The Online Library of Liberty

A project of Liberty Fund, Inc.

• Commentaries On the Laws of England.
• Book the Third.: of Private Wrongs.
• Chapter I.: Of the Redress of Private Wrongs By the Mere Act of the Parties.
• Chapter II.: Of Redress By the Mere Operation of Law.
• Chapter III.: Of Courts In General.
• Chapter IV.: Of the Public Courts of Common Law and Fquity.
• * [*61 Chapter V.: Of Courts Ecclesiastical, Military, and Maritime.
• Chapter VI.: Of Courts of a Special Jurisdiction.
• Chapter VII.: Of the Cognizance of Private Wrongs.
• Chapter VIII.: Of Wrongs, and Their Remedies, Respecting the Rights of Persons.
• Chapter IX.: Of Injuries to Personal Property.
• Chapter X.: Of Injuries to Real Property; and First of Dispossession, Or Ouster of the Freehold.
• Chapter XI.: Of Dispossession, Or Ouster, of Chattels Real.
• Chapter XII.: Of Trespass.
• Chapter XIII.: Of Nuisance.
• Chapter XIV.: Of Waste.
• Chapter XV.: Of Subtraction.
• Chapter XVI.: Of Disturbance.
• Chapter XVII.: Of Injuries Proceeding From, Or Affecting, the Crown.
• Chapter XVIII.: Of the Pursuit of Remedies By Action; and First of the Original Writ.
• Chapter XIX.: Of Process.
• Chapter XX.: Of Pleading
• Chapter XXI.: Of Issue and Demurrer.
• Chapter XXII.: Of the Several Species of Trial.
• Chapter XXIII.: Of the Trial By Jury.
• Chapter XXIV.: Of Judgment and Its Incidents.
• Chapter XXV.: Of Proceedings In the Nature of Appeals.
• Chapter XXVI.: Of Execution.
• Chapter XXVII.: Of Proceedings In the Courts of Equity.
• Appendix.
• No. I.: Proceedings On a Writ of Right Patent.
• * *vii.] No. II.: Proceedings On an Action of Trespass In Ejectment, By Original, In the King’s Bench.
• * [*xiii. No. III.: Proceedings On an Action of Debt In the Court of Common Pleas; Removed Into the King’s Bench By Writ of Error.
• Book the Fourth.: of Public Wrongs.
• Chapter I.: Of the Nature of Crimes, and Their Punishment.
• Chapter II.: Of the Persons Capable of Committing Crimes.
• Chapter III.: Of Principals and Accessories.
• Chapter IV.: Of Offences Against God and Religion.
• * [*66 Chapter V.: Of Offences Against the Law of Nations.
• Chapter VI.: Of High Treason.
• Chapter VII.: Of Felonies Injurious to the King’s Prerogative.
• Chapter VIII.: Of PrÆmunire.
• Chapter IX.: Of Misprisions and Contempts Affecting the King and Government.
• Chapter X.: Of Offences Against Public Justice.
• Chapter XI.: Of Offences Against the Public Peace.
• Chapter XII.: Of Offences Against Public Trade.
• Chapter XIII.: Of Offences Against the Public Health, and the Public Police Or Economy.
• Chapter XIV.: Of Homicide.
• Chapter XV.: Of Offences Against the Persons of Individuals.
• Chapter XVI.: Of Offences Against the Habitations of Individuals.
• Chapter XVII.: Of Offences Against Private Property.
• Chapter XVIII.: Of the Means of Preventing Offences.
• Chapter XIX.: Of Courts of a Criminal Jurisdiction.
• Chapter XX.: Of Summary Convictions.
• Chapter XXI.: Of Arrests.
• Chapter XXII.: Of Commitment and Bail.
• Chapter XXIII.: Of the Several Modes of Prosecution.
• Chapter XXIV.: Of Process Upon an Indictment.
• Chapter XXV.: Of Arraignment and Its Incidents.
• Chapter XXVI.: Of Plea, and Issue.
• Chapter XXVII.: Of Trial and Conviction.
• Chapter XXVIII.: Of the Benefit of Clergy.
• Chapter XXIX.: Of Judgment and Its Consequences.
• Chapter XXX.: Of Reversal of Judgment.
• Chapter XXXI.: Of Reprieve and Pardon.
• Chapter XXXII.: Of Execution.
• Chapter XXXIII.: Of the Rise, Progress, and Gradual Improvements of the Laws of England.
• Appendix.
• Sect. 1.: Record of an Indictment and Conviction of Murder, At the Assizes.
• Sect. 2.: Conviction of Manslaughter.
• Sect. 3.: Entry of a Trial Instanter In the Court of King’s Bench, Upon a Collateral Issue; and Rule of Court For Execution Thereon.
• Sect. 4.: Warrant of Execution On Judgment of Death, At the General Gaol-delivery In London and Middlesex.
• Sect. 5.: Writ of Execution Upon a Judgment of Murder, Before the King In Parliament.
• Barron Field, an Analysis of Blackstone’s Commentaries On the Laws of England.

Sect. 5.

Writ of Execution upon a Judgment of Murder, before the King in Parliament.

George the Second, by the grace of God, of Great Britain, France, and Ireland King, Defender of the Faith, and so forth, to the sheriffs of London and sheriff of Middlesex, greeting. Whereas Lawrence earl Ferrers, viscount Tamworth, hath been indicted of felony and murder by him done and committed, which said indictment hath been certified before us in our present parliament; and the said Lawrence earl Ferrers, viscount Tamworth, hath been thereupon arraigned, and upon such arraignment hath pleaded not guilty; and the said Lawrence earl Ferrers, viscount Tamworth, hath before us in our said parliament been tried, and in due form of law convicted thereof; and whereas judgment hath been given in our said parliament that the said Lawrence earl Ferrers, viscount Tamworth, shall be hanged by the neck till he is dead, and that his body be dissected and anatomized, the execution of which judgment yet remaineth to be done: We require, and by these presents strictly command you, that upon Monday, the fifth day of May instant, between the hours of nine in the morning and one in the afternoon of the same day, him the said Lawrence earl Ferrers, viscount Tamworth, without the gate of our tower of London (to you then and there to be delivered, as by another writ to the lieutenant of our tower of London or to his deputy directed we have commanded) into your custody you then and there receive; and him, in your custody so being, you forthwith convey to the accustomed place of execution at Tyburn; and that you do cause execution to be done upon the said Lawrence earl Ferrers, viscount Tamworth, in your custody so being, in all things according to the said judgment. And this you are by no means to omit, at your peril. Witness ourself at Westminster, the second day of May, in the thirty-third year of our reign.

Yorke and Yorke.

AN ANALYSIS OF BLACKSTONE’S COMMENTARIES ON The Laws of England.

BY BARRON FIELD, ESQ.

The figures at the end of each Question refer to the pages of Blackstone (and those of all the editions are alike) where its Answer may be found.

INTRODUCTION.

SECTION II.—

Of the Nature of Laws in General.

1.What is law, in its most general and comprehensive sense? 38.

2. What is law, in its more confined sense, and that in which it is the present commentator’s business to consider it? 39.

3. What is the law of nature? 39.

4. To what one precept may the law of nature be reduced? 41.

5. Has God revealed any portions of this law to us? 42.

6. Upon what two foundations depend all human laws? 42.

7. As the whole race of mankind form separate states, is there not a third kind of law? 43.

8. What is that law called by which particular nations are governed? 44.

9. How does the commentator define that law? 44.

10. What three forms of government are there? 49.

11. What peculiar quality does each of these forms of government possess; and what effect have these several qualities upon the laws of their respective governments? 49, 50.

12. What is the nature of the British form of government? 50, 51.

13. With whom lies the right to make laws in every government? 52.

14. Of what four parts may every law be said to consist? 53, 54.

15. Wherein consists the difference between those things prohibited by the law which are mala in se, and those which are mala prohibita? 54, 55, 57, 58.

16. What five helps are there to the interpretation of laws? 59.

17. How is equity defined by Grotius? 62.

SEC. III.—

Of the Laws of England.

1.Into what two kinds may the municipal law of England be divided? 63.

2. What does the first of these kinds of law include? 63.

3. Where is it to be found? 63, 64.

4. Of what degree of antiquity must its maxims and customs be, to entitle them to validity? 67.

5. Into what three kinds is it distinguishable? 67.

6. How are its customs or maxims to be known; and by whom is their validity to be determined? 69.

7. What is the doctrine of the law as to following precedents? 70.

8. What three things do the rules relating to particular customs regard? 75.

9. Wherein do the customs of London differ from all others in point of trial? 76.

10. What are the seven necessary requisites to make a custom good? 77, 78.

11. To what, however, must all special customs submit? 79.

12. What are understood by those peculiar laws which, by custom, are adopted and used only in certain peculiar courts and jurisdictions? 79.

13. What is understood by each of these laws, absolutely taken? 80, 82.

14. What are the four species of courts in which these laws are permitted to be used? 83.

15. Under what superintendency are all these courts? 84.

16. To whom does an appeal from them lie, in the last resort? 84.

17. Of what does the second kind of municipal law consist? 85.

18. Into what four kinds is it distinguishable? 85, 86.

19. What two connections has it with the first kind of municipal law? 86.

20. What are the ten principal rules to be observed with regard to the construction of the second kind of municipal law? 87-91.

21. For what purpose are our courts of equity established; and in what matters only are they conversant? 92.

SEC. IV.—

Of the Courts subject to the Laws of England.

1.What does the kingdom of England, by the common law, include? 93.

2. How is Wales governed; and in what particulars does it differ from the kingdom of England? 93-95.

3. How is Scotland governed; and what four observations are to be made upon the articles and act of union between England and Scotland? 95-98.

4. How is the town of Berwick-upon-Tweed governed; what writs run there; and by whom may all local matters arising there be tried? 99.

5. How is Ireland governed? 100-104.

6. How are the Isles of Wight, Portland, Thanet, &c. governed? 105.

7. How is the Isle of Man governed? 105, 106.

8. How are the Isles of Jersey, Guernsey, Sark, Alderney, and their appendages governed? 106.

9. How are our Plantations abroad governed? 107, 108.

10. Of what three sorts are our Colonies, with respect to their internal polity; what is the form of government in most of them; and what is declared, as to the laws of plantations, by statute 7 & 8 W. III. c. 22, and as to the subordination of the American plantations, by statute 6 Geo. III. c. 12? 108, 109.

11. But what was the king empowered to do by statute 22 Geo. III. c. 46; and what does he acknowledge by the first article of the definitive treaty of peace and friendship between his Britannic Majesty and the United States of America? 109.

12. How are any foreign dominions which may belong to the king by hereditary descent, by purchase, or other acquisition, governed? 109, 110.

13. What part of the sea is subject to the common law, and what part to the jurisdiction of our courts of admiralty? 110.

14. To what two divisions is the territory of England liable? 111.

15. How is the first division subdivided? 111.

16. What is a parish; how were the boundaries of parishes originally ascertained; how is the frequent intermixture of parishes one with another to be accounted for; how are some lands extra-parochial; to whom are their tithes payable; yet what does the statute 17 Geo. II. c. 37 enact as to extra-parochial waste and marsh lands, when improved and drained? 111-113.

17. How is the second division subdivided? 114.

18. What was a tithing? 114.

19. What is a town now, what a city, and what a borough? 114, 115.

20. What is a hundred, what a wapentake, what a county or shire, what a lathe, what a rape, and what a trithing? 115, 116.

21. What is a county-palatine; what three counties are now of this nature; whence is the origin of their privileges; how were the powers of their owners abridged in 27 Hen. VIII.; and who are those owners now? 116-119.

22. What is the Isle of Ely? 119.

23. What is a county corporate? 120.

BOOK I.—

OF THE RIGHTS OF PERSONS.

CHAPTER I.—

Of the Absolute Rights of Individuals.

1.What are the two primary and principal objects of the laws of England? 122.

2. How is the first of these objects subdivided? 122.

3. How is the second of these objects subdivided? 122.

4. Of what two sorts are those rights of persons which are commanded to be observed by the municipal law? 123.

5. How are persons divided by the law? 123.

6. Of what two sorts are the rights of persons, considered in their first or natural capacity? 123.

7. What does the law say as to the absolute duties of man? 124.

8. What is political or civil liberty? 125.

9. How is political or civil liberty distinguished from natural liberty? 125.

10. How have the absolute rights of Englishmen been asserted in parliament? 127, 128.

11. To what three principal or primary articles may these rights be reduced? 129.

12. In what does the first consist? 129.

13. How is an infant, in ventre sa mere, considered by the law? 130.

14. What does the law mean by duress perminas? 131.

15. What is the distinction between a civil and a natural death? 132.

16. What does magna carta say as to the personal security of a “liber homo;” and what is enacted to the same effect by statutes 5 Edw. III. c. 9, and 28 Edw. III. c. 3? 133, 134.

17. In what does the second absolute right of Englishmen consist? 134.

18. What is a writ of habeas corpus, and when may it be sued out? 135.

19. What does the law mean by duress of imprisonment? 136.

20. What is necessary to make an imprisonment lawful; and when is the gaoler not bound to detain the prisoner? 137.

21. Can an Englishman be restrained from leaving the kingdom? 137.

22. Can he be compelled to leave it? 137.

23. In what does the third absolute right of Englishmen consist? 138.

24. In case it would be beneficial to the public that a new road should be made through the grounds of a private person, how will the legislature compel that person to acquiesce in its being made? 139.

25. What taxes only can a subject of England be constrained to pay? 140.

26. What are the five secondary and subordinate absolute rights of Englishmen? 141-143.

27. What does magna carta say as to the right of every Englishman to apply to the courts of justice for redress of injuries; and what is enacted to the same effect by statutes 2 Edw. III. c. 8, and 11 Ric. II. c. 10; and what is declared by statutes 1 W. and M. st. 2, c. 2, and 16 Car. I. c. 10 (upon the dissolution of the starchamber)? 141, 142.

28. To prevent any riot or tumult, under the pretence of petitioning for the redress of grievances, what is provided by statute 13 Car. II. st. 1, c. 5; but, under these regulations, what is declared by the same statute 1 W. and M.? 143.

29. What is declared by the same statute as to the right of every subject to have arms for his defence! 144.

CHAP. II.—

Of the Parliament.

1.What are the two classes of relations of persons? 146.

2. What is the most universal public relation by which men are connected together? 146.

3. What are the two classes of magistrates? 146.

4. Into what two branches is the supreme power divided? 147.

5. Of what antiquity are parliaments? 147-149.

6. What are the manner and time of the parliament’s assembling? 150-153.

7. What do the statutes 16 Car. II. c. 1 and 6 W. and M. c. 2 enact as to the frequency of holding parliaments? 153.

8. What are the constituent parts of a parliament? 153.

9. What voice in making laws has each part? 154, 155.

10. Of whom do the spiritual lords consist? 155.

11. Of whom do the temporal lords consist? 157.

12. Do the lords spiritual and the lords temporal form two distinct estates? 156.

13. Of whom do the commons consist? 158.

14. Of what authority is the power and jurisdiction of parliament? 160-162.

15. What are the disqualifications of a member of parliament? 162.

16. From what one maxim has the whole of the law and custom of parliament its original? 163.

17. Of what extent are the privileges of parliament? 164.

18. What are some of the more notorious privileges of either house of parliament? 164-167.

19. What are the peculiar privileges of the house of lords? 167, 168.

20. What are the peculiar privileges of the house of commons? 169, 170.

21. What are the qualifications of electors of knights of the shire? 172, 173.

22. What are the qualifications of electors of citizens and burgesses? 174, 175.

23. What are the qualifications of persons to be elected members of the house of commons? 175-176.

24. What is the method of proceeding in regard to elections, both of knights of the shire and of members for cities and boroughs? 177, 178, 180.

25. What measures are taken at electio is to prevent all undue influence upon the electors; and what if any revenue officer intermeddle in elections? 178, 179.

26. What is enacted to prevent bribery and corruption at elections? 179.

27. What if the returning officer do not return such members only as are duly elected? 180.

28. What is the method of making laws? 181-185.

29. In what two ways may the royal assent to a bill be given? 184, 185.

30. Whom hath an act of parliament power to bind; how only can it be altered, amended, dispensed with, suspended, or repealed; and what is declared by the statute 1 W. and M. st. 2, c. 2 as to regal authority over laws? 185, 186.

31. What is an adjournment of the houses of parliament? 186.

32. What is a prorogation of the houses of parliament? 187.

33. What is a dissolution of the houses of parliament? 187.

34. In what three ways may this dissolution be effected? 187-189.

35. But, the calling a new parliament immediately on the inauguration of a successor to the crown being found inconvenient, and dangers being apprehended from having no parliament in being in cases of a disputed succession, what was enacted by statutes 7 & 8 W. III. c. 15, and 6 Anne, c. 7? 188.

36. What is the extent of time that the same parliament is allowed to sit by the statute 1 Geo. I. st. 2, c. 38? 189.

CHAP. III.—

Of the King and his Title.

1.In whom is the supreme executive power of this kingdom lodged? 190.

2. Under what six distinct views may the royal person be considered? 190.

3. What is the grand fundamental maxim upon which the jus coronæ, or right of succession to the throne of these kingdoms depends? 191.

4. Does the descent of the crown correspond with the feodal path of descents chalked out by the common law in the succession to landed estates? 193, 194.

5. Does the doctrine of hereditary right imply an indefeasible right to the throne? 195.

6. The crown being capable of being limited or transferred, does it not lose its descendible quality? 196.

7. What kings have been successively constituted the common stocks or ancestors of the English descent? 197-217.

8. What did the convention of estates, or representative body of the nation, declare at the revolution? 211.

9. And how did they settle the succession to the throne? 214.

10. On the impending failure of the Protestant line of Charles I., (whereby the throne might again have become vacant,) to whom did the king and parliament extend the settlement of the crown? 216.

CHAP. IV.—

Of the King’s Royal Family.

1.What is the first and most considerable branch of the king’s royal family regarded, by the laws of England? 218.

2. What are the three kinds of queens? 218.

3. What are the powers, prerogatives, rights, dignities, and duties of the first kind of queen? 218, 222.

4. What are the prerogatives of the second kind of queen above other women? 218, 219.

5. In what does her revenue consist? 219-222.

6. What are the privileges of the third kind of queen? 223.

7. How are the Prince of Wales or heir apparent to the crown, and his royal consort, and the princess royal or eldest daughter of the king, regarded by the laws? 223.

8. How are the rest of the royal family regarded by the laws? 224-226.

9. Does the law make any distinction between the king’s children and his grandchildren? 225.

10. What is enacted by statute 12 Geo. III. c. 11 as to the capability of the descendants of the body of king Geo. II. to contract matrimony? 226.

CHAP. V.—

Of the Councils belonging to the King.

1.What are the four councils which the law has assigned to advise with the king? 227-230.

2. By whom are privy counsellors created? 230.

3. What are the qualifications of a privy counsellor? 230.

4. What are the duties of a privy counsellor? 230, 231.

5. What is the power of the privy council? 231, 232.

6. What are the privileges of a privy counsellor? 232.

7. How may the privy council be dissolved, and what is enacted as to its dissolution by statute 6 Anne, c. 7? 232.

CHAP. VI.—

Of the King’s Duties.

1.What are the principal duties of the king; and what is expressly declared on this subject by statute 12 & 13 W. III. c. 2? 233, 234, 236.

2. By what contract is he bound to execute these duties? 235.

3. Upon what principle is the duty of protection impliedly as much incumbent upon the sovereign before coronation as after? 236.

4. With respect to the king’s duty to maintain the established religion, what is done by the act of union, 5 Anne, c. 8? 236.

CHAP. VII.—

Of the King’s Prerogative.

1.What is usually understood by the word prerogative? 239.

2. What are the two species of prerogative, and how are they defined? 239, 240.

3. Into what three kinds may the first species of prerogative be divided? 240.

4. What is the first attribute the law ascribes to the king in which his dignity consists? 241.

5. What is the difference between a king and an emperor? 242.

6. What remedy have the subjects of England in case the crown should invade their rights by private injury? 243.

7. What remedy have they in case of such in vasion by public oppression? 244.

8. Should any king endeavour to subvert the constitution by breaking the original contract between him and the people, violate the fundamental laws, and withdraw himself out of the kingdom, to what would this conjunction of circumstances amount? 245.

9. What is the second legal attribute in which the king’s dignity consists? 245.

10. What is the meaning of that attribute? 246.

11. What else does the law determine in pursuance of this principle? 247, 248.

12. What is the third legal attribute of the king’s dignity? 249.

13. In what does the king’s authority consist? 250.

14. How has Locke defined prerogative? 252.

15. What are the king’s five principal rights or prerogatives, as representative of the people, with regard to foreign concerns? 253, 257-259.

16. How are the rights, powers, duties and privileges of ambassadors determined? 253.

17. What are some of these privileges? 253, 254, 256.

18. When are letters of marque and reprisal granted? 258.

19. What does magna carta declars respecting foreign merchants? 260.

20. What are the king’s six rights or prerogatives, and in what six characters is he considered in domestic affairs? 261, 262, 266, 271, 273, 279.

21. What five powers has the king, considered as generalissimo within the kingdom? 262-265.

22. What, by statute 4 Hen. IV. c. 20, is the penalty for landing elsewhere than at the “great ports” of the sea? 264.

23. Who, by statute 8 Eliz. c. 13, are empowered to set up beacons or sea-marks; and what is the penalty for taking down any known sea-mark? 265.

24. If the king by writ of ne exeat regnum prohibit a man from going abroad, or if the king send him a writ when abroad commanding his return, what is the penalty of disobedience in either case? 266.

25. To whom have our kings delegated their whole judicial power; and what is enacted, in order to maintain the dignity and independence of the judges in the superior courts, by statutes 13 W. III. c. 2, and 1 Geo. III. c. 23? 267, 268.

26. Why would it be a still higher absurdity if the king sat in judgment in criminal prosecutions? 268.

27. Whence arises the king’s prerogative of pardoning offences? 268, 269.

28. What is the legal ubiquity of the king, and what follows thence? 270.

29. What force have the king’s proclamations? 270.

30. Under what three articles will the king’s prerogative, so far as it relates to domestic commerce, fall? 274, 276.

31. What three rights arise to the king as the head and supreme governor of the national church? 279, 280.

32. Of what does the convocation, or ecclesiastical synod, in England, consist? 279, 280.

CHAP. VIII.—

Of the King’s Revenue.

1.Of what two kinds is the king’s revenue? 281.

2. Of what two natures is the first of these kinds of revenue? 281.

3. What revenue does the king derive from his bishoprics? 282.

4. To what is the king entitled of every bishop? 283.

5. To what tithes is the king entitled? 283, 284.

6. To what portion of all the spiritual preferments in the kingdom is the king entitled? 284.

7. What is meant by Queen Anne’s bounty? 286.

8. Of what lands does the crown receive the rents and profits? 286.

9. How have the grants and leases of these lands been regulated by act of parliament? 286, 287.

10. Do any advantages arise to the king from military tenures? 287.

11. What was the prerogative of purveyance and pre-emption; and for what branch of revenue did what king exchange it? 287, 288.

12. What revenue did and does the king derive from wine-licenses? 288.

13. Do any profits arise to the king from his forests? 289.

14. What revenue does the king derive from his ordinary courts of justice; and what is enacted by statute 1 Anne, st. 1, c. 7 as to all future grants of their profits? 289, 290.

15. When is the king entitled to, and what are called, royal fish? 290.

16. What constitutes the wreck which belongs to the king? 290-292.

17. What are things jetsam, flotsam, and ligan, and to whom do they belong? 292, 293.

18. What is enacted by statute 27 Edw. III. c. 13 if any ship be lost on the shore and the goods come to land; what, by the common law, if any person but the sheriff take such goods; and what is enacted to assist ships in distress by statutes 12 Anne, st. 2, c. 18, and 4 Geo. I. c. 12? 293.

19. What, if any person secrete any of such goods; and what is the offence of doing any act whereby the ship is lost or destroyed? 293, 294.

20. What is enacted by the statute 26 Geo. II. c. 19 as to plundering any vessel in distress or wrecked, and to pilfering any goods cast ashore? 294.

21. What are royal mines to which the king is entitled? 294, 295.

22. What constitutes the treasure-trove which belongs to the king? 295.

23. What are waifs, and when do they belong to the king? 296, 297.

24. What are estrays, and what must be done in order to vest an absolute property in them in the king? 297, 298.

25. What is one general reason why royal fish, shipwrecks, treasure-trove, waifs, and estrays should belong to the king? 298, 299.

26. What are bona confiscata, or foris-facta, and why are they vested by law in the king? 299.

27. What is a deodand, and for what purpose is it forfeited to the king? 300-302.

28. Is the law of deodands different in the case of an adult and that of a child; and why is it so? 300.

29. By whom is the deodand presented? 301.

30. Are wrecks, treasure-trove, royal fish, mines, waifs, estrays, deodands, and forfeitures now actually in the possession of the king? 302.

31. When does an escheat of lands to the king happen? 302.

32. What is an idiot or natural fool; and why has the king the custody of him, and of his lands as a branch of his ordinary revenue? 302-304.

33. By whom must the writ de idiota inquirendo be tried; and in what event may the king grant the profits of his lands and the custody of his person? 303.

34. What is a lunatic or non compos mentis; and how is it declared by the statute 17 Edw. II. c. 10 that the king shall have the guardianship of such a one? 304.

35. What does the statute for regulating private mad-houses, 26 Geo. III. c. 91, enact? 304.

36. What is the method of proving a person non compos? 305.

37. Who is generally appointed committee of the lunatic’s person, and who of his estate? 305.

38. What has chiefly occasioned the necessity of granting to the king his extraordinary or second kind of revenue? 306.

39. In what does this revenue consist, and by whom is it granted? 307.

40. Of what two natures are the taxes which are raised upon the subject to feed this revenue? 308.

41. What are the two usual taxes of the first nature? 308.

42. What were tenths and fifteenths? 308, 309.

43. What were scutages? 309, 310.

44. What were hydages and talliages? 310.

45. What were the subsidies which succeeded these last? 310-312.

46. How did ecclesiastical subsidies differ from lay ones; and what recompense was given to the beneficed clergy when they were taxed equally with the laity? 311.

47. What is the present land tax? 312, 313.

48. What is the malt tax? 313.

49. What are the eight taxes of the second nature? 313, 318, 321, 323-326.

50. What are the customs; and what were said to be the two considerations upon which this revenue (or the more antient part of it, which arose only from exports) was invested in the king? 313-318.

51. How came wool, skins, and leather to be styled the staple commodities of the kingdom? 314.

52. Why cannot particularly the first of these articles be said in its original sense to be now the staple commodity of the kingdom? 314.

53. What was the hereditary duty belonging to the crown called the prisage or butlerage of wines; and for what was it exchanged? 315.

54. What were subsidies, tonnage, and poundage, and what became of the last two duties? 315, 316.

55. What is called the alien’s duty? 316.

56. What is the excise duty, and wherein does it differ from the customs? 318-320.

57. What is the salt duty? 321.

58. What is the duty for the carriage of letters? 321.

59. What are the stamp duties? 323.

60. What is the duty upon houses and windows? 324, 325.

61. What was hearth-money? 324.

62. What is the duty for every male servant? 325.

63. What is the hackney-coach and chair duty? 325.

64. What is the duty on offices and pensions? 326.

65. How is the revenue first and principally appropriated? 326.

66. What is the nature of the national debt? 326, 327.

67. Into what three principal funds are the produces of the several taxes consolidated? 329.

68. How are the surpluses of these funds disposed of? 330.

69. But for what purpose does the surplus of the aggregate fund first stand mortgaged by parliament? 331.

70. What is the amount of his present majesty’s civil list? 331.

71. What are the expenses defrayed by the civil list? 332.

72. Has the power of the crown, upon the whole, been weakened or strengthened by any transactions in the last century? 334-337.

CHAP. IX.—

Of Subordinate Magistrates.

1.What are the six classes of subordinate magistrates of the most general use and authority? 339.

2. What is the sheriff, and by whom is he chosen? 339, 340.

3. In what one county does the office of sheriff still continue hereditary; and in what one instance is the inheritance of a shrievalty vested in a corporate body by charter? 340.

4. What are pocket sheriffs? 342.

5. What is the duration in office of a sheriff; how can his office be determined; but what does the statute 1 Anne, st. 1, c. 8 enact as to the duration in office of all officers appointed by the king; and what is enacted as to the man who has served the office of sheriff by statute 1 Ric. II. c. 11? 342, 343.

6. What are the sheriff’s four powers and duties? 343.

7. What does he do, in his judicial capacity? 343.

8. What are his rank and duty as keeper of the king’s peace? 343.

9. What is he bound to do in his ministerial capacity? 344.

10. What is his business as the king’s bailiff? 344.

11. What are the sheriff’s inferior officers? 345.

12. What are the regulations of an undersheriff? 345.

13. What two classes of bailiffs are there; and what are the duties of each class? 345.

14. What is the business of gaolers? 346.

15. What is the coroner; how many coroners are there for each county; and by whom are they chosen? 346.

16. What is the qualification for a coroner; and how has the office been abused? 347, 348.

17. What is the duration of the office? 348.

18. What are the judicial office and power of a coroner? 348.

19. What is the ministerial office of a coroner? 349.

20. What is the custos rotulorum? 349.

21. Who are custodes or conservatores pacis, virtute officii? 349, 350.

22. What is the origin of the modern justices of the peace? 351.

23. How are they appointed? 351.

24. Who are called justices of the quorum, and why are they so called? 351.

25. What are the number and qualifications of these justices? 352, 353.

26. By what five causes is the office determinable? 353.

27. What are the power, office, and duty of a justice of the peace? 353, 354.

28. What two sorts of constables are there? 355.

29. By whom are they appointed? 355, 356.

30. What are the three principal duties of all constables? 356, 357.

31. By whom are surveyors of the highways constituted? 357.

32. To what four duties has the statute now reduced their office? 358.

33. What is the origin of overseers of the poor? 359.

34. By whom are they appointed, and what are their qualifications? 360.

35. What are their two principal offices and duties? 360.

36. What are the different ways in which such a settlement in a parish as will entitle a person to relief from the overseers of the poor may be gained? 363.

37. In what case may a person be removed to his own parish, and by whom? 364.

38. What is the great cause of the inadequacy of our poor-laws? 365.

CHAP. X.—

Of the People, whether Aliens, Denizens, or Natives.

1.What is the first and most obvious division of the people? 366.

2. What is allegiance? 366.

3. What was fealty? 367.

4. What was the difference between simple and liege homage? 367.

5. For what reason, with us in England, could only the oath of fealty be taken to inferior lords, and not that of allegiance? 367.

6. What is the present oath of allegiance? 368.

7. What is the oath of supremacy? 368.

8. What is the oath of abjuration? 368.

9. By whom must this oath be taken; and to whom may it be tendered? 368.

10. To whom may the oath of allegiance be tendered? 368.

11. Does the subject owe no allegiance if he have taken no oath? 368, 369.

12. Into what two sorts or species is all allegiance, both express and implied, distinguished by the law? 369.

13. What is the first of these kinds of allegiance? 369.

14. Can this allegiance be put off by any act of the liegeman? 369, 370.

15. What is the second of these kinds of allegiance; and when does it cease to be due? 370.

16. Is it treason for any subject to practise any thing against the crown and dignity of a usurper, who may be king de facto? 370, 371.

17. Is allegiance held to be applicable further than to the political capacity of the king? 371.

18. Do the different rights of natives and aliens correspond with their different degrees of duty? 371.

19. If an alien born purchase lands in England, who is entitled to them? 372.

20. Is the case altered if the property he acquires be personal estate? 372.

21. May an alien trade or work for himself as an artificer in England? 372.

22. May an alien bring an action or make a will? 372.

23. What if he be an alien enemy? 372.

24. In what cases is one born out of the king’s dominions not an alien but a native? 373.

25. What are the children of aliens born in England? 373.

26. What is a denizen? 374.

27. What are his privileges? 374.

28. How can an alien be naturalized? 374.

29. What are the incapacities of a naturalized alien? 374.

30. How may foreign seamen be naturalized? 375.

31. How may foreign Protestants and Jews residing or serving in the American colonies be naturalized? 375.

CHAP. XI.—

Of the Clergy.

1.Into how many kinds are the people, whether aliens, denizens, or natives, divisible? 376.

2. What does the word clergy comprehend in law? 376.

3. What are a clergyman’s exemptions and privileges? 376, 377.

4. What are his disabilities? 377.

5. What are the eight ranks and degrees in the frame and constitution of ecclesiastical polity? 377, 382, 383, 384, 394, 395.

6. By whom is an archbishop or bishop elected: and what are the forms of such elections? 377, 379, 380.

7. What are the power and authority of an archbishop? 380.

8. What is called the archbishop’s options? 381.

9. What are the privileges of the Archbishop of Canterbury? 381.

10. What are the power and authority of a bishop? 382.

11. How may archbishoprics and bishoprics become void? 382.

12. What are the offices of dean and chapter? 382.

13. How are ancient and modern deans elected? 382.

14. How is the chapter appointed? 383.

15. How may deaneries and prebends become void? 383.

16. What is the jurisdiction of an archdeacon; and by whom is he appointed? 383.

17. What are rural deans? 384.

18. What is a parson, and to what is he entitled? 384.

19. What is an appropriated parsonage; whence is the origin of appropriations; and whose consents are necessary to make an appropriation? 384, 385.

20. How may an appropriation be severed? 385, 386.

21. What is a vicar, and how is he distinguished from a parson? 388.

22. What four requisites are necessary to a parson or vicar; what is the qualification to be admitted to a benefice by statute 13 & 14 Car. II. c. 4; and what if orders, or a license to preach, be obtained by money or corrupt practices? 388, 389.

23. Upon what three accounts may the bishop refuse to institute a clerk to a parsonage or vicar age? 389.

24. In the case of an action at law, brought by the patron against the bishop for refusing his clerk, what if the cause be of a temporal nature; what if of a spiritual? and what if it be minus sufficiens in literaturâ? 390.

25. What is required of a vicar, upon institution? 390.

26. What is a collation to a benefice? 391.

27. How is the ceremony of induction performed? 391.

28. What is the law as to residence by statute 21 Hen. VIII. c. 12; and what provision is made for rebuilding or repairing parsonage-houses by statute 17 Geo. III. c. 53? 392.

29. By what five means may a parson or vicar cease to be so? 392.

30. Who, by statute 21 Hen. VIII., are entitled to have a dispensation; without which in what case cannot two benefices be held together? 392.

31. What are a commenda retinere and a commenda recipere? 393.

32. What is a curate? 393.

33. What is a perpetual curacy? 394.

34. What are churchwardens? 394.

35. By whom are they appointed, and what are their powers and duties? 394.

36. How are parish clerks regarded by the common law? 395.

37. By whom is the parish clerk appointed? 395.

CHAP. XII.—

Of the Civil State.

1.Into what three distinct states may the lay part of his majesty’s subjects be divided? 396.

2. What does the first of these states include? 396.

3. Of what two classes does it consist? 396.

4. What are the five degrees of nobility now in use? 396.

5. What is the origin of the title of duke? 397.

6. What is the origin of the title of marquess? 397.

7. What is the origin of the title of earl? 398.

8. What is the origin of the title of viscount? 398.

9. What is the origin of the title of baron? 398.

10. Is the right of peerage territorial, or personal? 399.

11. How are peers now created; and what are the several advantages of both modes of creation? 400.

12. What are the privileges of peers, exclusive of their capacity as members of parliament and as hereditary counsellors of the crown? 401, 402.

13. In what cases has a peeress a right to be tried by peers? 401.

14. How may a peer lose his nobility? 402.

15. Into what eleven degrees are the commonalty divided? 403-407.

16. By whom was the order of the garter instituted? 403.

17. What is a knight banneret; and in what case is he entitled to rank before the younger sons of viscounts? 403.

18. For what purpose was the title of baronet instituted? and for what reason have all baronets a hand gules in a field argent added to their coat? 403.

19. Why are knights of the bath so called? 404.

20. Whence is the origin of a knight bachelor? 404.

21. Who are esquires? 406.

22. Who are gentlemen? 406.

23. Who are yeomen? 406.

24. What are the rest of the commonalty? 407.

CHAP. XIII.—

Of the Military and Maritime States.

1.What does the military state include? 408.

2. How do the laws and constitution of this kingdom look upon a soldier? 408.

3. Of what does the military state, by the standing constitutional law, consist? 412.

4. How is the militia of each county raised and officered; and where are they not compellable to march? 412.

5. How are the armies, which are esteemed necessary when the nation is engaged in war, to be looked upon? 413.

6. What is martial law, according to Sir Matthew Hale? 413.

7. If a lieutenant, or other that hath commission of martial authority, doth, in time of peace, execute any man by colour of martial law, what is his crime by magna carta? 413.

8. What does the petition of right moreover enact as to soldiers and martial law? 413.

9. What does one of the articles of the bill of rights say as to standing armies? 413.

10. In what case are standing armies, ipso facto, disbanded at the expiration of every year? 414.

11. What does Baron Montesquieu declare to be necessary to prevent the executive power from being able to oppress by its armies? 414.

12. How are our armies governed? 414, 415.

13. What reform in the mutiny act does the commentator recommend? 415, 416.

14. But in what cases has the humanity of our standing laws put soldiers in a better condition than other subjects? 417.

15. Of what does the maritime state consist? 418.

16. What are called the laws of Oleron? 418.

17. How has the law, from necessity, provided for the supply of the royal navy with seamen? 419.

18. How is it proved that the king has the power of impressing seafaring men for the sea-service? 419, 420.

19. Who are privileged from being impressed at common law? 420.

20. How else has the law provided for the increase of seamen and manning the royal navy? 420.

21. How is the navy governed; wherein does that method of government differ from that of the army; and whence is it most probable the difference arose? 420, 421.

22. What are the privileges conferred on sailors? 421.

CHAP. XIV.—

Of Master and Servant.

1.What are the three great private economical relations of persons? 422.

2. What is the fourth private economical relation consequent upon the failure of the third by the death of one of the parties? 422.

3. Can slavery subsist in England? 423, 424.

4. Can slavery subsist anywhere consistently with reason and the principles of natural law; and why are the three origins of the right of slavery assigned by Justinian built upon false foundations? 423.

5. What is the first sort of servants acknowledged by the laws of England? 425.

6. If the hiring of such servant be general, for what period does the law construe it to be? 425.

7. Who are compellable by two justices to go out to service in husbandry, or certain specific trades, for the promotion of honest industry? 425.

8. What are the second species of servants called? 426.

9. Who are compellable by two justices to take the children of poor persons as apprentices? 426.

10. What are the third species of servants, and for what term are they hired? 426.

11. How are they regulated? 427.

12. What is the fourth species of servants, being rather in a superior, or ministerial, capacity? 427.

13. What does a person gain by service for a year, or apprenticeship under indentures? 427.

14. What does a person gain by serving seven years as apprentice to a trade? 427.

15. Are apprenticeships requisite for every trade and for trading everywhere? 428.

16. Is an actual apprenticeship to a trade for seven years necessary to entitle a person to exercise that trade? 428.

17. May a master, or master’s wife, correct his apprentice or his servant? 428.

18. What if a servant assault his master or his master’s wife? 428.

19. What may a master do towards others on behalf of his servant? 429.

20. What does the law call maintenance? 429.

21. What may a servant do towards others on behalf of his master? 429, 430.

22. In what case is the master answerable for the act of the servant? 429, 430.

CHAP. XV.—

Of Husband and Wife.

1.What is the second private economical relation of persons? 433.

2. In what light does the law consider marriage? 433.

3. When does the law allow the marriage contract to be good and valid? 433.

4. Of what two sorts are the disabilities to contract marriage? 434.

5. How do canonical impediments affect a marriage? 434.

6. What are the disabilities of this nature? 434.

7. What does the statute 32 Hen. VIII. c. 38 declare as to marriages? 435.

8. How do civil disabilities affect a marriage? 435.

9. What is the first of these legal disabilities? 436.

10. What is the second? 436.

11. What is the third? 437.

12. To what penalty is that clergyman liable who marries a couple either without publication of banns or without a license? 437.

13. To what penalty is he liable, by statute 4 & 5 Ph. and M. c. 8, who marries a female under the age of sixteen years without consent of her parents or guardians? 437.

14. What marriages without consent are void by statute 26 Geo. II. c. 33? 437, 438.

15. What is the fourth legal incapacity to contract marriage; and what has the statute 15 Geo. II. c. 30 provided as to this incapacity? 438, 439.

16. How must a marriage be celebrated to make it valid? 439, 440.

17. In what two ways may marriages be dissolved? 440.

18. What are the two kinds of divorce? 440.

19. For what cause must the first kind of divorce be? 440.

20. For what cause must the second kind of divorce be? 440, 441.

21. In case of divorce a mensa et thoro, what does the law allow to the wife? 441.

22. What is the writ de estoveriis habendis? 441.

23. But in what case does the law allow no alimony? 442.

24. What are the legal consequences of marriage? 442.

25. For what debts of the wife is the husband liable? 442, 443.

26. Is there not one case where the wife shall sue and be sued as a feme sole? 443.

27. Is there not one case where a wife, by statute 3 Hen. VII. c. 2, can be evidence against her husband? 443.

28. What is the only deed a wife can execute? 444.

29. What restraint may a husband lay upon his wife in case of gross misbehaviour? 444, 445.

CHAP. XVI.—

Of Parent and Child.

1.What is the third and most universal private economical relation of persons? 446.

2. Of what two sorts are children? 446.

3. Who is a legitimate child? 446.

4. What are the three legal duties of parents to legitimate children? 446.

5. In what case may the churchwardens and overseers of the parish seize the parent’s rents, goods, and chattels and dispose of them towards the child’s maintenance? 448.

6. In what case shall a second husband be charged to maintain his wife’s child by her first husband? 448.

7. But in what case is a parent not bound to provide a maintenance for his issue? 449.

8. What is the penalty on a parent’s refusing to provide a maintenance for such of his children as the law puts upon him to maintain? 449.

9. What is enacted if a Popish or Jewish parent shall refuse to allow his Protestant child a fitting maintenance? 449.

10. What is the law as to disinheriting children by will? 449, 450.

11. What may a parent do for a child, as its protector, towards others? 450.

12. In what one case does the law interfere between a parent and his child in regard to education? 451.

13. From what is the power of parents over their children derived? 452.

14. What power do our laws give a parent over his child? 452, 453.

15. When does that power cease? 453.

16. Whence do the duties of children to their parents arise? 453.

17. What are those duties? 453, 454.

18. Do these duties cease upon any misbehaviour of the parent? 454.

19. Who is a bastard? 454.

20. Why is our law on this head superior to the Roman? 455.

21. What is a writ de ventre inspiciendo; and by whom and when may it be sued out? 456.

22. If a man dies, and his widow marries again so soon that, by the course of nature, the child of which she shall be delivered might have been begotten by either husband, which shall be the child’s father? 457.

23. In what cases may children born during wedlock be bastards? 457.

24. What is the duty of parents to their bastard children? 458.

25. What is the method in which the English law provides maintenance for bastards? 458.

26. What are the rights of a bastard? 459.

27. What is the principal incapacity of a bastard? 459.

28. How may a bastard be made legitimate? 459.

CHAP. XVII.—

Of Guardian and Ward.

1.What is the fourth private economical relation of persons? 460.

2. What is the first species of guardian; and who is that guardian? 461.

3. If the father assign no guardian to his daughter under the age of sixteen years, who shall be her guardian? 461.

4. What and who is the second species of guardian? 461.

5. What is the third species of guardian; when does it take place; upon whom does that guardianship devolve till the minor is presumed to have sufficient discretion to choose his own guardian; and at what age does that presumption take place? 461, 462.

6. What is the fourth species of guardian; how may it be appointed; and who may accept the appointment? 462.

7. What are the power and reciprocal duty of a guardian and ward? 462.

8. What is the guardian bound to do when the ward comes of age? 463.

9. Under whose control are guardians? 463.

10. What are the different ages at which male and female are competent to different purposes? 463.

11. On what day is the full age of male and female completed? 463.

12. How can an infant be sued? 464.

13. How can he sue? 464.

14. At what age may an infant be capitally punished? 464.

15. What if an infant neglect to demand his right? 465.

16. What estates may an infant aliene? 465.

17. What legal act may an infant do? 465.

18. How may an infant purchase lands? 466.

19. What deed can an infant make which is not afterwards voidable? 466.

20. How may an infant bind himself by contract? 466.

CHAP. XVIII.—

Of Corporations.

1.What are bodies politic, bodies corporate, or corporations; and for what purpose are they constituted? 467.

2. What is the first division of corporations? 469.

3. How are these incorporations again divided? 470.

4. Of what two sorts are lay corporations? 470.

5. What is absolutely necessary to the erection of a corporation? 472.

6. In what sort of corporations is the king’s implied consent to be found? 472.

7. What are the two methods by which the king’s consent is given? 473.

8. What is necessary to the very being of a corporation? 475.

9. What are the five powers incident to all corporations? 475, 476.

10. What are those privileges and disabilities that attend aggregate corporations and are not applicable to such as are sole? 476, 477.

11. May either kind of corporation take goods and chattels for the benefit of themselves and their successors? 477.

12. Who have the right to give laws to ecclesiastical and eleemosynary foundations? 477.

13. What acts can aggregate corporations, that have by their constitution a head, do during the vacancy of the headship? 478.

14. In aggregate corporations what determined the act of the whole body; and what is enacted by statute 33 Hen. VIII. c. 27 as to any private statutes made by founders of corporations in derogation of the common law in this particular? 478.

15. How do the statutes of mortmain effect corporations? 479.

16. What is the general duty of corporations? 480.

17. How is this duty enforced? 480.

18. Who is the visitor of ecclesiastical corporations? 480.

19. Who is the visitor of lay corporations? 480.

20. What does the law mean by the distinction of fundatio incipiens and fundatio perficiens; and why is the king the visitor of all lay civil corporations, and the endower the visitor of all lay eleemosynary ones? 481.

21. Where shall the king exercise this his jurisdiction? 481.

22. May there not be another visitor of lay eleemosynary corporations than the founder? 482.

23. What has been long held as to the visitation of hospitals, spiritual and lay; what does the statute 14 Eliz. c. 5 direct on the subject; and by whom are all the hospitals founded by the statute 39 Eliz. c. 5 to be visited? 482.

24. Are colleges lay or ecclesiastical corporations? 483.

25. To whom do the lands and tenements of a corporation revert upon its dissolution? 484.

26. What becomes of the corporation’s debts upon its dissolution? 484.

27. By what four methods may a corporation be dissolved? 485.

28. What is an information in nature of a writ of quo warranto; and when may it be brought? 485.

29. What is enacted as to the franchises of the city of London? 485.

30. What is provided against the dissolution of corporations? 485.

BOOK II.—

OF THE RIGHTS OF THINGS.

CHAP. I.—

Of Property in General.

1.What do the writers on natural law style those rights which a man may acquire in and to such external things as are unconnected with his person? 1.

2. In what has all dominion over external things its original? 2.

3. In those times when all things were in common among men, what first gave to one man a transient property in the use of a thing? 3.

4. What circumstances must soon have pointed out the necessity of appropriating to individuals not the immediate use only, but the substance, of the thing to be used; and how must that property have been originally acquired? 4-9.

5. What was the origin of conveyances, wills, heirships, and escheats? 9-13.

6. But are there not some few things which are capable only of a transient usufructory property, and which must therefore still remain in common? 14.

7. And are there not other things in which a permanent property may subsist, and which yet would be frequently found without a proprietor had not the law provided a remedy for this inconvenience? 14, 15.

CHAP. II.—

Of Real Property; and, first, of Corporeal Hereditaments.

1.What are the objects of dominion or property, as contradistinguished from what? 16.

2. Into what two kinds are things, by the law of England, distributed? 16.

3. What is the commentator’s definition of the first kind of things? 16.

4. What of the second? 16.

5. Of what three sorts or kinds are things real usually said to consist? 16.

6. What is a tenement in law? 17.

7. How does Sir Edward Coke define a hereditament? 17.

8. Does either of these kinds of things real include the other? 17.

9. Of what two kinds are hereditaments; and of what do each of those kinds consist? 17.

10. Under what general denomination may all corporeal hereditaments be comprehended? 17.

11. If I convey the land, doth the structure upon it pass with it? 18.

12. How is water considered in law; and by what description must an action be brought to recover it? 18.

13. What extent hath land, in its legal signification, upwards and downwards? 18.

14. What passes in law by a grant of water? 19.

CHAP. III.—

Of Incorporeal Hereditaments.

1.What is an incorporeal hereditament? 20.

2. Of what ten sorts do incorporeal hereditaments principally consist? 21.

3. What is an advowson? 21.

4. What is the difference between an advowson appendant and an advowson in gross? 22.

5. What is an advowson presentative? 22.

6. What is an advowson collative? 22.

7. What is an advowson donative? 23.

8. What are tithes, whether predial, mixed, or personal? 24.

9. To whom are they due? 28.

10. By what two means may lands be discharged from the payment of tithes? 28.

11. What is a real composition; and by what means has it grown into desuetude? 28, 29.

12. What is a modus decimandi, or modus only, as it is called? 29.

13. What six rules must be observed to make the modus good and sufficient? 30.

14. What is a rank modus? 30.

15. What is a prescription de non decimendo? 31.

16. Who are personally entitled to the privilege of being discharged from the payment of tithes? 31.

17. From what original have sprung all the lands which, being in lay hands, do at present claim to be tithe-free? 32.

18. What is right of common? 32.

19. Of what four sorts does common chiefly consist? 32.

20. What is common of pasture; and of what four species does it consist? 32.

21. What is common appendant? 33.

22. What is common appurtenant? 33.

23. What is common because of vicinage? 33.

24. What is common in gross? 34.

25. What is called a lord of a manor’s approving? 34.

26. What is common of piscary? 34.

27. What is common of turbary? 34.

28. What is common of estovers or botes? 35.

29. What is right of way; and on what three reasons may it be grounded? 35, 36.

30. Upon what principle of law, when a man grants me a piece of ground in the middle of his field, does he at the same time tacitly and impliedly give me a way to come at it? 36.

31. What are offices? 36.

32. What are dignities? 37.

33. What are franchises or liberties? 37.

34. Wherein do a forest, a chace, and a park differ? 38.

35. What is a free warren? 38, 39.

36. How comes it to pass that a man and his heirs have sometimes free warren over another’s ground? 39.

37. What is a free fishery; and by what was the making grants of such a franchise prohibited? 39.

38. Wherein does a free fishery differ from a several one and a common of piscary? 39, 40.

39. What are corodies? 40.

40. What is an annuity; and wherein does it differ from a rent charge? 40.

41. What are rents? 41.

42. What are the four requisites to a rent? 41.

43. What are the three manner of rents at common law? 41.

44. What is rent-service? 42.

45. What is rent-charge? 42.

46. What is rent-seck? 42.

47. What are rents of assize? 42.

48. What are chief-rents? 42.

49. What are quit-rents? 42.

50. What were anciently called white-rents or blanch farms, reditus albi, in contradistinction to reditus nigri or black-mail? 42.

51. What is rack-rent? 43.

52. What is a fee-farm rent? 43.

53. Where and when is rent regularly due and payable? 43.

CHAP. IV.—

Of the Feodal System.

1.Whence is the origin of the constitution of feuds? 45.

2. What were feuds? 45.

3. Upon what condition were they held; and what was the nature of the feodal constitution? 46.

4. At about what time was the feodal polity received in England? 48.

5. Into what historical mistake have many writers been led by not understanding the feodal acceptation of the word conquest? 48.

6. Upon the introduction of the feodal system into England, what became the fundamental maxim and necessary principle of our English tenures? 51.

7. How was the feodal system affected by king Henry I.’s charter? 52.

8. How by that of king John, confirmed by his son Hen. III.? 52.

9. What were the grantor and grantee of a feud respectively called? 53.

10. What was the ceremony of granting a feud? 53.

11. What were the oaths of fealty and homage? 53, 54.

12. What was the twofold nature of the feudatory’s service or suit? 54.

13. Why were the feudatories distinguished by the appellation of pares curtis or curiæ? 54.

14. How were feuds hereditary? 55, 56.

15. Why could neither the lord nor the vassal aliene their estates without the consent of each other? 57.

16. Whence came feodal tenures to be divided into feodal propria et impropria; and what was the difference between such feuds? 57, 58.

CHAP. V.

Of the Ancient English Tenures.

1.Why are the words tenement, tenant, and tenure so universally applied in speaking of all the real property of the kingdom? 59.

2. Who is the lord paramount of England? 59.

3. Who were called tenants paravail? 60.

4. Who were called tenants in capite? 60.

5. Of what two kinds, in respect of their quality, were the services that were due on account of the four principal species of lay tenure, to which all other tenures that subsisted among our ancestors may be reduced? 60.

6. Of what two kinds were they in respect of their quantity and the time of exacting them? 60.

7. What were free services? 60.

8. What were base services? 61.

9. What were the certain services? 61.

10. What were the uncertain services? 61.

11. What, according to Bracton, were these four principal species of lay-tenure, to which all other tenures that subsisted among our ancestors may be reduced? 61, 62.

12. What constituted a tenure by knight-service, and what was the service? 62.

13. What was this tenant’s reditus, his rent or service, for the land he claimed to hold? 62.

14. What were the seven fruits and consequences inseparably incident to this tenure? 63.

15. What were the three principal aids which were taken by the lord of this tenant? 63.

16. What did king John’s magna carta ordain as to aids? 64.

17. What did the statute called confirmatio chartarum ordain as to aids? 64.

18. What did the statute of Westminster fix as to aids? 65.

19. What was relief, and how was it compounded for? 65, 66.

20. What was primer seisin? 66.

21. What was wardship? 67.

22. What was livery or ousterlemain? 68.

23. What was an inquisitio post mortem? 68.

24. Who was compelled to receive the order of knighthood or to pay a fine to the king? 69.

25. What was the right of marriage (maritagium, as contradistinguished from matrimonium)? 70.

26. What were fines upon alienation? 71.

27. What was an attornment? 72.

28. What was escheat? 72.

29. What was the tenure by grand serjeanty, per magnum servitium? 73.

30. What was tenure by cornage? 74.

31. What was tenure by scutage, or escuage, servitium scuti? 74.

32. What did magna carta declare as to scutage? 74.

33. By what means were all the advantages of the feodal constitution destroyed? 75.

34. To whom do we owe the plan for the abolition of the feodal system? 76, 77.

35. What actually gave it its death-blow? 77.

CHAP. VI.—

Of the Modern English Tenures.

1.What, in its most general and extensive signification, is socage, to which all tenures, except frankalmoign, grand serjeanty, and copyhold, were reduced upon the abolition of the feodal system? 78, 79.

2. Of what two sorts is socage? 79.

3. What is the etymology of the word? 80, 81.

4. Does free and common socage tenure remain in any part of England to this day; and what people’s liberty does that remnant prove socage to have been? 81.

5. Since the certainty of its services is the grand criterion of socage, what will this species of tenure include? 81.

6. What is petit-serjeanty? 82.

7. What is tenure in burgage? 82.

8. What is the custom of borough-English? 83.

9. What are the four distinguishing properties of tenure in gavelkind? 84.

10. In what points does tenure in free socage partake of the feodal nature? 85-89.

11. But wherein did the socage and the feodal tenures widely differ as to service, relief, wardship, and marriage? 86-89.

12. When was the feodal tenure abolished and sunk into the socage? 89.

13. What species of our modern tenures has arisen from pure villenage? 90.

14. What is a manor? 90.

15. What was the difference between book-land and folk-land? 90.

16. What is a court-baron; and what happens if the number of suitors should not be sufficient to make a jury of two? 90, 91.

17. What is an honour? 91.

18. What did the 32d chapter of magna carta, 9 Hen. III., and the statute of Westminster, declare as to all sales or feoffments of land; and what is now therefore essential to a manor? 91, 92.

19. What were pure villeins; and of what two classes? 92-94.

20. What was a neife? 94.

21. In case of a marriage between a freeman and a neife, or a villein and a freewoman, were the issue free or villein? 94.

22. Why could not a bastard be born a villein? 94.

23. In what cases had the villein remedy at law against the lord? 94.

24. How might a villein be enfranchised? 94.

25. What was implied manumission? 94, 95.

26. How came villeins to be called tenants by copy of court-roll? 95.

27. How did villenage decline and fall? 95, 96.

28. From what has been premised, what two indispensable principles of copyhold tenure may we collect? 97.

29. In what degree have the customs of manors superseded the will of the lord? 97.

30. What four fruits and appendages has a copyhold tenure, whether of inheritance or for life, in common with free tenures? 97.

31. What three besides has a copyhold? 97.

32. What is a heriot? 97.

33. What is wardship in copyhold estates? 98.

34. What are fines; and what has the law declared to be the ultimatum of their amount? 98.

35. What was privileged villenage or villein socage? 99.

36. What species of our modern tenures has arisen from this ancient one? 99.

37. Of what does ancient demesne consist? 99.

38. What immunities have tenures of ancient demesne? and in what do lands holden by this tenure differ from common copyholds? 99-101.

39. To what two species are all lay tenures now in effect reduced? 101.

40. What is that tenure of a spiritual nature which was reserved by the statute of Charles II.? 101.

41. To what services only are the holders of lands under this tenure liable? 101, 102.

42. Wherein did this tenure materially differ from what was called tenure by divine service? 102.

43. Can lands be given to be held by this tenure now? 102.

CHAP. VII.—

Of Freehold Estates of Inheritance.

1.What does an estate in lands, tenements, and hereditaments signify? 103.

2. To ascertain this signification with proper accuracy, in what threefold view may estates be considered? 103.

3. What is the primary division of estates with regard to their quantity of interest? 104.

4. How does the commentator define an estate of freehold? 104.

5. What is the twofold nature of estates of freehold (thus understood)? 104.

6. Into what two species are estates of freehold of the former nature again divided? 104.

7. Who is tenant in fee simple or tenant in fee? 104.

8. What, and in contradistinction to what, is the true meaning of the word fee? 104, 105.

9. By what words do we, in the most solemn acts of law, express the highest estate that any subject can have? 105.

10. In contradistinction to what has the word fee the adjunct of simple annexed to it? 106.

11. Of what species of hereditaments can a man not be said to be seised in his demesneas of fee? 106, 107.

12. What word is necessary, in the grant or donation, in order to make a fee or inheritance? 107, 108.

13. But by what five exceptions is this rule now softened? 108, 109.

14. Into what two sorts may we divide limited fees? 109.

15. What is a base or qualified fee? 109.

16. What was a conditional fee at the common law? 110.

17. What did our ancestors hold with regard to the condition annexed to such a fee? 110, 111.

18. But what if the tenant did not in fact aliene the land, and if then both the tenant and the issue died? 111.

19. What did the statute of Westminster the second (commonly called the statute de donis conditionalibus) enact as to conditional fees? 112.

20. Whence is the origin of fee-tail and reversion? 112.

21. What things may, and what may not, be entailed under the statute de donis? 113.

22. What is the first division of the several species of estates tail? 113.

23. What is tail general? 113.

24. What is tail special? 113, 114.

25. By what distinction are estates in general and special tail further diversified? 114.

26. What word is necessary to make a fee-tail? 114, 115.

27. Is there not another species of entailed estates, now grown out of use, but still capable of subsisting in law? 115.

28. What is this defined to be? 115.

29. What are the four incidents to a tenancy in tail under the statute of Westminster the second? 115, 116.

30. What and when was declared the first sufficient bar of an estate tail? 116, 117.

31. Can an estate tail be forfeited to the king upon any conviction of high treason? 117, 118.

32. Do leases made by tenants in tail bind the issue in tail? 118.

33. What construction was put upon the statute of fines by the statute 32 Hen. VIII. c. 36? 118.

34. What exceptions were made by this statute as to fines, and by the statute 34 & 35 Hen. VIII. c. 20 as to common recoveries? 118, 119.

35. Of what debts are estates tail liable to the payment? 119.

36. What appointment of lands entailed by tenant in tail is good without fine or recovery? 119.

37. What difference is there, then, between the present estates tail and the old conditional fees after the condition was performed? 119.

CHAP. VIII.—

Of Freeholds not of Inheritance.

1.Of what two species are such estates of freehold as are not of inheritance, but for life only? 120.

2. In what two ways may an estate of the first species be created? 120, 121.

3. What is a tenant pur auter vie? 120.

4. Against whom (with what exception) does the law say that all grants are to be taken most strongly? 121.

5. Are there not some estates for life which may determine before the life expires? 121.

6. Why, in conveyances, is the grant usually made “for the term of a man’s natural life”? 121.

7. What are the two principal incidents to all estates for life? 122.

8. What are emblements? 122.

9. Who is a cestuy que vie? 123.

10. When is a tenant for life not entitled to emblements? 123.

11. Are the advantages of emblements extended to the parochial clergy? 123.

12. What incidents have under-tenants or lesses of estates for life above their lessors? 123, 124.

13. What is the estate for life (of the second species of such estates) of a tenant in tail after possibility of issue extinct? 124.

14. By what only is a possibility of issue extinct in law? 125.

15. Wherein does this estate partake both of an estate-tail and an estate for life? 125, 126.

16. What is a tenancy by the curtesy of England? 126.

17. What four requisites are necessary to make a tenancy by the curtesy? 127.

18. What does the husband become by the birth of the child; and what is he not till the death of the wife? 127, 128.

19. What is a tenancy in dower? 129.

20. Who may and may not be endowed? 180.

21. What crimes of the husband bar the wife’s dower? 130, 131.

22. Of what may and may not a wife be endowed? 131.

23. Upon what principle are all endowments made? 131.

24. How long must the husband be seised of land in order to entitle the widow to dower? 132.

25. What is usually called the widow’s freebench? 132.

26. What are the four species of dower now subsisting? 132, 133.

27. Of what part of his lands might a husband endow his wife ad ostium ecclesiæ? 133-135.

28. What is now the only usual species of endowment? 135.

29. What is called the widow’s quarantine? 135.

30. What is a writ of admeasurement of dower? 136.

31. How may dower be barred or prevented? 136, 137.

32. How is a jointure defined by Sir Edward Coke? 137.

33. What did the statute of uses provide as to barring a wife of dower? 137, 138.

34. What four requisites must be punctually observed to make a jointure good? 138.

35. What if the jointure be made to the wife after marriage? 138.

36. What if the jointress be evicted of her jointure on account of its being made on a bad title? 138.

37. What are the comparative advantages of situation between tenant in dower and jointresses? 138, 139.

CHAP. IX.—

Of Estates less than Freehold.

1.What are the three sorts of estates less than freehold? 140.

2. What is an estate for years? 140.

3. What is a month in law? 141.

4. What is a lease for a twelvemonth? 141.

5. How many hours does the law reckon in the space of a day? 141.

6. How might a lessee estate be defeated by the ancient law? 142.

7. What is an indispensable requisite to an estate for years? 143.

8. Why cannot a lease for life commence in future, though a lease for years may? 143, 144.

9. What right has a tenant for years in the tenement? 144.

10. Of what is he possessed when he has entered the tenement? 144.

11. What is the legal difference between the term and the time of a lease for years? 144.

12. What are the incidents to an estate for years? 144, 145.

13. What is the difference of situation between a tenant for life and a tenant for years with regard to emblements? 145.

14. What is an estate at will? 145.

15. In what case is a tenant at will entitled to emblements? 146.

16. What act amounts to a determination of the will on either side? 146.

17. How have courts of law leaned in construing demises where no certain term is mentioned? 147.

18. What notice is requisite to determine a tenancy from year to year? 147.

19. In what one species of estate at will is the will qualified by what? 147, 148.

20. What seems to have been the reason why the absolute freehold was never granted by lords to their villeins? 148, 149.

21. What kind of freehold have customary freeholders? 149.

22. What are the comparative advantages of interest between a copyholder of inheritance with a fine certain and an absolute freeholder? 150.

23. What is an estate at sufferance? 150.

24. Against whom can no man be tenant at sufferance? 150.

25. How must an owner of lands vary his proceeding in an action of trespass against a tenant by sufferance from the same action against a stranger? 150.

26. What have the statutes 4 & 11 Geo. II. c. 23 and 19 enacted in the cases of a tenant’s holding over his term or his own notice to quit? 151.

CHAP. X.—

Of Estates upon Condition.

1.What are estates upon condition? 152.

2. Of what two sorts are estates upon condition? 152.

3. What three other conditional estates are included under this last sort? 152.

4. What are estates upon condition implied in law? 152.

5. By what two breaches of an implied condition may an office be forfeited? 153.

6. How do a public and a private office differ in respect of forfeit? 153.

7. Upon what principle proceed all the forfeitures which are given by law of life estates and others? 153.

8. What is an estate on condition expressed? 154.

9. Of what two sorts are condition expressed? 154.

10. What is an estate “to a man and his heirs, tenants of the manor of Dale”? 154.

11. What is the distinction between a condition in deed and a limitation or condition in law? 155.

12. In all instances of limitations or conditions subsequent, where the condition is contingent and uncertain, what estate has the grantee so long as the condition remains unbroken? 156.

13. When are conditions void? 156.

14. When are estates, upon void conditions, absolute in the tenant, and when in the feoffor? 157.

15. Of what two kinds are estates held in vadio, in gage, or pledge? 157.

16. What is vivum vadium, or living pledge? 157.

17. What is mortuum vadium, dead pledge or mortgage? 157, 158.

18. Who was tenant in mortgage? 158.

19. Whence is the origin of granting a long term of years by way of mortgage? 158.

20. What is equity of redemption? 159.

21. What is a foreclosure? 159.

22. What are estates held by statute merchant and statute staple? 160.

23. What is an estate by elegit? 161.

24. Why are estates by statute merchant, statute staple, and elegit, chattel interests, and not freehold? 161, 162.

CHAP. XI.—

Of Estates in Possession, Remainder, and Reversion.

1.Of what two natures are estates with regard to the time of their enjoyment? 163.

2. What two sorts of expectancy are there; and by what acts are they severally created? 163.

3. What is the difference between estates executed and estates executory? 163.

4. What may an estate in remainder be defined to be? 164.

5. When lands are granted to A. for twenty years, with remainder to B. and his heirs forever, are not these two estates? 164.

6. What are the three rules laid down by law to be observed in the creation of remainders? 165, 167, 168.

7. What is called the particular estate? 165.

8. Why cannot an estate of freehold be created to commence in futuro? 166.

9. Is a remainder an estate commencing in præsenti or in futuro? 165, 166.

10. What particular estate will, and when will a particular estate not, support a remainder over? 166, 167.

11. Can a remainder be granted of a chattel interest? 167.

12. In what case is it necessary that a lessee for years should have livery of seisin? 167.

13. Need the precedent particular estate and the remainder be in esse at one and the same time during the continuance of the first estate; or what latitude is allowed? 168.

14. Of what two sorts are remainders? 168.

15. What are vested or executed remainders? 168, 169.

16. On account of what two sorts of uncertainty may remainders be contingent or executory? 169.

17. What is enacted by statute 10 & 11 W. III. c. 16 as to posthumous children taking remainders? 169.

18. What are potentia propinqua and potentia remotissima? 170.

19. Why cannot a contingent remainder of freehold be limited on any particular estate less than a freehold? 171.

20. How may contingent remainders be defeated? 171.

21. Is there no way of preventing this defeat? 171.

22. What is an executory devise? 172.

23. In what three points does it differ from a remainder? 172, 173.

24. Why may a devise of freehold commence in futuro? 173.

25. Within what time does the law’s abhorrence of a perpetuity declare that the contingencies of an executory devise ought to be such as may happen? 173, 174.

26. Why does the law abhor a perpetuity? 174.

27. What has been settled in order to prevent the danger of perpetuities as to the persons to whom remainders may, by an executory devise, be limited over after a term of years has been given to one man for his life; and what has been also settled as to the contingencies upon which such remainders may be limited to take effect? 174, 175.

28. What is an estate in reversion? 175.

29. What are the two usual incidents to reversions? 176.

30. What is enacted by the statute 6 Anne, c. 18 in order to assist such persons as have any estate in remainder, reversion, or expectancy, after the death of others, against fraudulent concealments of their deaths? 177.

31. What happens whenever a greater estate and a less coincide in the same person in the same right without any intermediate estate? 177.

32. What one exception is there to this rule; and what is the reason of this exception? 177, 178.

CHAP. XII.—

Of Estates in Severalty, Joint-Tenancy, Coparcenary, and Common.

1.In what four different ways may estates be held with respect to the number and connections of their owners? 179.

2. Who is tenant in severalty? 179.

3. What is an estate in joint-tenancy? 179.

4. How may this estate be created? 180.

5. From what are the properties of a joint-estate derived? 180.

6. Of what four kinds is the unity of a joint-estate? 180-182.

7. If an estate in fee be given to a man and his wife, how are they seised? 182.

8. Upon the decease of one joint-tenant, what share of the estate remains to the survivor; and why? 183, 184.

9. Why cannot the king, or any corporation, be joint-tenant with a private person? 184.

10. How may an estate in joint-tenancy be severed and destroyed? 185.

11. But why is a devise of one joint-tenant’s share by will no severance of the jointure? 186.

12. In what case is it disadvantageous for joint-tenants to dissolve the jointure? 187.

13. What is an estate held in coparcenary? 187.

14. Who are parceners by common law? 187.

15. Who are parceners by particular custom? 187.

16. What are the properties of parceners? 188.

17. Which of the four unities of a joint-estate have parceners? 188.

18. In what five points do parceners differ from joint-tenants? 188.

19. What are the five methods in which parceners may make partition? 189.

20. What is the law of hotchpot, which is incident to this estate? 190, 191.

21. In what three ways may an estate in coparcenary be dissolved? 191.

22. Who are tenants in common? 191-193.

23. Which of the four unities of a joint-estate have tenants in common? 191.

24. By what two means may tenancy in common be created? 192, 193.

25. Does the law, in its construction of a deed, favour joint-tenancy or tenancy in common? 193.

26. What are the incidents attending a tenancy in common? 194.

27. In what two ways only can estates in common be dissolved? 194.

CHAP. XIII.—

Of the Title to Things Real in General.

1.What is the title to things real? 195.

2. What are the four several stages or degrees requisite to form a complete title to lands and tenements? 195-197, 199.

3. What is the mere naked possession; how may it happen; and in what degree is it a legal title? 195, 196.

4. What are the two sorts of right of possession; and by what means may the first grow into the second? 196, 197.

5. What is the mere right of property; and how can it recover the right of possession? 197, 198.

CHAP. XIV.—

Of Title by Descent.

1. By what two methods may the title to things real be reciprocally acquired on the one hand and lost on the other? 201.

2. What is the title by descent? 201.

3. What is consanguinity; and of what two kinds? 202.

4. Wherein do these two kinds of consanguinity differ? 203, 204.

5. In what does the very being of collateral consanguinity consist? 205.

6. What is the method of computing the degrees of collateral consanguinity? 206, 207.

7. What is the first rule or canon of inheritance according to which estates are transmitted from the ancestor to the heir? 208, 210.

8. What is the difference between an heir apparent and an heir presumptive? 208.

9. Who cannot be accounted such an ancestor as that an inheritance of lands or tenements can be derived from him? 209.

10. What is the second rule or canon of inheritance? 212, 213.

11. What is the third rule or canon of inheritance? 214, 216.

12. What are exceptions to this rule? 216.

13. In what one inheritance does succession by primogeniture take place among females? 216.

14. In what one inheritance does sole succession take place among females? 216.

15. What is the fourth rule or canon of inheritance? 217.

16. When is an inheritance divided per stirpes, and when per capita? 217, 218.

17. What is the fifth rule or canon of inheritance? 220, 222.

18. What is the great and general principle upon which the law of collateral inheritances depends? 223.

19. What is the sixth rule or canon of inheritance, being, like the seventh and last, only a rule of evidence who the purchasing ancestor was? 224.

20. Who is a kinsman of the whole blood? 227.

21. Why is the exclusion of a kinsman of the half-blood not unreasonable? 228-232.

22. What one inheritance may descend to the half-blood of the person last seised, so that it be the blood of the first purchasor; and why? 233.

23. For this reason, in what kind of estate is half-blood no impediment to the descent? 233.

24. What is the seventh and last rule or canon of inheritance? 234.

25. What is the most probable original of this rule? 235.

26. When is this rule totally reversed? 236.

CHAP. XV.—

Of Title by Purchase; and, first, by Escheat.

1.What is purchase, taken in its largest and most extensive sense? 241.

2. If an estate be made to A. for life, remainder to his right heirs in fee, by what shall the heirs take? 242.

3. What was meant by calling William the Norman Conqueror? 243.

4. In what two points does the difference in effect between the acquisition of an estate by descent and by purchase principally consist? 243, 244.

5. What five methods of acquiring a title to estates does purchase include? 244.

6. What is escheat? 244, 245.

7. Upon what principle is the law of escheats founded? 245.

8. What are the first three cases wherein inheritable blood is wanting? 246.

9. What is the fourth case wherein inheritable blood is wanting? 246, 247.

10. What is the fifth case? 247, 248.

11. Who are bastard eignè and mulier puisnè; and in what case may the former bar the latter of his inheritance; and this for what three reasons? 248.

12. What legal heirs can a bastard have? 249.

13. What is the sixth case wherein inheritable blood is wanting? 249.

14. What is the difference of inheritable operation on the blood of alien in the acts of denization and of naturalization? 249, 250.

15. If an alien come into England and there have issue two sons, who are thereby natural-born subjects, and one of them purchase land and die, who cannot be his heir, and why? 250.

16. What is enacted by the statute 11 & 12 W. III. c. 6 as to the inheritance of natural-born subjects deriving their pedigrees through aliens; and how is this statute qualified by that of 25 Geo. II. c. 39? 251.

17. What is the seventh case wherein inheritable blood is wanting? 251.

18. What is the difference between forfeitures of lands to the king and escheat to the lord? 251-254.

19. By what means only can the corruption of blood be absolutely removed? 254.

20. If a man attainted be pardoned by the king, can his son inherit? 254.

21. If a man have issue a son and be attainted, and afterwards pardoned, and then have issue a second son and die, who cannot be his heir, and why? 255.

22. If the ancestor be attainted, may his sons be heirs to each other? 255.

23. What is declared in most of the new felonies created by act of parliament since the reign of Hen. VIII.; and wherefore is it so? 256.

24. In what singular instance are lands held in fee-simple not liable to escheat to the lord, even when their owner is no more, and hath left no heirs to inherit them? 256, 257.

25. What is the eighth and last case wherein inheritable blood is wanting; and how does this case differ from all the rest? 257.

CHAP. XVI.—

Of Title by Occupancy.

1.What is occupancy? 258.

2. To what single instance, so far as it concerns real property, have the laws of England confined this right? 258.

3. Why was no right of occupancy allowed where the king had the reversion of the lands? 259.

4. What if the estate pur auter vie had been granted to a man and his heirs? 259.

5. But what do the statutes of 29 Car. II. c. 3 and of 14 Geo. II. c. 20 enact as to this estate? 259, 260.

6. What is the commentator’s opinion as to the operation of these statutes? 260.

7. What is the law of alluvion and dereliction? 261, 262.

CHAP. XVII.—

Of Title by Prescription.

1.What is title by prescription; and how is it distinguished from custom? 263.

2. What is called prescribing in a que estate? 264.

3. What has the statute of limitations, 32 Hen. VIII. c. 2, enacted as to prescriptions? 264.

4. What sort of hereditaments may be claimed by prescription? 264.

5. Why cannot a prescription give a title to lands? 264.

6. In whom must a prescription be laid? 265.

7. If the thing prescribed has what incapacity, why cannot the prescription be made? 265.

8. Why cannot deodands, felons’ goods, and the like be prescribed for, while treasure-trove, waifs, estrays, and the like can? 265.

9. For what more may a man prescribe in himself and his ancestors than he may in a que estate; and why may he do so? 266.

10. Is there not a difference in the inheritance of a thing prescribed in one’s self and one’s ancestors, and one prescribed in a que estate? 266.

CHAP. XVIII.—

Of Title by Forfeiture.

1.What is forfeiture? 267.

2. By what eight means may lands, tenements, and hereditaments be forfeited? 267.

3. What are the six offences which induce a forfeiture of lands and tenements to the crown? 267, 268.

4. Of what three kinds is the alienation contrary to law which induces a forfeiture? 268.

5. What is alienation in mortmain, in mortua manu? 268.

6. How were common recoveries invented? 271.

7. How were uses and trusts invented? 272.

8. What is license of mortmain; and how has it been dispensed with? 272, 273.

9. What is enacted by the statute 9 Geo. II. c. 36 as to lands and tenements, or money to be laid out thereon, given for or charged with charitable uses? 273, 274.

10. Who are excepted out of this act; and with what proviso is the exception made? 274.

11. Why is alienation to an alien a cause of forfeiture? 274.

12. When are alienations by particular tenants forfeitures; and to whom, and for what two reasons? 274, 275.

13. What is it if tenant in tail alienes in fee and why? 275.

14. In case of forfeiture by particular tenants, what becomes of all legal estates by them before created? 275.

15. What is disclaimer, in its nature and consequences? 275, 276.

16. What is forfeiture by lapse? 276.

17. In what two cases can no right of lapse accrue? 276.

18. What is the term in which the title to present by lapse accrues? 276, 277.

19. What if the bishop be both patron and ordinary? 277.

20. What if the bishop or metropolitan do not present immediately upon lapse? 277.

21. What if the king do not? 277.

22. In what cases only is the bishop required to give notice of a vacancy to the patron, in order to entitle him, the metropolitan, and the king to the advantage of a lapse? 278.

23. When does the law style the bishop a disturber; and of what does it consequently deprive him? 278.

24. What if the right of presentation be contested? 278.

25. What is forfeiture by simony? 278, 279.

26. Is it simony to purchase a presentation, the living being actually vacant? 279.

27. Is it simony for a clerk to purchase the next presentation and be thereupon presented? 279, 280.

28. Is it simony for a father to purchase such a presentation for his son? 280.

29. What if a simoniacal contract be made with the patron, the clerk not being privy thereto? 280.

30. Are bonds given to pay money to charitable uses on receiving a presentation to a living simoniacal? 280.

31. What bonds of resignation are not simoniacal? 280.

32. Are general bonds of resignation legal? 280.

33. What are the only causes for which the law will justify the patron’s making use of such a general bond of resignation? 280.

34. Of what two kinds are the conditions the breach or non-performance of which induces a forfeiture? 281.

35. What is waste, and of what two kinds? 281.

36. What are the general heads of waste in houses, in timber, and in land? 281, 282.

37. Who are liable to be punished for waste, and who not? 282, 283.

38. What is the punishment for committing waste? 283, 284.

39. By what may copyhold estates be forfeited? 284.

40. Who is a bankrupt? 285.

41. What becomes of a bankrupt’s lands and tenements? 285, 286.

42. With only what exception has the statute 21 Jac. I. c. 19 authorized the disposal of a oankrupt’s estate-tail in possession, remainder, or reversion? 286.

CHAP. XIX.—

Of Title by Alienation.

1.What is alienation, conveyance, or purchase, in its limited sense? 287.

2. Who are capable of conveying and purchasing? 290.

3. How alone may contingencies and mere possibilities be assigned to a stranger? 290.

4. What seven descriptions of persons are incapable of conveying? 290-293.

5. Are the conveyances and purchases of idiots and persons of non-sane memory, infants, and persons under duress, void? 291.

6. May a non compos plead his own disability in order to avoid his acts? 291, 292.

7. May his next heir, or other person interested, plead it? 292.

8. How may the purchase of a feme-covert be avoided? 293.

9. What of the conveyance or other contract of a feme-covert? 293.

10. What only can an alien hold? 293.

11. What are the legal evidences of alienations called? 294.

12. Of what four kinds are these common assurances? 294.

CHAP. XX.—

Of Alienation by Deed.

1.What is a deed in its general nature? 295.

2. What is an indenture? 295.

3. What is a chirograph? 296.

4. Which is the original, and which the counterpart, of a deed? 296.

5. What is a deed-poll? 296.

6. What are the eight requisites of a deed? 296-298, 304-308.

7. What are the eight usual, formal, and orderly parts of a deed? 298-301, 304.

8. What are the premises of a deed? 298.

9. What are the habendum and tenendum? 298, 299.

10. What is the reddendum? 299.

11. What is a condition? 299, 300.

12. What is the clause of warranty? 300.

13. What was the origin of express warranties? 301.

14. What was the difference between lineal and collateral warranty? 301, 302.

15. What was a warranty commencing by disseisin? 302.

16. In case the warrantee was evicted, what was the obligation of the heir? 302.

17. What warranties against the heir are now good? 302, 303.

18. What are covenants? 304.

19. What is the difference of effect between covenanting for heirs and covenanting for executors and administrators? 304.

20. For what reasons has the covenant, in modern practice, totally superseded the warranty? 304.

21. Of what does the conclusion of a deed consist? 304.

22. Is a deed good with no, or a false date? 304.

23. When is it necessary to the validity of a deed to read it to the parties? 304.

24. What if a deed be read falsely? 304.

25. Is it necessary to sign as well as seal a deed? 305, 306.

26. What is the delivery of a deed; and what is its efficacy? 307.

27. What is the difference between a deed and an escrow? 307.

28. Of what use is the attestation of a deed? 307.

29. Must the witnesses sign the deed? 307, 308.

30. By what five means may a deed be avoided? 308, 309.

31. What are those deeds called which are generally used in the alienation of real estates? 309.

32. Of what two natures are conveyances as to the manner in which they receive their force and efficacy? 309.

33. Of what two kinds are conveyances by the common law? 309.

34. What are the six species of original conveyances; and what the five of derivative? 310.

35. What is a feoffment? 310.

36. What is necessary to the perfection of a feoffment? 311.

37. What if an heir dies before entry made upon his estate? 312.

38. By what delivery is a conveyance of a copy-hold estate made to this day? 313.

39. What is necessary, by the common law, to be made upon every grant of an estate of freehold in hereditaments corporeal? 314.

40. What is necessary in leases for years? 314.

41. Why cannot freeholds be made to commence in futuro? 314.

42. If a freehold remainder be created after, and expectant on, a lease for years now in being, to whom must the livery be made? 314, 315.

43. Of what two kinds is livery of seisin? 315.

44. How is livery in deed performed? 315, 316.

45. What is livery in law? 316.

46. What is the conveyance by gift, donatio? 316, 317.

47. What are grants, concessiones? 317.

48. What is a lease? 317, 318.

49. What was the old meaning of the word farm, in which sense it is used in the operative words of a lease, “to farm let”? 318.

50. To what one species of leases is livery of seisin necessary? 318.

51. What three manner of persons does the enabling statute, 32 Hen. VIII. c. 28, empower to make leases for three lives or one and-twenty years? 319.

52. But what are the nine requisites that the statute specifies which must be observed in order to render the leases binding? 319, 320.

53. Unless under what six regulations do the disabling or restraining statutes of Elizabeth restrain all ecclesiastical or eleemosynary corporations, and all parsons and vicars, from making any leases of their lands? 320, 321.

54. Is there not another restriction with regard to college-leases by the statute 18 Eliz. c. 6? 322.

55. What restraint upon the leases of beneficed clergymen does non-residence place? 322.

56. What is an exchange? 323.

57. Is either livery of seisin or entry necessary in order to perfect an exchange? 323.

58. What is a partition? 324.

59. Can a partition be made by parol only, in any case? 324.

60. What is a release? 324.

61. For what five purposes may releases enure? 324, 325.

62. What is a confirmation? 325, 326.

63. Why is not a livery of seisin necessary to a release or confirmation of lands? 325, 326.

64. What is a surrender? 326.

65. Why is not a livery of seisin necessary to a surrender? 326.

66. What is an assignment; and wherein does it differ from a lease? 326, 327.

67. What is a defeazance; and may it be made after the original conveyance? 327.

68. What are uses and trusts in our law? 328.

69. Who were the terre-tenant, and who the cestuy que use, or the cestuy que trust? 328.

70. What was done by the statute of uses, 27 Hen. VIII. c. 10? 332, 333.

71. In what do the contingent or springing uses of a conveyance differ from an executory devise? 334.

72. Why, in both cases, may a fee be limited to take effect after a fee? 334.

73. What is a secondary or shifting use? 335.

74. What is a resulting use? 335.

75. May uses originally declared be revoked at any time and new ones declared? 335.

76. What is the origin of trusts? 335, 336.

77. How do the courts now consider a trust-estate? 337.

78. To what twelfth species of conveyance has that by livery of seisin now given way? 338.

79. What thirteenth species of conveyance has been introduced by this statute of uses? 338.

80. What was enacted by the 27 Hen. VIII. c. 16 as to bargains and sales? 338.

81. What gave rise to the fourteenth species of conveyance; and what is its nature? 338, 339.

82. What may be added as a fifteenth and a sixteenth species of conveyance? 339.

83. What are the three species of deeds used not to convey but to charge or discharge lands? 340.

84. What is an obligation or bond, whether single (simplex obligatio) or conditional; and how is it a charge upon lands? 340.

85. When is the condition of a bond void; and when the bond itself? 340, 341.

86. On the forfeiture of a bond, what sum is recoverable? 341.

87. What is a recognizance; and wherein does it differ from a bond? 341.

88. What is a defeazance on a bond or recognizance, or judgment recovered; and wherein does it differ from a common conditional bond? 342.

89. What general registers for deeds, wills, and other acts affecting real property are there in England and Scotland? 343.

CHAP. XXI.—

Of Alienation by Matter of Record.

1.What are assurances by matter of record? 344.

2. Of what four kinds are they? 344.

3. What are the intentions of private acts of parliament? 344.

4. With what cautions and preliminaries are private acts of parliament made? 345.

5. In what are the king’s grants contained? 346.

6. What is the difference between the king’s letters-patent, literæ patentes, and his writs close, literæ clausæ? 346.

7. In what three points does the construction of the king’s grants differ from those of a subject? 347, 348.

8. What is a fine of lands and tenements? 348.

9. What is the origin of fines? 349.

10. Why is a fine so called? 349.

11. What is the action of convenant upon which the fine is founded? 350.

12. What is the primer fine? 350.

13. What is the licentia concordani? 350.

14. What is the king’s silver, or post fine? 350.

15. What is the concord; and who is the cognizor, and who the cognizee? 350, 351.

16. How must the acknowledgment be made; and how far does this acknowledgment complete the fine? 351.

17. What is the note of the fine? 351.

18. What is the foot of the fine? 351.

19. What proclamations of a fine hath the statute added to prevent the levying of one by fraud or covin? 352.

20. Of what four kinds are fines thus levied? 352, 353.

21. What is a fine sur cognizance de droit, come ceo que il ad de son done; and of what efficacy is it? 352.

22. What is a fine sur cognizance de droit tantum; and for what is it commonly used? 353.

23. What is a fine sur concessit? 353.

24. What is a fine sur done, grant, et render, and wherein does it differ from the fine sur cognizance de droit, come ceo, &c.? 353.

25. What are the force and effect of fines? 354, 355.

26. What are the three classes of persons bound by a fine? 355.

27. Who are the parties to a fine, and how are they bound? 355.

28. Who are privies, and how are they bound? 355.

29. Who are strangers, and in what cases are they bound? 356.

30. But what is necessary in order to make a fine of any avail at all? 356, 357.

31. Upon what neglect of the remainderman or reversioner does a tenant’s for life levying a fine fail to forfeit the estate from the latter to the former and bar it forever? 356.

32. What is the nature of a common recovery, and how far is it like a fine? 357.

33. What is the writ of præcipe quod reddat; and what does it allege? 358.

34. Who is the demandant, and who the defendant? 358.

35. What is the voucher, vocatio, or calling to warranty; and who is the vouchee? 358.

36. Who is the recoverer, and who the recoveree? 358.

37. What is called the recompense or recovery in value? 359.

38. Of what nature is this recompense; and who is usually the common vouchee? 359.

39. What is a recovery with double voucher; and why is it now usually employed? 359.

40. What is the reason why the issue in tail is held to be barred by a common recovery? 360.

41. In what light have our modern courts of justice considered common recoveries? 360.

42. How does the commentator recommend the shortening of the process of this conveyance? 361.

43. What are the force and effect of a common recovery? 361.

44. By statute, when will not a recovery bar an estate tail, and who shall not suffer a recovery? 362.

45. What, in all recoveries, is necessary on the part of the recoveree or tenant to the præcipe? 362.

46. But what are the provisions of the statute 14 Geo. II. c. 20 in order to make good a recovery? 362.

47. By what two sorts of deed may the uses of a fine or recovery be directed? 363, 364.

48. When are these deeds called deeds to lead the uses of a fine or recovery, and when deeds to declare them; for what purpose are they made; and what effect have they on the fine or recovery? 363, 364.

CHAP. XXII.—

Of Alienation by Special Custom.

1.To what are assurances by special custom confined? 365.

2. How are copyhold lands generally transferred? 365.

3. What is surrender sursum redditio; and what is the manner of transferring copyhold estates? 365, 366.

4. What operation upon a copyhold estate has any feoffment or grant? 367.

5. If I would exchange a copyhold estate with another, or devise one, what must be done? 367, 368.

6. What effect will a fine or recovery had of copyhold lands in the king’s courts have; and how may such fine or recovery be reversed by the lord? 368.

7. What are the three several parts of the assurance by surrender? 368.

8. What part of it does the surrender itself constitute? 368.

9. What if the lord refuse to admit the surrenderee? 368.

10. Can the surrenderor retract his surrender? 369.

11. What is the presentment of the surrender; and when and by whom must it be presented? 369.

12. What if those into whose hands the surrender was made refuse to present and the lord refuse to compel them to do so? 369.

13. Of what three sorts is admittance? 370.

14. What is the lord bound to do in admittances upon a voluntary grant? 370.

15. How is the lord regarded in admittances upon surrender of a former tenant, or upon descent from the ancestor? 370, 371.

16. In what, however, do admittances upon surrender differ from admittances upon descent? 371.

17. Are heirs of copyhold compellable to be admitted? 372.

CHAP. XXIII.—

Of Alienation by Devise.

1.What is devise? 373.

2. Upon what did the restraint of devising lands take place? 373.

3. What estate only could then be devised, with what exceptions? 374.

4. In what shape did the popish clergy, who then generally sat in the court of chancery, allow of the devise of lands? 375.

5. Upon what did lands in this shape become no longer devisable? 375.

6. What did the statute of wills, 32 Hen. VIII. c. 1, enact? 375.

7. How is a devise to a corporation for a charitable use now held by the statute 48 Eliz. c. 4 to be valid? 376.

8. What does the statute of frauds and perjuries, 29 Car. II. c. 3, direct as to devises of lands? 376.

9. Are copyholds and terms for years within the statute? 376.

10. How may a will be revoked? 376.

11. What did the statute 25 Geo. II. c. 6 declare as to the witnesses to a will? 377.

12. What hath the statute 3 & 4 W. and M. c. 14 provided for the benefit of a testator’s creditors? 378.

13. How is a will of lands considered by the courts of law? 378.

14. What distinction between devises of lands and testaments of personal chattels is founded upon this notion? 378, 379.

15. What seven general rules and maxims have been laid down by courts of justice for the construction and exposition of all the species of common assurances? 379-382.

CHAP. XXIV.—

Of Things Personal.

1.What are included under the name of things personal? 384.

2. Do not things personal consist of things movable only, as things real do of things immovable? 385.

3. Under what general name, then, is the whole comprehended? 385.

4. Into what two kinds, therefore, are chattels distributed by the law? 386.

5. What are chattels real? 386.

6. Which quality of real estates have they which denominates them real; and which do they want the want of which constitutes them chattels? 386.

7. What are chattels personal? 387, 388.

CHAP. XXV.—

Of Property in Things Personal.

1.Of what two natures is property in chattels personal? 389.

2. Into what two sorts is property in chattels personal of the former nature divided? 389.

3. What is property in chattels personal in possession absolute? 389.

4. Into what two classes does the law distinguish animals? 390.

5. What property can a man have in such animals as are domitiæ, and what in such as are feræ naturæ? 390.

6. Why, of all tame and domestic animals, does the brood belong to the mother (with what exception)? 390.

7. What is property in chattels personal, in possession qualified, limited, or special? 391.

8. On what three accounts may a qualified property subsist in animals feræ naturæ? 391.

9. What are those animals feræ naturæ in which a qualified property may be acquired per industriam hominis, by a man’s reclaiming and making them name by art, industry, and education? 392.

10. How long are these animals the property of a man? 392.

11. What animals is it felony to steal? 393.

12. What crime is it to steal such animals the stealing of which does not amount to felony? 394.

13. When, and how long, may a qualified property also subsist with relation to animals feræ naturæ. ratione impotentiœ, on account of their own inability? 394.

14. What is that qualified property which a man may have in animals feræ naturæ, propter privilegium? 394, 395.

15. What other things besides animals feræ naturæ may be the objects of qualified property; and how long does that property last? 395.

16. These kinds of qualification in property arise from the subject’s incapacity of absolute ownership; but in what cases may property be of a qualified or special nature, on account of the peculiar circumstances of the owner, when the thing itself is very capable of absolute ownership? 396.

17. Hath a servant who hath the care of his master’s goods or chattels any property in them? 396.

18. What is called a thing, or chose in action? 396, 397.

19. Upon what depends, and what are the only regular means of acquiring, all property in action? 397.

20. Upon all contracts, what does the law give to the party injured in case of non-performance? 397.

21. May things personal be limited by deed or will in remainder and in estate-tail? 398.

22. May things personal be vested in joint-tenancy, in common, and in coparcenary? 399.

23. But how is it held that partnership stock in trade shall always be considered? 399.

CHAP. XXVI.—

Of Title to Things Personal by Occupancy.

1.What are the twelve principal methods by which the title to things personal may be acquired and lost? 400.

2. In what eight species of goods may a property be acquired by occupancy? 401-406.

3. But what are the restrictions as to the right to seize the goods and person of an alien enemy? 401, 402.

4. To what do the restrictions which are laid upon the right to the occupancy of animals feræ naturæ principally relate? 403.

5. What constitutes an accession to property? 404, 405.

6. What is confusion of goods; and to whom does such act of confusion give the entire property? 405.

7. What hath the statute declared as to literary and other copyright? 407.

CHAP. XXVII.—

Of Title by Prerogative and Forfeiture.

1.Whatpersonal chattels may accrue to whom by prerogative? 408.

2. What if the titles of the king and the subject concur? 409.

3. In what three classes of books hath the king a kind of prerogative copyright? 410.

4. Is there not still another species of prerogative property, founded upon a very different principle from any that have been mentioned? 410, 411.

5. What four reasons have concurred for making the restrictions which the municipal laws of many nations have exerted upon the natural right of every man to pursue and take to his own use all such creatures as are feræ naturæ? 411, 412.

6. What, however, is the origin of the game-laws in England? 413-416.

7. What was done by the carta de foresta? 416.

8. Who only, by common law, have a right to take or kill any beasts of chase not also beasts of prey? 416.

9. What are free-warren and free-fishery; and what does magna carta provide as to the latter? 417.

10. Who only, by common law, can justify hunting or sporting upon another man’s soul, or, in thorough strictness, hunting or sporting at all? 417.

11. But how have the exemptions from certain penal statutes for preserving the game virtually extended what are called the qualifications to kill it? 417, 418.

12. For what twelve offences are all the goods and chattels of the offender forfeited to the crown? 421.

13. When do these forfeitures commence? 421.

CHAP. XXVIII.—

Of Title by Custom.

1.What are the three sorts of customary interests which obtain pretty generally throughout most parts of the nation? 422.

2. Into what two sorts are heriots usually divided? 422.

3. What is heriot-service? 422.

4. Upon what does heriot-custom arise; and what is it defined to be? 422.

5. To what species of tenures is heriot-custom now for the most part confined? 423.

6. Of what does the heriot now usually consist; and of what estate is it always? 424.

7. Why can no heriot be taken on the death of a feme-covert? 424.

8. Can a heriot be compounded for by the payment of money? 424.

9. What are mortuaries; and why are they sometimes called corse-presents? 425.

10. To what certainty did the statute 21 Hen. VIII. c. 6 reduce mortuaries? 427.

11. What are heir-looms; what may they be by special custom; and what are they by general? 427, 428.

12. What other personal chattels are there which descend to the heir in the nature of heir-looms? 428, 429.

13. What if heir-looms are devised away from the heir by will? 429.

CHAP. XXIX.—

Of Title by Succession, Marriage, and Judgment.

1.To what is succession, in strictness of law, only applicable? 430.

2. But what sole corporations have in this respect the same powers as corporations aggregate have? 431.

3. In case a lease for years be made to the Bishop of Oxford and his successors, who shall have it; and why? 431, 432.

4. Yet what two exceptions are there to the rule that no chattel can go to corporations merely sole in right of succession? 432.

5. How are those chattels which formerly belonged to the wife vested in the husband by marriage; and how does personal property differ in this respect from real estate? 433.

6. How do a chattel real and a chattel personal or chose in action vest in the husband; and what if he die before he have recovered or reduced them into possession? 434.

7. What shall become of the chattel real and chattel personal if the wife die before the husband have done so; and why? 435.

8. How do chattels personal in possession vest in the husband? 435.

9. What are the wife’s paraphernalia? 435, 436.

10. Of what natures is property in chattel interests vested by a judgment in consequence of some suit or action? 436, 437.

11. What three species of property are of the second of these natures? 437-439.

CHAP. XXX.—

Of Title by Gift, Grant, and Contract.

1.What is the distinction between a gift of personal property and a grant? 440.

2. What may be included under the head of gifts or grants of chattels real; and what considerations, in the eye of the law, convert the gift, if executed, into a grant, if not executed, into a contract? 440.

3. What are grants or gifts of chattels personal; and how may they be made? 441.

4. Why does the statute 3 Hen. VII. c. 4 declare all deeds of gifts of goods made in trust to the use of the donor void; and what does the statute 13 Eliz. c. 5 declare as to every grant or gift of chattels, as well as lands, with intent to defraud creditors? 441.

5. By what is a true and proper gift or grant always accompanied; and in what cases only may it be retracted? 441.

6. But what if the gift do not take effect by delivery of immediate possession? 441, 442.

7. What interest does a contract convey as distinguished from a gift or grant; and how is it defined? 442.

8. Can a chose in action be assigned? 442.

9. What are express contracts, and what implied? 443.

10. What are executed and what executory contracts; and how do they differ in the choses they convey? 443.

11. What is a good and what a valuable consideration; and how may each of these be set aside? 444.

12. In what four species are valuable considerations divided by the civilians? 444, 445.

13. What is a nudum pactum; and what degree of reciprocity will prevent it? 445, 446.

14. How far will courts of justice support a voluntary bond or promissory note; and why? 446.

15. What are the four most usual contracts whereby the right of chattels personal may be acquired in England? 446.

16. What is sale or exchange; how does the former differ from the latter; and how are both regarded by the law? 446, 447.

17. Where the vendor hath in himself the property of the goods, when only hath he not the liberty of disposing of them? 447.

18. What constitutes a sale? 447, 448.

19. But in what cases may property be transferred by sale though the vendor have none at all in the goods? 449.

20. What is market-day and market-overt in the country; and what in London? 449.

21. But what has the statute 1 Jac. I. c. 21 provided as to the sale of goods to pawnbrokers? 449.

22. And in what cases are sales not binding even in market-overt? 450.

23. What directions do the statutes 2 P. and M. c. 7 and 31 Eliz. c. 12 enact concerning the sale of horses? 450, 451.

24. What remedy has a purchasor if a vendor sell goods and chattels as his own and the title prove deficient? 451.

25. When is the vendor bound to answer for the goodness of his wares purchased? 451.

26. What is bailment; and who is the bailor, and who the bailee? 451, 452.

27. What does the law call agistment? 452.

28. If a man deliver any thing to his friend to keep for him, when is the bailee answerable for any damage or loss it may sustain? 452.

29. Why, in all instances of bailment, may the bailee, as well as the bailor, maintain an action against such as injure the chattels bailed? 452, 453.

30. What is the difference between hiring and borrowing? 453.

31. What is interest; and upon what are its doctrines grounded? 454, 455.

32. To what three practices does the circumstance of the hazard of lending money being greater than the compensation arising from the rate of interest allowed by law on the loan give rise? 457.

33. What is bottomry; and in what does it differ from respondentia? 457, 458.

34. What is enacted by the statute 19 Geo. II. c. 37 as to all moneys lent on bottomry or respondentia on vessels bound to and from the West Indies? 458.

35. What is a policy of insurance? 458, 459.

36. What is enacted by the statute 14 Geo. III. c. 48 as to insurances on lives? 459, 460.

37.Policies of insurance being contracts, the very essence of which consists in observing the purest good faith and integrity, how is fraud or undue concealment in them provided against? 460.

38. What is enacted by the statute 19 Geo. II. c. 37 as to what are denominated wagering policies? 460, 461.

39. From what does the practice of purchasing annuities for lives at a certain price or premium, instead of advancing the same sum on an ordinary loan, arise? 461.

40. What has the statute 17 Geo. III. c. 26 directed in order to throw some check upon improvident transactions of this kind? 461, 462.

41. What is now the extremity of legal interest that can be taken? 463.

42. If a contract which carries interest be made in a foreign country, of what interest will our courts direct the payment? 463, 464.

43. What does the statute 14 Geo. III. c. 79 enact as to the legality of interest on all mortgages and other securities upon estates or other property in Ireland or the plantations? 464.

44. What is debt; and in what cases may it be the counterpart of and arise from any of the other species of contracts? 464.

45. Into what three classes is debt usually divided? 465.

46. What is a debt of record? 465.

47. What is a debt by specialty or special contract? 465.

48. What are debts by simple contract? 465.

49. What is enacted by the statute 29 Car. II. c. 3 as to one person’s being responsible for the debt of another? 466.

50. What is that species of simple-contract debt now introduced into all sorts of civil life under the name of paper credit? 466.

51. What is a bill of exchange, or draft; and who is the drawer of it, who the drawee, and who the payee? 466, 467.

52. Of what two sorts are bills of exchange; and what difference is there in law between them? 467.

53. What are promissory notes, or notes of hand, and for what sum at least must they be drawn? 467, 468.

54. Why is it usual in bills of exchange to express that the value thereof hath been received by the drawer? 468.

55. By what means may a bill of exchange or promissory note be assigned? 468, 469.

56. When may a bill of exchange be protested for non-acceptance; and when, both a bill and a promissory note, for non-payment? 469.

57. In case of such protests, what compensation is the drawer bound to make to the payee or endorsee; but what happens in the absence of such protests or their notification to the drawer? 469.

58. When a bill or a note is refused, how soon must it be demanded of the drawer? 470.

59. Upon whom may an endorsee call to discharge a bill or a note? 470.

CHAP. XXXI.—

Of Title by Bankruptcy.

1.Who may become a bankrupt; and who may not? 471, 473-477.

2. What privileges do the laws of bankruptcy confer on the creditors; and what on the debtor? 472.

3. By what eleven acts may a man become a bankrupt? 478, 479.

4. What are the ten proceedings on a commission of bankrupt? 480-484.

5. What if the bankrupt make default in either surrender of himself or conformity to the directions of the statutes of bankruptcy? 481.

6. What powers has any judge or justice of the peace over a bankrupt? 481.

7. What powers have the commissioners of bankruptcy? 481.

8. What if the bankrupt conceal or embezzle any effects to the amount of 20l., or withhold any books or writings with intent to defraud his creditors? 482.

9. What if it appear that his inability to pay his debts arose from some gross misconduct and negligence? 482.

10. After the time allowed to the bankrupt for such discovery is expired, to what shall any other person, voluntarily discovering any part of the bankrupt’s estate, be entitled; and what shall any trustee, wilfully concealing it, forfeit? 482.

11. Of what ratable amount is the bankrupt’s allowance? 483.

12. When shall not the bankrupt’s allowance or indemnity be given him? 484.

13. What is an act of insolvency? 484.

14. But as to what only are persons who have been once cleared by a bankruptcy or by an insolvent act indemnified in case they become bankrupts again? 484, 485.

15. By virtue of the statutes of bankruptcy, in whom are all the personal estate and effects of the bankrupt considered as vested by the act of bankruptcy? 485.

16. What is the meaning of the saying “Once a bankrupt and always a bankrupt”? 485, 486.

17. Who alone is not within the statute of bankrupts? 486.

18. But what is provided by the statute 19 Geo. II. c. 32 as to money paid by a bankrupt to a creditor, and by statute 1 Jac. I. c. 15 as to money paid by a debtor to a bankrupt? 486.

19. What acts can and cannot the assignees of a bankrupt do without the consent of the creditors? 486.

20. What is the duty of the assignees towards the creditors; and within what time shall the first dividend be made? 487.

21. What debts of a bankrupt have a priority to be paid; and what shall not be postponed or set aside? 487, 488.

22. Within what time shall a second and final dividend be made; and if any surplus remain after paying every creditor his full debt to whom shall it be given? 488.

CHAP. XXXII.—

Of Title by Testament and Administration.

1.What is a testament, and what an administration? 490.

2. What were the reasonable parts in a man’s chattels of the wife and children? 492.

3. What part of his chattels may a man now devise? 492, 493.

4. When is a man said to die intestate? 494.

5. To whom did the goods of intestates anciently belong; and to whom were they granted? 494.

6. What is the origin of the right of the church to the probate of wills and to the administration of intestate’s property? 494-496, 509, 510.

7. Who is the intestate’s administrator? 496.

8. Upon what three accounts are persons prohibited, by law or custom, from making a will? 497.

9. Who are to be reckoned in the first species? 497.

10. Are prisoners, captives, and the like absolutely intestable? 497.

11. In what cases may a feme-covert make a testament of chattels? 498.

12. Who is an exception to the general rule that a feme-covert cannot make a testament of chattels? 498.

13. What if a feme-sole make her will and afterwards marry? 499.

14. Who are persons incapable of making testaments on account of their criminal conduct? 499.

15. Into what two sorts are testaments divided? 500.

16. What is a codicil; and of what two sorts? 500.

17. Under what three restrictions has the statute of frauds, 29 Car. II. c. 3, laid nuncupative wills and codicils? 500, 501.

18. What witness of their publication do written testaments of chattels need? 501.

19. What if there be many testaments of different dates; and what effect has the republication of a former will upon one of a later date? 502.

20. In what three ways may testaments be avoided? 502.

21. What if a man who hath made a will marry and have a child? 502.

22. Is it necessary to leave the heir a shilling; or, if the heir or next of kin be totally omitted in the will, does the law admit a querela inofficiosi to set it aside? 503.

23. What is an executor, and who may be one? 503.

24. What must be done if the executor be not seventeen years of age, or be out of the realm when a suit is commenced in the ecclesiastical court touching the validity of the will? 503.

25. What if the testator name no, or incapable, executors, or if the executors named refuse to act? 503, 504.

26. What if the deceased die wholly intestate without making either will or executors? 504.

27. In granting letters of administration pursuant to the statutes 31 Edw. III. c. 11 and 21 Hen. VIII. c. 5, by what seven rules is the ordinary bound? 504, 505.

28. Who may administer to a bastard? 505, 506.

29. If the executor of A. die, who is A.’s executor? 506.

30. Is it the same with regard to A.’s administrator? 506.

31. What is an administrator de bonis n n? 506.

32. What is the difference between the offices and duties of executors and those of administrators? 507.

33. Who is an executor de son tort; and how shall he be treated? 507.

34. What are the seven powers and duties of a rightful executor or administrator? 508, 510-512, 514, 515.

35. In what two ways is a will proved; and what is styled the probate? 508.

36. When must the will be proved before the ordinary of the jurisdiction, and when before the metropolitan of the province by way of special prerogative? 508, 509.

37. If there be two or more executors or administrators, is a sale or release by one of them good against the rest? 510.

38. What are called assets? 510.

39. In what order of priority must the deceased’s debts be paid? 511.

40. What if a creditor constitute his debtor his executor? 512.

41. May an executor or administrator give himself the preference in the payment of the deceased’s debts and legacies? 511, 512.

42. What is a legacy, and what is necessary to its perfection? 512.

43. In case of a deficiency of assets, what legacies must abate, and how? 512, 513.

44. What is a lapsed legacy; and to whom does it lapse? 513.

45. What is a contingent and what a vested legacy? 513.

46. But what if such legacies be charged upon real estate? 513.

47. When do legacies carry interest? 513, 514.

48. What is a donation causa mortis? 514.

49. When shall the residuum go to the executor, and when to the next of kin? 514, 515.

50. How do the statutes 22 & 23 Car. II. c. 10, explained by 29 Car. II. c. 30 and 1 Jac. II. c. 17, distribute the surplusage of intestate’s estates? 515, 516.

51. But what are the customs of the city of London and the province of York as to the distribution of intestate’s effects which are expressly reserved by the statute of distributions? 518, 519.

52. What is the widow’s chamber by these customs? 518.

53. What was the dead man’s part? 518.

54. In what two principal points do the customs of London and York considerably differ? 519.

BOOK III.—

OF PRIVATE WRONGS.

CHAP. I.—

Of the Redress of Private Wrongs by the mere Act of the Parties.

1.What are private wrongs as distinguished from public wrongs; and why are the former frequently termed civil injuries, and the latter crimes and misdemeanours? 2.

2. How is the redress of private wrongs principally to be sought? 2, 3.

3. Into what three species may the redress of private wrongs be distributed? 3.

4. Of what two sorts is that redress of private wrongs which is obtained by the mere act of the parties? 3.

5. Of what six species is that redress of private wrongs which arises from the sole act of the injured party? 3-6, 15.

6. What is a distress, districtio; and for what four injuries may a distress be taken? 6, 7.

7. What are cattle damage-feasant? 7.

8. What six species of things cannot be distrained? 7-10.

9. What are cattle levant and couchant elevan tes et cubantes? 9.

10. When, where, and how must all distresses be made; with what exceptions as to the time? 11.

11. In what cases may a second distress for the same duty be made? 11, 12.

12. What does the statute of Marlberge, 52 Hen. III. c. 4, enact as to unreasonable distress? 12.

13. How must a distress be disposed of; and when may it be rescued by its owner? 12.

14. What is a pound (parcus); and of what four kinds? 12.

15. What is the difference in the effect between impounding a live distress in a common pound-overt and in a special pound-over? 13.

16. What if the beasts are put in a pound-covert; or if a distress of dead chattels be not put in one? 13.

17. How long must beasts taken damage-feasant and distresses for suit or services remain impounded? 13.

18. What is to replevy (replegiare)? 13.

19. When is the distress salable for a debt due to the crown for an amercement to the lord, and for statute distresses; and when in all cases of distress for rent? 14.

20. What has the statute 11 Geo. II. c. 19 provided in case of any unlawful act done in taking a distress? 15.

21. Are those who are entitled to that redress of private wrongs which arises from the sole act of the injured party debarred of their redress by suit or action? 15.

22. Of what two species is that redress of private wrongs which arises from the joint act of all the parties together? 15.

23. What is accord; and what is its effect? 15, 16.

24. In what cases is tender of sufficient amends to the party injured a bar of all actions? 16.

25. What is arbitration; who is an umpire (imperator or impar); and what is an award? 16.

26. How may the right of real property pass by an award? 16.

27. In what case does the statute 9 & 10 W. III. c. 15 enact that all submissions of suit to arbitration or umpirage may be made rules of any of the king’s courts of record? 17.

CHAP. II.—

Of Redress by the mere Operation of Law.

1.Of what two species is that redress of private wrongs which is effected by the mere operation of law? 18.

2. Why, when a creditor is executor or administrator, is he allowed to retain his own debt? 18, 19.

3. But in prejudice to whom can he not retain his own debt? 19.

4. What is remitter? 19, 20.

5. But what if the subsequent estate or right of possession be gained by a man’s own act and consent? 20.

6. What is the reason why this remedy of remitter to a right was allowed? 20.

7. But what, too, if the party have no remedy by action? 21.

CHAP. III.—

Of Courts in General.

1.What is that redress of private wrongs wherein the act of the parties and the act of law co-operate? 22.

2. Is not the ordinary course of justice excluded by the extrajudicial remedy which the law allows in the several cases of redress by the act of the parties mentioned in a former chapter? 22, 23.

3. What in the cases of remedy by the mere operation of law? 23.

4. What is a general and indisputable rule where there is a legal right? 23.

5. What is a court defined to be? 23.

6. Whence are all courts of justice derived? 24.

7. What one distinction runs throughout all courts of justice? 24.

8. What constitutes a court of record; and by what shall its existence be tried? 24, 25.

9. What is a court not of record; what is the extent of its power, and by what shall its existence be tried? 25.

10. What three constituent parts must there be in every court; and what assistants is it usual for the superior courts to have? 25.

11. What is an attorney at law? 25.

12. Who cannot appear in court by attorney? 25.

13. What are the qualifications of attorneys? 26.

14. Of what two species or degrees are advocates or counsel? 26.

15. When may a barrister be called to the state and degree of a serjeant; and who are by custom always admitted into this venerable order as a qualification for their office? 27.

16. Who are his majesty’s counsel learned in the law, and his attorney and solicitor general; and what are their restrictions? 27.

17. To what does a patent of precedence entitle a barrister? 28.

18. Who are clients? 28.

19. Can a counsel maintain an action for his fees? 28.

20. For what spoken by him is a counsel not answerable? 29.

21. How are counsel guilty of deceit or collusion punishable by the statute Westminster 1, 3 Edw. I. c. 28? 29.

CHAP. IV.—

Of the Public Courts of Common Law and Equity.

1.Of what two natures are courts of justice with regard to their several species? 30.

2. Of what four sorts are public courts of justice? 30.

3. What are the ten general and public courts of common law and equity constituted for the redress of civil injuries, beginning with the lowest; and, of these ten, which are of a partial jurisdiction and confined to particular districts, and which are the superior courts, calculated for the administration of redress throughout the whole kingdom; which are courts of record, and which not, and which are courts of equity as well as law? 32-35, 37, 41, 44, 47, 48, 56, 57.

4. What is the court of piepoudre; who is the judge of it; what is its jurisdiction; and where lies an appeal from it? 32, 33.

5. What is the court-baron; by whom is it held as registrar; and of what two natures is it? 38.

6. Before whom, as judges, is the court-baron of the second or common-law nature held; what pleas may it hold; whither may its proceedings be removed; and where lies an appeal from it? 34.

7. What is a hundred court; who are its judges and registrar; whither may its proceedings be removed; and where lies an appeal from it? 34, 35.

8. What is the county court; what pleas may it hold; who are its real judges, and who its ministerial officer; whither may its proceedings be removed; and where lies an appeal from it? 36, 37.

9. What is the origin of the court of common pleas or common bench; and by what was the court rendered fixed and stationary where? 38, 39.

10. What benefit did the common law itself derive from this establishment of its principal court? 39.

11. Into what two sorts are pleas or suits regularly divided; and of what court’s jurisdiction were each of these the proper objects? 40.

12. What are the judges of the court of common pleas; and when do they sit? 41.

13. Where lies an appeal from this court? 41.

14. What is the court of king’s bench; why is it so called, and what are its judges? 41.

15. For what reason is all process issuing out of this court in the king’s name returnable “ubicunque fuerimus in Anglia”? 41, 42.

16. What is the jurisdiction of this court; and by what fiction can it hold plea of all personal actions whatever? 42-44.

17. Where lies an appeal from this court? 44.

18. What is the court of exchequer (scaccharium); why is it so called; and what is its rank? 44.

19. Of what two divisions does it consist; and what are the two subdivisions of the second division? 44.

20. Where and before whom is the exchequer court of equity held; and what is the primary and original business of this court? 45.

21. But by what fiction, with the help of the common-law part of this court’s jurisdiction, may all kinds of personal suits be prosecuted in it? 45, 46.

22. Where lies an appeal from the equity side of this court; and where from the common law? 46.

23. What is the court of chancery (cancellaria); why is it so called; and how is the office of chancellor or lord-keeper created? 47.

24. What is the chancellor virtute officii; and what are his powers and authorities? 47, 48.

25. Of what two distinct tribunals does the court of chancery consist? 48.

26. What is the jurisdiction of the ordinary legal court in chancery; what if any fact be disputed between the parties; and where lies an appeal from its judgments in law? 48, 49.