Sivut kuvina

to secure in his inn, or the like. Here there is no absolute property in either the bailor 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. So also in case of goods pledged or pawned upon condition, either to repay money or otherwise; both the pledgor and the pledgee have a qualified, but neither of them an absolute, property therein: the pledgor's property is conditional, and depends upon the performance of the condition of repayment, etc.; and so too is that of the pledgee, which depends upon it's non-performance.' 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; 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.s

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

e 1 Roll, Abr. 607.

f Cro. Jac. 245,

g 3 Inst. 108.

9 Ninth edition reads, "in them."

9 Ninth edition inserts, "upon."

*Cited, 55 N. H. 549; as to special property of officer in goods levied upon, 2 Mon, B. 331; 2 N. H. 144; 16 Wend, 358,

+ Cited, 7 Nev, 439,

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 recoverable is called [397] a thing, or chose, in action. 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 ine, to do any act, and fails in it, whereby I suffer damage, the recompense for this damage is a chose in action : for though a right to some recompense vests in me, at the time of the damage done, yet what and how large such recompense 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 [see note 76, page 612]; 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.‡

h The same idea, and the same denomination of property prevailed in the civil law. "Rem in bonis nostris habere intelligimur, quotiens ad reciperandam 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.)

**Quoted, 1 Ohio St. 426: 8 Port. 40; 14 Conn. 562. Cited, 33 Mo. 540; 82 Am. Dec. 145; Hopk. Ch. 65; 14 S. C. 578; 37 Am. Rep. 740. +-+ Quoted, 5 Day, 296.

+ Cited, 8 Port. 240; 2 Swan, 195.

At present we have only to remark, that upon all contracts or promises, either express or implied, and the infinite variety of cases into which they are and inay be spun out, the law gives an action of some sort or other to the party injured in case of non-performance; to compel the wrong-doer 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 it's 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 [398] *in, and be as well entitled to, such 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 antient common law, there could be no future property, to 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 be4 Previously, "of."

**Quote 7 Cal. 203, Cited, 9 Port. 644.

+Cited, 7 Ala. 39; 38 Ala. 23; 79 Am. Dec. 80, and held that such estate cannot now be limited by parol.


quest for life, were permitted:1 though originally that indulgence was only shewn, when merely the use of the goods, and not the goods themselves, was given to the first legatee; 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. 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 belong to their owners, not only in severalty, but also in joint tenancy,‡ and in common, as well as real estates. They cannot indeed be vested in coparcenary; because they do not descend from the ancestor to the heir, which is necessary to constitute coparceners. 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 as in estates i 1 Equ. Cas. abr. 360.

k Mar. 106.

1 2 Freem. 206.

m 1P. Wms. 290,

**Quoted, 6 Ark. 119; 3 Call, 54.

Cited, 5 Ala. 581; 13 Ala. 742; 1 Fla. 88; 2 Ga. 301; 8 Ga. 251; Conf. 314 (Conf. & Tayl, 244); 6 Wall. 475; 1 Jones (N. C.) 446; 6 Gratt. 501; as to chattels of durable nature, 120 I11. 268.

+ Cited, 5 Conn. 520; 12 Ohio, 473; purchaser acquires like entire dominion, Add. 137; 1 Am. Dec. 369.

‡ Cited, 4 Ark. 604; 6 Fla. 476; 2 N. H. 480; 58 N. H. 532; 5 Binn, 22; 2 Leigh, 438.

of lands and tenements." 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. 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, the same words would have done, in regard to real estates. 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


(76) All property in action depends on contracts, express or implied, page 397,

It is hardly just to say, with Judge Sharswood whose opinion I never mention without profound respect, even in differing from him-that this is certainly an error, because there is a large class of actions which arise ex delicto. Even upon this point it is doubtful whether the common law embraced such recoveries in tort under the term "chose in action": but waiving that, we may be sure that Blackstone did not mean to say that all property in action must be recovered in an action of contract, which is implied in the criticism. Blackstone knew very well that "the wrong-doer was often compelled to render a satisfaction equivalent to the damage he has sustained" (text) by an action ex delicto, and did not mean to deny it here. What he does mean is that the ground upon which he is required to render that satisfaction, the basis of the right to q pag. 193.

n Litt. 282. 1 Vern. 482.

o Litt. ? 321.

p 1 Equ. Cas. abr. 292.

'r 1 Vern. 217. Co. Litt. 182

« EdellinenJatka »