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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 every body else. He obtains an inchoate imperfect degree of property, by commencing his suit: but it is not consummated till judgment; for, if
appears, he loses the priority he had gained (b). But, otherwise, the right so attaches in the first informer, that the king (who before action brought may grant a pardon, which shall be a bar to all the world) cannot after suit commenced remit any thing but his own part of the penalty(c). 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 any thing but parliament, to release the informer's interest. This therefore, is one instance, where a suit and judgment at law are *not only the means of reco- [ * 438 ] vering, 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 2. Damages
awarded by a by suit and judgment at law, is that of damages given to a jury for an inman 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 acquisi
(a) 2 Lev. 141; Stra. 1169 ; Combe v, Pitt, B. R. Tr. 3 Geo. III.
(6) Stat. 4 Hen. VII. c. 20.
OF TITLE BY SUCCESSION, MARRIAGE, AND JUDGMENT.
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.
3. Costs and expenses.
[ *439 ]
OF TITLE BY GIFT, GRANT, AND CONTRACT.
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.
VIII. Gifts then, or grants, which are the eighth method viII. By gist of transferring personal property, are thus to be distin- or grant, guished 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 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 peppercorn; any of which considerations (1) will, in the eye of the
(1) As to the necessity that every deed should be founded upon a sufficient consideration, see ante, p. 296,
with the note thereto subjoined; and
law, convert the gift, if executed, into a grant; if not exe
cuted, into a contract. which is the act *Grants or gifts, of chattels personal, are the act of transthe right of ferring the right and the possession of them; whereby one
man renounces, and another man immediately acquires, all [ * 441 ) title and interest therein : which may be done either in writ
ing, or by word of mouth (a) 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 (6), 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(2): 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 con
viction shall suffer imprisonment for half a year. accompanied A true and proper gift or grant is always accompanied with delivery of
with delivery of possession, and takes effect immediately: as, if A. gives to B. 1001., or a flock of sheep, and puts him in possession of them directly, it is then a gift executed in the donee ; and it is not in the donor's power to retract it, though he did it without any consideration or recompence(c): unless it be prejudicial to creditors; or the donor were under any legal incapacity, as infancy, coverture, duress, or the like; or if he were drawn in, circumvented, or imposed upon, by false pretences, ebriety, or surprise (3). But, if the gift does not take effect, by delivery of immediate pos
(a) Perk. s. 57.
(6) See 3 Rep. 82.
(c) Jenk. 109.
(2) See the first reference given in the preceding note.
(3) See ante, pp. 291, 292, 293, with the notes.
session (4), it is then not properly a gift, but a contract : *and this a man cannot be compelled to perform, but upon [ * 442 ]
(4) The 72d section of the statute possession and reputed ownership, yet of 6 Geo. IV. c. 16, in substance, the circumstances may rebut the imenacts, that all goods in the posses- putation of fraud, even constructively, sion of a bankrupt, by permission of with reference to the bankrupt laws. the true owner, and whereof the bank. Thus, where a wife has, bond fide, rupt is the reputed owner, shall be purchased, through the medium of liable to his creditors. The object of trustees, the family pictures, plate, the statute is to make the reputed furniture, &c., of the house in which ownership of goods and chattels in she and her husband reside together, the possession of bankrupts, at the though the possession may seem to be time of their bankruptcy, the real in the husband, the property, it should ownership of such goods and chattels, appear, cannot in any way be answerand to subject them to all the debts able to his creditors. (Lady Arundell of the bankrupt. If there be nothing v. Phipps, 10 Ves. 145 ; and see Kidd to qualify the appearance of owner- v. Rawlinson, 2 Bos. & Pull. 60 ; ship arising out of possession, the Leonard v. Baker, 1 Mau. & Sel. 252.) public will naturally give credit to And the possession of factors, brokers, traders on their reputed property; lodgers, &c., does not carry, to the and the person who permits them to understanding of the world, the rehold out to the world that appearance puted ownership: (Horn v. Baker, 9 of their being real owners, ought to East, 245 :) therefore, goods left in be answerable for the consequences.
the hands of a factor, merely to be by (Horn v. Baker, 9 East, 238, et seq.) him disposed of on account of his If, indeed, the possession retained by principal, cannot be seized under his a bankrupt up to the time of his bank. commission, should he become bank. ruptcy, was a possession according to rupt whilst the goods are in his posa limited right of ownership in him, session with the consent of the true qualified by a right of property in owner; for, this case, though within others, that ulterior right will not be the letter, is not within the meaning affected by the statute, even though of the bankrupt act. (Ex parte Dumas, credit may have been given on the 2 Ves. sen. 585; Copeman v. Gallant, faith of the absolute property appear.
1 P. Wms, 314 ; Taylor v. Plumer, ing to be in the bankrupt. (Joy v. 3 Mau. & Sel. 575 ; and see the 6th Campbell, 1 Sch. & Lef. 338; Kirk- section of the statute of 6 Geo. IV. ley v. Hodgson, 1 Barn. & Cress. c. 94, as to the extent to which 599; S. C. 2 D. & R. 857; Gibson pledges or contracts by factors or v. Bray, 8 Taunt. 80.) And where agents, of goods consigned to them, it is a known usage, that certain will be binding upon their principals.) chattels necessary for carrying on a The same rule applies to goods of trade, (as the machinery of a colliery, which a man is in possession, at the for instance,) should be demised to a time of his bankruptcy, as broker, tenant, but the property thereof to though he is to receive a share of the remain in the landlord; there, the profits in lieu of brokerage; (Smith mere possession of such things is not v. Watson, 2 Barn. & Cress. 408 ; evidence of reputed ownership, so as S. C. 3 D. & R. 759 ;) or of which to bring the case within the statute. he merely holds the temporary cus(Storer v. Hunter, 3 Barn. & Cress. tody, (after having sold the same,) 376.) There may also be apparent in the ordinary course of business, VOL. II.