property; defeasible, it is true, upon discovery of the right owner, but in the meantime valid against the rest of the world (u). On the other hand, a servant who has the care of his master's goods and chattels-as a butler of plate, a shepherd of sheep, and the like—has not any property or possession either absolute or qualified; but only a mere charge or oversight, and his master's property remains absolute (r). It may be observed, that 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 (): though, on the other hand, if goods be taken in execution to satisfy a judgment, the sheriff or other officer executing the process has a special property in them during the interval between the seizure and the actual sale (≈).

Having thus considered the divisions of property in possession, we will proceed next to take a short view of the nature of property in action; which is where a man has not the enjoyment (either actual or constructive) of the thing in question, but merely a right to recover it by action; from whence the thing so recoverable is called a thing (or chose) in action. Thus money due on a bond is a chose in action, for a right to claim the money vests whenever it becomes payable; but there is no possession, till recovered by course of law, unless 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 damage done, yet what and how large such recompense shall be, can only be ascertained by law, and pos

(u) Armoury v. Delamirie, Str. 505.

() 3 Inst. 108.

(y) 2 Saund. by Wms. & Pat. 47, n. (c).

(-) Wilbraham r. Snow, 2 Saund. 47; Giles v. Grover, 9 Bing. 128.

[session can only be given me by legal judgment and execution (a). 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 in some respects to the fee simple in a real estate (b); or he may be the owner of it for life, or for years only (c). 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

(a) According to Blackstone, (vol. ii. p. 397,) "All property in action "depends entirely upon contract, "either express or implied." But it has been justly remarked, that the term chose in action has a more extensive application, and extends to the right to recover damages for a trong, independently of any contract between the parties. (1 Chit. Pract. Law, p. 99, n.)

(5) One remarkable difference, however, between property in chattels personal and property in real

estate, consists in the absence in the former of all those incidents which result from the doctrine of tenure, as explained in our first volume.

(c) But if a chattel personal 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; for there can be no estate tail in a personal chattel. (Seale v. Seale, 1 P. Wms. 290; 2 Bl. Com. 398. See also, Holloway v. Webber, Law Rep., 6 Eq. Ca. 523.)

[wills and testaments such limitations of personal goods and chattels in remainder, after a bequest for life, were permitted (d); 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 (e); the property being supposed to continue all the time in the executor of the testator. But now these distinctions are disregarded (f); 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 (g).] Personal chattels, however, cannot, by any method, be rendered unalienable beyond the period prescribed by the law against perpetuity, which applies to personalty as well as real estate (); and they also fall equally with real estate within the provisions of 39 & 40 Geo. III. c. 98; the general effect of which 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 period than the life of the settlor, and twenty-one years after his death (i).

In every case it is obvious that the interest of the party in remainder, in personal chattels, is in its nature precarious. But if the tenant for life should begin to injure the property, he may be restrained on application made to the chancery division of the High Court of Justice, and such further remedy obtained as the nature of the case may require ().

Next 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 and in common. 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-though subject to the claims of creditors -among the next of kin. But they otherwise follow, in general, the same rules as things real, in reference to those modifications of estate which regard the number of owners. [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 (7); 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 (m); and so also if 1007. 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 (o). But (as an instance, on the other hand, of the failure of the analogy of things personal to things real in regard to joint tenancy) it is proper to remark, that, for the encouragement of husbandry and trade, it is held that stock on a farm, though occupied jointly, and also 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 (p).]

It remains to add that, as in the case of things real, so in that of things personal, the legal property may be vested

(1) Litt. s. 281; Shore v. Bil

lingsly, 1 Vern. 482.

(m) Litt. s. 321.

(n) 1 Eq. Ca. Ab. 292.

(0) Vide sup. vol. 1. p. 351. (p) See Buckley v. Barber, 6 Exch. 169.

in one man, to the use of or in trust for another; whose interest, as being that of the beneficial and substantial owner, will be recognized and protected in equity. But as regards things personal, this division of the ownership is less frequent than in things real, (the legal interest being, in general, also a beneficial one); and they are in no instance affected by the Statutes of Uses, or by any of its attendant learning.