pose of it by will: (o) for, the husband having made no alteration in the property during his life, it never was transferred from the wife; but after his death she shall remain in her ancient possession, and it shall not go to his executors. So it is also of chattels personal (or choses) in action: as debts upon bond, contracts, and the like these the husband may have if he pleases; that is, if he reduces them into possession by receiving or recovering them at law. And, upon such receipt or recovery they are absolutely and entirely his own; and shall go to his executors or administrators, or as he shall bequeath them by will, and shall not revest in the wife. But if he dies before he has recovered or reduced them into possession, so that at his death they still continue choses in action, they shall survive to the wife; for the husband never exerted the power he had of maintaining an exclusive property in them. (p) And so, if an estray comes into the wife's franchise, and the husband seizes it, it is absolutely his property, but if he dies without seizing it, his executors are not now at liberty to seize it, but the wife or her heirs; (q) for the husband never exerted the right he had, which right determined with the coverture. Thus, in both these species of property the law is the same, in case the wife survives the husband; but, in case the husband survives the wife, the law is very different with respect to chat tels real and choses in action: for he shall have the chattel real by [435] survivorship, but not the chose in action: (r) except in the case of arrears for rent, due to the wife before her coverture, which in case of her death are given to the husband by statute 32 Hen. VIII. c. 37. á And the reason for the general law is this: that the husband is in absolute possession of the chattel real during the coverture, by a kind of joint tenancy with his wife; wherefore the law will not wrest it out of his hands, and give it to her representatives; though, in case he had died first, it would have survived to the wife, unless he thought proper in his lifetime to alter the possession. But a chose in action shall not survive to him, because he never was in possession of it at all, during the coverture; and the only method he had to gain possession of it, was by suing in his wife's right; but as, after her death he cannot (as husband) bring an action in her right, because they are no longer one and the same person in law, therefore he can never (as such) recover the possession. But he still will be entitled to be her administrator; and may, in that capacity, recover such things in action as became due to her before or during the coverture." o Poph. 5. Co. Litt, 351. p Co. Litt. 351. g Ibid. r 9 Mod. 186. (4) If a bill or note be made to a feme-sole and she afterwards marry, being possessed of the note, the property vests in the husband, and he may indorse it or sue alone for the recovery of the amount, 3 Wils. 5. 1 B. & A. 218., for these instruments, when in possession of the wife, are to be considered rather as chattels personal, than choses in action. Id. ibid. The transfer of stock into the wife's name, to which she became entitled during the marriage, will not be considered as payment or transfer to her husband, so as to defeat her right by survivorship, 9 Ves. 174. 16 Ves. 413.; but if it is transferred into his name, it is a reduction of it into his possession. 1 Roper's Law of Hus. & Wife, 218. So if a promissory note be given to the wife, the husband's receipt of the interest thereon will not defeat the right of the wife by survivorship. 2 Madd. 133. But where the husband does and can bring an action for a chose in action of the wife, in his own name, and dies after judgment, leaving his wife surviving, his representatives will be entitled. If however she is joined, she will be entitled, and may have a scire facias upon such judgment. 1 Vern. 396. 2 Ves. Sen. 677. 12 Mod. 346. 3 Lev. 403 Noy, 70. And if previously to marriage she had obtained a judgment, and afterwards she and her husband sued out a scire facias and had an award of execution, and she died before execution, the property would be changed by the award, and belong to the husband as the survivor. 1 Salk. 116. Roper L. Hus. & Wife, Chitty. 1 vol. 210. (5) So construed in Ognel's case, 4 Rep. 51. 6) By 29 Car. II. c. 3. s. 25. the husband shall have administration of all his wife's personal Thus, and upon these reasons, stands the law between husband and wife, with regard to chattels real and choses in action: but, as to chattels personal, (or choses) in possession, which the wife hath in her own right, as ready money, jewels, household goods, and the like, the husband hath therein an immediate and absolute property, devolved to him by the marriage, not only potentially but in fact, which never can again revest in the wife or her representatives. (s) And, as the husband may thus generally acquire a property in all the personal substance of the wife, so in one particular 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, (t) and is derived from the Greek language, signifying something over and [43 6] above her dower. Our law uses it to signify the apparel and orna 8 ments 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. (u) These she becomes entitled to at the death of her husband, over and above her jointure or dower, and preferably to all other representatives. (w) 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. (x) 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. (y) And her necessary apparel is protected even against the claim of creditors. (z) 10 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 s Co Litt. 351. t Ff. 23. 3. 9. S. u Moor. 213. w Cro. Car. 343. 1 Roll. Abr. 911. 2 Leon. 166. estate, which he did not reduce into his possession before her death, and shall retain it to his own use: but be must first pay his wife's debts before coverture; and if he die before administration is granted to him, or he has recovered his wife's property, the right to it passes to his personal representative, and not to the wife's next of kin. i P. Wms. 378. 1 Mod. 231. Butler's Co. Lit. 351. 1 Wils. 168. (7) As to the widow's right to paraphernalia in general, see Toller's L. Ex. b. 2. ch. 5. s. 3. (8) Also a necessary bed. Com. Dig. Baron et Feme. (9) Or of any married lady. 2 Atk. 77. 11 Vin. Abr. 180. (10) The husband may dispose absolutely of his wife's jewels or other paraphernalia in his lifetime. 3 Atk. 394. And although after his death they are liable to his debts, if his personal estate is exhausted, yet the widow may recover from the heir the amount of what she is obliged to pay in consequence of her husband's specialty creditors obtaining payment out of her paraphernalia. 1 P. Wms. 730. 3 Atk. 369. 393. But she is not entitled to them after his death, if she has barred herself by an agreement before marriage of every thing she could claim out of his personal estate either by the common law or custom. 2 Atk. 642. Christian. Where the husband permits the wife to make profit of certain articles for her own use, or in consideration of her supplying the family with particular necessaries, or makes her a yearly allowance for keeping house, the profits or savings will be considered in equity as the wife's own separate estate; Sir P. Neal's case, cited in Herbert v. Herbert, Pre. Ch. 44. 3 P. Wms. 337. 2 Eq. Ca. Abr. 156. in marg. except as against creditors, Pre. Ch. 297. See also 1 Vern. 244. 2 Vern. 535. 1 Eq. Ca. Abr. 346. pl. 18. I Atk. 278. And she may dispose of her separate estate by anticipation, and her right of alienation is absolute, unless she is expressly restrained by the settlement. Jackson v. Hobhouse, 2 Meriv. 483. 11 Ves. 222. 1 Ves. Jun. 189. 3 Bro, Č. C. 340. S. C. 12 Ves. 501. 14 Ves. 302. A husband's agreement before marriage that a wife shall have separate property, converts him into her trustec; see 1 Ventr. 193. 29 Ch. II. c. 3. s. 4. 1 Ves. Jun. 196. 12 Ves. 67. unless by fraud of the husband he prevents the agreement from being reduced to writing. Montacute v. Maxwell, 1 P. Wins. 620. 1 Stra. 236, S. C. 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 the judgment of the law. Of the former sort are all debts and choses in action: as if a man gives bond for 201., 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 [437] to recover the possession of that right, which already in justice be longs 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 on 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 bona 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. (6) 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. (c) 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 a suit and judg ment at law are not only the means of recovering, but also of acquir[438] ing, 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 declares 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 3 Geo. III. a 2 Lev. 141. Stra, 1169. Combe v. Pitt, B. Tr. 11 Rep. 65. 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, all title [439] to costs and expenses 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. CHAP. XXX. OF TITLE BY GIFT, GRANT, AND We are now to proceed, according to the order marked out, to the discussion of two 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 estate less 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 nomi C1) See in general, Vin. Ab. tit. Gift; Com. Dig. tit. Biens, D. 2. and tit. Grant; Bac. Ab Grant; Vin. Ab, Grants. nally 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. 2 [441] 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. A true and proper gift or grant is always accompanied with delivery of possession, and takes effect immediately: as if A gives to B 1001., or a flock of sheep, and puts him in possession of them directly, it is then a gift executed in the donee; and it is not in the donor's power to retract it, though he did it without any consideration or recompense: (c) unless it be prejudicial to creditors; or the donor were under any legal incapacity, as infancy, coverture, duress, or the like; or if he were drawn in, circumvented, or imposed upon, by false pretences, ebriety, or surprise. But if the gift does not take effect, by delivery of immediate possession, it is then not properly a gift, but a contract; and this a man cannot be compelled to (2) A gift or grant of personal property may be by parol. 3 M. & S. 7. But when an assignment is for a valuable consideration, it is usually in writing; and when confined merely to personalty, is termed a bill of sale. An assignment, or covenant, does not pass after acquired personal property, 5 Taunt. 212.; but where there has been a subsequent change of new for old articles, and the assignment is afterwards set aside, it will in general be left to a jury to say, whether the new were not substituted for the old. In general there should be an immediate change of possession, or the assignment made notorious, or creditors, who were ignorant of the transfer, may treat it as fraudulent and void, on the ground that the grantor was, by his continuance of possession, enabled to gain a false credit. Twine's case, 3 Co. 81. See cases, Tidd. Prac. 8th ed. 1043, 4. 1 Campb. 333, 4. 5 Taunt. 212. As to the notoriety of the sale, 2 B. & P. 59. 8 Taunt. 838. 1 B. Moore, 189. If possession be taken at any time before an adverse execution, though long after the date of the deed, it seems it will be valid. 15 East, 21. An assignment to a creditor of all a party's effects, in trust for himself and other creditors, is valid. 3 M. & S. 517. And as a debtor may prefer one creditor to another, he may, on the eve of an execution of one creditor, assign his property to another, so as to satisfy the latter, and leave the other unpaid. 5T. R. 235. But an assignment made by way of sale, to a person not a creditor, in order to defeat an execution, will, if the purchaser knew that intention, be void, although he paid a full price for the goods. 1 East, 51. 1 Burr. 474. (3) In Clayt. 135. it was said, that if A., being at York, give his horse in London te 1. S., the latter may have trespass without other possession, F. N. B. 140. Perkins, 30.; and that, though by the civil law, a gift of goods is not good without delivery, yet it is otherwise in our law. 1 Rol R. 61. Vin. Ab. Gift. It was, however, recently determined, that by the law of England, in or der to transfer property by gift, there must be a deed or instrument of gift, or there must be an actual delivery of the thing to the donee. 2 Bar. & Ald. 551. |