instance the wife may acquire a property in some of her husband's goods; which shall remain to her after his death and not go to his executors. These are called her paraphernalia ; which is a term borrowed from the civil law, and is derived [ 436 ] from the Greek language, signifying something over and above her dower. Our law uses it to signify the apparel and ornaments of the wife, suitable to her rank and degree; and therefore even the jewels of a peeress usually worn by her, have been held to be paraphernalia". These she becomes entitled to at the death of her husband, over and above her jointure or dower, and preferably to all other representatives ". Neither can the husband devise by his will such ornaments and jewels of his wife; though during his life perhaps he hath the power (if unkindly inclined to exert it) to sell them or give them away. But if she continues in the use of them till his death, she shall afterwards retain them against his executors and administrators, and all other persons, except creditors where there is a deficiency of assets. And her necessary apparel is protected even against the claim of creditors *.

VII. A JUDGMENT, in consequence of some suit or action in a court of justice, is frequently the means of vesting the right and property of chattel interests in the prevailing party. And here we must be careful to distinguish between property, the right of which is before vested in the party, and of which only possession is recovered by suit 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 possession by the process and judgment of the law. Of the former sort are all debts and choses in action; as if a man gives bond for 20l., or agrees to buy a horse at a stated sum, or takes up goods of a tradesman upon an implied contract to pay as much as they are reasonably worth in all these cases the right accrues to the creditor, and is completely vested in him, at the time of the bond being sealed, or the contract or agreement made; and the law only gives him a remedy to recover the possession of that right, [ 437 ] which already in justice belongs to him. But there is also a

species of property to which a man has not any claim or title whatsoever, till after suit commenced and judgment obtained in a court of law: where the right and the remedy do not follow each other, as in common cases, but accrue at one and the same time: and where, before judgment had, no man can say that he has any absolute property, either in possession or in action. Of this nature are,

1. SUCH penalties as are given by particular statutes, to be recovered in an action popular; or, in other words, to be recovered by him or them that will sue for the same. Such as

the penalty of 500l., which those persons are by several acts of parliament made liable to forfeit, that being in particular offices or situations in life, neglect to take the oaths to the government: which penalty is given to him or them that will sue for the same. Now here it is clear that no particular person, A or B, has any right, claim, or demand, in or upon this penal sum, till after action brought a; for he that brings his action, and can bonâ fide obtain judgment first, will undoubtedly secure a title to it, in exclusion of every body else. He obtains an inchoate imperfect degree of property, by commencing his suit: but it is not consummated till judgment; for, if any collusion appears, he loses the priority he had gained b. But, otherwise, the right so attaches in the first informer, that the king (who before action brought may grant a pardon which shall be a bar to all the world) cannot after suit commenced remit any thing but his own part of the penalty. For by commencing the suit the informer has made the popular action his own private action, and it is not in the power of the crown, or of any thing but parliament, to release the informer's interest. This therefore is one instance, where [438] a suit and judgment at law are not only the means of recovering, but also of acquiring, property. And what is said of this one penalty is equally true of all others, that are given thus at large to a common informer, or to any person that will sue for the same. They are placed, as it were, in a state of nature, accessible by all the king's subjects, but the acquired right of none of them; open therefore to the first occupant, who de

Combe

a 2 Lev. 141. Stra. 1169.
v. Pitt, B. R. Tr. 3 Geo. III. 3 Burr.

b Stat. 4 Hen. VII. c. 20.
Cro. Eliz. 138. 11 Rep. 65.

1423.

clares his intention to possess them by bringing his action; and who carries that intention into execution, by obtaining judgment to recover them.

2. ANOTHER species of property, that is acquired and lost by suit and judgment at law, is that of damages given to a man by a jury, as a compensation and satisfaction for some injury sustained; as for a battery, for imprisonment, for slander, or for trespass. Here the plaintiff has no certain demand till after verdict; but when the jury has assessed his damages, and judgment is given thereupon, whether they amount to twenty pounds or twenty shillings, he instantly acquires, and the defendant loses at the same time, a right to that specific sum. It is true, that this is not an acquisition so perfectly original as in the former instance: for here the injured party has unquestionably a vague and indeterminate right to some damages or other the instant he receives the injury; and the verdict of the jurors, and judgment of the court thereupon, do not in this case so properly vest a new title in him, as fix and ascertain the old one; they do not give, but define, the right. But, however, though strictly speaking, the primary right to a satisfaction for injuries is given by the law of nature, and the suit is only the means of ascertaining and recovering that satisfaction; yet, as the legal proceedings are the only visible means of this acquisition of property, we may fairly enough rank such damages, or satisfaction assessed, under the head of property acquired by suit and judgment at law.

3. HITHER also may be referred, upon the same principle, [ 439 1 all title to costs and expences of suit; which are often arbitrary, and rest entirely on the determination of the court, upon weighing all circumstances, both as to the quantum, and also (in the courts of equity especially, and upon motions in the courts of law) whether there shall be any costs at all. These costs, therefore, when given by the court to either party, may be looked upon as an acquisition made by the judgment of law.

CHAPTER THE THIRTIETH.

OF TITLE BY GIFT, GRANT, AND
CONTRACT.

WE E 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 equivalent; 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 estateless 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 pepper-corn: any of which considerations will, in the eye of the law, convert the gift if executed, into a grant; if not executed, into a contract.

GRANTS or gifts, of chattels personal, are the act of transferring the right and the possession of them; whereby one man renounces, and another man immediately acquires, all title and interest therein which may be done either in writing, or by word of mouth a, attested by sufficient evidence, of which the delivery of possession is the strongest and most essential. But this conveyance, when merely voluntary, is somewhat suspicious; and is usually construed to be fraudulent, if creditors or others become sufferers thereby. And, particularly, by statute 3 Hen. VII. c. 4. all deeds of gift of goods, made in trust to the use of the donor, shall be void: because otherwise persons might be tempted to commit treason or felony, without danger of forfeiture; and the creditors of the donor might also be defrauded of their rights. And by statute 13 Eliz. c. 5. every grant or gift of chattels, as well as lands, with an intent to defraud creditors or others b, shall be void as against such persons to whom such fraud would be prejudicial; but, as against the grantor himself, shall stand good and effectual; and all persons partakers in, or privy to, such fraudulent grants, shall forfeit the whole value of the goods, one moiety to the king, and another moiety to the party grieved; and also on conviction shall suffer imprisonment for half a year. (1)

(1) The statute contains a proviso in favour of grants made "upon good consideration, and bona fide." Upon these words it was held in Twyne's case (3 Rep. 81.), the leading case on the subject, that no grant was protected, unless it was both on good consideration and bona fide. And it is also laid down in the same case, that the good consideration here intended is not what the words in law usually import, a consideration of natural love and affection, but a valuable consideration. On the other hand, the main object of the statute is, that the money or goods should be really applied to the payment of the party's debt, and not reserved to his own use; it does not interfere with the right which a debtor has, at common law, to prefer one creditor over another; and, therefore, a grant may be made to a creditor in trust for the general body of the grantor's creditors, although made with intent to delay some particular creditor who had gained a priority by suit; or with the same object, a man sued by one creditor, even to judgment, may voluntarily confess a judgment to another creditor; and if the last creditor obtain execution first, the preference is not void by the statute. In both cases the grantor parts with the goods actually; but if he be allowed to retain possession, and manages, and uses them as the ostensible owner, then a secret trust in his favour is implied in the grant or judgment, and they become void.