Blackstone’s Commentaries with Notes of Reference (1803)

St. George Tucker

Of Title by Succession, Marriage, and Judgment

IN the present chapter we shall take into consideration three other species of title to goods and chattels.

V. THE fifth method therefore of gaining a property in chattels, either personal or real, is by succession: which is, in strictness of law, only applicable to corporations aggregate of many, as dean and chapter, mayor and commonalty, master and fellows, and the like; in which one set of men may, by succeeding another set, acquire a property in all the goods, moveables, and other chattels of the corporation. The true reason whereof is, because in judgment of law a corporation never dies; and therefore the predecessors, who lived a century ago, and their successors now in being, are one and the same body corporate.1 Which identity is a property so inherent in the nature of a body politic, that, even when it is meant to give any thing to be taken in succession by such a body, that succession need not be expressed; but the law will of itself imply it. So that a gift to such a corporation, either of lands, or of chattels, without naming their successors, vests an absolute property in them so long as the corporation subsists.2 And thus a lease for years, an obligation, a jewel, a flock of sheep, or other chattel interest, will vest in the successors, by succession, as well as in the identical members, to whom it was originally given.

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 ancient cathedrals, 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.3 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.4 For the word successors, when applied to a person in his politic 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 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 successors, the property thereof must be in abeyance from the death of the present owner until the successors be appointed: and this is contrary to the nature of a chattel interest, which can never be in abeyance or without an owner;5 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 is suspense;
nor in the other sole corporations before-mentioned, who are rather to be considered as head 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 if 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 or be acquired by right of succession.6

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.7 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 no 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:8 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 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.

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,9 so that the very being and existence of the woman is suspended during the coverture, or entirely merged and incorporated in that of the husband. And hence if 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 profit during coverture: for that, depending upon feudal 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 ten ant for life by the curtesy. But, in chattel interests, the sole and absolute property vests in the husband, to be disposed of at his 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 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, not 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 disposed of it during the coverture:10 if he be outlawed or attainted, it shall be forfeited to the king:11 it is liable to execution for his debts:12 and, if he survives his wife, it is to all intents and purposes his own.13 Yet if he has made no disposition thereof in his lifetime, and dies before his wife, he cannot disposed of it by will:14 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, of 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.15 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 now at liberty to seize it, but the wife or her heirs;16 for the husband never exerted the right he had, which right determined with the coverture. Thus is 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 not the chose in action;17 except in the case of arrears of 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. 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, be 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 has in her own right, as ready money, jewels, household goods, and the like, the husband has 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 representative.18

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 shall not go to his executors. These are called her paraphernalia; which is a term borrowed from the civil law,19 and is derived from the Greek language, signifying something over and above her dower. Our law20 uses it to signify the apparel and ornaments of the wife, suitable to her rank and degree; which she becomes entitled to entitled to at the death of her husband over and above her jointure or dower, and preferably to all other representatives: and the jewels of a peeress, usually worn by her, have been held to be paraphernalia.21 Neither can the husband devise by his will such ornaments and jewels of his wife; though during his life perhaps he has the power (if unkindly inclined to exert it) to sell them or give them away.22 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.23 And her necessary apparel is protected even against the claim of creditors.24

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 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 judgment of the law. Of the former sort are all debts and choses in action; as if a man gives bond for 20£ or agrees to buy a horse at a stated sum, or takes up goods of a tradesman upon an implied 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, and 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 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 500£ 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;25 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.26 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.27 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 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 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 by referred, upon the same principle, all title to costs and expenses of suit; which are often arbitrary, and rest entirely in 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.

Blackstone’s Footnotes (Tucker’s notes not yet added)

     1.    4 Rep. 65.
     2.    Bro. Abr. t. estates. 90. Cro. Eliz. 464.
     3.    Dyer. 48. Cro. Eliz. 464.
     4.    Co. Litt. 46.
     5.    Brownl. 132.
     6.    Co. Litt. 46.
     7.    Ibid. 90.
     8.    4 Rep. 65. Cro. Eliz. 682.
     9.    See Book I. c. 15.
   10.    Co. Litt. 46.
   11.    Plowd. 263.
   12.    Co. Litt. 351.
   13.    Ibid. 300.
   14.    Poph. 5. Co. Litt. 351.
   15.    Co. Litt. 351.
   16.    Ibid.
   17.    3 Mod. 186.
   18.    Co. Litt. 351.
   19.    Ff. 23. 3. 9. § 3.
   20.    Cro. Car. 343. 1 Roll. Abr. 911. 2 Leon. 166.
   21.    Moor. 213.
   22.    Noy’s Max. c. 49. Grahme v. Lord Londonderry. 24 Nov. 1746. Canc.
   23.    1 P. Wms. 730.
   24.    Noy. ibid.
   25.    2 Lev. 141. Stra. 1169. Combe v. Pitt. B. R. T. 3. Geo. III.
   26.    Stat. 4 Hen. VII. c. 20.
   27.    Cro. Eliz. 138. 11 Rep. 65.