Page

trary to the statute law. II. Those made to aliens. III. Those made by particular tenants, when larger than their estates will warrant 268-274 5. Lapse is a forfeiture of the right of presentation to a vacant church, by neglect of the patron to present within six calendar months

6. Simony is the corrupt presentation of any one to an ecclesiastical benefice, whereby that turn becomes forfeited to the crown

7. For forfeiture by non-performance of conditions, see Ch. X.

8. Waste is a spoil, or destruction, in any corporeal hereditaments, to the prejudice of him that hath the inherit

ance

9. Copyhold estates may have also other peculiar causes of forfeiture, according to the custom of the manor 10. Bankruptcy is the act of becoming a bankrupt; that is, a trader who secretes himself, or does certain other acts, tending to defraud his creditors. (See Ch. XXII.)

11. By bankruptcy, all the estates of the bankrupt are transferred to the assig nees of his commissioners, to be sold for the benefit of his creditors

CHAPTER XIX.

276

278

281

284

285

286

287 to 294

OF TITLE BY ALIENATION 1. Alienation, conveyance, or purchase, in its more limited sense, is a means of transferring real estates, wherein they are voluntarily resigned by one man, and accepted by another

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

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, femecoverts, aliens, or papists 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

CHAPTER XX.

287

287

288-293

293-4

295 to 342

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 decd indented, or indenture. II. A deed poll

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

295

295-6

Page

296-307

parchment, duly stamped. IV. Legal and orderly parts (which are usually, 1st, the premises; 2ndly, the habendum; 3rdly, 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 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 ; 2ndly, defacing its seal; 3rdly, cancelling it; 4thly, disagreement of those whose consent is necessary; 5thly, judgment of a court of justice 5. Of the several species of deeds, some serve to convey real property, some only to charge and discharge it 6. Deeds which serve to convey real property, or conveyances, are either by common law, or by statute. And, of conveyances by common law, some are original or primary, others derivative or secondary

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. Defeazances 8. A feoffment is the transfer of any corporeal hereditament to another, perfected by livery of seisin, or delivery of bodily possession from the feoffor to the feoffee; without which no freehold estate therein can be created at common law

9. A gift is properly the conveyance of lands in tail

13. A partition is the division of an estate held in joint-tenancy, in co-parcenary, or in common, between the respective tenants; so that each may hold his distinct part in severalty 14. A release is the discharge or conveyance of a man's right, in lands and tenements, to another that hath some former estate in possession therein 15. A confirmation is the conveyance of an estate or right in esse, whereby a voidable estate is made sure, or a particular estate is increased

16. A surrender is the yielding up of an

323

324

325

estate for life, or years, to him that hath the immediate remainder or reversion; wherein the particular estate may merge 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 18. Á defeazance is a collateral deed, made at the same time with the original conveyance; containing some condition upon which the estate may be defeated

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 cestay que use, or cestuy que trust 20. The statute of uses, having transferred all uses into actual possession (or, rather, having drawn the possession to the use), has given birth to divers other species of conveyance : I. A covenant to stand seised to uses. II. A bargain and sale, enrolled. III. A lease and release. IV. A deed to lead or declare the use of other more direct Conveyances. V. A revocation of uses; being the execution of a power, reserved at the creation of the use, of recalling at a future time the use or estate so creating. All which owe their present operation principally to the statute of uses

Page

326

326

327

327

337-339

344 to 363

1. Assurances by matter of record are, where the sanction of some court of record is called in, to substantiate and witness the transfer of real property. These are, I. Private acts of Parliament. II. The king's grants. III. Fines. IV. Common recoveries 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

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 re

venue

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 acknowledged to be the right of one of the parties

5. The parts of a fine are, I. The writ VOL. I.

344

344

346

348

5

Page

of covenant. II. The licence 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

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

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

353

354

361

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 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

CHAPTER XXII.

OF ALIENATION BY SPECIAL CUSTOM

363

365 to 371

1. Assurances by special custom are confined to the transfer of copyhold es

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 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

CHAPTER XXIV.

Page

375-6

379-381

384-387

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

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

CHAPTER XXV.

per

OF PROPERTY IN THINGS PERSONAL

386

386

387

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

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

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

389

389

391

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

7. The property of chattels personal is liable to remainders, expectant on estates for life; to joint-tenancy; and to tenancy in common

396

398

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. Things found. III. The benefit of the elements. IV. Animals fere natuTe. V. Emblements. VI. Things gained by accession;-or, VII. By confusion. Vill. Literary property 400-407 CHAPTER XXVII.

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 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. 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

OF TITLE BY CUSTOM 422 to 427 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 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

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

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

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

CHAPTER XXX.

430

433

435

436-439

II. Bailment. III. Hiring or borrowing. IV. Debt

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

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

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 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 loan; and,

440

442

443

444-5

446

446

451

453

Page

consequently, to the doctrine of bottomry or respondentia, and insurance 453-464 20. 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.

471 to 488

OF TITLE BY BANKRUPTCY 1. Bankruptcy (as defined in ch. 18) is the act of becoming a bankrupt 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

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 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 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. VIL His discovery. VIII. His certificate. IX. His allowance. X. His indemnity 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

OF TITLE BY TESTAMENT, AND ADMINISTRATION 489 to 520 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 2. Testaments have subsisted in England immemorially; whereby the deceased was at liberty to dispose of his personal estate, reserving antiently to his wife and children their reasonable part of his effects 3. The goods of intestates belonged antiently 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

491

Page

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