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 bonâ 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 any collusion 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 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 acquisi (a) 2 Lev. 141; Stra. 1169; Combe v. Pitt, B. R. Tr. 3 Geo. III. (b) Stat. 4 Hen. VII. c. 20. 2. Damages jury for an in awarded by a jury sustained. 438 3. Costs and expenses. [ *439 ] OF TITLE BY SUCCESSION, MARRIAGE, AND JUdgment. tion 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 (10); 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 ascertaining 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. *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. (10) See Vol. III. p. 116. 440 CHAPTER XXX. 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 gift 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 which is the act of transferring law, convert the gift, if executed, into a grant; if not executed, into a contract. *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 [ *441 ] title and interest therein: which may be done either in writ the right of chattels personal, accompanied with delivery of possession. 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 (b), 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 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 : as, if A. gives to B. 1007., 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. (b) 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 of 6 Geo. IV. c. 16, in substance, enacts, that all goods in the possession of a bankrupt, by permission of the true owner, and whereof the bank. rupt is the reputed owner, shall be liable to his creditors. The object of the statute is to make the reputed ownership of goods and chattels in the possession of bankrupts, at the time of their bankruptcy, the real ownership of such goods and chattels, and to subject them to all the debts of the bankrupt. If there be nothing to qualify the appearance of ownership arising out of possession, the public will naturally give credit to traders on their reputed property; and the person who permits them to hold out to the world that appearance of their being real owners, ought to be answerable for the consequences. (Horn v. Baker, 9 East, 238, et seq.) If, indeed, the possession retained by a bankrupt up to the time of his bankruptcy, was a possession according to a limited right of ownership in him, qualified by a right of property in others, that ulterior right will not be affected by the statute, even though credit may have been given on the faith of the absolute property appearing to be in the bankrupt. (Joy v. Campbell, 1 Sch. & Lef. 338; Kirkley v. Hodgson, 1 Barn. & Cress. 599; S. C. 2 D. & R. 857; Gibson v. Bray, 8 Taunt. 80.) And where it is a known usage, that certain chattels necessary for carrying on a trade, (as the machinery of a colliery, for instance,) should be demised to a tenant, but the property thereof to remain in the landlord; there, the mere possession of such things is not evidence of reputed ownership, so as to bring the case within the statute. (Storer v. Hunter, 3 Barn. & Cress. 376.) There may also be apparent VOL. II. possession and reputed ownership, yet the circumstances may rebut the imputation of fraud, even constructively, with reference to the bankrupt laws. Thus, where a wife has, bond fide, purchased, through the medium of trustees, the family pictures, plate, furniture, &c., of the house in which she and her husband reside together, though the possession may seem to be in the husband, the property, it should appear, cannot in any way be answerable to his creditors. (Lady Arundell v. Phipps, 10 Ves. 145; and see Kidd v. Rawlinson, 2 Bos. & Pull. 60; Leonard v. Baker, 1 Mau. & Sel. 252.) And the possession of factors, brokers, lodgers, &c., does not carry, to the understanding of the world, the reputed ownership: (Horn v. Baker, 9 East, 245:) therefore, goods left in the hands of a factor, merely to be by him disposed of on account of his principal, cannot be seized under his commission, should he become bankrupt whilst the goods are in his possession with the consent of the true owner; for, this case, though within the letter, is not within the meaning of the bankrupt act. (Ex parte Dumas, 2 Ves. sen. 585; Copeman v. Gallant, 1 P. Wms, 314; Taylor v. Plumer, 3 Mau. & Sel. 575; and see the 6th section of the statute of 6 Geo. IV. c. 94, as to the extent to which pledges or contracts by factors or agents, of goods consigned to them, will be binding upon their principals.) The same rule applies to goods of which a man is in possession, at the time of his bankruptcy, as broker, though he is to receive a share of the profits in lieu of brokerage; (Smith v. Watson, 2 Barn. & Cress. 408; S. C. 3 D. & R. 759;) or of which he merely holds the temporary custody, (after having sold the same,) in the ordinary course of business, U U |
