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BUT, with regard to sole corporations, a considerable distinction must be made. For if such sole corporation be the representative of a number of persons; as the master of an hospital, who is a corporation for the benefit of the poor brethren an abbot, or prior, by the old law before the reformation, who represented the whole convent; or the dean of some antient cathedral, who stands in the place of and represents, in his corporate capacity, the chapter; such sole corporations as these have, in this respect, the same powers as corporations aggregate have, to take personal property or chattels in succession. And therefore a bond to such a master, abbot, or dean, and his successors, is good in law; and the successor shall have the advantage of it, for the benefit of the aggregate society, of which he is in law the representative c Whereas in the case of sole corporations, which represent no others but themselves, as bishops, parsons, and the like, no chattel interest can regularly go in succession: and therefore if a lease for years be made to the bishop of Oxford and his successors, in such case his executors or administrators, and not his successors, shall have it. d For the word successors, when applied to a person in his political capacity, is equivalent to the word heirs in his natural; and as such a lease for years, if made to John and his heirs, would not vest in his heirs but his executors; so if it be made to John bishop of Oxford and his successors, who are the heirs of his body politic, it shall still vest in his executors and not in such of his successors. The reason of this is obvious: for besides that the law looks upon goods and chattels as of too low and perishable a nature to be limited either to heirs, or such successors as are equivalent to heirs; it would also follow, that if any such chattel interest (granted to a sole corporation and his successors) were allowed to descend to such successor, the property thereof must be in abeyance from the [432] death of the present owner until the successor be appointed: and this is contrary to the nature of a chattel interest, which can never be in abeyance or without an owner; but a man's right therein, when once suspended, is gone for ever. This is not the case in corporations aggregate, where the right is never in suspense; nor in the other sole corporations before

Dyer, 48.- Cro. Eliz. 464.

Co. Litt. 46. • Brownl. 132.

mentioned, who are rather to be considered as heads of an aggregate body, than subsisting merely in their own right: the chattel interest, therefore, in such a case, is really and substantially vested in the hospital, convent, chapter, or other aggregate body; though the head is the visible person in whose name every act is carried on, and in whom every interest is therefore said (in point of form) to vest. But the general rule, with regard to corporations merely sole, is this, that no chattel can go to or be acquired by them in right of succession'.

YET to this rule there are two exceptions. One in the case of the king, in whom a chattel may vest by a grant of it formerly made to a preceding king and his successors. The other exception is, where, by a particular custom, some particular corporations sole have acquired a power of taking particular chattel interests in succession. And this custom, being against the general tenor of the common law, must be strictly interpreted, and not extended to any other chattel interests than such immemorial usage will strictly warrant. Thus the chamberlain of London, who is a corporation sole, may by the custom of London take bonds and recognizances to himself and his successors, for the benefit of the orphan's fund" but it will not follow from thence, that he has a capacity to take a lease for years to himself and his successors for the same purpose; for the custom extends not to that: nor that he may take a bond to himself and his successors, for any other purpose than the benefit of the orphan's fund; for that also is not warranted by the custom. Wherefore, upon the whole, we may close this head with laying down this general rule, that such right of succession to chattels is universally inherent by the common law in all aggregate corporations, in [433] the king, and in such single corporations as represent a number of persons; and may, by special custom, belong to certain other sole corporations for some particular purposes; although generally, in sole corporations, no such right can exist. (1)

:

f Co. Litt. 46.

& Ibid. 90.

h 4 Rep. 65.

Cro. Eliz. 464. 682.

(1) Thus the ornaments of the chapel of a preceding bishop belong to

his

VI. A SIXTH method of acquiring property in goods and chattels is by marriage; whereby those chattels, which belonged formerly to the wife, are by act of law vested in the husband, with the same degree of property and with the same powers, as the wife, when sole, had over them.,

THIS depends entirely on the notion of an unity of person between the husband and wife: it being held that they are one person in law, so that the very being and existence of the woman is suspended during the coverture, or entirely merged or incorporated in that of the husband. And hence it follows, that whatever personal property belonged to the wife, before marriage, is by marriage absolutely vested in the husband. In a real estate, he only gains a title to the rents and profits during coverture: for that, depending upon feodal principles, remains entire to the wife after the death of her husband, or to her heirs, if she dies before him; unless by the birth of a child, he becomes tenant for life by the curtesy. But, in chattel interests, the sole and absolute property vests in the husband, to be disposed of at his pleasure, if he chooses to take possession of them; for, unless he reduces them to possession, by exercising some act of ownership upon them, no property vests in him, but they shall remain to the wife, or to her representatives, after the coverture is determined.

THERE is therefore a very considerable difference in the acquisition of this species of property by the husband, according to the subject-matter; viz. whether it be a chattel real or [434] a chattel personal; and, of chattels personal, whether it be in possession, or in action only. A chattel real vests in the husband, not absolutely, but sub modo. As, in case of a lease for years, the husband shall receive all the rents and profits of it, and may, if he pleases, sell, surrender, or dispose of it during coverture: if he be outlawed or attainted, it shall be forfeited to the king': it is liable to execution for his debts: and, if

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his successor, and the bishop may take such chattels in succession. 12 Rep. 106. Corven's case, citing 21 E. 3. 48.

he survives his wife, it is to all intents and purposes his own ". Yet, if he has made no disposition thereof in his lifetime, and dies before his wife, he cannot dispose of it by will: 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 antient 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 obtaining an exclusive property in them ". 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 ; 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 chattels real and choses in action: for he shall have the chattel real by survivorship, but [ 435 ] not the chose in action'; 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. (2) And the reason for the general law is this: that

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(2) The words of the statute do not seem to import this, but they were so construed in Ognel's case. 4 Rep. 51.

The distinction between the wife's chattels real, and her choses in action, where the husband survives, is become unimportant, since the 29C. 2. c.3. has given the husband administration of all her personal property of every description for his own benefit. And even supposing him to die after her,

VOL. II.

I 1

and

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 had thought proper in his life-time 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.

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. (3)

AND, as the husband may thus generally acquire a property in all the personal substance of the wife, so in one particular

$ Co. Litt. 351.

and before he has reduced her choses in action into possession, his personal representative will be entitled to them, and not her next of kin. Elliott v. Collyer, 1 Wils. 168.

(3) As the law, which thus gives a husband, either directly or indirectly, a power to vest in himself all his wife's personal property during coverture, might often bear hard upon the wife in cases where no settlement had been made on her; equity will always interpose, where it has jurisdiction, to protect the wife; that is, wherever the property is so circumstanced that the husband is obliged to have recourse to a court of equity for the reducing it into possession, that court will only interfere on condition of his making a competent settlement on his wife, unless indeed the free consent of the wife is satisfactorily ascertained to the court. See the cases collected in Mr. Butler's Notes to Co. Litt. 351.a. n. 304.

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