CHAPTER XXVII. OF TITLE BY PREROGATIVE, AND Forfeiture. 1. By prerogative is vested in the crown, or its grantees, the property of the royal revenue; (see book I. ch. 8); and also the property of all game in the kingdom, with the right of pursuing and taking it Page 408-419 2. By forfeiture, for crimes and misdemesnors, the right of goods and chattels may be transferred from one man to another, either in part or totally 420 3. Total forfeitures of goods arise from conviction of, I. Treason, and misprision thereof. II. Felony. III. Excusable homicide. IV. Outlawry for treason or felony. V. Flight. VI. Standing mute. VII. Assaults on a judge; and batteries, sitting the courts. VIII. Præmunire. IX. Pretended prophecies. X. Owling. XI. Residing abroad of artificers. XII. Challenges to fight for debts at play 421 CHAPTER XXVIII. OF TITLE BY CUSTOM. 1. By custom, obtaining in particular places, a right may be acquired in chattels : the most usual of which customs are those relating to, I. Heriots. II. Mortuaries. III. Heir-looms 422 2. Heriots are either heriot-service, which differs little from a rent; or heriot-custom, which is a customary tribute, of goods and chattels, payable to the lord of the fee, on the decease of the owner of lands 422 3. Mortuaries are a customary gift, due to the minister in many parishes, on the death of his parishioners 425 4. Heir-looms are such personal chattels, as descend by special custom to the heir, along with the inheritance of his ancestor 427 CHAPTER XXIX. OF TITLE BY SUCCESSION, MARRIAGE, AND JUDGMENT. 1. By succession the right of chattels is vested in corporations aggregate; and likewise in such corporations sole as are the heads and representatives of bodies aggregate 430 2. By marriage the chattels real and personal of the wife are vested in the husband, in the same degree of property, and with the same powers, as the wife when sole had over them; provided he reduces them to possession 433 3. The wife also acquires, by marriage, a property in her paraphernalia Page 435 4. By judgment, consequent on a suit at law, a man may, in some cases, not only recover, but originally acquire, a right to personal property. As, I. To penalties recoverable by action popular. II. To damages. III. To costs of suit 436-439 CHAPTER XXX. OF TITLE BY GIFT, GRANT, AND CONTRACT. 1. A GIFT, or grant, is a voluntary conveyance of a chattel personal in possession, without any consideration or equivalent 440 2. A contract is an agreement, upon sufficient consideration, to do or not to do a particular thing: and, by such contract, any personal property (either in possession, or in action) may be transferred 3. Contracts may be either express, or implied;cuted, or executory 442 exe 443 4. The consideration of contracts is, I. A good consideration. II. A valuable consideration; which is, 1. Do, ut des. 2. Facio, ut facias. 3. Facio, ut des. 4. Do, ut facias 444-5 5. The most usual species of personal contracts are, I. Sale or exchange. II. Bailment. III. Hiring or borrowing. IV. Debt 446 6. Sale or exchange is a transmutation of property from one man to another, in consideration of some recompence in value 446 7. Bailment is the delivery of goods in trust; upon a contract, express or implied, that the trust shall be faithfully performed by the bailee 451 8. Hiring or borrowing is a contract, whereby the possession of chattels is transferred for a particular time, on condition that the identical goods (or, sometimes, their value) be restored at the time appointed; together with (in case of hiring) a stipend or price for the use 453 9. This price, being calculated to answer the hazard, as well as inconvenience, of lending, gives birth to the doctrine of interest or usury, upon loans; and, consequently, to the doctrine of bottomry or respondentia, and insurance 453-464 10. Debt is any contract, whereby a certain sum of money becomes due to the creditor. This is, I. A debt of record. ÎI. A debt upon special contract. III. A debt upon simple contract; which last includes paper credit, or bills of exchange, and promissory notes 464-470 CHAPTER XXXI. OF TITLE BY BANKRUPTCY. 1. BANKRUPTCY (as defined in ch. 18) is the act of becoming a bankrupt ,'I. Page 471 2. Herein may be considered, I. Who may become a bankrupt. II. The acts, whereby he may become a bankrupt. III. The proceedings on a commission of bankrupt. IV. How his property is transferred thereby 471 3. Persons of full age, using the trade of merchandize, by buying, and selling, and seeking their livelihood thereby, are liable to become bankrupts; for debts of a sufficient amount 473 4. A trader who endeavours to avoid his creditors, or evade their just demands, by any of the ways specified in the several statutes of bankruptcy, doth thereby commit a bankruptcy 478 5. The proceedings on a commission of bankrupt, so far as they affect the bankrupt himself, are principally by, I. Petition. II. Commission. III. Declaration of bankruptcy. IV. Choice of assignees. V. The bankrupt's surrender. VI. His examination. VII. His discovery. VIII. His certificate. IX. His allowance. X. His indemnity 479-485 6. The property of a bankrupt's personal estate is, immediately upon the act of bankruptcy, vested by construction of law in the assignees: and they, when they have collected, distribute the whole by equal dividends among all the creditors 485-488 CHAPTER XXXII. OF TITLE BY TESTAMENT AND ADMINISTRATION. 1. CONCERNING testaments and administrations, considered jointly, are to be observed, I. Their original and antiquity. II. Who may make a testament. III. Its nature and incidents. IV. What are executors and administrators. V. Their office and duty 489 2. Testaments have subsisted in England immemorially; whereby the deceased was at liberty to dispose of his personal estate, reserving anciently to his wife and children their reasonable part of his effects 491 3. The goods of intestates belonged anciently to the king; who granted them to the prelates to be disposed in pious uses : but, on their abuse of this trust, in the times of popery, the legislature compelled them to delegate their power to administrators expressly provided by law 493 4. All persons may make a testament, unless disabled by, I. Want of discretion. II. Want of free will. III. Criminal conduct Page 496-7 5. Testaments are the legal declaration of a man's intentions, which he wills to be performed after his death. These are, I. Written. II. Nuncupative 499, 500 6. An executor is he, to whom a man by his will commits the execution thereof 502 7. Administrators are, I. Durante minore ætate of an infant executor or administrator; or durante absentia; or pendente lite. II. Cum testamento annexo; when no executor is named, or the executor refuses to act. III. General administrators; in pursuance of the statutes of Edward III. and Henry VIII. IV. Administrators de bonis non; when a former executor or administrator dies without completing his trust 503-507 8. The office and duty of executors (and, in many points, of administrators also) are, I. To bury the deceased. II. To prove the will, or take out administration. III. To make an inventory. IV. To collect the goods and chattels. V. To pay debts; observing the rules of priority. VI. To pay legacies, either neral or specific; if they be vested, and not lapsed. VII. To distribute the undevised surplus, according to the statute of distributions ge 508-520 CORRIGENDA. Page 72, n. 19, dele the two last lines. VOL. II. p. 185, n. column 3, lines 15 and 16, for "is" read "was;" and line 19, for "concludes" read "concluded;" line 9, column 4, for "is" read "was." COMMENTARIES ON THE LAWS OF ENGLAND. BOOK THE SECOND. OF THE RIGHTS OF THINGS. CHAPTER I. OF PROPERTY IN GENERAL. or rights of do THE former book of these Commentaries having treated Rights of things, at large of the jura personarum, or such rights (1) and duties minion. as are annexed to the persons of men, the objects of our inquiry in this second book will be the jura rerum, or, those rights which a man may acquire in and to such external things as are unconnected with his person. These are what the writers on natural law style the rights of dominion, or property; concerning the nature and original (1) The Latin word jus, one primary signification of which is held to be properly expressed by our English word right, is "an equivocal term, standing for many senses, according to its different use. Some lawyers reckon up near forty; whence it follows that Justinian and his lawyers, VOL. II. who begin their works with definition, B |