 16 Am. Rep. 294.

+ Cited, 48 Ala. 577; 41 Me. 164; 66 Am. Dec. 218; 37 N. H. 338; 72 Am. Dec. 335; 3 Wis. 425; interest is calculated only to the commencement of the action, 4 Yeates, 226.

‡ Cited, 30 Conn. 326.

taining and recovering that satisfaction; yet, as the legal proceedings are the only visible means of this acquisition of property, we may fairly enough rank such damages, or satisfaction assessed, under the head of property acquired by suit and judgment at law.*

[439] 3. Hither also may be referred, upon the same principle, all title to costs and expences 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.


(80) Those chattels which formerly belonged to the wife are by act of law vested in the husband, page 433.

Note here the strict accuracy of Blackstone's language. There is no change of title; he does not say that the law gives them to the husband, though there is very respectable authority for that phrase in the year book. The wife's title is not divested by the marriage, but simply covert like her person by the merger of her legal being in his. During the coverture he is the person in whom reside, by whom are exercised, the rights that belong to both. This coverture has no effect on abstract rights, such as choses in action, while they remain such. It is only as they are reduced to possession that they become the husband's, like other choses in possession. If not so reduced, the coverture will disappear with the husband's death, and the chose in action be the property of the surviving wife.

When Mr. Lowell says: "A chose in action was not assignable at common law and it was for this reason *Cited, 5 Call, 345.

that a husband acquired by marriage no title to the choses in action of his wife, unless he reduced them to possession- that is, unless he converted them into choses in possession " (Lowell, Transfer of Stock, ? 8), he states the rule itself with entire accuracy, but gives a wrong reason for it. It was not because the common law regarded the husband's rights as the effect of an assignment or transfer of any kind, that the choses in action did not become his. If it had been so, he clearly could not have acquired the right to reduce them to possession, which the rule implies and which he clearly had. It is because possession and only possession was affected by the mergor.

Nearly all the disputes which have arisen respecting the husband's right to the wife's choses in action at common law have been due to the disregard of this plain test. To say that the law gives them to him provided he reduces them to possession, is equivalent to saying that the law gives him her choses in action, provided they cease to be choses in action and become choses in possession. By the very principle of coverture, it is his right and duty to collect them; and if he sues for them as hers, in their joint names, and dies before judgment and collection, they will survive to her; while if he sues for them in his own name, that will be a reduction to possession and make them his.

The principle that coverture (and the consequent merger of the wife's personalty) operate only on things in actual possession, and not to transfer mere rights, is illustrated even in the cases often treated as exceptions to it, such as the title to land. "In a real estate he only gains a title to the rents and profits during coverture," says Blackstone, a few lines below; that is to say, the freehold, which is all that she really has in possession, becomes his: the rights of her heirs which are united with it to form a fee-simple or fee-tail, and even her right as owner of the fee to represent them

and cut off their estate (as she could while sole), are unaffected by the marriage. Neither he nor she, nor both together, could transfer the inheritance at common law, until the device of fines enabled them to make a title on which purchasers could rely by virtue of an arbitrary limitation. But her freehold, which is a thing in possession, becomes his, and his enjoyment of it is marked by many rules which plainly show that he enjoys it in her right only, until by the birth of an heir he exchanges it for a freehold of his own, i. e., for his own life, by the curtesy of England.

Her chattels real are vested in both, and he enjoys them during coverture without prejudice to her rights to resume control of them if she survive him. But if he sell or convert into other form (as he may) their interest, the vested rights of the purchaser, etc., can never be resumed by her. Herein lies the difference between chattels real and personal; the former are continuous in time, and may be enjoyed, by possession under them, receipt of rent from sub-tenants, etc., without exhausting them; and therefore are capable of surviving. But chattels personal once in his possession, no interest or estate remains in her by which she may reclaim them at his death.

(81) These are called her paraphernalia, page 435.

By statute in nearly every American state, the widow (alone, or with her minor children) is entitled to a certain part of the husband's property on his death, to bo set apart for her immediate use, exempt from appraisement and the claims of creditors, for her immediate support and needs. Usually all the apparel, etc., that would be included in the paraphernalia are given her by these statutes; and always the reason of the statutory provision is one that makes the claim of paraphernalia needless. Hence the term and the right are scarcely mentioned in our books.

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