No. 458.

Book 2, part 1, chap. 4, sec. 3, § 2.

No. 459.

him; a complete and full right. (a) It is the bond of property which exists between the owner and the thing, independently of any other person; he may follow it into whose possession soever the same may be, whether the possessor has obtained it bona fide or otherwise. This right of following the thing which is the object of property wherever it may be found, called jus in re, differs from the jus ad rem, which is a right a man has, not in the thing, but simply in relation to the thing, against the person who has contracted toward him the obligation of delivering it to him.(b) It results from an obligation purely personal, existing between two or more designated persons, by which one is bound to give or to do something for the other. The jus ad rem is the title or means of acquiring a thing in which we have a property, jus in re.

The exercise of the right of property consists in the performance of every thing in relation to it, not forbidden by law; for what the law does not forbid, it allows. It would be difficult, perhaps useless, to enumerate all the acts which a man may do in relation to his property; these may be reduced to three classes which correspond to the three fundamental points of property, namely; enjoyment, exclusion and disposition.

458.-1. The first class, or the right of enjoyment, comprehends the acts which have for their object to procure from the thing, which is the subject of property, all that is useful or agreeable; in a word, to draw from it all the possible advantages, not forbidden by law.

459.-2. The second class, or the right of exclusion, consists in the performance of all those acts which interdict others or prevent them from the use of the thing; to claim the thing, and repress all attempts to

(a) Poth. Dr. de Domaine de Prop. n. 1; 1 Bl. Com. 312.

(b) 1 Bl. Com. 312. This term is nearly equivalent to chose in action. Bouv. L. D. h. t.; 2 Woodes. Lect. 235; Poth. Du Dr. de Prop. n. 1.

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Book 2, part 1, chap. 5.

No. 461.

invalidate the enjoyment or the disposition of the

owner.

460.-3. The third class includes all those acts which are relative to the disposition of the thing. To dispose of a thing, is to make of it what use we please: the owner has a right to dispose of his property in the most absolute manner. This right includes that of changing the nature of the thing, to change its form, its surface, and even its substance as much as possible; in fact he may consume it. When it is said the owner has a right to abuse it, jus abutendi, it must be understood as used in opposition to the right of simple usage, jus utendi, which is the right of using without destroying the thing. But this right of abuse is not unlimited.(a)

This right to dispose of a thing includes that alienation, in whole or in part, by conveying the title forever or only for a limited time, purely and without conditions, in favor of one or more persons, gratuitously or for a consideration. To alienate is to transfer one's right of property to another.

This same right includes further that of abandoning the thing and the property, without transferring it to another.

The right of disposing of a thing includes also that of pledging the thing. Indeed, whenever a person binds himself, he binds all his property, and that which he may acquire, for the fulfilment of his obligation; hence the maxim, he who binds himself binds his property.

CHAPTER V.-DIVISION OF PROPERTY INTO PERFECT AND IMPERFECT.

461. Property may be divided into perfect and im

(a) The owner of a horse or other animal has, it is true, power over the life of such animal, but he cannot use it in such a cruel manner as will be injurious to the community, either by his example or on account of the cruelty. And for such acts the owner of such property may be punished criminally. 6 City Hall Rec. 62; 3 City Hall Recorder, 191. So the owner of a slave cannot put him to death.

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Book 2, part 2, tit. 1.

No. 463.

perfect. It is perfect when the owner can exercise all the rights of which it is susceptible.

It is imperfect when some of these rights have been separated; for example, a thing pledged belongs to the owner, subject to the pledge.

When the owner transfers his personal property, unless accompanied by possession, he can transfer only the rights he possesses.

PART II.-OF PERSONAL PROPERTY.

462. The phrase movable property does not exactly mean personal property. By movable property is meant every thing which in its nature may be removed, except what is appropriated to real estate by destination, as the keys of a house, and certain fixtures in mills and other buildings; personal property includes not only all movables, but also something more; the whole of which is known by the name of chattels. This term then includes all kinds of property, except the freehold, or things which are parcel of it.(a)

In considering their nature, chattels may be divided into real and personal.

TITLE I.-OF CHATTELS REAL.

463. Chattels real are such as either appertain not to the person immediately, but to something by way of dependency, as a box with the title deeds of lands; or such as are issuing out of some real estate, as a lease of lands, a term of years, which pass like personalty to the executor of the owner. (b) The duration of the term of the lease is immaterial, provided it be fixed and determinate, and there be a reversion or remainder in fee in some other person. (c) It is but per

(a) 1 Chit. Pr. 90, 91; Kendall v. Kendall, 4 Russ. R. 360.

(b) Co. Litt. 118; 2 Kent, Com. 342; 8 Vin. Ab. 296; Bac. Ab. Baron and Feme, (C 2).

(c) 1 Bl. Com. 386.

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Book 2, part 2, tit. 2, chap. 1, sec. 1.

No. 467.

sonal property, although it may extend to a thousand years, because the time being fixed, it falls below a freehold.(a)

464. Heir looms, which are chattels considered as annexed and necessary to the enjoyment of the inheritance. Contrary to the nature of chattels, they descend to the heir, along with the inheritance, and do not pass to the executor of the last proprietor. These are charter deeds and other evidences of the title to the land, together with the box in which they are usually kept; the keys of the house, and fish in an artificial pond, and pigeons in a pigeon-house, deer in a park, are all heir looms. (b) These differ from fixtures, which will be considered hereafter.

TITLE II.-OF CHATTELS PERSONAL.

465. Chattels personal may be divided into those which are in possession, and those which are in action.

CHAPTER I.-OF CHATTELS PERSONAL IN POSSESSION.

466. Having already considered the nature of possession of personal property and its effects, (c) we will now consider the different kinds of such property in two articles, the first of which will treat of tangible personal property, and the second of personal property not tangible.

SECTION 1.-OF TANGIBLE PROPERTY.

467. Tangible personalty in possession includes not only things actually separated and movable, whether animate or inanimate, but also some things which, though annexed to, or proceeding out of real property, are considered in law, for some purposes and under some circumstances removable, and consequently treated as personal property; for example, a tenant's

(a) Co. Litt. 46 a; Case of Gay, 5 Mass. 419; Brewster v. Hill, 1 N. H. Rep. 350; Bac. Ab. Legacies, (B), Bouv. ed.

(b) 1 Inst. 3 a; Id. 185 b.

(c) Ante, B. 2, pt. 1, t. 1, c. 2.

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Book 2, part 2, tit. 2, chap. 1, sec. 1, § 1.

No. 469.

fixtures, removable during the term; growing trees when sold, though not actually severed; and emblements, whether growing corn, roots, or cultivated grass, and growing vegetables.

This tangible personal property in possession may itself be divided into two sorts: an absolute and a qualified property.

§ 1. Of absolute property in possession.

468. Property in possession absolute, is where a man has, solely and exclusively, the right, and also the occupation of any movable chattel, so that it cannot be transferred from him, or cease to be his without his act, consent, or default; unless, indeed, when such property is taken by authority of law for public use.(a) In such case the owner is to be justly paid or indemnified. This kind of property is either animate or inanimate.

469.-1. Animals are distinguished into such as are domita, of a tame or domèstic nature; and such as are feræ naturæ, of a wild or savage disposition. In such animals as are tame and domestic, as horses, kine, sheep, poultry, and the like, a man may have an absolute property as he may have in inanimate things, because they stay continually in his occupation, and will not stray from his house or person, unless by accident or fraudulent enticement, in either of which cases the owner does not lose his property.(b) Where slavery is established a man has an absolute property in his slave, and if he runs away, the master may retake him, or establish his right by action. (c)

There is a class of animals in which, although a property of some kind may be had in them, yet, on account of their inferiority, they are not the subject

(a) 2 Bl. Com. 389; Story on Bailm. § 93, g, h, i.

(b) 1 Bl. Com. 390; Dig. 41, 1, 6; 3 Toull. n. 373: 1 Chit. Pr. 8, 7. (c) Withers v. Smith, 4 Bibb, 170; Plumpton v. Cook, 2 A. K. Marsh.