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. Thus money due on a [397] 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. At present we have only to remark, that upon all contracts or promises, either express or implied, and the infinite variety of cases into which they are and may be spun out, the law gives an action of some sort or other to the party injured in case of non-performance; to compel the wrongdoer 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 h The same idea, and the same denomination, of property prevailed in the civil law. "Rem in bonis nostris habere intelligimur, "quotiens ad recuperandum eam actionem "habeamus." (Ff. 41. 1. 52.) And again, aeque bonis adnumerabitur etiam, si quid "est in actionibus, petitionibus, persecutioni"bus. Nam et haec in bonis esse videntur.” (Ff, 50, 16. 49.) 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 may have as absolute [398] a property in, and be as well entitled to, such things in action, as to things in possession. 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 ancient 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 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 though originally that indulgence was only shewn, when merely the use of the goods, and not the goods themselves, was given to the first legateek; the property being supposed to continue all the time in the executor of the devisor. But now that distinction is disregarded1: 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. For this, if allowed, would tend to a perpetuity, as the devisee or grantee in tail of a chattel has i1 Eau. Cas. abr. 360. i Mar. 106, 1 2 Freem. 206. no method of barring the entail: and therefore the law vests in him at once the entire dominion of the goods, being analogous to the fee-simple which a tenant in tail may acquire in a real estate. NEXT, as to the number of owners. Things personal [399] may belong to their owners, not only in severalty, but also in joint-tenancy, and in common, as well as real estates. 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 if a horse, or other personal chattel, be given to two or more, absolutely, they are jointtenants hereof; and, unless the jointure be severed, the same doctrine of survivorship shall take place as in estates of lands and tenements". 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 100%. 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 estates (2). 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. n Litt. sec. 282. 1 Vern. 482. ¶ pag. 193. r 1 Vern. 217. Co. Litt. 182. p 1 Equ. Cas. abr. 292. (2) Residuary legatees and executors are joint-tenants, unless the testator uses some expression which converts their interest into a tenancy in common ; and if one dies before a division or severance of the surplus, the whole that is undivided will pass to the survivor or survi 2 P. Wms. 113. 3 Bro. 455. See p. 193. ante. vors. CHAPTER THE TWENTY-SIXTH. OF TITLE TO THINGS PERSONAL 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: 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 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 acquired by occupancy: which we have more than once a 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, a See pag. 3. 8.258. where such things are found without any other owner, they for the most part belong to the king by virtue of his prerogative; except in some few instances, wherein the original and natural right of occupancy is still permitted to subsist, and which we are now to consider. 1. THUS, in the first place, it hath been said, that any body may seize to his own use such goods as belong to an alien enemy b. For such enemies, not being looked upon as members of our society, are not entitled during their state of enmity to the benefit or protection of the law; and therefore every man that has opportunity is permitted to seize upon their chattels, without being compelled as in other cases to make restitution or satisfaction to the owner. But this, however generally laid down by some of our writers, must in reason and justice be restrained to such captors as are authorized by the public authority of the state, residing in the crown; and to such goods as are brought into this country by an alien enemy, after a declaration of war, without a safe-conduct or passport. And therefore it hath been holdend, that where a foreigner is resident in England, and afterwards a war breaks out between his country and ours, his goods are not liable to be seised. It hath also been adjudged, that if an enemy take the goods of an Englishman, which are afterwards retaken by another subject of this kingdom, the former owner shall lose his property therein, and it shall be indefeasibly vested in the second taker; unless they were retaken the same day, and the owner before sun-set puts in his claim of property e. Which is agreeable to the law of nations, as understood in the time of Grotius f, even with regard to captures made at sea; which were held to be the property of the captors after a possession of twenty-four hours; though the modern authorities b Finch. L. 178. e Freem. 40. d Bro. Abr. tit. propertie. 38. forfeiture. 57. e Ibid. f de j. b. and p. l. 3. c. 6. sec. 3. g Bynkersh. quaest. jur. publ. I. 4. Rocc. de Assecur, not. 66. |