long continue. Within the class of choses in action was comprised a right of growing importance, namely, that of suing for money due, which right is all that constitutes a debt. That a debt should be incapable of transfer A debt. was obviously highly inconvenient in commercial transactions; and in early times the custom of merchants rendered debts secured by bills of exchange assignable by indorsement and delivery of the bills. But choses in action, not so secured, could only be sued for by the original creditor, or the person who first had the right of action. In process of time, however, an indirect method of assignment was discovered, the assignee being empowered to sue in the name of the assignor; and in the reign of Henry VII. it was determined that a "chose in action may be assigned over for lawful cause as a just debt, but not for maintenance, and that where a man is indebted to me in £20, and another owes him £20 by bond, he may assign this bond and debt to me in satisfaction, and I may justify for suing it in the name of the other at my own costs (j)." Choses in action, having now become assignable, became an important kind of personal property; and their importance was increased by an act of the following reign (k), whereby the taking of interest for money, which had previously been unlawful, was rendered legal to a limited extent. Loans and mortgages soon became common, forming a kind of incorporeal personal property unknown to the ancient law. In the reign of Queen Anne, promissory notes were rendered, by act of parliament, assignable by indorsement and delivery, in the same manner as inland bills of exchange (1). But other choses in action continue to this day assignable at law only by empowering the assignee to sue in the name of the assignor.

(j) Bro. Abr. tit. Chose in Action, pl. 3, 15 Hen. VII. c. 2.

(k) Stat. 37 Hen. VIII. c. 9.

(7) Stat. 3 & 4 Anne, c. 9, made perpetual by stat. 7 Anne, c. 25, s. 3.

Equitable choses in action.

Funds, shares, &c.

In addition to the mass of incorporeal personal prowhich now exists in the form of choses in action perty, recoverable by action at law, there exist also equitable choses in action, or rights to be enforced by suit in equity; of these a pecuniary legacy is a familiar instance, for which, if the executor withhold payment, the legatee can maintain no action at law (m), but must bring a suit in equity. This kind of chose in action may be assigned directly from one person to another, and the assignee may sue in equity in his own name. For equity, being of more modern origin than the common law, is guided in its practice by rules more adapted to the exigencies of modern society.

In modern times also several species of property have sprung up which were unknown to the common law. The funds now afford an investment, of which our forefathers were happily ignorant, whilst canal and railway shares, and other shares in joint stock companies, and patents and copyrights, are evidently modern sources of wealth. These kinds of property are all of a personal nature, many of them having been made so by the acts of parliament under the authority of which they have originated. For want of a better classification, these subjects of personal property are now usually spoken of as choses in action. They are, in fact, personal property of an incorporeal nature, and a recurrence to the history of their classification amongst choses in action will, as we shall hereafter see, help to explain some of their peculiarities.

(m) Deeks v. Strutt, 5 T. Rep. 690; Braithwaite v. Skinner, 5 Mee. & Wels. 313. Legacies under fifty pounds may now be recovered in the county courts, under the acts for the more easy recovery of small debts and demands

in England, unless the validity of the bequest be disputed. Stats. 9 & 10 Vict. c. 95, ss. 58, 65; 13 & 14 Vict. c. 61; 19 & 20 Vict. c. 108. These courts have now an equitable jurisdiction. Stat. 28 & 29 Vict. c. 99.

from real.

Such is the general outline of the subjects of modern How personal personal property. They are distinguished from real property differs property by being unaffected by the feudal rules of tenure, by being alienable by methods altogether different, by passing in the first instance to the executors, when bequeathed by will, and by devolving, on their owner's intestacy, not on his heir, but on an administrator appointed formerly by the Ecclesiastical Court, but now by the Court of Probate, by whom they are distributed amongst the next of kin of the deceased. On the first of these characteristics, however, mainly depends the nature of the property which exists in things personal. The first lesson to be learned on the nature of real property is this—that of such property there can be no such thing as an absolute ownership; the utmost that can be held or enjoyed in real property Real property is an estate (n). There be an estate for life, or an held by estates. may estate tail, or an estate in fee simple; but, according to the law of England, there cannot exist over landed property any absolute and independent dominion. All the land in the kingdom is the subject of tenure; and if the estate is not holden of any subject, at any rate it must be held of the crown. With regard to personal property, Personal prohowever, the primary rule is precisely the reverse. Such perty the subject of absolute property is essentially the subject of absolute ownership, ownership. and cannot be held for any estate. It is true that the phrase personal estate is frequently used as synonymous with personal property; but this general use of the term estate should not mislead the student into the supposition that there can be any such thing as an estate in personalty properly so called. The rule that no estate can subsist in personal property would seem to have originated in the nature of such property in early times. Goods and chattels of a personal kind, in other words, moveable articles, then formed, as we have seen, the

(n) Principles of the Law of Real Property, 16.

whole of a man's personal estate. And such articles, it is evident, may be the subjects of absolute ownership, and have not those enduring qualities which would render them fit to be holden by any kind of feudal tenure. As personal property increased in value and variety, many kinds of property of a more permanent nature became, as we have seen, comprised within the class of personal, such as leases for years, of whatever length, and Consolidated Bank Annuities. But the rule that there can be no estate in chattels, the reason of which was properly applicable only to moveable goods, still continues to be applied generally to all sorts of personal property, both corporeal and incorporeal. The consequences of this rule, as we shall hereafter see, are curious and important. But in the first place it will be proper to consider the laws respecting those moveable chattels, or choses in possession, which constitute the most ancient and simple class of personal property; the class, however, which has given to the rest many of the rules for regulating their disposition.

(9)

PART I.

OF CHOSES IN POSSESSION.

CHAPTER I.

OF CHATTELS WHICH DESCEND TO THE HEIR.

CHOSES in possession are moveable goods, such as plate, furniture, farming stock, both live and dead, locomotive engines and ships. These, as has been before remarked, are essentially the subjects of absolute ownership, and cannot be held by estates; they are alienable by methods altogether different from those employed for the conveyance of landed property, and they devolve in the first instance on the executor of the will of their owner, or on the administrator of his effects, if he should die intestate. There are, however, some kinds of choses in possession Exceptions to which form exceptions to the general rule: these consist the general of certain chattels so closely connected with land that they partake of its nature, pass along with it, whenever it is disposed of, and descend along with it, when undisposed of, to the heir of the deceased owner. The chattels which thus form exceptions are the subject of the present chapter: they consist principally of title deeds, heir-looms, fixtures, chattels vegetable, and animals feræ naturæ. Of each in their order.

rule.

Title deeds, though moveable articles, are not strictly Title deeds speaking chattels. They have been called the sinews of pass by the conveyance of the land (a), and are so closely connected with it that the lands. they will pass, on a conveyance of the land, without

(a) Co. Litt. 6 a.