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AND thus we have taken a transient view, in this and the three preceding chapters, of a very large and diffusive subject, the doctrine of common assurances which concludes our observations on the title to things real, or the means by which they may be reciprocally lost and acquired. We have before considered the estates which may be had in them, with regard to their duration or quantity of interest, the time of their enjoyment, and the number and connections of the persons entitled to hold them: we have examined the tenures, both ancient and modern, whereby those estates have been, and are now, holden: and have distinguished the object of all these inquiries, namely, things real, into the corporeal or substantial, and incorporeal or ideal kind; and have thus considered the rights of real property in every light wherein they are contemplated by the laws of England. A system of laws, that differs much from every other system, except those of the same feodal origin, in its notions and regulations of landed estates; and which therefore could in this particular be very seldom compared with any other.

THE subject, which has thus employed our attention, is of very extensive use, and of as extensive variety. And yet, I am afraid, it has afforded the student less amusement and pleasure in the pursuit, than the matters discussed in the preceding volume. To say the truth, the vast alterations which the doctrine of real property has undergone from the conquest to the present time; the infinite determinations upon points that continually arise, and which have been heaped one upon another for a course of seven centuries,

without any order or method; and the multiplicity [383] of acts of parliament which have amended, or some

times only altered, the common law: these causes have made the study of this branch of our national jurisprudence a little perplexed and intricate. It hath been my endeavour principally to select such parts of it, as were of the most general use, where the principles were the most simple, the reasons of them the most obvious, and the prac

tice the least embarrassed. Yet I cannot presume that I have always been thoroughly intelligible to such of my rea ders, as were before strangers even to the very terms of art, which I have been obliged to make use of: though, whenever those have first occurred, I have generally attempted a short explication of their meaning. These are indeed the more numerous, on account of the different languages, which our law has at different periods been taught to speak; the difficulty arising from which will insensibly diminish by use and familiar acquaintance. And therefore I shall close this branch of our inquiries with the words of sir Edward Cokey: "albeit the student shall not at any one day, do what he can, "reach to the full meaning of all that is here laid down, yet "let him no way discourage himself but proceed; for on "some other day, in some other place," (or perhaps upon a second perusal of the same,) "his doubts will be probably " removed,"

y Proeme to 1 Inst.

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NDER the name of things personal are included all sorts of things moveable, which may attend a man's person wherever he goes; and therefore, being only the objects of the law while they remain within the limits of its jurisdiction, and being also of a perishable' quality, are not esteemed of so high a nature, nor paid so much regard to by the law, as things that are in their nature more permanent and immoveable, as lands, and houses, and the profits issuing thereout. These being constantly within the reach, and under the protection of the law, were the principal favorites of our first legislators: who took all imaginable care in ascertaining the rights, and directing the disposition, of such property as they imagined to be lasting; and which would answer to posterity the trouble and pains that their ancestors employed about them but at the same time entertained a very low and contemptuous opinion of all personal estate, which they regarded as only a transient commodity. The amount of it indeed was comparatively very trifling, during the scarcity of money and the ignorance of luxurious refinements, which prevailed in the feodal ages. Hence it was, that a tax of the fifteenth, tenth, or sometimes a much larger proportion, of all the movcables of the subject, was frequently laid without scruple, and is mentioned with much unconcern by our ancient historians, though now it would justly alarm our opuJent merchants and stockholders. And hence likewise may be derived the frequent forfeitures inflicted by the common

law, of all a man's goods and chattels, for misbehaviours and inadvertencies that at present hardly seem to deserve so severe a punishment. Our ancient law-books, which are founded upon the feodal provisions, do not therefore often condescend to regulate this species of property. There is not a chapter in Britton or the mirroir, that can fairly be referred to this head; and the little that is to be found in Glanvil, Bracton, and Fleta, seems principally borrowed from the civilians. But of later years, since the introduction and extension of trade and commerce, which are entirely occupied in this species of property, and have greatly augmented its quantity and of course its value, we have learned to conceive different ideas of it. Our courts now regard a man's personalty in a light nearly, if not quite, equal to his realty: and have adopted a more enlarged and less technical mode of considering the one than the other; frequently drawn from the rules which they found already established by the Roman law, wherever those rules appeared to be well-grounded and apposite to the case in question, but principally from reason and convenience, adapted to the circumstances of the times; preserving withal a due regard to ancient usages, and a certain feodal tincture, which is still to be found in some branches of personal property.

BUT things personal, by our law, do not only include things moveable, but also something more: the whole of which is comprehended under the general name of chattels, which, sir Edward Coke says 2, is a French word signifying goods. The appellation is in truth derived from the technical Latin word, catalla; which primarily signified only beasts of husbandry, or (as we still call them) cattle, but in its secondary sense was applied to all moveables in generalb. In the grand coustumier of Normandy a chattel is described as a mere moveable, but at the same time it is set in opposition to a fief or feud: so that not only goods, but whatever was not a feud, were accounted chattels. And it is in this

a 1 Inst. 118.

b Dufresne, II. 409.

e c. 87.

latter, more extended, negative sense, that our law adopts it; the idea of goods, or moveables only, being not sufficiently comprehensive to take in every thing that the law considers as a chattel interest. For since, as the commentator on the coustumierd observes, there are two requisites to make a fief or heritage, duration as to time, and immobility with regard to place; whatever wants either of these qualities is not, according to the Normans, an heritage or fief; or, according to us, is not a real estate: the consequence of which in both laws is, that it must be a personal estate, or chattel. CHATTELS therefore are distributed by the law into two kinds; chattels real, and chattels personal ©.

1. CHATTELS real, saith sir Edward Coke f, are such as concern, or savor of, the realty; as terms for years of land, wardships in chivalry, (while the military tenures subsisted,) the next presentation to a church, estates by a statute-merchant, statute-staple, elegit, or the like; of all which we have already spoken. And these are called real chattels, as being interests issuing out of, or annexed to, real estates: of which they have one quality, viz. immobility, which denominates them real; but want the other, viz. a sufficient, legal indeterminate duration and this want it is, that constitutes them chattels. The utmost period for which they can last is fixed and determinate, either for such a space of time certain, or till such a particular sum of money be raised out of such a particular income; so that they are not equal in the eye of the law to the lowest estate of freehold, a lease for another's life: their tenants were considered upon feodal principles, as merely bailiffs or farmers; and the tenant of the freehold might at any time have destroyed their interest, till the reign of Henry VIII. A freehold, which alone is a real estate, and seems (as has been said) to answer to the

d I conviendroit quil fust non mouuable et de duree a tousiours. fol. 107. a.

e So too, in the Norman law, Cateux sont meubles et immeubles: sicomme vrais meubles sunt qui transporter se peuvent, et

ensuivir le corps; immeubles sont choses qui ne peuvent ensuivir le corps, niestre transpor tees, et tout ce qui n'est point en heritage. LL. Will. Nothi, c. 4. apud Dufresne. II. 409. £ 1 Inst, 118.

g See page 142.

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