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 recompence for this damage is a chose in action: for though a right to some recompence vests in me at the time of the damage done, yet what and how large such recompence 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. of a contract or or implied, the covered, or its equivalent, is a chose in action. At present we have only to remark, that upon all con- Upon the breach tracts or promises, either express or implied, and the infinite promise, express variety of cases into which they are and may be spun out, thing to be rethe 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 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 a *property in, and be as well entitled to, such [398] 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 As to the time ancient common law, there could be no future property, to of enjoyment of things per sonal. [ *399 ] As to the number of owners. 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 (i): 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 (k); the property being supposed to continue all the time in the executor of the devisor. But now that distinction is disregarded (1): 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) (7). For this, if allowed, would tend to a perpetuity, as the devisee or grantee in tail of a chattel has 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 may belong to their owners, not only in severalty, but also in joint-tenancy, and in common, as well as real estates (8). They cannot indeed be vested in co-parcenary; because they do not descend from the ancestor to the heir, which is necessary to constitute co-parceners. But if a horse, or other personal chattel, be given to two or more, absolutely, they are joint-tenants hereof; and, unless the jointure be severed, the same doctrine of survivorship shall take place (i) 1 Eq. Cas. Abr. 360. (1) 2 Freem. 206. (7) See ante, p. 175, and the note thereto. (8) See ante, pp. 179–194, chapter 12, with the notes thereto. as in estates of lands and tenements (n). 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 (o). So, also, if 100l. 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 (q), the same words would have done in regard to real estates (9). 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 (r). (n) Litt. s. 282; 1 Vern. 482. (0) Litt. s. 321. (p) 1 Eq. Cas. Abr. 292. (9) Mr. Christian observes, that "residuary legatees and co-executors are joint-tenants, unless the testator uses some expression which converts their interests into a tenancy in common; and if one dies before a division or severance of the surplus, the whole (2) Pag. 193. (r) 1 Vern. 217; Co. Litt. 182. that is undivided will pass to the survivor or survivors. (2 P. Wms. 103; 3 Bro. 455.)" [Thicknesse v. Vernon, 2 Freem. 84, 2nd edit.; Cox v. Queenlock, Rep. temp. Finch, 176; Jackson v. Jackson, 9 Ves. 595; White v. Williams, 3 Ves. & Bea. 75.-ED.] 400 CHAPTER XXVI. OF TITLE TO THINGS PERSONAL BY Of the means of of losing title to acquiring and things personal. 1. By occupancy We are next to consider the title to things personal, or the 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 [401] once been acquired by the owner. And, 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 (a) See pag. 2, 3, 8, 258. of occupancy is still permitted to subsist, and which we are now to consider. of an alien ene 1. Thus, in the first place, it hath been said, that any 1. Of the goods body may seize to his own use such goods as belong to an my; 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 laws; 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 authorised by the public authority of the state, residing in the crown (c); 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 holden (d), 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 seized. 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 (ƒ), 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 (g) require, that, before the property can be changed, the goods must have been brought [402] into port, and have continued a night intra præsidia, in a place of safe custody, so that all hope of recovering them was lost. by taking him a And, as in the goods of an enemy, so also in his person, or of his person, a man may acquire a sort of qualified property, by taking prisoner in war. him a prisoner in war(h); at least till his ransom be paid(i). (b) Finch, L. 178. (c) Freem. 40. (d) Bro. Ab. tit. Propertie, 38; Forfeiture, 57. (e) Ibid. (f) De j. b. & p. 1. 3, c. 6, s. 3. 4; Rocc. de Assecur. not. 66. (h) Bro. Abr. tit. Propertie, 18. |