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[cution (m).] A chose in action, then, is [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 things in action, as to things in possession.]
Property in chattels personal is also subject, whether it be in possession or in action, to distinctions which regard the quantity of interest. For a man may have the total property or entire dominion of a chattel, analogous to the fee simple in a real estate (though it will devolve, in case of intestacy, to administrators, instead of descending to heirs); or he may be the owner of it for life, or for years only. But there can be no estate tail in a chattel personal ; and therefore if a chattel be given by deed or will to A., and the heirs of his body, [it vests in him the total property, and no remainder over shall be permitted on such a limitation (n). For this, if allowed, would tend to a perpetuity, as the grantee or devisee in tail of a chattel has no method of barring the entail.] Personal chattels also, like land, are subject to distinctions with respect to the time of enjoyment and the number of the owners ; and on these two latter points it may be desirable to enlarge a little, before the conclusion of the chapter.
[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] (as it was thought) [perpetual suits and quarrels, and put a stop to the freedom of commerce, if such limitation 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 (o); 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 (p), the property being supposed to continue all the time in the executor of the devisor.] But now these distinctions are disregarded (9); (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 (r).] Personal chattels, however, cannot be rendered in any instance unalienable beyond the period prescribed in the case of real estate by the law against perpetuity (s); and also fall equally with real estate within the provisions of 39 & 40 Geo. III. c. 98, the general effect of which is to invalidate all directions, whether by will or other instrument, for the accumulation of the annual produce thereof for any longer period than the life of the settlor, and twenty-one years after his death (t).
(m) According to Blackstone, “ All “property in action depends entirely “ upon contract, either express or “implied."-2 Bl. Com. 397. But it has been justly remarked, that the term chose in action has a more exten
sive application, and extends to the right to recover damages for a wrong, independently of any contract between the parties. 1 Chit. Pract. Law, p. 99, n.
(n) Seale v. Seale, 1 P. Wms. 290. (0) Upwell v. Halsey, 1 P. Wms. 652.
In every case it is obvious that the interest of the party in remainder, in personal chattels, is in its nature precarious. But the Court of Chancery will interfere for his protection (u); and if the tenant for life should begin or threaten to injure the property, a bill might be filed for an injunction to restrain him from doing so, and the court would apply a remedy according to the nature of the case (v).
(p) Mar. 106.
(0) 2 Freem. 206; Randall v. Russell, 3 Meriv. 195 ; 2 Roper, Leg. 393.
(r) A learned judge however has expressed some doubt whether this position of Blackstone be correct as regards a limitation by deed, and whether such a limitation would be valid without the intervention of
trustees; Coleridge's Blackstone, vol. i. p. 398 ; et vide Fearne, Cont. Rem. 402, 9th edit.
(s) Co. Litt. by Harg. 20 a, n. (5); Gilb. Us. by Sugd. 121, n. (4); 2 Rop. Leg. 390. As to perpetuity, vide sup. vol. 1. p. 554.
(1) Vide sup. vol. 1. p. 556.
(u) Fearne, Cont. Rem. 406, 9th edit.
(v) An injunction is a remedy which, until the recent statute of 17
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 things real. [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, in case of intestacy of a sole owner, devolve to his administrator, to be by him distributed (subject to the claims of creditors) among the next of kin. But they otherwise follow in general the same rules as to those modifications of estate which regard the number of owners, as things real. Thus, [if a horse or other personal chattel be given to two or more absolutely, they are joint tenants thereof, and unless the jointure be severed, the same doctrine of survivorship shall take place as in estates of lands and tenements (2); 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 (y):] and so also [if 1001. be given by will to two or more, equally to be divided between them, this makes them tenants in common (z), as we have formerly seen (a) the same words to have done in regard to a devise of real estate.] But (as an instance, on the other hand, where the analogy of things personal to things real in regard to joint tenancy may be said to fail) it is proper to remark, that [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 (6).]
& 18 Vict. c. 125, could be obtained only from a court of equity. By that statute (ss. 79-82) it can now be obtained from a court of common law.
(x) Litt. s. 281; Shore v. Billingsly,
i Vern. 482.
(y) Litt. s. 321.
() See Buckley v. Barber, 6 Exch. 169. .
This however is to be understood as applying, in contemplation of the common law, only to such property when in possession, and not to choses in action ; for where one of several partners, having a legal interest in a contract, dies, the right of action upon it accrues, at common law, to the survivor or survivors, in whose name alone the action must be brought; and the representative of the deceased must resort to a court of equity, to obtain the share of the latter in the sum recovered (c).
It remains to add that, as in the case of things real, so in that of things personal, the legal property may be vested in one man, to the use of or in trust for another, whose interest, as the beneficial and substantial owner, will be recognized and protected in the courts of equity. But as regards things personal, this division of the ownership is less frequent, (the legal interest being in general a beneficial one); and they are in no instance affected by the Statute of Uses, or by any of its attendant learning.
(c) See Anderson v. Martindale, 1 East, 497 ; 2 Chit. Blackst. 399,
n.(15); Crossfield v. Such, 8 Exch. 825.
OF TITLE TO THINGS PERSONAL-AND FIRST OF
TITLE BY OCCUPANCY.
(We are next to consider the title to things personal, or the various means of acquiring and of losing such property as may be had therein (a); both which considerations of gain 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 the methods which we shall have occasion to consider, under this division of the work, are six. 1. By occupancy. 2. By invention. 3. By gift and assignment. 4. By contract. 5. By bankruptcy and insolvency. 6. By will and administration. Six others indeed are enumerated in Blackstone's Commentaries (6), viz. by prerogative, by forfeiture, by custom, by succession, by marriage, and by judgment; but these titles, being only of an incidental description, seem to belong more naturally to other more general heads, under which they will respectively be found.
[And, first, a property in goods and chattels may be acquired by occupancy; which, we have more than once remarked (c), was the original and only primitive method of acquiring any property at all; but which has since been restrained and abridged by the positive law 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 intro(a) Vide sup. p. 10. .
(c) Sup. vol. 1. pp. 152, 446. (6) Bl. Com. vol. ii. p. 400.