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[ness, any more than the others through restraint, use their natural liberty, and forsake him.

3. Lastly, a qualified property in animals feræ naturæ may arise propter privilegium; that is to say, a man may have, in exclusion of other persons, the privilege of hunting, taking, and killing certain animals feræ naturæ, There is a transient property in sch animals (usually called game), so long as they continue within one's own liberty or on one's own land, and the owner of such liberty or land may restrain any stranger from taking them therein. But the instant they depart into another liberty, the qualified property of the prior owner ceases (n).]

Passing now from the consideration of animals feræ naturæ, to the consideration of personal property generally, we will first observe, that chattels personal may be either choses in possession, or else choses in action, a distinction which is attended with certain important consequences in the law. Choses in possession are those chattels of which a man has the enjoyment either actual or constructive. They are divided into two kinds, according to whether one has an absolute or a qualified property in them. In the former case a man is fully and completely the proprietor or owner of the thing; in the latter case his ownership is of a special or limited kind. Of special property, as exemplified in the case of animals feræ naturæ, we have already spoken. [But the phrase special property (sometimes called also the qualified property in chattels personal) has another and more important meaning, which may be illustrated by the case of bailment. This is when chattels are delivered by the owner thereof to another person for a particular purpose, for instance, to a carrier to convey to London, or to an innkeeper to secure in his inn, or the like. Here there is no absolute property for all purposes in either the bailor or the bailee. For the bailor has only the right, and not the immediate possession ;

(n) Blades v. Higgs (1866), 11 H. L. C. 621.

[and the bailee has the possession, but only a temporary right. There is therefore a qualified property in them. both; aad each of them is entitled to an action against any stranger by whom the goods are wrongfully damaged or taken away,- -the bailee on account of his immediate possession and the special property incident thereto, the bailor on account of his general ownership (0) ;] but save as against the bailee, the absolute property for all purposes remains in the bailor. Similarly, where goods are acquired by finding, the finder has a special property therein, defeasible, it is true, upon discovery of the rightful owner, but in the meantime valid against the rest of the world (p),-treasure-trove being, of course, excepted (9), and also chattels which (although not treasure-trove) are found buried in the land of any third person (r). On the other hand, a servant who has the care of his master's goods—as a butler of plate, a shepherd of sheep, and the like has not any property therein, either absolute or qualified, but only a mere charge or oversight (commonly called "custody ") of the goods; and his master's property therein remains absolute (s). And when goods are distrained for rent, no property, special or otherwise, is acquired in them by the party distraining or seizing; but they remain in custodiâ legis, until sold or otherwise lawfully disposed of, and in the meantime the property of the original owner remains in him unaltered (t). But, if goods be taken in execution, the sheriff or other officer executing the process has a special property in them during the interval between the seizure and the actual sale, though the absolute property remains in the debtor (u).

(0) Coggs v. Bernard (1704),

1 Sm. L. C. 167.

(p) Armory v. Delamirie (1722), Str. 505; Bridges v. Hawkesworth (1852), 21 L. J. Q. B. 75.

(9) Bk. Iv. pt. 1. ch. VII.

(r) South Staffordshire Water

Co. v. Sharman, [1896] 2 Q. B. 44. (s) 3 Inst. 108.

(t) 2 Saund. by Wms. 47, n. (c).

(u) Giles V. Grover (1831), 1 Cl. & F. 72; Sale of Goods Act, 1893, s. 26.

With regard to choses in action, these are things of which a man has not the possession (either actual or constructive), but merely the right to recover it by action. They comprise not only corporeal things not in possession of the owner, but also incorporeal chattels which have only a notional existence, such as debts, stocks, shares, debentures, and patent and trade-mark rights. [Thus, money due on a bond is a chose in action, for there is a right to claim the money when payable; but there is no possession of it, until it is recovered by course of law, or until payment be first voluntarily made. And so, if a man promise or covenant with me to do any act, and fail 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 law, and possession can only be given me by legal judgment and execution.] And, generally, whenever a man has a right to recover recompense, whether for breach of contract or for any wrong or tort committed, he is said to be entitled to the recompense as a chose in action; and therefore a chose in action is a thing rather in potentiâ than in esse, though the owner may have as absolute a property in, and be as well entitled to, things in action, as to things in possession (a).

[Property in chattels personal, whether in possession or in action, is also subject to distinctions which regard the quantity of interest. For a man may have the total property of a chattel, analogous to the fee simple in a real estate, or he may be the owner of it for life only, or for years only. But there cannot be an estate tail in chattels personal; and, therefore, if they be given by deed or will to A. and the heirs of his body, the total property is vested in A., and the remainders over take no effect (y). This rule

(x) Colonial Bank v. Whinney (1885), L. R. 11 App. Ca. 426. (See post, ch. v. sect. XII.)

(y) Seale v. Seale (1715), 1 P. Wms. 290.

[applies also to the case of leaseholds so limited (a). But if a personal annuity be limited to A. and his heirs or the heirs of his body, A. will in that case have a fee simple conditional at the common law (b).

Personal chattels also, like land, are subject to distinctions with respect to the time of enjoyment, and the number of their owners. And, first, as to the time of enjoyment. By the rules of the ancient common law there could be no future property in chattels personal created so as to take effect in expectancy; because, owing to their 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 have occasioned perpetual suits and quarrels, if such limitations in remainder were generally tolerated or allowed. But yet in last wills and testaments, such limitations of personal goods and chattels, in remainder after a bequest for life, were permitted (c). Originally this indulgence was only shown when merely the use of the goods, and not the goods themselves, was given to the first legatee (d), the property being supposed to continue all the time in the executor of the testator. But now these distinctions are practically disregarded (e); for if a man, either by deed or will, limits his books, furniture, or other chattels to A. for life, with remainder over to B., this remainder is good,—if not as a remainder strictly so called, at all events as an executory interest, which for this purpose is the same thing (f).] The only exception to this rule is the case of things quae ipso usu consumuntur, a gift of which to a person for life will vest in him the absolute ownership. Personal chattels, however, cannot

(a) Leventhorpe v. Ashbie, Rolle's Abr. 831, pl. 1.

(b) Earl of Stafford v. Buckley (1751), 2 Ves. sen. 171.

(c) Stevenson v. Liverpool (1875), L. R. 10 Q. B. 81.

(d) Mar. 106.

(e) 2 Freem. 206; Randall v. Russell (1817), 3 Meriv. 195. (f) Fearne, Cont. Rem. p. 402.

by any method be rendered unalienable beyond the period prescribed by the law against perpetuities, which applies to limitations of interests in personalty as well as interests in real estate (g). They also fall, equally with real estate, within the provisions of the Accumulations Act, 1800 (commonly known as the Thellusson Act), and the Accumulations Act of 1892 (h), the general effect of which two Acts is (we may remember) to invalidate all directions, whether by will or other instrument, for the accumulation of the annual produce of property for any longer time than one of the alternative periods specified in the Acts.

[Second, as to the number of owners. Things personal as well as things real, may belong to their owners, not only in severalty, but also in joint tenancy, or as tenants in common. They cannot, however, be vested in coparcenary, because the beneficial interest in them does not descend from the ancestor to the heir, which is necessary to constitute coparceners. If a horse or other personal chattel be given to two or more absolutely, they are joint tenants thereof; and, unless the joint tenancy be severed, the same doctrine of survivorship takes place as in estates in lands and tenements (). In like manner, if the joint tenancy be severed, as by either of them selling his share, the vendee and the remaining part-owner become tenants in common, without any jus accrescendi or survivorship (k). So, also, if £100 be given by will to two or more, equally to be divided between them, this makes them tenants in common, as we have formerly seen the same words to have done in regard to a devise of real estate (1). It is, however, well established that chattels and other kinds of personal property, as well as real property, belonging to several persons carrying on business in partnership are to be considered as common, and not as

(g) Co. Litt. by Harg. 20 a, n. (5); Gilb. Uses, by Sugd. 121, n. (4); sup. vol. 1. p. 335.

(h) Sup. vol. 1. p. 337.

(i) Litt. s. 281.

(k) Ibid. s. 321; cf. Re Wilks, [1891] 3 Ch. 59.

(1) Vide sup. vol. 1. p. 207.

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