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 be 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.

(82) A judgment is frequently the means of vesting the right and property of chattel interests in the prevailing party, page 436.

I is equally true that a judgment may vest the property of chattels, in some cases, in the defeated party, though Blackstone has not mentioned it. When a plaintiff recovers in damages the value of a chattel wrongfully taken or converted by the defendant, the judgment operates to vest the property of the chattel in the wrong-doer. He cannot justly be made to pay for it and yet deprived of title to it.

The only doubtful point is whether his title accrues on the mere entry of the judgment against him for its value, or only when he has paid or satisfied the same. It would be inequitable to treat the judgment as confirming his title while the judgment remains unpaid, and perhaps owing to his insolvency, never can be collected. Therefore most of the American courts now hold that his title does not accrue until the judgment is satisfied. But the other, and more logical view, was that of the common law. Indeed, in the earliest books, the property was regarded as divested by the act of trespass or conversion, or at least by the choice of the injured party to sue for the value rather than for the return of the thing itself. (Bishop v. Lady Montague, Cro. Eliz. 824.) Where trespass is done of goods taken the owner may sue in replevin, and this affirms property: or may bring action of trespass, and this disaffirms property, and so he has election. (Brooke, Trespass, 134; Property, 7.) And after this distinction became obsolete, it was the judgment that established the legal title of the one party to the money, and of the other to the goods.

How doubtful the nature of a chose in action was, when a chattel was out of the owner's possession, may be seen by the case, Y. B. 2 Edw. IV. 16, where two such lawyers as Danby, Ch. J. C. B., and Littleton,

who was to be his most famous associate six years later, differed on this point. Littleton, for plaintiff, had brought trespass for goods taken - forty stone of wool. Defendant, by Billing, pleaded that plaintiff had previously sold them to one F., who left them in his care, but afterward sold them to defendant. Littleton replied, relying on his client's possession at the time of taking, absque hoc the sale, etc. Danby asks Littleton to consider whether this is a good issue for him; suppose the defendant had wrongfully taken them out of plaintiff's possession after the sale to F., and then had bought them of F., would his action lie? Litttleton says yes. Needham, one of the judges, states a case implying Danby's view, to which Littleton replies: "To me, it seems that [the transfer after the trespass] would be void, for when the trespasser takes them, the property is out of the owner and in him, and how then can the owner transfer them to him?" Danby. "Well enough, for if one carries off my goods, I shall have replevin and you shall not, for I cannot have replevin if the property is in others and not in me; but here the property is in me at my pleasure." The matter ends unsatisfactorily, for Moile suggests that the issue is well enough on the record, and any special matter will appear when it is tried. And the sergeants passed to other matters.

Chancellor Kent and his editors discussed the question (2 Com. 388, 389), with a strong leaning to the view that the property does not pass until payment or satisfaction of the judgment. Judge Sharswood, in his note to this passage of Blackstone, argues the other way; that the judgment alone, being a conclusive bar to any other action between the parties and privies for the same cause, must transfer the title without satisfaction. But the weight of recent authority is the other way.

The rule applies not only to actions of trespass de

bonis asportatis and trover, and a fortiori to assumpsit brought for the price of the goods upon waiver of the tort, but also to cases of replevin under modern statutes, which allow a money judgment to be taken at election in place of the goods by either party who proves a title to the goods without having obtained possession of them, or return of them, as the case may be.

CHAPTER THE THIRTIETH.

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 of transferring personal property, are thus to be distinguished from each other, that gifts are always gratuitous, grants are upon some consideration or equiv. alent:* 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 will, in the eye of the law, convert the gift, if executed, into a grant [see note 83, page 1; if not executed,

into a contract.

*-* Quoted, 128 Mass. 270. Cited, 14 Md. 197.