is entitled to an action, in case the goods be damaged or taken away: the bailee, on account of his immediate possession; the bailor, because the possession of the bailee is, immediately, his possession also. (e) So also in case of goods pledged or pawned upon condition, either to repay money or otherwise; both the pledger and pledgee have a qualified, but neither of them an absolute, property in them: the pledger's property is conditional, and depends upon the performance of the condition of repayment, &c.; and so too is that of the pledgee, which depends upon its non-performance.(f) The same may be said of goods distreined for rent, or other cause of distress: which are in the nature of a pledge, and are not, at the first taking, the absolute property of either the distreinor, or party distreined upon; but may be redeemed, or else forfeited by the subsequent conduct of the latter. But a servant, who hath the care of his master's goods or chattels, as a butler of plate, a shepherd of sheep, and the like, hath not any property or possession either absolute or qualified, but only a mere charge or oversight.(g)

Having thus considered the several divisions of property in possession, which subsists there only where a man hath both the right and also the occupation of the thing; we will proceed next to take a short view of the nature of property in action, 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. (h) Thus money due on a bond is a [*397 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 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 wrong-doer 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

1 Roll. Abr. 607.

(f) Cro. Jac. 245.

(e) 3 Inst. 108.

(A) 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 ha beamus." Ff. 41, 1, 52. And again, "æque bonis adnume rabitur etiam, si quid est in actionibus, petitionibus, perse cutionibus. Nam et hæc in bonis esse videntur." Ff. 50, 16.

49.

It is certainly an error to say that all property in action depends upon contracts ex press or implied. There is a very large class of choses in action which arise ex delicto. My claim to compensation for an injury done to my person, reputation, or property is as truly a chose in action as where it is grounded on a breach of covenant or contract. It is true that, in general, an action for a tort to my person or reputation, if not prose cuted to judgment in the lifetime of the parties, dies,-actio personalis moritur cum persona; but as to torts to the property, by various statutes generally adopted in the United States, it is not so. Stat. 4 Edw. III. c. 7. 3 & 4 W. IV. c. 42. The statute 9 & 10 Vict. c. 93 also gives to the executors and administrators of a person who has met with his death by the wrongful act or default of another, an action against the wrong-doer, the damages in such case being distributed among the family of the deceased Similar statuter have been enacted in several of the United States.-SHARSWOOD.

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 *398] have as *absolute 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 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 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 them. selves, 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) 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 goods, being analogous to the fee-simple which a tenant in tail may acquire in a real estates.

*Next, as to the number of owners. Things personal may belong to

*399] their owners, not only in severalty, but also in joint-tenancy, and in

Although they cannot be entailed in the strict sense of the word, yet a disposition in the nature of an entail may be made of them by devise or deed of trust, and they may thereby be rendered unalienable for as long a time as if they were absolutely entailable; provided it be not attempted to render them unalienable beyond the term of lives in being and twenty-one years after, or, in case of a posthumous child, perhaps a few months longer; for, if the executory limitations of personalty be upon contingencies too remote, the whole property would be in the first taker. See Mr. Hargrave's note to Co. Litt. 20. a., n. 5.-ARCHBOLD.

When legacies are given to two or more persons in undivided shares, as 1001. "to A and B." or to the children of C., or in case of a bequest to two without words of severance, the legatees will take as joint-tenants. 2 P. Wms. 347, 529. 4 Bro. C. C. 15. 3 Ves. Jr. 628, 632. 6 Ves. Jr. 130.

When the legacies are given in divided shares, as so much of a sum of money to B. and so much to C., the legatees will be considered as tenants in common; as in instances where legacies are given to two or more persons "share and share alike,” or to and among them," or "to them respectively," or "to be equally divided amongst them," such words will create & tenancy in common. 3 Atk. 731. 2 Atk. 441. 2 Atk. 121. 1 Atk. 494. 3 Bro. C. C. 25. 5 Ves. Jr. 519. Cases have occurred in which the determination that the above words or expressions should create a tenancy in common would have seemingly involved a contradiction, as in those instances where such words of severance occurred and a bequest over to surviving legatees was immediately grafted upon them. In those instances the court of chancery, in order to give effect to every word in the bequest, has considered the words creating the survivorship among the legatees as intended to be confined to the time of the death of the testator, and therefore decreed that the legatees should be considered tenants in common from that period, with benefit of survivorship in case of the death of any before the testator. 1 P. Wms. 96. 2 P. Wms. 280. 1 Eq. C. A. 292. Prec. Ch. 78. 2 Eq. C. A. 343. 2 Ves. Jr. 265, 634. 3 Ves. Jr. 205, 450. 4 Ves. Jr. 551. 5 Ves. Jr. 806. We must observe that the operation of a bequest to "survivors," grafted upon a tenancy in common, will not be confined to the period of the testator's death,

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 joint-tenants hereof; and, unless the jointure be severed, the same doctrine of survivorship shall take place 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.(0) So, also, if 1001. 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(g) the same words would have done in regard to real estates. 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)10

(") Litt. 282. 1 Vern. 482.
Litt.321.

(P) 1 Eq. Ca. Abr. 292.

(4) Page 193.
(1 Vern. 217. Co. Litt. 182.

if it can be further extended with propriety: therefore in several cases such bequests to survivors, from the particular construction of each will, was considered efficient during the minority of the legatees, as they were not entitled to the benefit of the provisions before the age of twenty-one; and, perhaps, in order to effectuate the intention and prevent a lapse, when a life-interest is given prior to the distribution directed among the legatees, the period of survivorship will be extended during the life of the tenant for life. 1 Ves. 13. 3 Atk. 619. Amb. 383. A bequest to two or more "in joint and equal proportions," or "jointly and between them," will create a tenancy in common,the terms "joint" or "jointly" not being considered as intended to impart a joint-interest to the legatees, but to signify a gift to them altogether. Amb. 656. 1 Bro. C. C. 118. Although, as we have already seen, the words "equally to be divided," and "share and share alike," &c. will create a tenancy in common, yet when it appears from the context of the will that a joint-tenancy was intended, such words will not be permitted to sever the interests of the legatees. 3 Bro. C. C. 215. Holt's Rep. 370. Roper on Legacies, 2 vol. 259 to 287. Residuary legatees and executors are joint-tenants, unless the testator use 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 survivors. 2 P. Wms. 529. 3 Bro. 455; and see p. 193, ante.— -CHITTY.

10 As between partners in trade or farming there is, generally speaking, no survivorship between them as to personal property in possession, for each of their respective shares or degrees of interest go to their personal representatives, who become tenants in common with the survivor of all the partnership effects in possession, it being a maxim, inter mercatores jus accrescendi locum non habet. Co. Litt. 3, 282, 182, a. 1 Vern. 217. 1 Meriv. 564. 1 Ld. Raym. 281. Vin. Abr. Partners. But it has been determined that the good will of a partnership survives; but that has been disputed. 5 Ves. 539. 15 Ves. 218. 1 Jac. & W. 267. A court of equity has barred survivorship, although the deceased partner, upon being informed that by law there would be a survivorship, said he was content the stock should survive, (1 Vern. 217;) and though if two persons take a farm, the lease will survive, but if they lay out money jointly upon it, in the way of trade, that turns round the estate at law and makes it equitable. 1 Ves. Jr. 435; see, further, 3 Chit. Com. L. 235, 236. But, although there is no survivorship as to partnership property in possession, yet at law there is as to choses in action; for when one or more partners, having a joint legal interest in a contract, dies, an action against the said parties must be brought in the name of the survivor, and the executor or administrator of the deceased cannot be joined, neither can he sue separately, but must resort to a court of equity to obtain from the survivor the testator's share of the sum which has been recovered. 1 East, 497. 2 Salk. 441. 1 Ld. Raym. 346. Carth. 170. Vin. Aor. Partner, D.-CHITTY.

VOL. I.-45

705

CHAPTER XXVI.

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 occu pancy. 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 remarked, (a) 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 pos session in things personal, which has once been acquired by the owner. And, where such things are found without any other owner, they for the *401] 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 anybody 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 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 authorized by the public authority or 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 sunset puts in his claim of property.(e) Which is agreeable to the law of nations, as understood in the

(a) See pages 3, 8, 258.
(b) Finch, L. 178.
() Freem. 40.

(d) Bro. Abr. tit. propertie, 38; forfeiture, 57.
() Ibid.

'Questions respecting the seizure of property as prizes seldom arise in the common law or equity courts, they being in general cognizable only in the admiralty courts; and when a ship is bona fide seized as prize, the owner cannot sustain an action in a court of common law for the seizure, though she be released without any suit being instituted against her, his remedy, if any, being in the court of admiralty. 2 Marsh. R. 133. And the same rule applies to the imprisonment of the person when it has taken place merely as a consequence of taking a ship as prize, although the ship has been acquitted. 1 Le Caux vs. Eden, Doug. 594. For the law respecting seizures and captures, and the modes of acquiring and losing property thereby, see the admiralty decisions of Sir William Scott, collected and arranged in I Chitty's Commercial Law, 377 to 512, and 2 Wooddes 435 to 457.-CHITTY.

2 And, by modern decisions, the right to sue upon contracts made with him during peace is only suspended, not forfeited, by war. 13 Ves. Jr. 71. 3 B. & P. 191. 6 Taunt 239 1 Chitty's Com. L. 423 to 426.-CHITTY.

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 (g) require, that before the property can *be changed, the goods must have been brought into port, and have [*402 continued a night intra presidia, in a place of safe custody, so that all hope of recovering them was lost."

And, as in the goods of an enemy, so also in his person, a man may acquire a sort of qualified property, by taking him a prisoner in war; (h) at least till his ransom be paid. (i) And this doctrine seems to have been extended to negroservants,(j) who are purchased, when captives, of the nations with whom they are at war, and are therefore supposed to continue in some degree the property of the masters who buy them: though, accurately speaking, that property (if it indeed continues) consists rather in the perpetual service, than in the body or person, of the captives.(k)

2. Thus again, whatever movables are found upon the surface of the earth, or in the sea, and are unclaimed by any owner, are supposed to be abandoned by the last proprietor; and, as such, are returned into the common stock and mass of things: and therefore they belong, as in a state of nature, to the first occupant or fortunate finder, unless they fall within the description of waifs, or estrays,

Modern authorities require something more to vest the property of a captured vessel in the captors. "I apprehend that, by the general practice of the law of nations, a sentence of condemnation is at present deemed generally necessary, and that a neutral purchasor in Europe, during war, does look to the legal sentence of condemnation as one of the title-deeds of the ship if he buys a prize-vessel. I believe there is no instance in which a man, having purchased a prize-vessel of a belligerent, has thought himself quite secure in making that purchase merely because that ship had been in the enemy's possession twenty-four hours, or carried infra præsidia." Sir William Scott, in the case of the Flad Oyen, 1 Rob. Rep. 139. See, also, 3 Rob. Rep. 97 and 236, 237, 238. Goss vs. Withers, 2 Burr. 683. Assivedo vs. Cambridge, 10 Mod. 79. But if, after the transfer of a prize to a neutral, a peace be concluded between the belligerents, the transfer becomes valid, even though there was no legal condemnation. 6 Rob. Rep. 142. The title of a neutral will not be defeated by his subsequently becoming an enemy. 6 Rob. Rep. 45. See 1 vol. Chitty's Com. L. 433, 434. It has been established by several acts of parliament that, among English subjects, ships or goods taken at sea by an enemy, and afterwards retaken at any indefinite period of time, and whether before or after sentence of condemnation, are to be restored to the original proprietors on payment of certain salvage. 2 Burr. 1198, and 1 Bla. Rep. 27. The statute 43 Geo. III. c. 160 s. 39 makes an excep tion as to ships which have been set forth by the enemy as vessels of war, enacting that these shall not be restored to the original owners, but belong wholly to the recaptors. And if the property recaptured were captured first in an illegal trade, then the original right is divested, and the recaptors are not bound to restitution. 2 Rob. Rep. 77. In the case of the Santa Cruz (1 Rob. Rep. 49) Sir William Scott said, "The actual rule of the English maritime law I understand to be this: that the maritime law of England, having adopted a most liberal rule of restitution with respect to the recaptured property of its own subjects, gives the benefit of that rule to its allies till it appears that they act towards British property on a less liberal principle. In such a case it adopts their rule, and treats them according to their own measure of justice." But restitution in any case is not gratuitous; for, by the 43 Geo. III. c. 160, certain rates of salvage are secured to the recaptors for saving or recovering the property. One-eighth of the beneficial interest in the whole recaptured property is given to king's ships, and one-sixth to private ships. And the reward of salvage is given in cases of rescue when it is effected by the rising of the captured crew against the captors. 1 Rob. Rep. 271. 4 ib. 47. 1 Edw. Rep. 68. -CHITTY.

Ransom of ships, &c. is now illegal, unless in case of necessity, to be allowed by the admiralty, by 22 Geo. III. c. 25. 43 Geo. III. c. 160, ss. 34, 35, 36. 42 Geo. III. c. 2CHITTY