CHAP. III. I. RIGHTS the farming utensils would not pass, (b) though we have seen that a bequest of goods, "stock and moveable," would pass to the legatee "growing crops." (c) In Jamaica, negro slaves PERSONALTY. were considered part of the real estate (though assets for the payment of debts) and they, therefore, passed under a devise of rents, issues and profits of the estate, to the devisee. (d) When in a bequest of personalty there is a doubt in the meaning of technical terms, as in the will of a statuary, they may be explained by extrinsic evidence and examination of artists well informed in the manufacture. (e) ΤΟ extent of interest, In most descriptions of personal things, the owner may have Secondly. The either the absolute and entire interest, or only a qualified or and, Thirdly, temporary interest; as a bailee of various descriptions, or for time of enjoyment of personal proa special purpose; and, as regards the time of enjoyment, his perty.(f) right may be to the immediate possession, or only to the possession at a future time. It was formerly held otherwise, but upon the whole, by a series of decisions, it is now settled, that every species of property, whether personalty or realty, is, in substance, equally capable of being settled in the way even of entail; and, though the modes of so settling the same vary according to the nature of the subject, yet they tend to the same point, and the duration of the entail is circumscribed almost as nearly within the same limits as the difference of property will allow. (g) It is perfectly settled, that whether there be a bequest for life of the thing itself, or of its use only, a limitation over upon the death of the legatee will be supported, and that chattels may be limited in strict settlement by testament, or otherwise, so as to answer all the purposes of an entail, though considerable care and skill are necessary in using proper terms for the purpose. (h) The remedies and punishments frequently depend on the precise nature of these interests, and each of which will be explained in the progress of these pages. It may suffice here to allude to one familiar instance; if the owner of a personal chattel has devested himself of the right to immediate possession, as by letting furniture for a term of years, he cannot support an action of trespass or trover for an injury committed to the same during that time, those actions being proper only when the owner has possession in fact, or, at least, the right to immediate possession; but he (b) Stuart v. Bute, 11 Ves. 657. (c) Ante, 92. (d) 3 Simons, 398. (e) Id. 24. (f) See division of subject, ante, 84. (g) As to the entails of terms for years of personal chattels, sec 8 Co. 94; 10 Co. 46, b.; Sir W. Jones, 15; 1 P. Wms. 1; (h) Id. ibid. See 2 Roper on Legacies, I. RIGHTS CHAP. III. must proceed by action on the case for the injury, when it affects his reversionary interest, as by an absolute sale and PERSONALTY. permanent injury. (¿) ΤΟ Fourthly, The number of Owners in the same personal thing. Fifthly, The modes by which a Things personal may also belong not only in severalty to one person alone, but in joint tenancy and in common, as well as real estates; but they cannot be vested in coparcenary amongst females, because they do not descend from ancestor to heir like realty, but in the absence of a will vest in the administrator for the use of creditors; and as to any surplus, equally amongst the next of kin. When strictly in joint tenancy, then the jus accrescendi applies, and the survivor will be entitled, at least at law, to the whole interest. But in cases of tenancies in common and ordinary partnership in trade, upon the death of a part owner, his share of the stock and debts belong beneficially to his executor or administrator, in respect of the maxim, inter mercatores jus accrescendi locum non habet; (j) but the legal right of action for any past injury, or to recover any debt due to the two or to the partnership, is vested in the survivor; and at law, in the case of a joint debt, the executor of the deceased partner cannot be sued, though in equity he might be (unless he were a mere surety); and hence it may frequently be important for creditors and others to obtain from several partners a security which in its terms is several as well as joint, and upon which the executor of the deceased may be separately sued. (k) Fifthly, The Modes of acquiring and losing a title to perright to personal sonal things are usually enumerated to be, 1st. Occupancy or property,whether mere possession; 2ndly, Prerogative; 3rdly, Forfeiture; 4thly, in possession or in action, may be Custom; 5thly, Succession; 6thly, Marriage; 7thly, Judg acquired. Title by occu pancy or possession. ment; 8thly, Gift; 9thly, Grant (more properly assignments); 10thly, Contract; 11thly, Bankruptcy; 12thly, Insolvency; 13thly, Administration; 14thly, Testament. (1) We will notice each, but only particularly consider those which most frequently are the subjects of litigation. First. Occupancy or mere possession. Under this head may of their joint money is considered in the way of trade, so that it alters the estate in the lease at law, and makes it equitable and divisible, 1 Ves. J. 435. (k) 1 East, 497; 2 Salk. 44; Vin. Ab. Partner, D.; 3 Russ. R. 424. (1) Sce 2 Bla. C. 400 to 520, and Chitty's notes as to the modern cases. The 12th bead of insolvency is introduced as founded on the General Insolvent Act, 7 Geo. 4, c. 57. I. RIGHTS ΤΟ be properly classed those things that become the property of CHAP. III. the first taker or first inventor; the former are lost goods of an unknown owner found. (m) Animals feræ naturæ, fish taken PERSONALTY. from the sea, property wrongfully intermixed with that of the owner, copyrights and other inventions and patents. So, things taken by capture from an alien enemy, and even emblements are also, though improperly, classed under this head. Questions respecting hostile capture, when supposed to have been illegal, cannot be directly discussed in any court in this kingdom, excepting the Prize Court of the Court of Admiralty, and then not as part of the general jurisdiction of that court, but under a particular commission from the king, (n) though the Court of Chancery still has jurisdiction against a party in whose favour the Prize Court has decided in cases of fraud or trust. (o) Secondly. Under title by Prerogative are classed Taxes By Prerogative. and Customs, belonging to the king by virtue of his prerogative. Game also has been classed under this head, though the correctness of that arrangement is questionable; and now by the recent act game is properly made an incident to the land upon which it may happen to be. (p) Thirdly. Title by Forfeiture, as goods forfeited for crimes. (q) By Forfeiture. Personal property, though not belonging to a felon at the time of his conviction, upon which he was sentenced to transportation, but accruing to him afterwards, but before the term of his transportation has expired, is forfeited to the crown. (r) Fourthly. Under title by Custom are classed (although im- By Custom. properly) heriots, mortuaries, and heir-looms, charters, title deeds, and court rolls, though the latter seem more properly to be incidents to a real estate, and pass as belonging to the same by descent or purchase. And even rights to pews have been singularly classed under this head, though they certainly seem more in the nature of real property, and pass as such, and will be therefore considered in the next chapter. Fifthly. Title by Succession imports goods and property By Succession. which pass to the succeeding members of a corporation by as it were a political descent. Sixthly. Under title by Marriage are included as well the By Marriage. rights to personal property of a wife, which vests in or may be I. RIGHTS ΤΟ CHAP. III. acquired by a husband in right of his wife, but also her rights, especially when he survives, to her paraphernalia and choses PERSONALTY. in action, which the husband did not reduce into possession or recover during the coverture. An assignment by husband and wife of her reversionary interest in a personal chattel, though for adequate consideration, will not affect her interest if she survive. (s) By Judgment. By Gift and Donatio mortis causa. Seventhly. Title by Judgment includes the exclusive right which an informer acquires by his first action for a penalty given by a popular or penal statute, before the commencement of which action it is not vested in any one in particular, and which right is afterwards perfected by his obtaining judgment therein; (†) and to this are to be added all judgments for a sum certain, or for damages or costs, which a person may obtain in his favour, and which was before contingent or uncertain, but was perfected and rendered a right of a higher nature by the judgment. In order however to give a judgment creditor a perfect right, it must be docketed, so that persons searching in the proper office may always discover its existence; and judgments not docketed have no preference to other debts against heirs, executors, or administrators; (u) and a judgment in the Mayor's Court upon a foreign attachment will not constitute the party a judgment creditor, so as to entitle him to a preference in the administration of assets. (a) Eighthly. Title by Gift includes all gratuitous transfers of personal property, and which may be and usually are by parol; (y) but in that case must be perfected by delivery, if the chattel be present and capable of immediate delivery; for otherwise, for want of such delivery, the gift is void, unless made by deed. (2) Though perhaps if a person be at a distant place, as at York, and there give his horse, then in London, to another, the latter might have trespass without other possession. (a) Gifts in expectation of death (donatio mortis causa) may be here referred to, (b) though they are usually noticed under the head of Title by Testament, and are in some respects in the nature of a legacy. To perfect such a gift actual delivery must be made by the party in his last sickness to the donee, or some third person (c) (s) Purdew v. Jackson, 1 Russ. R. 1 to 72, where see the rights of a feme covert in her personalty fully discussed. (t) 4 Burr. R. 2021, 2490; 1 Marsh. 180. (u) Landon v. Ferguson, 3 Russ. R. 349; when otherwise in equity, Tidd, 9 ed. 938 to 941; Sugd. V. & P. 8 cd. 685. (1) 1 Sim. R 484. (y) 3 Maul & S. 7. (2) 2 Bar. & Ald. 551. (a) Clayton, 155; F. N. B. 140; Perkins, 39; 1 Rol. Rep. 61; Vin. Ab. Gift. (b) Ante,100, Chit.Eq.Dig. Donatio mortis causa, and Toller's Ex. 2 ed. 232 to 234. (c) Drury v. Smith, 1 P. W. 404. I. RIGHTS ΤΟ for his use; and the donee, or third person, must retain the CHAP. III. possession up to the instant of death, and the donor must part with all dominion over it. (d) If the thing itself be not capable PERSONALTY. of delivery, as stock in the funds, then the receipt, warrants, &c. must be delivered. (e) And where A. on his death-bed desired B. to call at a certain place and fetch away a watch, adding, that he would then make her a present of it, but no possession was resumed by A. and no delivery made to B.; it was doubted if this could be good as a donatio mortis causa (ƒ) Such a gift is in the nature of a legacy, though it need not be proved with the will. (g) If the donor recover or survive the immediate danger, the property impliedly reverts to him, because the cause for making the gift has ceased; (h) and it has even been questioned whether the donation is not avoided or revoked by a subsequent codicil; (i) and because such a gift is in nature of a legacy, it may be, and very frequently is, made to or in favour of a wife, though in general she is incapable of acquiring any property from her husband in his lifetime, because it would instantly revert to him; (k) and if a chose in action, as a bond or mortgage security, be so delivered to her or any other person, the executor or administrator or heir of the deceased, in whom the legal right may become vested, is bound to sue for the recovery of the money as trustee for the donee. (1) It has been long established that a bond or bank note may be delivered as such a donation; but until recently it was supposed that bills of exchange, promissory notes, and checks on bankers, could not be so delivered; (m) but it has been recently decided in the House of Lords that they may be so effectually given. (n) And it should seem that ordinary debts, for which no written security has been given, might be so transferred by deed or writing. (0) But this mode of disposing of property must be clearly proved, to prevent fraud. (p) In Scotland there is an (d) Burn v. Markham, 2 Marsh. 532; 7 Taunt. 224, S. C.; Holt, C. N. P. 352; Hawkins v. Blewitt, 2 Esp. R. 663. (e) Ward v. Turner, 2 Vesey, 431. (f) Spatley v. Wilson, Holt, C. N. P.10. (g) Miller v. Miller, 3 P. W. 357, 8; see 36 Geo. 3, c. 52, s. 7, expressly subjecting it to legacy duty. (h) Per Cowper, Ld. Chan. Hedges v. Hedges, Prec. Chan. 269; Gilb. Eq. R. 12; 2 Veru. 615; Drury v. Smith, 2 P. W. 404. (i) 4 Russ. R. 25. (k) Miller v. Miller, 3 P. W. 357, 8. 1, and 1 Bligh's R., N. S. 497, in House of (m) See cases collected, Chitt. Eq. Dig. (n) Supra, note (l); and see Rankin v. Weguelin, 14 June, 1832, Chit. on Bills, 8 ed. 791. (0) Tate v. Hilbert, 2 Ves. J. 120; Toller, Ex. 2 ed. 233; and Duffield v. Hicks, 1 Dow. R., N. S. 1; 1 Bligh's N. S. 497. (p) Waller v. Hodge, 2 Swanst. R. 92; Jones v. Selby, Prec. Ch. 300; and Simere v. Cox, 3 Law J. 41. |