L A W. 



f>45 



S* 1. Out- 

 let; 



JTr 



l*w an intermeddling. He cannot bring an action in right 

 of the deceased, but actions may be brought against 

 him. 



S3. By law, the appointment of an executor vests in 

 him beneficially all the personal estate of the testator 

 not otherwise disposed of; but wherever courts of equi- 

 ty have seen on the face of the tvill sufficient to convince 

 them, that the testator did not intend the executor to take 

 the surplus, they have turned the executors into trustees 

 for those to whom the law would cast the surplus in case 

 of a complete intestacy, i.e. the next of kin: as where the 

 executors are expressly called executors in tnist, or any 

 other expression occur, shewing the office only to be in- 

 tended them, and not the beneficial interest. So a. pecuni- 

 ary legacy to-a sole executor affords a sufficient argument 

 to exclude him from the residue ; as it is absurd to sup- 

 pose a testator to give expressly a part of the fund to the 

 person whom he intended to take the whole. If the tes- 

 tator give the rtiidinim to a person who dies in his life- 

 time, in consequence of which this bequest is lapsed, 

 the executor, though he has no legacy, shall be a trus- 

 tee for the next of -kin, because the 'testator has ex- 

 pressed a manifest intention not to give it to the exe- 

 cutor. 



34. Of injuriet la real property, the following may 

 be noted as the principal ; Firtl, Dispossession, or ous- 

 ter from the freehold. Second, Trespass. Third, Nui- 

 sance. Fourth, Warte. Fifth, Subtraction. Sixth, Dis- 

 turbance. 



35. Outter is the dispossessing another of his lands 

 or hereditaments, and may arise by the following causes, 

 as, 1. Abatement, which is the entry of a stranger af- 

 ter the death of the ancestor, before the heir or devisee. 

 2. Intrusion, which is the entry of a stranger after a ruu% 

 ticular estate is determined, before him in remainder or 

 reversion. S.Disaeisin, which is the wrongful putting out 

 of him that is seised of a freehold estate. 4. Discontinu- 

 ance, which is where one having an estate-tail, makes* 

 larger estate than by law he is entitled to do, in which 

 ease the estate it good so far as his power extends who 

 made it, but no farther. 5. Deforcement, which is where 

 the entry of the present tenant or possessor was origi- 

 nally lawful, but whose detainer is now become un- 

 lawful, i. e. such a detainer of the freehold from him 

 that ha* the right of property, but never had any pos- 

 session under that right, as falls within none of the 

 injuries already mentioned. Ditpoiteuion or outter of 

 chattels real, may arise from the amotion of him who 

 holds an estate by statute merchant, recognizance, elc- 

 git, or years, for securing a certain sum of money, by 

 the borrower raising the cum for which it is holden 

 before the estate is determined by lapse of time. 



3*3. The unwarrantable entering upon another man's 

 soil the law entitles a trctpan, and a man must have a 

 property in the soil, and actual possession thereof by 

 entry, to enable him to bring an action of trespass. 

 By statute 6th Anne, c. 18, if a guardian or trustee for 

 any infant, a husband seised jure tucorit, or a person 

 baring any estate or interest determinahle upon a life 

 or lives, shall, after the determination of their respec- 

 tive interests, hold over and continue in possession of 

 the lands or tenements, without the consent of the per- 

 son entitled thereto, they arc adjudged to be trespas- 

 sers 



37. tn'uuance if that which worketh hurt, inconve- 

 nience, or damage; and is either public or private. 

 Ntriaance to corporeal hereditaments are, such as a man's 

 ImiMing a hou*e so near mine that my ancient window 

 ii closed up, or the water from the roof of bis house 





falls upon mine ; by keeping animals or carrying on T.a 

 any noisome trade, from which a stench arises so as to of 

 render the air unwholesome ; neglecting to scour a '^"""Y" 1 '' 

 ditch, &c. So, where any one neglects to do, or does 

 any act which inconveniences or damages another, 

 it is a nuisance. Nuisances to incorporeal heredita- 

 ments are, such as a man's obstructing another that 

 has a right of way, either by stopping it up or placing 

 impediments to his annoyance ; or if one sets up a 

 fair or market within seven miles of my private fair or 

 market, whereby I am injured. 



38. Waste is the despoiling houses, lands, or woods, 4. Waste; 

 to the prejudice of him who has a right of common, 

 or of a remainderman or reversioner who has an inhe- 

 ritance in expectancy ;. for if such a one has only a re- 

 mainder for life, he is not entitled to sue for waste ; or 

 even during the continuance of an intermediate estate 

 of freehold to take effect before his expectancy. Ac- 

 cident by fire is no waste, and no person is answerable 

 for damages that may arise therefrom, except upon spe- 

 cial agreement. 



S9. Subtraction is the non-performance of suit, duty, 5- Subtrac- 

 custom, or service, by whom it is due. tion 



40. Disturbance is the hindering or disquieting any nd 6 Dis- 

 one in the lawful enjoyment of an incorporeal heredi- tur ^ ance - 

 tamcnt. All these several injuries to real property are 

 redressed by appropriate legal remedies, the technical 

 particulars of which cannot here be detailed. 



CHAP. IV. Of Things Personal. Title to Things Per- 

 tonal. 1. By Occupancy and Prerogative. 2. By 

 Succetsion. 3. By Custom. 4. By Marriage. 5. By 

 Forfeiturt. 6. By Judgment. 7. By Grant. 8. By 

 Contract. 9- Ry Bankruptcy. 



1. Things personal are comprehended under the ge- Things 

 neral name of chattels; and are, 1. Chattels real. 2. personal art 

 Chattels personal. either. 



2. Chattels real are immareaUe ; as interests in lands Chattels 

 and tenements, that are bounded by a definite time of real > 

 duration ; as estates for years, estates at will, and 

 estates upon condition. 



3. Chattels personal are things meveable, which may or chattel* 

 be transferred from place to place. Property in chat- personal. 

 tels personal in possession, is where a man has not on- 

 ly the right of enjoyment, but has also the actual pos- 

 session ; and such possession he can have in nil inani- 

 mate things, as goods, plate, money, vegetable pro- 

 ductions when severed from the ground, garments, &c. 



none of which can be divested out of the owner's pos- 

 session but by his own consent, and if without his con- 

 sent, he sustains an evident injury, which it is the bu- 

 siness of the law to prevent or remedy. 



4. But with regard to animals, which have in them- Quidjuri-, 

 selves a power of motion, the law makes a material as to 

 difference. Animals are classed into such as are dumi- ma ' 



toe, and such as are f era naturae ; in such as are d omit as 

 naturae, as horses, June, sheep, poultry, and the like, a ^l 

 man may have an absolute property ; for these will not 

 stray from a man's house or person, unless by accident 

 or fraudulent enticement : in either of which cases the 

 owner does not lose his rig/it of property, until they 

 have been sold in market overt ; but in such anima's 

 as are ferai naturae, a man can have no absolute pro- 

 perty. 



A qualified property in animals ferae natural, is per QualifieJ 

 industriam homiiiis, by a man's reclaiming them by property in 

 art, or by confining them within his own immediate 



i 1_ 1 JflCCltUltliwy 



power, so that they cannot escape and use their natural"'^ 



