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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 ber necessary apparel is protected even against the claim of creditors.(z)3
VII. Å 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 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 colitract 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 which already in justice belongs to him.* *But there is also a species of property to which a
[*437 (*) Moor. 213.
() 1 P. Wms. 730. Cro. Car. 343. 1 Roll. Abr. 911. 2 Leon. 166.
(*) Noy's Max. c. 49. (5) Noy's Max. c. 49. Grahme vs. Ld. Londonderry, 24th
Nov, 1746. Canc,
3 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 to 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 vs. Herbert, Prec. Ch. 44. 3 P. Wms. 337. 2 Eq. Ca. Àbr. 156, in marg. except as against creditors, Prec. Ch. 297. See also 1 Vern. 244. 2 Vern. 535. 1 Eq. Ca. Abr. 346, pl. 18. 1 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 vs. Hobhouse, 2 Meriv. 483. 11 Ves. 222. 1 Ves. Jr. 189. 3 Bro. C. 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 trustee, (see 1 Ventr. 193. 29 Ch. II. c. 3, s. 4. 1 Ves. Jr. 196. 12 Ves. 67,) unless by fraud of the husband he prevents the agreement from being reduced to writing. Montacute vs. Maxwell, 1 P. Wms. 620. 1 Stra. 236, S. C.-Chitty.
* If the owner of a chattel bring an action of trespass or trover against one unlawfully in possession, or, waiving the tort, an action to recover the price or value of it, and recovers judgment, such judgment, while it vests a title to the damages in the plaintiff, operates at the same time as a transfer to the defendant of the plaintiff's title to the thing. It results from the conclusiveness of the judgment as a bar to any other action by the plaintiff, or any one claiming under him, against the defendant, or those deriving their title through him. The authorities are not harmonious upon the question whether & mere judgment without satisfaction or payment of the amount recovered by the defendant will produce the effect. See 2 Kent's Com. 388, 389. The learned chancellor expresses the opinion that the negative is the better doctrine. But if the ground of the rule that the judgment transfers the title to the defendant be that before stated in this note, then it is plain that payment or satisfaction of the judgnient is not necessary. Nemo debet bis vescari pro eadem causa. A prior judgment, whether paid or not, can be set up as a conclusive bar to any subsequent action for the same cause between the same parties or their respective privies. Floyd vs. Brown, 1 Rawle, 121. Marsh vs. Pier, 4 Rawle, 273. Merrick's Estate, 5 W. & S. 17. Morrell vs. Johnson, 1 Hen. & Munf. 499.
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 5001. 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 pena! 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 everybody 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.(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 *438]
interest. This therefore is one instance, where 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 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 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 bim, as fix and ascertain the old one; they do not give, but define, the right. But, however, though, strictly speaking, tho 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 pro. perty, we may fairly enough rank such damages, or satisfaction assessed, under the head of property acquired by suit and judgment at law. *439]
*3. Hither also may be referred, upon the same principle, all title 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 (a) 2 Lev. 141. Stra. 1169. Combe vs. Pitt, B. R. Tr. 3
() Stat. 4 Hen. VII. c. 20.
(*) Cro. Eliz. 138. 11 Rep. 65. Rogers vs. Moon, 1 Rice, 60. Carlisle vs. Burley, 3 Greenl. 250. That satisfaction is necessary, on the other hand, is supported by Curtis vs. Groat, 6 Johns. 168. Osterhout vs. Roberts, 8 Cowen, 43. Sanderson vs. Caldwell, 2 Aiken, 203. Jones vs. McNeil, 2 Bailey, S. C. 466.-SHARSWOOD.
the courts of law) whether there shall be any costs at all. These costs, therefore, when giver by the court to either party, may be looked upon as an acquisition made by the judgment of law.
OF TITLE BY GIFT, GRANT, AND CONTRACT. 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 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 an
[*441 other 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
(*) Perk. & 57. ? 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 personally, 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. Twyne's case, 3 Co. 81. See cases, Tidd. Prac. 8th ed. 1043, 1044. 1 Camp. 333, 334. 5 Taunt. 212. As to the notoriety of the sale, 2 B. & P. 59. 8 Taunt. 838. 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 as signment 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. 5 T. 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 purchasor knew that intention, be void, although he paid a full price for the goods. 1 East, 5.. 1 Burr. 474.-CHITTY. VOL. L-47
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, 6) 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 :) 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 *442]
immediate possession, it is then not properly a gift, but a contract; *and
this a man cannot be compelled to perform but upon good and sufficient consideration; as we shall see under our next division.
IX. A contract, which usually conveys an interest merely in action, is thus defined :-"an agreement, upon sufficient consideration, to do or not to do a par. ticular thing." From which definition there arise three points to be contemplated () See 3 Rep. 82.
(9) Jenk. 109. * In Clayt. 135 it was said that if A., being at York, give his horse in London to I. 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. Abr. Gift. It was, however, recently determined that, by the law of England, in order 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.-Caitty.
8 And now, by the statute 17 & 18 Vict. c. 36, s. 1, bills of sale, which is the usual de nomination of a grant of chattels personal, must be filed with the clerk of docquets and judgments in the court of Queen's Bench within twenty-one days after the making or giving them; otherwise any such grant will, as against assignees in bankruptcy or insolvency, or creditors, be null and void.-KERR.
The leading case on the construction of 13 Eliz. c. 5 is Twyne's case, (3 Rep. 81,) in which it was decided that if the grantor be allowed to retain the possession it is a badge of fraud. In the army of cases which have followed this leader, both in England an: this country, there is in many respects great discordance, especially upon the important question whether the retention of possession be per se and in law fraudulent, or whether it be only an evidence of fraud to be submitted to the jury. In Edwards vs. Harben, (2 T. R. 587,) the court of King's Bench laid down the principle emphatically, that if the vendee took an absolute bill of sale to take effect immediately by the face of it, and agreed to leave the goods in the possession of the vendor for a limited time, such an absolute conveyance, without the possession, was such a circumstance per se as made the transaction fraudulent in point of law. It was admitted, however, that if the want of immediate possession be consistent with the deed, as it was in Bucknal vs. Roiston (Frec. in Ch. 285) and Cadogan vs. Kennet, (Cowp. 432,) and as it is if the deed be conditional und the vendee is not to have possession until he has performed the condition, the sale was not fraudulent, for then possession accompanied and followed the deed within the meaning of the rule. 2 Kent's Com. 518. Chancellor Kent admits, however, that under subsequent English decisions it has become difficult to determine when the circumstance of possession not accompanying and following the deed is per se a fraud in the English law, or only presumptive evidence of fraud resting upon the facts to be disclosed at the irial. I subjoin a few leading American cases on this subject on both sides of the question. Holding that retention of possession is a fraud per se are Hamilton vs. Russell, 1 Cranch, 309. Clayton vs. Anthony, 6 Rand. 285. Laughlin vs. Ferguson. 6 Dana, 117. Sibley vs. Hood, 3 Missouri, 290. Newland vs. Dews, RoM. Charlt. 386. Babh vs. Clemson, 10 S. & R. 419. Thornton vs. Davenport, 1 Seamm. 296. Contra, that it is evidence of fraud for the jury, are Smith vs. Henry, 2 Bailey, S. C. Rep. 118. Muncy vs. Killough, 7 Yerger, 440. Bissell vs. Hopkins, 3 Cowen, 166.-SVARSWOOD.
in all contracts : 1. The agreement; 2. The consideration; and 3. The thing to be done or omitted, or the different species of contracts.
First then it is an agreement, a mutual bargain or convention; and therefore there must at least be two contracting parties of sufficient ability to make a contract; as where A. contracts with B. to pay him 1001. and thereby transfers a property in such sum to B. Which property is, however, not in possession, but in action merely, and recoverable by suit at law; wherefore it could not bó transferred to another person by the strict rules of the antient common law; for no chose in action could be assigned or granted over,(d) because it was thought to be a great encouragement to litigiousness if a man were allowed to make over to a stranger his right of going to law. But this nicety is now disregarded: though, in compliance with the antient principle, the form of assigning a chose in action is in the nature of a declaration of trust, and an agreement to permit the assignee to make use of the name of the assignor, in ordek to recover the possession. And therefore, when in common acceptation a debt or bond is said to be assigned over, it must still be sued in the original creditor's name; the person to whom it is transferred being rather an attorney than an assignee. But the king is an exception to this general rule, for he might always either grant or receive a chose in action by assignment:(e) and our courts of equity, considering that in a commercial country almost all personal property must necessarily lie in contract, will protect the assignment of a chose in action as much as the law will that of a chose in possession. (f) *This contract or agreement may be either express or implied. Ex
[*443 press contracts are where the terms of the agreement are openly uttered and avowed at the time of the making, as to deliver an ox, or ten loads of timber, or to pay a stated price for certain goods. Implied are such as reason and justice dictate, and which therefore the law presumes that every man undertakes to perform. As, if I employ a person to do any business for me, or perform any work; the law implies that I undertook, or contracted, to pay him as much as his labour deserves. If I take up wares from a tradesman, without any agreement of price, the law concludes that I contracted to pay their real value. And there is also one species of implied contracts, which runs through and is annexed to all other contracts, conditions, and covenants, viz., that if I fail in my part of the agreement, I shall pay the other party such damages as be has sustained by such my neglect or refusal. In short, almost all the rights of personal property (when not in actual possession) do in great measure depend upon contracts, of one kind or other, or at least might be reduced under some of them : which indeed is the method taken by the civil law; it having referred the greatest part of the duties and rights, which it treats of, to the head of obligations ex contractu and quasi ex contractu.(g)
A contract may also be either executed, as if A. agrees to change horses with B., and they do it immediately; in which case the possession and the right are transferred together: or it may be executory, as if they agree to change next week; here the right only vests, and their reciprocal property in each other's horse is not in possession but in action; for a contract executed (which differs
(", Co. Litt. 214.
(T) 3 P. Wms. 199.
* To this rule of the common law there are several exceptions. Bills of exchange by the law-merchant may be transferred by endorsement and sued on by the assignee, who is then called the endorsee; and the statute 3 & 4 Anne, c. 9 places promissory notes on the same footing. This statute was passed in consequence of the refusal of lord Holt (in Clesh vs. Martin, 2 Ld. Raym. 757) to yield to the custom which had sprung up among merchants of treating promissory notes as negotiable in the same way as bills of exchange. His lordship treated the attempt of the merchants with great indignation, saying that it proceeded from the opinionativeness of the merchants, who were endeavouring to set the law of Lombard Street against the law of Westminster Hall.” Drafts on bankers are equally negotiable. Bills of lading constitute a fourth exception. These are transferred by endorsement; and not only is the property in the goods thereby passed to the endorsee, but also all rights of suit, and all the liabilities of the original contractors, the shipper and the ship-owner. 18 & 19 Vict. c. 111.-KERR.