Sivut kuvina
PDF
ePub

2. This formerly could not be done by a tenant, without license from his lord; nor

by a lord, without attornment of his tenant...

... Page 287

3. All persons are capable of purchasing, and all that are in possession of any

estates are capable of conveying them; unless under peculiar disabilities by law, as
being attainted, non compotes, infants, under duress, feme-coverts, aliens, or papists

288-293

4. Alienations are made by common assurances; which are, I. By deed, or matter

in pais. II. By matter of record. III. By special custom. IV. By devise 293, 294

OF ALIENATION BY DEED.

1. In assurances by deed may be considered, I.. Its general nature. II. Its several

species...

2. A deed, in general, is the solemn act of the parties; being usually a writing

sealed and delivered; and it may be, I. A deed indented, or indenture. II. A deed

poll
295, 296

3. The requisites of a deed are, I. Sufficient parties, and proper subject-matter. II.

A good and sufficient consideration. III. Writing on paper, or parchment, duly

stamped. IV. Legal and orderly parts, which are usually, 1st, the premises; 2dly,

the habendum; 3dly, the tenendum; 4thly, the reddendum; 5thly, the conditions;

6thly, the warranty (which is either lineal or collateral); 7thly, the covenants; 8thly,

the conclusion (which includes the date). V. Reading it, if desired. VI. Sealing,

and, in many cases, signing it also. VII. Delivery. VIII. Attestation.... 296-307

4. A deed may be avoided, I. By the want of any of the requisites before mentioned.

II. By subsequent matter; as, 1st, rasure, or alteration; 2dly, defacing its seal; 3dly,

canceling it; 4thly, disagreement of those whose consent is necessary; 5thly, judg-

ment of a court of justice
308

5. Of the several species of deeds, some serve to convey real property, some only

to charge and discharge it..
309

6. Deeds which serve to convey real property, or conveyances, are either by com-

mon law or by statute. And, of conveyances by common law, some are original or

primary, others derivatory or secondary
309

7. Original conveyances are, I. Feoffments. II. Gifts. III. Grants. IV. Leases.

V. Exchanges. VI. Partitions. Derivative are, VII. Releases. VIII. Confirmations.

IX. Surrenders. X. Assignments. XI. Defeasances

14. A release is the discharge or conveyance of a man's right, in lands and tene-

ments, to another that hath some former estate in possession therein...

324

15. A confirmation is the conveyance of an estate or right in esse, whereby a void-
able estate is made sure, or a particular estate is increased

325

16. A surrender is the yielding up of an estate for life, or years, to him that hath
the immediate remainder or reversion wherein the particular estate may merge 326
17. An assignment is the transfer, or making over to another, of the whole right one
has in any estate; but usually in a lease, for life or years..
326

18. A defeasance is a collateral deed, made at the same time with the original con-
veyance, containing some condition upon which the estate may be defeated.... 327
19. Conveyances by statute depend much on the doctrine of uses and trusts, which

are a confidence reposed in the terre-tenant, or tenant of the land, that he shall permit

the profits to be enjoyed, according to the directions of cestuy que use, or cestuy que

trust..

2. Private acts of Parliament are a species of assurances, calculated to give (by the

transcendent authority of Parliament) such reasonable powers or relief as are beyond
the reach of the ordinary course of law..
344
3. The king's grants, contained in charters or letters patent, are all entered on record,
for the dignity of the royal person, and security of the royal revenue.
346

4. A fine (sometimes said to be a feoffment of record) is an amicable composition

and agreement of an actual or fictitious suit, whereby the estate in question is ac-

knowledged to be the right of one of the parties
348

5. The parts of a fine are, I. The writ of covenant. II. The license to agree. III.

The concord. IV. The note.. V. The foot. To which the statute hath added, VI.

Proclamations...
350-352

6. Fines are of four kinds : I. Sur cognizance de droit, come 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 ..

353
7. The force and effect of fines (when levied by such as have themselves any in-
terest 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 re-
covered 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

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 ten-
ants, 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 ancestor..
371

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

testament of the owner

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..

Page 375-376 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 favorable in case of a devise..

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, I. Chattels real. II. Chattels personal 386 4. Chattels real are such quantities of interest in things immovable as are short of the duration of freeholds; being limited to a time certain, beyond which they can not subsist. (See Ch. IX.)

... 386

5. Chattels personal are things movable, 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. 2. Property in possession, where a man has the actual enjoyment of the thing, is, I. Absolute. II. Qualified

389

389

3. Absolute property is where a man has such an exclusive right in the thing that it can not 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 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. JudgVIII. Gift, or grant. IX. Contract. X. Bankruptcy. XI. Testament. XII. Administration...

ment.

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 are, 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

CHAPTER XXVII.

OF TITLE BY PREROGATIVE AND FORFEITURE.

400-407

1. By prerogative is vested in the crown, or its grantees, the property of the royal revenue (see Book I., Ch. VIII.); 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 misdemeanors, the right of goods and chattels may be transferred from one man to another; either in part or totally..

.Page 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. Pramunire. 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..

433 435

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

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

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..

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

446

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

[ocr errors]

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 .... Page 464-470

CHAPTER XXXI.

OF TITLE BY BANKRUPTCY.

1. BANKRUPTCY (as defined in Ch. XVIII.) 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 merchandise, 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 endeavors 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. 496, 497

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 absentiá; 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 general or specific; if they be vested, and not lapsed. VII. To distribute the undevised surplus, according to the statute of distributions... 508-520

« EdellinenJatka »