Law, Book 2 · Chapter 17 – Chapter 19
CHAP. 17.
Of Chattels Perſonall.
PErſonall as Plate, Iewels, Siluer, Gold, Implements of houſhold, Cattell, and all goods and moouables whatſoeuer, Corne ſowen vponupon the ground &c. For that is deuiſible by will, ſhall be forfeited in outlary of Park. 99. 5. H. 7. 10.Debt or Treſpaſſe.
The ownerſhip of a chattell perſonall, is termed a propertie, which of wild beaſts 3. H 6. 55. 12. H. 8. 3. 18. H. 8 2 For ſowle of Warrein.both Fowles of the Aire, Fiſhes in the Sea, Beaſts vponupon the Earth, and generally all Fowle of Warrein, Feaſants, Patridges, Deere, Conies, Hares, and ſuch like cannot be in any, and therefore it is no felony 12 H 8. 3. 18 H. 8. 2. 3 H. 6 55.to ſteale them: and a writ of Treſpaſſe ſhall be Quare warrenam ſuam intrauit & mille lepores cepit, without ſaying ſuos, Nor after they are made tame, longer than they remaine in ones poſſeſſion. As my tame 12. H. 8. 3.Hound that followeth me, and is with my ſeruant; my Hawk that is flying at a foule; my Deere that is chaſed out of my Parke or Foreſt, and the Foreſter maketh freſh ſuit: 12. H. 8. 11.theſe all remaine in my poſſeſſion, and the propertie is in me: but if they ſtraie, it is 12. H. 8. 3. & 11.lawfull for any man to take them. Otherwiſe 18. H. 8. 2it is of Hens, Capons, Geeſe, Duckes, Peacocks, &c.
Prerogatiue.
Treaſure hid in (a)Stamf. 10.the earth, not vponupon the Earth, nor in the Sea, and (b)27 Aſſ. pl. 19.coyne though not hidden, being found (c)10. El Pl. 322is the Kings: we call it Treaſure-troue.
Cattell alſo that ſtray into anothers (d) 14 H 6. 5.land are the kings after a yere and a day, (e) 31 E. 3 eſtrar. 4if being proclaimed at the Market in two (f) Br. Eſtray. 10.ſeueral townes next adioyning the owner (g) 33. H. 8. Br. Eſtray. 4.doe not claime them. For if a Lord keep a ſtray three quarters of a yere, and yet within the yeare it ſtrayeth againe, and another Lord getteth it, the firſt Lord cannot take it againe: for till a yeare and a day paſt, & Proclamation made, he hath no propertie. And therefore the poſſeſſion of the ſecond Lord is good againſt him.
Goods wrecked are alſo his.Stamf. prer. 37. & D… B wreck… 3 that this was at the Common law.
Statutes.
Weſt. 1. c. 4 Where a man, dog, or cat eſcape aliue out of ſhips, it ſhalbe no wreck. But the things ſhall bee priſed by the Sherife or Coroner, and deliuered to thoſe of the Town where they be found, to anſwer for them. So as if any within the yere and day prooue that the goods be his, they ſhal be reſtored to him.
The King being Tenant in Common of an entier Chattell perſonall, ſhall hauehave 10. El. Pl. 322.the whole. As if an obligation be made to two, or two poſſeſſed of a horſe, and one is attainted, the King ſhal hauehave the whole dutie of the Obligation, and the horſe.
Goods that belong to an Alien enemie, (a)7. E 4. 13. 38. H 8. Br. deuiſen 10. 8. 16. 20.any body may ſeiſe to his owne vſe. But an Alien borne in amitie may hauehave propertie in goods, and buy and ſell, & their bargaines good: and may alſo bring perſonall Actions.
The taking of goods by an Alien enemie 7. E. 4. 13:in battaile, deueſteth the propertie from the owner▪ if he come not before Sun ſet to claime them.
Church-wardens are inhabled to hauehave 12. H. 7. 27.goods to the behoofe of the Pariſh. For they are charged to find diuers things belonging to the Church, as ornaments, and ſuch like: And therefore in reaſon they ſhould be inhabled to purchaſe goods. And thereto extendeth their Corporation. And all the Church goods, as (a)8. E. 4. 6.bookes & ornaments, (b)11. H. 4. 12.bels hung vp in the Church, are theirs, and (c)11. H. 4. 12.they may hauehave an appeale of robberie of them, or a (d)8. E. 4. 6.treſpaſſe, and count, to the dammage of the pariſhioners. But they cannot giuegive or releaſe them, for 13. H. 7. 10.that is to the diſaduantage of the Church. (f) 8. E. 4. 6.And if they do, the Pariſh may chuſe new Church-wardens, who ſhall hauehave an Action of account againſt them. (g)12. H. 7. 27.But church-wardens are not inhabled to take a feoffement, a leaſe for life, or perhaps for yeares, or ſuch other things as hauehave continuance.
CHAP. 18.
Of Baylement and Contracts.
TO Chattels perſonels, Bailement, and Contracts doe belong; Baylement is a deliuerie of goods in poſſeſſion, and is either to keep or imploy. To keepe when onelyonly the cuſtodie is committed to him, and is a ſimple Baylement or pledge.
A ſimple Baylement, when he receiueth them to keepe for another: whether it bee 5. H. 7. 18.for the Baylor to redeliuer him againe: in which caſe the Bailor may retake them without requeſt: or for a ſtranger to bayle 1. E. 5. 2.them ouer to him. In which caſe, before ſuch bayling ouer, the Bailor may countermand the Bailement, and command the Bailee to deliuer them him againe, & ſhall hauehave an account vponupon refuſall. For in neither of theſe caſes the propertie is out of the Baylor.
A pledge is when he receiueth them in 5. H. 7. 1.aſſurance for another thing had of him at the time. As to take a chayne of gold for monie then deliuered, &c. but not for ſatiſfying of a debt he oweth. But the propertie of the pledge remaineth in the owner; For he ſhall beare it if it be caſually loſt or broken: and the other that hath the pledge ſhall not be attached by it, in aſmuch as he is not owner.
The baylement of goods to imploy, is, when the Bailee hath the things themſelues to vſe to anothers profit. As to ſell meliori modo quo poterit, &c. Where, if he ſel that for xij. l. which is worth 1000. l. and refuſe a better priſe, the partie hath no remedie.
Contract is a mutual agreement for the verie propertie of perſonall things where the dutie growing vponupon it canot be apportioned. As if I ſell my owne horſe and the horſe of I. S. to one for x. l. and I. S. taketh his horſe from the vendee, yet the vendee muſt pay me the whole x. l. Of this kind of contracts are buying and ſelling, borrowing and lending, and ſuch like, and in all theſe caſes an Action of Debt lieth.
The ſale of another mans goods in opē market (we call it market ouert) without Couine or notice whoſe they are, altereth the propertie if tolle be paid for it.
Hither belong certaine (as it were) contracts in Low, though not ariſing from the ſpeciall agreement of the parties. As hee that findeth anothers goods is chargeable by reaſon of the poſſeſſiō to him that right hath: he that receiueth monie to ones vſe, or to deliuer ouer to him, is chargeable as a receiuer. He that entreth into land of his owne head, and receiueth the profits of it, or parents that occupieth land purchaſed by an infant, are chargeable as Bailifes. And if a Liberate be deliuered to the Clarke of the Hamper, who hath aſſets in his hands, an Action of Debt lieth againſt him. So doth it vponupon euerie iudgement.
CHAP. 19.
Of Accord and Arbitrement.
THeſe are the things which belong to Chattels perſonall in generall: for the intereſt of perſonall things, vncertaine, accord (otherwiſe called a concord) and arbitrement lie.
As of a treſpaſſe done, for the dammages are vncertaine; but of debt or dammage recouered in certain, it is otherwiſe, vnleſſe it be ioyned with treſpas or other things vncertaine: for then all put together, lie in arbitrement or concord. So of Waſt, detinue of charters of land, which are things in the realtie, annuitie, &c. they lie not in arbitrement or concord.
Accord, is an agreement betwéene the parties themſelues: not by meditation of friends; for then it is an Arbitrement vponupon a ſatiſfaction executed: As for one 15. H. 6. accord. 1.at his owne coſt to agree, I. S. and another, whom I. S. hath treſpaſſed; this may be a ſatisfaction to I. S. Otherwiſe it is, if hee doe but indeauour to agree to them. And this ſatisfaction muſt be executed: for a tender (a)17 E. 4. 8.of monie without payment, or an (b)6. H. 7. 11.agreement to pay monie at a day to come, is no ſatiſfaction before the day come, and the monie be paid: nor ſhall be pleaded in barre of an Action of Treſpaſſe: for vponupon an Accord, the partie hath no meanes to compell him to pay it, as he hath vponupon Arbitrement. But being paid at the day, it is a good plea if the other afterwards bring an Action.
Arbitrement is an award of ſatiſfaction (c) 16. E. 4. 9.by others whom they chuſe to iudge betweene them, As to arbitrate becauſe A. 19. H. 6. 36.(one of the parties) hath done a greater treſpaſſe to B. (the other partie) than B. hath to him; therefore that A. ſhould giuegive B. monie in ſatisfaction, and B. bee quit againſt him, is a good award. But that one ſhall be non ſuite in an Action, is not good; for after non ſuite hee may begin againe, whereas the Arbitrement (which muſt bee in ſome ſort a ſatisfaction for the dammages) ought in that reſpect to bee a determination of things awarded. where the award of a perſonall Chattell altereth the propertie thereof. So as hee may hauehave a detinue (a)2. El. Dy. 183.for it, or debt if it bee of monie, or ſuch like, to hee paide for (b)16. E. 4. 9.a debt due, or (c)19. H. 6. 38.amends of a Treſpaſſe. And therein an Arbitrement differeth from an Accord. But an award of an acre of land, &c. is not good vnleſſe the acre be deliuered.
Et iam prima mei pars ex exacta laboris.