BRACTON, Lib. 2, c. 9, fol. 27 a. If a gift be made for a term of years, although a very long one, which exceeds the lives of men, yet the donee will not have a freehold from it, since a term of years is certain and determined, and the term of life uncertain, and because although nothing is more certain than death, yet nothing is more uncertain than the hour of death.

WILLIAMS, REAL PROPERTY (18th ed.), 17, 25. Tenant for a term of years was regarded in early law as holding possession on behalf of the freeholder as his bailiff, and was never allowed to use the freeholder's remedies for dispossession. Originally he had no remedy in case of his ejectment, unless he held under a covenant with his landlord. If so, he might have an action of covenant against his landlord in case he had been ejected by the landlord himself or any one claiming the land by superior title; and might recover, in the former case, possession of his holding for the rest of his term, if unexpired, but otherwise damages only. But afterwards special actions were given to a tenant for years against any person, who had wrongfully ousted him or acquired possession of his land from a wrongful ejector. And though at first it was doubted whether these actions enabled him to recover anything but damages, in the reign of Edward the Fourth it was established that he should therein recover possession of his holding as well. The owner of chattels might take proceedings, under the early law, to obtain the restitution of stolen or lost goods, into whosesoever hands they came; and in these proceedings he might either accuse the possessor of his goods of theft or sue him civilly, dropping the criminal charge. In the latter case, however, the plaintiff was obliged to set a money value on his goods, on payment of which the defendant would be absolved. But civil proceedings of this nature very soon became obsolete; when the dis

possessed owner of goods was left to be protected by remedies, in which he could either make no claim but for compensation in money, or in which, though he might claim to recover his goods, the law gave no process, whereby the goods themselves could be attached and restored. to him, and he could only recover their value if the defendant refused to render them. . .

Originally, as we have seen, freeholds were the only things specifically recoverable in the King's Court; all that could be included in "the realty." Thus the word realty came to be used as denoting the freehold. After this, those interests in land which were reckoned as chattels were distinguished by the name of chattels real, because, it was said, they concerned the realty; while the name of chattels personal was given to movable goods, "because for the most part they belong to the person of a man, or else" (which seems the better reason) "for that they are to be recovered by personal actions." As freeholds descended to the heir, while chattels passed to the executor, the notion of descent to the heir became associated with the realty, as well as the idea of land specifically recoverable; and the incident of passing to the executor became a characteristic of the personalty. So that in later times, when men began to describe property as consisting of real and personal estate instead of by the old terms lands, tenements, and hereditaments and goods and chattels, only things inheritable as well as specifically recoverable, only real hereditaments, in fact, were classed as real estate; and chattels, whether real or personal, were considered as personal estate rather on the ground of their passing to the executor than with reference to the question, how far they were specifically recoverable.1

2 BL. COM. 21. Incorporeal hereditaments are principally of ten sorts; advowsons, tithes, commons, ways, offices, dignities, franchises, corodies or pensions, annuities, and rents."

LIT. § 740. But where such lease or grant is made to a man and to his heires for terme of yeares, in this case the heire of the lessee or the grantee shall not after the death of the lessee or the grantee have that which is so let or granted, because it is a chattel reall, and chattels realls by the common law shall come to the executors of the grantee, or of the lessee, and not to the heire.

1 See also Digby, Hist. Real Prop. c. 3, sect. 2, § 17 (in 1st ed. § 16).

2 "The next question was, whether the annuity of 500l. which in the will is called a freehold annuity [an annuity to the grantee and his heirs], and is thereby specifically given, is to be considered as real or personal; and upon the authority of the cases which were cited in the argument, viz., The Earl of Stafford v. Buckley, 2 Ves. Sen. 171, and Aubin v. Daly, 4 B. & Ald. 59, I am of opinion, that it is what Lord Hardwicke called a personal inheritance, which the law suffers to descend to the heir, but which has nothing to do with the realty." Per LORD LANGDALE, M. R., in Radburn v. Jervis, 3 Beav. 450, 461 (1841).

BLIGH v. BRENT.

EXCHEQUER. IN EQUITY. 1837.

[Reported 2 Y. & C. Ex. 268.1]

ALDERSON, B., delivered the judgment of the court: This was a bill praying in substance that the defendant Margaret Brent, widow and executrix of Timothy Brent, deceased, may account for certain shares of the Chelsea Waterworks, and that it may be declared by the court that the plaintiff as his heir at law became entitled to those shares, and that the other defendants, the Governor and Company of the Chelsea Waterworks, may be directed to insert in their transfer-books the plaintiff's name as proprietor thereof. There is no dispute as to the facts, and the only question for the court was, whether these shares were part of the real or personal estate of the testator. If the former, the plaintiff as heir at law is entitled to the decree he prays, because the will is attested by only two witnesses; and if the latter, his bill must be dismissed.

When this question originally came before me, I thought it one of so much difficulty, and involving such extensive consequences, that I was desirous the parties should have the benefit of having the opinion of my learned brethren also; and accordingly, in conformity to the practice here (which is a peculiar advantage in the frame of the Court of Equity in the Exchequer), I adjourned the case to be heard before the full court. The case was, in the course of last Michaelmas Term, very fully and ably argued before Lord Abinger, my brothers Parke and Gurney, and myself; and I am now to deliver the opinion of the whole court on the point.

The company of the Chelsea Waterworks was originally constituted under the provisions of the statute 8 Geo. I., 1723. By that act, certain persons named therein were constituted commissioners, undertakers, and trustees for carrying into effect the works then projected, and for afterwards maintaining them. For that purpose his Majesty was, by a subsequent clause, empowered to incorporate them, by the name of the Governor and Company of the Chelsea Waterworks. And they were to have the power of purchasing lands not exceeding £1,000 per annum, and to sell and dispose thereof at their pleasure, and to do all necessary works, and to be subject to such rules, qualifications, and appointments as his Majesty should think reasonable to be inserted in the charter; and might also be empowered to make by-laws from time to time for the good government of the corporation.

In pursuance of this power a charter of incorporation was granted almost immediately afterwards by George I. That charter followed the directions of the statute, and gave the corporation power to purchase lands, &c., so as they did not exceed in value £1,000 per annum, 1 The opinion only is given. It sufficiently states the facts.

possessed owner of goods was left to be protected by remedies, in which he could either make no claim but for compensation in money, or in which, though he might claim to recover his goods, the law gave no process, whereby the goods themselves could be attached and restored to him, and he could only recover their value if the defendant refused to render them. . . .

Originally, as we have seen, freeholds were the only things specifically recoverable in the King's Court; all that could be included in "the realty." Thus the word realty came to be used as denoting the freehold. After this, those interests in land which were reckoned as chattels were distinguished by the name of chattels real, because, it was said, they concerned the realty; while the name of chattels personal was given to movable goods, "because for the most part they belong to the person of a man, or else" (which seems the better reason) "for that they are to be recovered by personal actions." As freeholds descended to the heir, while chattels passed to the executor, the notion of descent to the heir became associated with the realty, as well as the idea of land specifically recoverable; and the incident of passing to the executor became a characteristic of the personalty. So that in later times, when men began to describe property as consisting of real and personal estate instead of by the old terms lands, tenements, and hereditaments and goods and chattels, only things inheritable as well as specifically recoverable, only real hereditaments, in fact, were classed as real estate; and chattels, whether real or personal, were considered as personal estate rather on the ground of their passing to the executor than with reference to the question, how far they were specifically recoverable.1

2 BL. COм. 21. Incorporeal hereditaments are principally of ten sorts; advowsons, tithes, commons, ways, offices, dignities, franchises, corodies or pensions, annuities, and rents."

LIT. § 740. But where such lease or grant is made to a man and to his heires for terme of yeares, in this case the heire of the lessee or the grantee shall not after the death of the lessee or the grantee have that which is so let or granted, because it is a chattel reall, and chattels realls by the common law shall come to the executors of the grantee, or of the lessee, and not to the heire.

1 See also Digby, Hist. Real Prop. c. 3, sect. 2, § 17 (in 1st ed. § 16).

2 "The next question was, whether the annuity of 500l. which in the will is called a freehold annuity [an annuity to the grantee and his heirs], and is thereby specifically given, is to be considered as real or personal; and upon the authority of the cases which were cited in the argument, viz., The Earl of Stafford v. Buckley, 2 Ves. Sen. 171, and Aubin v. Daly, 4 B. & Ald. 59, I am of opinion, that it is what Lord Hardwicke called a personal inheritance, which the law suffers to descend to the heir, but which has nothing to do with the realty." Per LORD LANGDALE, M. R., in Radburn v. Jervis, 3 Beav. 450, 461 (1841).

BLIGH v. BRENT.

EXCHEQUER. IN EQUITY. 1837.

[Reported 2 Y. & C. Ex. 268.1]

ALDERSON, B., delivered the judgment of the court: This was a bill praying in substance that the defendant Margaret Brent, widow and executrix of Timothy Brent, deceased, may account for certain shares of the Chelsea Waterworks, and that it may be declared by the court that the plaintiff as his heir at law became entitled to those shares, and that the other defendants, the Governor and Company of the Chelsea Waterworks, may be directed to insert in their transfer-books the plaintiff's name as proprietor thereof. There is no dispute as to the facts, and the only question for the court was, whether these shares were part of the real or personal estate of the testator. If the former, the plaintiff as heir at law is entitled to the decree he prays, because the will is attested by only two witnesses; and if the latter, his bill must be dismissed.

When this question originally came before me, I thought it one of so much difficulty, and involving such extensive consequences, that I was desirous the parties should have the benefit of having the opinion of my learned brethren also; and accordingly, in conformity to the practice here (which is a peculiar advantage in the frame of the Court of Equity in the Exchequer), I adjourned the case to be heard before the full court. The case was, in the course of last Michaelmas Term, very fully and ably argued before Lord Abinger, my brothers Parke and Gurney, and myself; and I am now to deliver the opinion of the whole court on the point.

The company of the Chelsea Waterworks was originally constituted under the provisions of the statute 8 Geo. I., 1723. By that act, certain persons named therein were constituted commissioners, undertakers, and trustees for carrying into effect the works then projected, and for afterwards maintaining them. For that purpose his Majesty was, by a subsequent clause, empowered to incorporate them, by the name of the Governor and Company of the Chelsea Waterworks. And they were to have the power of purchasing lands not exceeding £1,000 per annum, and to sell and dispose thereof at their pleasure, and to do all necessary works, and to be subject to such rules, qualifications, and appointments as his Majesty should think reasonable to be inserted in the charter; and might also be empowered to make by-laws from time to time for the good government of the corporation.

In pursuance of this power a charter of incorporation was granted almost immediately afterwards by George I. That charter followed the directions of the statute, and gave the corporation power to purchase lands, &c., so as they did not exceed in value £1,000 per annum, 1 The opinion only is given. It sufficiently states the facts.