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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.

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

ed enjoyment of use of light to any per parties are before the court, and building for twenty years, the claim, a case of nuisance is stated of such a though it may have originated in en- nature as to be attended with extreme croachment, will be indefeasible, not- probability of irreparable injury to withstanding the parties injured there- property or health, certainly an inby may have been incapable, owing to junction would be granted. (Crowder personal disabilities, or any cause v. Tinkler, 19 Ves. 622; Attorney whatever, to resist the encroachments.

General v. Johnson, 2 Wils. Cha. Ca. Formerly, the rule of law (as may be 102; Wynstanley v. Lee, 2 Swanst. seen by referring to the first of the cases 335; Mayor of London v. Bolt, 5 Ves. already cited,) allowed a landlord to 130 ; and see post, p. 403.) build up against encroaching lights, (6) See Robinson v. Lord Byron, though his tenant had acquiesced un- (reported in 1 Br. 588, in 2 Cox, 4, der the encroachment for above twenty and in 2 Dick. 703,) which appears to years : upon the same principle which have been the first case in which an still prevails with respect to ways and injunction issued to restrain a defenwatercourses. (See ante, p. 35.) dant from doing acts to prevent water

(5) Where the common law affords from flowing in regular quantities to a convenient remedy, the interposi- a mill. The case is cited, by Lord tion of the court of Chancery, in cases Eldon, in Hanson v. Gardiner, (7 of nuisance, is rare; and there seems Ves. 388,) and the ground of the case no disposition to extend the equitable stated to have been the prevention of interference in such cases ; at all irreparable mischief, which might have events, not by granting ex parte in- been effected before the right could junctions: (Attorney General v. Clea- have been tried at law. (See ante, ver, 18 Ves. 217 :) but when all pro- pp. 14, 18 ; post, Vol. III. p. 218.) VOL. II,

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in

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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 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 Pledges. 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

Of choses in action.

*

(e) 1 Roll, Abr. 607.
(f) Cro. Jac. 245.
(9) 3 Inst. 108.

(h) The same idea, and the same
denomination, of property prevailed in
the civil law. “ Rem in bonis nostris
habere intelligimur, quotiens ad re-

cuperandum eam actionem habeamus.(Ff. 41. 1. 52.) And again,

æque bonis adnumerabitur etiam, si quid est in actionibus, petitionibus, persecutionibus. Nam et hæc in bonis esse videntur." (Ff. 50. 16. 49.)

:

of a contract or

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.

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 equivalent, is a 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

or implied, the

chose in action.

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 (l): 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. [ *399 ] * Next, as to the number of owners. Things personal may As to the num- 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.

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

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

(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 1001. 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 (9), 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) Pag. 193.
(r) i Vern. 217; Co. Litt. 182.

(9) Mr. Christian observes, that that is undivided will pass to the surresiduary legatees and co-executors vivor or survivors. (2 P. Wms. 103 ; are joint-tenants, unless the testator 3 Bro. 455.)” [Thicknesse v. Vernon, uses some expression which converts 2 Freem. 84, 2nd edit.; Cox v. Queentheir interests into a tenancy in com. lock, Rep. temp. Finch, 176; Jackmon; and if one dies before a division son v. Jackson, 9 Ves. 595 ; White v. or severance of the surplus, the whole Williams, 3 Ves. & Bea. 75.-Ed.]

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