ceo que il ad de son done. II. Sur cognizance de droit tantum. III. Sur concessit. IV. Sur done, grant, et render; which is a double fine.

Page 353 7. The force and effect of fines (when levied by such as have themselves any interest in the estate) are to assure the lands in question to the cognizee, by barring the respective rights of parties, privies, and strangers. 354

8. A common recovery is by an actual, or fictitious, suit or action for land, brought against the tenant of the freehold; who thereupon vouches another, who undertakes to warrant the tenant's title: but, upon such vouchee's making default, the land is recovered by judgment at law against the tenant; who, in return, obtains judgment against the vouchee to recover lands of equal value in recompense. 357-359

9. The force and effect of a recovery are to assure lands to the recoveror, by barring estates tail, and all remainders and reversions expectant thereon; provided the tenant in tail either suffers, or is vouched in, such recovery.

361

10. The uses of a fine or recovery may be directed by, I. Deeds to lead such uses; which are made previous to the levying or suffering them. II. Deeds to declare the uses; which are made subsequent.

363

CHAPTER XXII.

OF ALIENATION BY SPECIAL CUSTOM.

1. ASSURANCES by special custom are confined to the transfer of copyhold estates. 365

2. This is effected by, I. Surrender by the tenant into the hands of the lord to the use of another, according to the custom of the manor. II. Presentment, by the tenants, or homage, of such surrender. III. Admittance of the surrenderee by the lord, according to the uses expressed in such surrender. 368-370

3. Admittance may also be had upon original grants to the tenant from the lord, and upon descents to the heir from the an

cestor.

371

CHAPTER XXIII.

OF ALIENATION BY DEVISE.

1. DEVISE is a disposition of lands and tenements, contained in the last will and testament of the owner.

373

2. This was not permitted by the common law, as it stood since the conquest; but was introduced by the statute law, under Hen. VIII.; since 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. Page 379-381

CHAPTER XXIV.

OF THINGS PERSONAL.

1. THINGS personal are comprehended under the general name of chattels; which include whatever wants either the duration, or the immobility, attending things real.

384

2. In these are to be considered, I. Their distribution. II. The property of them. III. The title to that property. 384-387 3. As to the distribution of chattels, they are, 1. Chattels real. 2. Chattels personal.

386

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).

386

5. Chattels personal are things moveable; which may be transferred from place to place, together with the person of the

owner.

387

CHAPTER XXV.

OF PROPERTY IN THINGS PERSONAL.

1. PROPERTY in chattels personal is either in possession, or

in action.

389

2. Property in possession, where a man has the actual enjoyment of the thing, is, I. Absolute. II. Qualified.

389

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.

389

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

391

5. This may arise, I. Where the subject is incapable of absolute ownership. II. From the peculiar circumstances of the owners. 391-396

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.

396

7. The property of chattels personal is liable to remainders,

expectant on estates for life; to joint-tenancy; and to tenancy in

common.

Page 398

CHAPTER XXVI.

OF TITLE TO THINGS PERSONAL BY OCCUPANCY.

1. THE title to things personal may be acquired or lost by, I. Occupancy. II. Prerogative. III. Forfeiture. IV. Custom. V. Succession. VI. Marriage. VII. Judgment. VIII. Gift, or grant. IX. Contract. X. Bankruptcy. XI. Testament. XII. Administration.

400

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 feræ naturæ. V. Emblements. VI. Things gained by accession;-or, VII. By confusion. VIII. Literary property. 400—407

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. 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.

CHAPTER XXVIII.

OF TITLE BY CUSTOM.

421

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.

Page 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.

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.

442

3. Contracts may be either express, or express, or implied;—either executed, or executory.

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 recompense 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.

Page 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. II. 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. 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 take a testament. III. Its nature and incidents. IV. What are executors and administrators. V. Their office and

duty.

489