Sivut kuvina


made more universal by the statute of tenures under Charles II., with the introduction of additional solemnities by the statute of frauds and perjuries in the same reign 375-6 3. The construction of all common assurances should be, I. Agreeable to the intention, II. to the words, of the parties. III. Made upon the entire deed. IV. Bearing strongest against the contractor. V. Conformable to law. VI. Rejecting the latter of two totally repugnant clauses in a deed, and the former in a will. VII. Most favourable in case of a devise



[blocks in formation]


2. In these are to be considered, I. Their distribution. II. The property of them. III. The title to that property 3. As to the distribution of chattels, they are, I. Chattels real. II. Chattels personal

4. Chattels real are such quantities of interest, in things immoveable, as are short of the duration of freeholds; being limited to a time certain, beyond which they cannot subsist. (See ch.9) 5. Chattels personal are things moveable; which may be transferred from place to place, together with the person of the owner






[blocks in formation]

2. Property in possession, where a man has the actual enjoyment of the thing, is, I. Absolute. II. Qualified 3. Absolute property is where a man has such an exclusive right in the thing, that it cannot cease to be his, without his own act or default

4. Qualified property is such as is not, in its nature, permanent; but may sometimes subsist, and at other times not subsist

5. This may arise, I. Where the subject is incapable of absolute ownership. II. From the peculiar circumstances of the owners





6. Property in action, is where a man hath not the actual occupation of the thing; but only a right to it, arising upon some contract, and recoverable by an action at law

7. The property of chattels personal is liable to remainders, expectant on estates for life; to joint-tenancy; and to tenancy in common

[blocks in formation]

2. Occupancy still gives the first occupant a right to those few things which have no legal owner, or which are incapable of permanent ownership. Such as, I. Goods of alien enemies. II. Things found. III. The benefit of the elements. IV. Animals fere naturæ. V. Emblements. VI. Things gained by accession ;-or, VII. By confusion. VIIl. Literary property 400-407 CHAPTER XXVII.


OF TITLE BY PREROGATIVE, AND FOR408 to 421 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


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 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

[blocks in formation]

OF TITLE BY CUSTOM 422 to 427 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 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


[blocks in formation]




430 to 439

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

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 3. The wife also acquires, by marriage, a property in her paraphernalia 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






[blocks in formation]

1. A gift, or grant, is a voluntary conveyance of a chattel personal in possession, without any consideration or cquivalent

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; either executed, or executory

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

5. The most usual species of personal contracts are, I. Sale or exchange. II. Bailment. III. Hiring or borrowing. IV. Debt

6. Sale or exchange is a transmutation of property from one man to another, in consideration of some recompense in value

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

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

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 loan; and,









[blocks in formation]



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 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 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 sur render. VI. His examination. VII. His discovery. VIII. His certificate. IX. His allowance. X. His indemnity 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





OF TITLE BY TESTAMENT, AND ADMINISTRATION 489 to 520 1. Concerning testaments and administrations, considered jointly, are to be observed, I. Their originai and antiquity. II. Who may take a testament. III. Its nature and incidents. IV. What are executors and administrators. V. Their office and duty 2. Testaments have subsisted in England immemorially; whereby the deceased was at liberty to dispose of his personal estate, reserving antiently to his wife and children their reasonable part of his effects 3. The goods of intestates belonged antiently 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




4. All persons may make a testament, unless disabled by, I. Want of discretion. II. Want of free will. III. Criminal conduct 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 administra tion. 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 general or specific; if they be vested, and not lapsed. VII. To distribute the undevised surplus, according to the statute of distributions







THE general expectation of so numerous and respectable an audience, the novelty, and (I may add) the importance of the duty required from this chair, must unavoidably be productive of great diffidence and apprehensions in him who has the honour to be placed in it. He must be sensible how much will depend upon his conduct in the infancy of a study, which is now first adopted by public academical authority; which has generally been reputed (however unjustly) of a dry and unfruitful nature; and of which the theoretical, elementary parts, have hitherto received a very moderate share of cultivation. He cannot but reflect that, if either his plan of instruction be crude and injudicious, or the execution of it lame and superficial, it will cast a damp upon the farther progress of this most useful and most rational branch of learning; and may defeat for a time the *public-spirited design of our wise and munificent benefac- [*4] tor. And this he must more especially dread, when he feels by experience how unequal his abilities are (unassisted by preceding examples) to complete, in the manner he could wish, so extensive and arduous a task; since he freely confesses, that his former more private attempts have fallen very short of his own ideas of perfection. And yet the candour he has already experienced, and this last transcendent mark of regard, his present nomination by the free and unanimous suffrage of a great and learned university, (an honour to be ever remembered with the deepest and most affectionate gratitude,) these testimonies of your public judgment must entirely supersede his own, and forbid him to believe himself totally insufficient for the labour at least of this employment. One thing he will venture to hope for, and it certainly shall be his constant aim, by diligence and attention to atone for his other defects: esteeming, that the best return which he can possibly make, for your favourable opinion of his capacity, will be his unwearied endeavours in some little degree to deserve it.

The science thus committed to his charge, to be cultivated, methodized, and explained in a course of academical lectures, is that of the laws and constitution of our own country: a species of knowledge, in which the gentlemen of England have been more remarkably deficient than those of all Europe besides. In most of the nations on the continent, where the

* Read in Oxford at the opening of the ViDerian lectures; 25th of October, 1758.

The author had been elected first Vinerian professor the 20th of October previously.

civil or imperial law under different modifications is closely interwoven with the municipal laws of the land, no gentleman, or at least no scholar, thinks his education is completed, till he has attended a course or two of lectures, both upon the institutes of Justinian and the local constitutions of his native soil, under the very eminent professors that abound in their several universities. And in the northern parts of our own island, where also the municipal laws are frequently connected with the civil, it is difficult to meet with a person of liberal education, who is destitute of a competent knowledge in that science which is to be the guardian of his natural rights and the rule of his civil conduct.

[*5] *Nor have the imperial laws been totally neglected even in the English nation. A general acquaintance with their decisions has ever been deservedly considered as no small accomplishment of a gentleman; and a fashion has prevailed, especially of late, to transport the growing hopes of this island to foreign universities, in Switzerland, Germany, and Holland; which, though infinitely inferior to our own in every other consideration, have been looked upon as better nurseries of the civil, or (which is nearly the same) of their own municipal law. In the mean time, it has been the peculiar lot of our admirable system of laws to be neglected, and even unknown, by all but one practical profession; though built upon the soundest foundations, and approved by the experience of ages.

Far be it from me to derogate from the study of the civil law, considered (apart from any binding authority) as a collection of written reason. No man is more thoroughly persuaded of the general excellence of its rules, and the usual equity of its decisions, nor is better convinced of its use as well as ornament to the scholar, the divine, the statesman, and even the common lawyer. But we must not carry our veneration so far as to sacrifice our Alfred and Edward to the manes of Theodosius and Justinian: we must not prefer the edict of the prætor, or the rescript of the Roman emperor, to our own immemorial customs, or the sanctions of an English parliament; unless we can also prefer the despotic monarchy of Rome and Byzantium, for whose meridians the former were calculated, to the free constitution of Britain, which the latter are adapted to perpetuate.

Without detracting, therefore, from the real merits which abound in the imperial law, I hope I may have leave to assert, that if an Englishman must be ignorant of either the one or the other, he had better be a stranger to the Roman than the English institutions. For I think it an undenia

ble position, that a competent knowledge of the laws of that society [6] in which we live, is the proper accomplishment of every gentle

man and scholar; an highly useful, I had almost said essential, part of liberal and polite education. And in this I am warranted by the example of ancient Rome; where, as Cicero informs us (a), the very boys were obliged to learn the twelve tables by heart, as a carmen necessarium or indispensable lesson, to imprint on their tender minds an early knowledge of the laws and constitution of their country.

But, as the long and universal neglect of this study with us in England seems in some degree to call in question the truth of this evident position, it shall therefore be the business of this introductory discourse, in the first place to demonstrate the utility of some general acquaintance with the municipal law of the land, by pointing out its particular uses in all considera

(a) De Legg. 2. 23.

« EdellinenJatka »