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Ch. 29.

CHAPTER THE TWENTY NINTH.
OF TITLE BY SUCCESSION, MARRIAGE, AND JUDGMENT.

IN the prefent chapter we fhall take into confideration three other fpecies of title to goods and chattels.

V. THE fifth method therefore of gaining a property in chattels, either perfonal or real, is by fucceffion: which is, in ftrictnefs of law, only applicable to corporations aggregate of many, as dean and chapter, mayor and commonalty, mafter and fellows, and the like; in which one fet of men may, by fucceeding another fet, acquire a property in all the goods, moveables, and other chattels of the corporation. The true reafon whereof is, becaufe in judgment of law a corporation never dies; and therefore the predeceffors, who lived a century ago, and their fucceffors now in being, are one and the fame body corporate ^a. Which identity is a property fo inherent in the nature of a body politic, that, even when it is meant to give any thing to be taken in fucceffion by fuch a body, that fucceffion need not be expreffed; but the law will of itfelf imply it. So that a gift to fuch a corporation, either of lands, or of chattels, without naming their fucceffors, vefts an abfolute property in them fo long as the corporation fubfifts ^b. Ann thus a leafe for years, an obligation, a

.{FS}
^a 4 Rep. 65.
^b Bro. Abr. t. eftates. 90. Cro. Eliz. 464.
.{FE}
jewel,
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jewel, a flock of fheep, or other chattel intereft, will veft in the fucceffors, by fucceffion, as well as in the identical members, to whom it was originally given.

BUT, with regard to fole corporations, a confiderable diftinction muft be made. For if fuch fole corporation be the reprefentative of a number of perfons; as the mafter of an hofpital, who is a corporation for the benefit of the poor brethren; an abbot, or prior, by the old law before the reformation, who reprefented the whole convent; or the dean of fome antient cathedrals, who ftands in the place of, and reprefents in his corporate capacity, the chapter; fuch fole corporations as thefe have in this refpect the fame powers, as corporations aggregate have, to take perfonal property or chattels in fucceffion. And therefore a bond to fuch a mafter, abbot, or dean, and his fucceffors, is good in law; and the fucceffor fhall have the advantage of it, for the benefit of the aggregate fociety, of which he is in law the reprefentative ^c. Whereas in the cafe of fole corporations, which reprefent no others but themfelves, as bifhops, parfons, and the like, no chattel intereft can regularly go in fucceffion: and therefore, if a leafe for years be made to the bifhop of Oxford and his fucceffors, in fuch cafe his executors or adminiftrators, and not his fucceffors, fhall have it ^d. For the word fucceffors, when applied to a perfon in his politic capacity, is equivalent to the word heirs in his natural: and as fuch a leafe for years, if made to John and his heirs, would not veft in his heirs, but his executors; fo, if it be made to John bifhop of Oxford and his fucceffors, who are the heirs of his body politic, it fhall ftill veft in his executors and not in fuch his fucceffors. The reafon of this is obvious: for, befides that the law looks upon goods and chattels as of too low and perifhable a nature to be limited either to heirs, or fuch fucceffors as are equivalent to heirs; it would alfo follow, that if any fuch chattel intereft (granted to a fole corporation and his fucceffors_ were allowed to defcend to fuch fucceffors, the property thereof muft be in abeyance from the death of the prefent owner

.{FS}
^c Dyer. 48. Cro. Eliz. 464.
^d Co. Litt. 46.
.{FE}
until
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until the fucceffors be appointed: and this is contrary to the nature of a chattel intereft, which can never be in abeyance or without an owner ^e; but a man's right therein, when once fufpended, is gone for ever. This is not the cafe in corporations aggregate, where the right is never is fufpence; nor in the other fole corporations before-mentioned, who are rather to be confidered as head of an aggregate body, than fubfifting merely in their own right: the chattel intereft therefore, in fuch a cafe, is really and fubftantially vefted in the hofpital, convent, chapter, or other aggregate body; though the head if the vifible perfon in whofe name every act is carried on, and in whom every intereft is therefore faid (in point of form) to veft. But the general rule, with regard to corporations merely fole, is this, that no chattel can go or be acquired by right of fucceffion ^f.

YET to this rule there are two exceptions. One in the cafe of the king, in whom a chattel may veft by a grant of it formerly made to a preceding king and his fucceffors ^g. The other exception is, where, by a particular cuftom, fome particular corporations fole have acquired a power of taking particular chattel interefts in fucceffion. And this cuftom, being againft the general tenor of the common law, must be ftrictly interpreted, and no extended to any other chattel interefts than fuch immemorial ufage will ftrictly warrant. Thus the chamberlain of London, who is a corporation fole, may by the cuftom of London take bonds and recognizances to himfelf and his fucceffors, for the benefit of the orphan's fund ^h: but it will not follow from thence, that he has a capacity to take a leafe for years to himfelf and his fucceffors for the fame purpofe; for the cuftom extends not to that: nor that he may take a bond to himfelf and his fucceffors, for any other purpofe than the benefit of the orphan's fund; for that alfo is not warranted by the cuftom. Wherefore, upon the whole, we may clofe this head with laying down this general rule; that fuch right of fucceffion to chattels is univerfally inhe-

.{FS}
^e Brownl. 132.
^f Co. Litt. 46.
^g Ibid. 90.
^h 4 Rep. 65. Cro. Eliz. 682.
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1. rent
   
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Ch. 29.
rent by the common law in all aggregate corporations, in the king, and in fuchfingle corporations as reprefent a number of perfons; and may, by fpecial cuftom, belong to certain other fole corporations for fome particular purpofes: although, generally, in fole corporations no fuch right can exift.

VI. A SIXTH method of acquiring property in goods and and chattels is by marriage; whereby thofe chattels, which belonged formerly to the wife, are by act of law vefted in the hufband, with the fame degree of property and with the fame powers, as the wife, when fole, had over them.

THIS depends entirely on the notion of an unity of perfon between the hufband and wife; it being held that they are one perfon in law ⁱ, fo that the very being and exiftence of the woman is fufpended during the coverture, or entirely merged and incorporated in that of the hufband. And hence if follows, that whatever perfonal property belonged to the wife, before marriage, is by marriage abfolutely vefted in the hufband. In a real eftate he only gains a title to the rents and profit during coverture: for that, depending upon feodal principles, remains entire to the wife after the death of her hufband, or to her heirs, if fhe dies before him; unlefs, by the birth of a child, he becomes ten ant for life by the curtefy. But, in chattel interefts, the fole and abfolute property vefts in the hufband, to be difpofed of at his reduces them to poffeffion, by exercifing fome act of ownerfhip upon them, no property vefts in him, but they fhall remain to the wife, or to her reprefentatives, after the coverture is determined.

THERE is therefore a very confiderable difference in the acquifition of this fpecies of property by the hufband, according to the fubject-matter; viz. whether it be a chattel real, or a

.{FS}
ⁱ See Book I. c. 15.
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VOL. II.

G g g

chattel

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chattel perfonal; and, of chattels perfonal, whether it be in poffeffion, or in action only. A chattel real vefts in the hufband, not abfolutely, not fub modo. As, in cafe of a leafe for years; the hufband fhall receive all the rents and profits of it, and may, if he pleafes, fell, furrender, or difpofed of it during the coverture ^k: if he be outlawed or attainted, it fhall be forfeited to the king ^l: it is liable to execution for his debts ^m: and, if he furvives his wife, it is to all intents and purpofes his own ⁿ. Yet if he has made no difpofition thereof in his lifetime, and dies before his wife, he cannot difpofed of it by will ^o: for, the hufband having made no alteration in the property during his life, it never was transferred from the wife; but after his death fhe fhall remain in her antient poffeffion, and it fhall not go to his executors. So it is alfo of chattels perfonal (or chofes) in action; as debts upon bond, contracts, and the like: thefe the hufband may have if he pleafes; that is, if he reduces them into poffeffion by receiving or recovering them at law. And, upon fuch receipt or recovery, they are abfolutely and entirely his own; and fhall go to his executors or adminiftrators, or as he fhall bequeath them by will, and fhall not reveft in the wife. But, if he dies before he has recovered or reduced them into poffeffion, of that at his death they ftill continue chofes in action, they fhall furvive to the wife; for the hufband never exerted the power he had of obtaining an exclufive property in them ^p. And fo, if an eftray comes into he wife's franchife, and the hufband feifes it, it is abfolutely his property: but, if he dies without feifing it, his executors are now at liberty to feife it, but the wife or her heirs ^q; for the hufband never exerted the right he had, which right determined with the coverture. Thus is both thefe fpecies of property the law is the fame, in cafe the wife furvives the hufband; but, in cafe the hufband furvives the wife, the law is very different with refpect to chattels real and chofes in action:

.{FS}
^k Co. Litt. 46.
^l Plowd. 263.
^m Co. Litt. 351.
ⁿ Ibid. 300.
^o Poph. 5. Co. Littt. 351.
^p Co. Litt. 351.
^q Ibid.
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for
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Ch. 29.
for he fhall have the chattel real by furvivorfhip, but not the chofe in action ^r; except in the cafe of arrears of rent, due to the wife before her coverture, which in cafe of her death are given to the hufband by ftatute 32 Hen. VIII. c. 37. And the reafon for the general law is this: that the hufband is in abfolute poffeffion of the chattel real during the coverture by a kind of joint-tenancy with his wife; wherefore the law will not wreft it out of his hands, and give it to her reprefentatives: though in cafe he had died firft, it would have furvived to the wife, unlefs he thought proper in his lifetime to alter the poffeffion. But a chofe in action fhall not furvive to him, becaufe he never was in poffeffion of it at all, during the coverture; and the only method he had to gain poffeffion of it, was by fuing in his wife's right: but as, after her death, be cannot (as hufband) bring an action in her right, becaufe they are no longer one and the fame perfon in law, therefore he can never (as fuch) recover the poffeffion. But he ftill will be intitled to be her adminiftrator; and may, in that capacity, recover fuch things in action as became due to her before or during the coverture.

THUS, and upon thefe reafons, ftands the law between hufband and wife, with regard to chattels real, and chofes in action: but, as to chattels perfonal (or chofes) in poffeffion, which the wife hath in her own right, as ready money, jewels, houfehold goods, and the like, the hufband hath therein an immediate and abfolute property, devolved to him by the marriage, not only potentially but in fact, which never can again reveft in the wife or her reprefentative^s.

AND, as the hufband may thus, generally, acquire a property in all the perfonal fubftance of the wife, fo in one particular inftance the wife may acquire a property in fome of her hufband's goods; which fhall ramian to her after his death, and fhall not go to his executors. Thefe are called her paraphernalia; which is

.{FS}
^r 3 Mod. 186.
^s Co. Littt. 351.
.{FE}

Ggg2

a term

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Ch. 29.
a term borrowed from the civil law ^t, and is derived from the Greek language, fignifying fomething over and above her dower. Our law ufes it to fignify the apparel and ornaments of the wife, fuitable to her rank and degree; which fhe becomes entitled to entitled to at the death of her hufband over and above her jointure or dower, and preferably to all other reprefentatives: and the jewels of a peerefs, ufually worn by her, have been held to be paraphernalia ^w. Neither can the hufband devife by his will fuch ornaments and jewels of his wife; though during his life perhaps he hath the power (if unkindly inclined to exert it) to fell them or give them away ^x. But if fhe continues in the ufe of them till his death, fhe fhall afterwards retain them againft his executors and adminiftrators, and all other perfons, except creditors where there is a deficiency of affets ^y. And her neceffary apparel is protected even againft the claim of creditors ^z.

VII. A JUDGMENT, in confequence of fome fuit or action in a court of juftice, is frequently the means of vefting the right and property of chattel interefts in the prevailing party. And here we muft be careful to diftinguifh between property, the right of which is before vefted in the party, and of which only poffeffion is recovered by fuit or action; and property, to which a man before had no determinate title or certain claim, but he gains as well the right as the poffeffion by the procefs and judgment of the law. Of the former fort are all debts and chofes in action; as if a man gives bond for 20 l, or agrees to buy a horfe at a ftated fum, or takes up goods of a tradefman upon an implied ftated fum, or takes up goods of a tradefman upon an implied contract to pay as much as they are reafonably worth: in all thefe cafes the right accrues to the creditor, and is completely vefted in him at the time of the bond being fealed, and the contract or agreement made; and the law only gives him a remedy to reco-

.{FS}
^t Ff. 23. 3. 9. §. 3.
^u Cro. Car. 343. 1 Roll. Abr. 911. 2 Leon. 166.
^w Moor. 213.
^x Noy's Max. c. 49. – Grahme v. Lord Londonderry. 24 Nov. 1746. Canc.
^y 1 P. W^ms. 730.
^z Noy. ibid.
.{FE}
ver
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Ch. 29.
ver the poffeffion of that right, which already in juftice belongs to him. But there is alfo a fpecies of property to which a man has not any claim or title whatfoever, till after fuit commenced and judgment obtained in a court of law: where the right and the remedy do not follow each other, as in common cafes, but accrue at one and the fame time; and where, before judgment had, no man can fay that he has any abfolute property, either in poffeffion or in action. Of this nature are,

1. SUCH penalties as are given by particular ftatutes, to be recovered on an action popular; or, in other words, to be recovered by him or them that will fue for the fame. Such as the penalty of 500 l, which thofe perfons are by feveral acts of parliament made liable to forfeit, that, being in particular offices or fituations in life, neglect to take the oaths to the government; which penalty is given to him or them that will fue for the fame. Now here it is clear that no particular perfon, A or B, has any right, claim, or demand, in or upon this penal fum, till after action brought ^a; for he that brings his action and can bona fide obtain judgment firft, will undoubtedly fecure a title to it, in exclufion of every body elfe. He obtains an inchoate imperfect degree of property, by commencing his fuit; but it is not confummated till judgment, for if any collufion appears, he lofes the priority he had gained ^b. But, otherwife, the right fo attaches in the firft informer, that the king (who before action brought may grant a pardon which fhall be a bar to all the world) cannot after fuit commenced remit any thing but his own part of the penalty ^c. For by commencing the fuit the informer has made the popular action his own private action, and it is not in the pwer of the crown, or of any thing but parliament, to releafe the informer's intereft. This therefore is one inftance, where a fuit and judgment at law are not only the means of re-

.{FE}
^a 2 Lev. 141. Stra. 1169. Combe v. Pitt. B. R. T. 3. Geo. III.
^b Stat. 4 Hen. VII. c. 20.
^c Cro. Eliz. 138. 11 Rep. 65.
.{FE}
covering,
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Ch. 29.
covering, but alto of acquiring, property. And what is faid of this one penalty is equally true of all others, that are given thus at large to a common informer, or to any perfon that will fue for the fame. They are placed as it were in a ftate of nature, acceffible by all the king's fubjects, but the acquired right of none of them: open therefore to the firft occupant, who declares his intention to poffefs them by bringing his action; and who carries that intention into execution, by obtaining judgment to recover them.

2. ANOTHER fpecies of property, that is acquired and loft by fuit and judgment at law, is that of damages given to a man by a jury, as a compenfation and fatisfaction for fome injury fuftained; as for a battery, for imprifonment, for flander, or for trefpafs. Here the plaintiff has no certain demand till after verdict; but, when the jury has affeffed his damages, and judgment is given thereupon, whether they amount to twenty pounds or twenty fhillings, he inftantly acquires, and the defendant lofes at the fame time, a right to that fpecific fum. It is true, that this is not an acquifition fo perfectly original as in the former inftance: for here the injured party has unqueftionably a vague and indeterminate right to fome damages or other, the inftant he receives the injury; and the verdict of the jurors, and judgment of the court thereupon, do not in this cafe fo properly veft a new title in him, as fix and afcertain the old one; they do not give, but define, the right. But however, though ftrictly fpeaking the primary right to a fatisfaction for injuries is given by the law of nature, and the fuit is only the means of afcertaining and recovering that fatisfaction; yet, as the legal proceedings are the only vifible means of this acquifition of property, we may fairly enough rank fuch damages, or fatisfaction affeffed, under the head of property acquired by fuit and judgment at law.
3. HITHER
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3. HITHER alfo may by referred, upon the fame principle, all title to cofts and expenfes of fuit; which are often arbitrary, and reft entirely in the determination of the court, upon weighing all circumftances, both as to the quantum, and alfo (in the courts of equity efpecially, and upon motions in the courts of law) whether there fhall be any cofts at all. Thefe cofts therefore, when given by the court to either party, may be looked upon as an acquifition made by the judgment of law.