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21 Deeds which do not convey, but only charge real property, and discharge it, are, I. Obligations. II. Recognizances. III. Defeazances upon both ...... Page 340-342 CHAPTER XXI.

OF ALIENATION BY MATTER of Record. 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......

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8. 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.......... 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 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...... 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.....

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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...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 CHAPTER XXII.

OF ALIENATION BY SPECIAL CUSTOM ...365 to 371 1 Assurances by special custom are con

fined to the transfer of copyhold estates.. 365

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2. This was not permitted by the common law, as it stood since the conquest; but was introduced by the statute law, under Henry 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..............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 favourable in case of a devise...379-381

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OF TITLE TO THINGS PERSONAL BY OccuPANCY... ..400 to 407 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. Judgment. VIII. Gift, or Grant. IX. Contract. X. Bankruptcy. XI. Testament. XII. Administration 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. 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.......

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OF TITLE BY PREROGATIVE, AND FORFEIT.....408 to 421 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 misdemeanours, the right of goods and chattels may be transferred from one man to another; either in part or totally

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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

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TRACT........

OF TITLE BY GIFT, GRANT, AND CON.........440 to 470 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 ..444-5

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

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

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.......

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9. This price, being calculated to answer the hazard, as well as inconvenience, of

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lending, gives birth to the doctrine of interest, or usury, upon loan; and, consequently, to the doctrine of bottomry or respondentia, and insurance...... Page 453-464 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...... .......464-470 CHAPTER XXXI.

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8 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...................

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

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

CHAPTER XXXII.

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OF TITLE BY TESTAMENT, AND ADMINISTRA

TION..

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1. Concerning testaments and administra tions, 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.....

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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... 491 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 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 absentia; 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

INTRODUCTION.

Of the Study, Nature, and Extent of the Laws of England.

SECTION I.

ON THE STUDY OF THE LAW.

MR. VICE-CHANCELLOR AND THE GENTLEMEN OF THE UNIVERSITY.

THE general expectation of so numerous and respectable an audience, the novelty, and (I may add) the importance of the duty required from this chair, must unavoidably be productive of great diffidence and apprehensions in him who has the honour to be placed in it. He must be sensible how much will depend upon his conduct in the infancy of a study, which is now first adopted by public academical authority; which has generally been reputed (however unjustly) of a dry and unfruitful nature; and of which the theoretical elementary parts, have hitherto received a very moderate share of cultivation. He cannot but reflect that, if either his plan of instruction be crude and injudicious, or the execution of it lame and superficial, it will cast a damp upon the farther progress of this most useful and most rational branch of learning; and may defeat for a * 4 time the *public-spirited design of our wise and munificent benefactor. And this he must more especially dread, when he feels by experience how unequal his abilities are (unassisted by preceding examples) to complete, in the manner he could wish, so extensive and arduous a task; since he freely confesses, that his former more private attempts have fallen very short of his own ideas of perfection. And yet the candour he has already experienced, and this last transcendent mark of regard, his present nomination by the free and unanimous suffrage of a great and learned university, (an honour to be ever remembered with the deepest and most affectionate gratitude,) these testimonies of your public judgment must entirely supersede his own, and forbid him to believe himself totally insufficient for the labour at least of this employment. One thing he will venture to hope for, and it certainly shall be his constant aim, by diligence and attention to atone for his other defects: esteeming, that the best return which he can possibly make for your favourable opinion of his capacity, will be his unwearied endeavours in some little degree to deserve it.

The science thus committed to his charge, to be cultivated, methodized, and explained in a course of academical lectures, is that of the laws and constitution of our own country: a species of knowledge, in which the gentlemen of England have been more remarkably deficient than those of all Europe besides. In most of the nations of the continent, where the civil or imperial law, under different modifications, is closely interwoven with the municipal laws of the land, no gentleman, or at least no scholar, thinks his education is completed, till he has attended a course or two of lectures, both upon the institutes of Justinian and

Read in Oxford at the opening of the Vinerian lectures, 25th October, 1758. VOL L-1

The author had been elected first Vinerian professor the 20th of October previously. 1

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