water(c)(5), or unpens and lets it out, or if he diverts an ancient water-course that used to run to the other's mill or meadow (d) (6); the law will animadvert hereon as an injury, and protect the party injured in his possession. But the property in them ceases the instant they are out of possession; for, when no man is engaged in their actual occupation, they become again common, and every man has an equal right to appropriate them to his own use.

These kinds of qualification in property depend upon the Bailments. peculiar circumstances of the subject-matter, which is not capable of being under the absolute dominion of any proprietor. But property may also 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. *As in case of bailment, or delivery of goods to [*396 ] another person for a particular use; as to a carrier to convey to London, to an inn-keeper to secure in his inn, or the like. Here there is no absolute property in either the bailor

(c) 9 Rep. 59.

ed enjoyment of use of light to any building for twenty years, the claim, though it may have originated in encroachment, will be indefeasible, notwithstanding the parties injured thereby may have been incapable, owing to personal disabilities, or any cause whatever, to resist the encroachments. Formerly, the rule of law (as may be seen by referring to the first of the cases already cited,) allowed a landlord to build up against encroaching lights, though his tenant had acquiesced under the encroachment for above twenty years upon the same principle which still prevails with respect to ways and watercourses. (See ante, p. 35.)

(5) Where the common law affords a convenient remedy, the interposition of the court of Chancery, in cases of nuisance, is rare; and there seems no disposition to extend the equitable interference in such cases; at all events, not by granting ex parte injunctions: (Attorney General v. Cleaver, 18 Ves. 217) but when all pro

VOL. II.

(d) 1 Leon. 273; Skin. 389.

per parties are before the court, and
a case of nuisance is stated of such a
nature as to be attended with extreme
probability of irreparable injury to
property or health, certainly an in-
junction would be granted. (Crowder
v. Tinkler, 19 Ves. 622; Attorney
General v. Johnson, 2 Wils. Cha. Ca.
102; Wynstanley v. Lee, 2 Swanst.
335; Mayor of London v. Bolt, 5 Ves.
130; and see post, p. 403.)

(6) See Robinson v. Lord Byron,
(reported in 1 Br. 588, in 2 Cox, 4,
and in 2 Dick. 703,) which appears to
have been the first case in which an
injunction issued to restrain a defen-
dant from doing acts to prevent water
from flowing in regular quantities to
a mill.
The case is cited, by Lord
Eldon, in Hanson v. Gardiner, (7
Ves. 388,) and the ground of the case
stated to have been the prevention of
irreparable mischief, which might have
been effected before the right could
have been tried at law. (See ante,
pp. 14, 18; post, Vol. III. p. 218.)
Q Q

Pledges.

Distresses.

Of choses in action.

or the bailee, the person delivering, or him to whom it is delivered for the bailor hath only the right, and not the immediate possession; the bailee hath the possession, and only a temporary right. But it is a qualified property in them both; and each of them is entitled to an action, in case the goods be damaged or taken away: the bailee on account of his immediate possession; the bailor, because the possession of the bailee is, mediately, his possession also (e). So, also, in case of goods pledged or pawned upon condition, either to repay money or otherwise; both the pledgor and pledgee have a qualified, but neither of them an absolute, property in them: the pledgor's property is conditional, and depends upon the performance of the condition of repayment, &c.; and so too is that of the pledgee, which depends upon its non-performance (f). The same may be said of goods distreined for rent, or other cause of distress which are in the nature of a pledge, and are not, at the first taking, the absolute property of either the distreinor, or party distreined upon; but may be redeemed, or else forfeited, by the subsequent conduct of the latter. But a servant, who hath the care of his master's goods or chattels, as a butler of plate, a shepherd of sheep, and the like, hath not any property or possession, either absolute or qualified, but only a mere charge or oversight (g).

Having thus considered the several divisions of property in possession, which subsists there only, where a man hath both the right and also the occupation of the thing; we will proceed next to take a short view of the nature of property in action, or such where a man hath not the occupation, but merely a bare right to occupy the thing in question; the possession whereof may however be recovered by a suit or action at law: from whence the thing so reco[* 397] verable is called *a thing, or chose, in action (h). Thus, money due on a bond is a chose in action; for a property in the debt vests at the time of forfeiture mentioned in the

obligation, but there is no possession till recovered by course of law. If a man promises, or covenants with me, to do any act, and fails in it, whereby I suffer damage, the recompence for this damage is a chose in action: for though a right to some recompence vests in me at the time of the damage done, yet what and how large such recompence shall be, can only be ascertained by verdict; and the possession can only be given me by legal judgment and execution. In the former of these cases, the student will observe that the property, or right of action, depends upon an express contract or obligation to pay a stated sum: and in the latter it depends upon an implied contract, that, if the covenantor does not perform the act he engaged to do, he shall pay me the damages I sustain by this breach of covenant. And hence it may be collected, that all property in action depends entirely upon contracts, either express or implied; which are the only regular means of acquiring a chose in action, and of the nature of which we`shall discourse at large in a subsequent chapter.

of a contract or

or implied, the

covered, or its

equivalent, is a

chose in action.

At present we have only to remark, that upon all con- Upon the breach tracts or promises, either express or implied, and the infinite promise, express variety of cases into which they are and may be spun out, thing to be rethe law gives an action of some sort or other to the party injured, in case of non-performance; to compel the wrongdoer to do justice to the party with whom he has contracted, and, on failure of performing the identical thing he engaged to do, to render a satisfaction equivalent to the damage sustained. But while the thing, or its equivalent, remains in suspense, and the injured party has only the right and not the occupation, it is called a chose in action; being a thing rather in potentia than in esse: though the owner may have as absolute a property in, and be as well entitled to, such [* 398 ] things in action, as to things in possession."

And, having thus distinguished the different degree or quantity of dominion or property to which things personal are subject, we may add a word or two concerning the time of their enjoyment, and the number of their owners; in conformity to the method before observed in treating of the property of things real.

First, as to the time of enjoyment. By the rules of the As to the time of enjoyment ancient common law, there could be no future property, to of things per

sonal.

[ *399 ] As to the num

ber of owners.

take place in expectancy, created in personal goods and chattels; because, being things transitory, and by many accidents subject to be lost, destroyed, or otherwise impaired, and the exigencies of trade requiring also a frequent circulation thereof, it would occasion perpetual suits and quarrels, and put a stop to the freedom of commerce, if such limitations in remainder were generally tolerated and allowed. But yet in last wills and testaments, such limitations of personal goods and chattels in remainder, after a bequest for life, were permitted (i): though originally that indulgence was only shown, when merely the use of the goods, and not the goods themselves, was given to the first legatee (k); the property being supposed to continue all the time in the executor of the devisor. But now that distinction is disregarded (1): and therefore, if a man, either by deed or will, limits his books or furniture to A. for life, with remainder over to B., this remainder is good. But, where an estate-tail in things personal is given to the first or any subsequent possessor, it vests in him the total property, and no remainder over shall be permitted on such a limitation (m) (7). For this, if allowed, would tend to a perpetuity, as the devisee or grantee in tail of a chattel has no method of barring the entail: and therefore the law vests in him at once the entire dominion of the goods, being analogous to the fee-simple which a tenant in tail may acquire in a real estate.

*Next, as to the number of owners. Things personal may belong to their owners, not only in severalty, but also in joint-tenancy, and in common, as well as real estates (8). They cannot indeed be vested in co-parcenary; because they do not descend from the ancestor to the heir, which is necessary to constitute co-parceners. But if a horse, or other personal chattel, be given to two or more, absolutely, they are joint-tenants hereof; and, unless the jointure be severed, the same doctrine of survivorship shall take place

(i) 1 Eq. Cas. Abr. 360.
(k) Mar. 106.

(7) See ante, p. 175, and the note thereto.

(1) 2 Freem. 206.
(m) 1 P. Wms. 290.

(8) See ante, pp. 179-194, chapter 12, with the notes thereto.

as in estates of lands and tenements (n). And, in like manner, if the jointure be severed, as, by either of them selling his share, the vendee and the remaining part-owner shall be tenants in common, without any jus accrescendi or survivorship (o). So, also, if 1007. be given by will to two or more, equally to be divided between them, this makes them tenants in common (p); as we have formerly seen (q), the same words would have done in regard to real estates (9). But, for the encouragement of husbandry and trade, it is held that a stock on a farm, though occupied jointly, and also a stock used in a joint undertaking, by way of partnership in trade, shall always be considered as common and not as joint property, and there shall be no survivorship therein (r).

(n) Litt. s. 282; 1 Vern. 482. (0) Litt. s. 321.

(p) 1 Eq. Cas. Abr. 292.

(9) Mr. Christian observes, that residuary legatees and co-executors are joint-tenants, unless the testator uses some expression which converts their interests into a tenancy in common; and if one dies before a division or severance of the surplus, the whole

(q) Pag. 193.

(r) 1 Vern. 217; Co. Litt. 182.

that is undivided will pass to the survivor or survivors. (2 P. Wms. 103; 3 Bro. 455.)" [Thicknesse v. Vernon, 2 Freem. 84, 2nd edit.; Cox v. Queenlock, Rep. temp. Finch, 176; Jackson v. Jackson, 9 Ves. 595; White v. Williams, 3 Ves. & Bea. 75.-ED.]