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pleasure in the pursuit, than the matters discussed in the preceding volume. To say the truth, the vast alterations which the doctrine of real property has undergone from the conquest to the present time; the infinite determinations upon points that continually arise, and which have been heap
ed one upon another for a course of seven centuries, without [ .383 ] any order or *method; and the multiplicity of acts of parlia
ment which have amended, or sometimes only altered, the common law: these causes have made the study of this branch of our national jurisprudence a little perplexed and intricate. It hath been my endeavour principally to select such parts of it as were of the most general use, where the principles were the most simple, the reasons of them the most obvious, and the practice the least embarrassed. Yet I cannot presume that I have always been thoroughly intelligible to such of my readers as were before strangers even to the very terms of art, which I have been obliged to make use of; though, whenever those have first occurred, I have generally attempted a short explication of their meaning. These are indeed the more numerous, on account of the different languages which our law has at different periods been taught to speak; the difficulty arising from which will insensibly diminish by use and familiar acquaintance. And therefore I shall close this branch of our inquiries with the words of Sir Edward Coke (y): “ Albeit the student shall “ not at any one day, do what he can, reach to the full “ meaning of all that is here laid down, yet let him no way “ discourage himself but proceed: for on some other day, “ in some other place,” (or perhaps upon a second perusal of the same,) “ his doubts will be probably removed.”
(y) Proeme to 1 Inst.
OF THINGS PERSONAL. .
UNDER the name of things personal are included all sorts of Of things perthings moveable, which may attend a man's he
goes; and therefore, being only the objects of the law while they remain within the limits of its jurisdiction, and being also of a perishable quality, are not esteemed of so high a nature, nor paid so much regard to by the law, as things that are in their nature more permanent and immoveable, as lands and houses, and the profits issuing thereout. These, being constantly within the reach, and under the protection of the law, were the principal favourites of our first legislators: who took all imaginable care in ascertaining the rights, and directing the disposition, of such property as they imagined to be lasting, and which would answer to posterity the trouble and pains that their ancestors employed about them: but at the same time entertained a very low and contemptuous opinion of all personal estate, which they regarded as only a transient commodity. The amount of it, indeed, was comparatively very trifling during the scarcity of money and the ignorance of luxurious refinements which prevailed in the feodal ages. Hence it was, that a tax of the fifteenth, tenth, or sometimes a much larger proportion, of all the moveables of the subject, was frequently laid without scruple, and is mentioned with much unconcern by our antient historians, though now it would justly alarm our opulent merchants and stock-holders. And
hence, likewise, may be derived the frequent forfeitures inflicted by the common law, of all a man's goods and chattels, for misbehaviours and inadvertencies that at present hardly seem to deserve so severe a punishment. Our antient law-books, which are founded upon the feodal provisions, do not therefore often condescend to regulate this species of property. There is not a chapter in Britton or the Mirroir, that can fairly be referred to this head; and the little that is to be found in Glanvil, Bracton, and Fleta, seems principally borrowed from the civilians. But, of later years, since the introduction and extension of trade and commerce, which are entirely occupied in this species of property, and have greatly augmented its quantity and of course its value, we have learned to conceive different ideas of it. Our courts now regard a man's personalty in a light nearly, if not quite, equal to his realty: and have adopted a more enlarged and less technical mode of considering the one than the other; frequently drawn from the rules which they found already established by the Roman law, whereever those rules appeared to be well-grounded and apposite to the case in question, but principally from reason and convenience, adapted to the circumstances of the times; preserving withal a due regard to antient usages, and a certain feodal tincture, which is still to be found in some branches
of personal property. As to what the But things personal, by our law, do not only include law deems per- things moveable, but also something more: the whole of
which is comprehended under the general name of chattels, which, Sir Edward Coke says (a), is a French word signifying goods. The appellation is in truth derived from the technical Latin word catalla; which primarily signified only beasts of husbandry, or (as we still call them) catile, but in its secondary sense was applied to all moveables in general (6). In the grand coustumier of Normandy (e), a chattel is described as a mere moveable, but at the same time it is set in opposition to a fief or feud: so that, not
(a) 1 Inst. 118. (6) Dufresne, II. 409. (c) C. 87.
only goods, but whatever was not a feud, were accounted chattels. And it is in this latter, more extended, negative sense, that our law adopts it; the idea of goods, or moveables only, being not sufficiently comprehensive to take in every thing that the law considers as a chattel interest. For since, as the commentator on the coustumier (d) observes, there are two requisites to make a fief or heritage, duration as to time, and immobility with regard to place; whatever wants either of these qualities is not, according to the Normans, an heritage or fief; or, according to us, is not a real estate: the consequence of which, in both laws is, that it must be a personal estate, or chattel. Chattels, therefore, are distributed by the law into two Chattels are of
kinds; chattels real, and chattels personal (e).
1. Chattels real, saith Sir Edward Coke (f), are such as 1. Chattels real. concern, or savour of, the realty; as, terms for years of land, wardships in chivalry (while the military tenures subsisted), the next presentation to a church, estates by statute-merchant, statute-staple, elegit, or the like; of all which we have already spoken. And these are called real chattels, as being interests issuing out of, or annexed to, real estates: of which they have one quality, viz. immobility, which denominates them real; but want the other, viz. a sufficient, legal indeterminate duration: and this want it is, that constitutes them chattels. The utmost period for which they can last, is fixed and determinate, either for such a space of time certain, or till such a particular sum of money be raised out of such a particular income; so that they are not equal in the eye of the law to the lowest estate of freehold, a lease for another's life: their tenants were sidered upon feodal principles, as merely bailiffs or farmers;
(d) Il conviendroit quil fust non mo- meubles sont choses qui ne peuvent enuuable et de duree a tousiours. fol. suivir le corps, ni estre transportées,
et tout ce qui n'est point en heritage. (e) So too, in the Norman law, Ca- LL. Will. Nothi, c. 4, apud Dufresne, teux sont meubles et immeubles : sicom- II. 409. me vrais meubles sont qui transporter ( 1 ) 1 Inst. 118. se peuvent, et ensuivir le corps; im
and the tenant of the freehold might at any time have destroyed their interest, till the reign of Henry VIII. (g)(1). A freehold, which alone is a real estate, and seems (as has
been said) to answer to the fief in Normandy, is conveyed [ *387 ] by corporal investiture and *livery of seisin (2); which gives
the tenant so strong a hold of the land, that it never after can be wrested from him during his life, but by his own act, of voluntary transfer or of forfeiture; or else by the happening of some future contingency, as, in estates pur auter vie, and the determinable freeholds mentioned in a former chapter (h). And even these, being of an uncertain duration, may, by possibility, last for the owner's life; for the law will not presuppose the contingency to happen before it actually does, and till then the estate is, to all intents and purposes, a life-estate; and, therefore, a freehold interest. On the other hand, a chattel interest in lands, which the Normans put in opposition to fief, and we to freehold, is conveyed by no seisin or corporal investiture, but the possession is gained by the mere entry of the tenant himself; and it will certainly expire at a time prefixed and determined, if not sooner. Thus, a lease for years must necessarily fail at the end and completion of the term; the next presentation to a church is satisfied and gone the instant it comes into possession, that is, by the first avoidance and presentation to the living; the conditional estates by statutes and elegit are determined as soon as the debt is paid; and so guardianships in chivalry expired, of course, the moment that the heir came of age. And if there be any other chattel real, it will be found to correspond with the
(1) This, of course, must be under- complete, protection to termors, (see stood as relating only to terms of years; ante, p. 142, note (5) to chap. 9. and that, with some restrictions: the (2) See ante, p. 104, with notes (2) statute of Gloucester (passed in the and (3) annexed thereto; and also 6th of Edw. I.) gave some, though not note (8) to p. 143.