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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 (e). So, also, in case of goods pledged or pawned Pledges. 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 ($). The same Distresses. 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 Of choses in acin 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 recoverable is called *a thing, or chose, in action (h). Thus, money [ * 397 ) (e) i Roll. Abr. 607.
nomination, of property prevailed in (f) Cro. Jac. 245.
the civil law. “ Rem. in bonis nostris (g) 3 Inst. 108.
“ habere intelligimur, quotiens ad re(h) The same idea, and the same de- “cuperandum eam actionem habeamus."
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 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; 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. Upon the breach At present we have only to remark, that upon all conof a contract or promise, express
tracts or promises, either express or implied, and the infinite or implied, the variety of cases into which they are and may be spun out, thing to be recovered, or its
the law gives an action of some sort or other to the party equivalent, is a injured, in case of non-performance; to compel the wrongchose in action.
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 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 [ * 398 ) may have as absolute a * property in, and be as well entitled
to, such things in action, as to things in possession. (Ff. 41. 1. 52). And again, “ bonis adnumerabitur etiam, si quid " nis esse videntur." (Ff. 50. 16. " est in actionibus, petitionibus, per- 49).
Nam et hæc in bo
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 antient common law, there could be no future property, to
of things per. take place in expectancy, created in personal goods and sonal. 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 shewn, 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) (4). For this, if allowed, would tend to a perpetuity, as the devisce 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 ana
(i) 1 Eq. Cas. Abr. 360. (k) Mar. 106.
(1) 2 Freem. 206.
(4) Sce anto, p. 175, and note (16) thereto subjoined.
[ * 399 ] As to the number of owners.
logous 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 (5). 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 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 (). 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 estatest. 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.
(9) Pag. 193.
(5) See ante, pp. 179—194, chapter 12, with the notes thereto.
+ Mr. Christian observes, that “re- vided will pass to the survivor or sursiduary legatees and executors are joint- vivors. (2 P. Wms. 103. 3 Bro. 455).” tenants, unless the testator uses some [Thicknesse v. Vernon, 2 Freem. 84, expression which converts their inter- 2nd edit. Cox v. Queenlock, Rep. temp. est into a tenancy in common; and if Finch, 176. Jackson v. Jackson, 9 Ves. one dies before a division or severance 595. White v. Williams, 3 Ves. & of the surplus, the whole that is undi- Bca. 75.-ED.]
We are next to consider the title to things personal, or the Of the means of various means of acquiring, and of losing, such property of losing title to
acquiring and as may be had therein: both which considerations of gain things personal. and loss shall be blended together in one and the same view, as was done in our observations upon real property; since it is for the most part impossible to contemplate the one, without contemplating the other also. And these methods of acquisition or loss are principally twelve: 1. By occupancy. 2. By prerogative. 3. By forfeiture. 4. By custom. 5. By succession. 6. By marriage. 7. By judgment. 8. By gift or grant. 9. By contract. 10. By bankruptcy. 11. By testament. 12. By administration.
And, first, a property in goods and chattels may be ac- I. By occupanquired by occupancy: which we have more than once (a) cy— remarked, was the original and only primitive method of acquiring any property at all; but which has since been restrained and abridged, by the positive laws of society, in order to maintain peace and harmony among mankind. For this purpose, by the laws of England, gifts, and contracts, testaments, legacies, and administrations, have been introduced and countenanced, in order to transfer and continue that property and possession in things personal, which has once been acquired by the owner. And, where such