CHAP. III. 1. RIGHTS ΤΟ PERSONALTY. 6. Stock and property in funds. (k) a widow was entitled to dower in respect of such an interest, which in that act was declared freehold. (1) 6. With regard to an interest in the funds or stock, it is a peculiar description of personal property, expressly declared to be such, and not to descend to an heir. () It is a property founded on numerous statutes, and sometimes, as in the case of the five per cent. bank annuities, is merely a right (though saleable) to receive interest in the name of dividends, in consideration of the delivery of a sum of money for the purchase of such interest. (m) It is therefore not subject to a poor rate.(n) It is a mere chose in action. (o) It is devisable, and although a statute has required two witnesses to attest the will, they are not deemed essential in equity. (p) But no interest vests in the legatee of stock before the executor has assented. (g) It cannot be taken in execution, nor can the dividends payable to the owner be sequestrated, (r) though the entire interest is liable to distribution under the statutes against bankrupts (s) and insolvent debtors. (t) Transfers of stock are expressly exempted from the stamp duty; (u) and the better opinion seems to be, that an agreement for the sale of stock is not within the statute against frauds, which requires agreements for the sale of "goods, wares, and merchandize" to be in writing, though that point seems to be still open to discussion. (v) There is a material difference between a bequest of stock and a devise of land; if a person devise his land to another, and afterwards convey it away and purchase it again, or if he materially change the nature of his estate, the devise is revoked, and the devisee takes nothing; but in case of the bequest of stock, if after making his will, the owner sell it out, and afterwards buy it in again, this is no ademption or revocation, for if the selling of the stock was evidence of his having altered his intention, his buying it in again is considered evidence equally strong that he means the legatee should have it, and a will of personalty is ambula (i) Hollis v. Goldfinch, 1 B. & C. 205; King v. Thomas, 9 B. & C. 114; but see 2 Ves. J. 651; 4 Ves. J. 542; 1 Geo. 4, c. 24; 34 Geo. S, c. 90; 45 Geo. 3, c. 70; Rogers on Election, 27; see further, post, ch. iv. (k) See in general Comyns on Contracts, 84 to 86; 3 Chit. Crim. L.. 284; Harrison's Index, tit. Stock; and Chit. Eq. Digest, tit. Stock. (1) 1 Geo. 1, st. 2, c. 19, s. 9; 1 Russel's R. 583. (m) See in general Clarke v. Powell, M. T. 1832, K. B. Newman, attorney for plaintiff; Bailey, attorney for defendant. (*) 6 East, 182; 1 Nol. P. L. 160, I. RIGHTS ΤΟ tory until the instant of death. (a) A bequest of all monies, CHAP. III. goods, chattels, clothing, &c. will pass the testator's interest in stock, (y) but a bequest of "all the rest of my money" will not PERSONALTY. pass stock. (2) With respect to deeds and other writings they, as far as Securities for respects the money or contract secured by them, are considered money, &c. to be choses in action, for some purposes, so that at common law no indictment could be sustained for taking or damaging them; but which offence, as well as the forging of them, are now made punishable. The recent statute 7 & 8 Geo. 4, c. 29, s. 5, (a) enacts, that if any person shall steal certain enumerated securities, such as a tally, order, or other security, entitling or evidencing the title of any person or body corporate, to any share or interest in any public stock or fund, whether of this kingdom or of Ireland, or of any foreign state, or in any fund of any body corporate, company, or society, or to any deposit. in any savings' bank; or shall steal any debenture, deed, bond, bill, note, warrant, order, or other security whatsoever for money, or for payment of money, whether of this kingdom, or of any foreign state; or shall steal any warrant or order for the delivery or transfer of any goods or valuable thing, he shall be guilty of felony, of the same nature, and in the same degree, as if he had stolen any chattel of the like value, and that each of the said documents shall, throughout that act, be deemed for every purpose to be included under and denoted by the words "caluable security." Those words, therefore, introduce a new and comprehensive term, as far as regards such documents in criminal proceedings. But in order to bring either of the enumerated securities within the protection of the larceny act, it must, at the time of the offence, have been an available security; and, therefore, if a bill or note be not properly stamped, or if it be payable upon a contingency, the stealing it (1) Partridge v. Partridge, Cas. T. Talb. 226; 1 Russ. & M. 629; Toller, 2 ed. 333; and see 1 Russ. & M. 221, &c. (y) Kendall v. Kendall, 4 Russ. R. 360. () 1 Turn. & R. 260, 272; Gosden v. Dotterell, in Roll's Court, 14th Dec. 1832. In this case the testator, after giving a pecuniary legacy of 1001., bequeathed to his brother all the rest of his money," and then disposed specifically of certain personal chattels. It appeared there was a considerable sum of stock, which, as well as some articles of household furniture not specifically bequeathed, the testator had not noticed in his will; and the question was, whether the gift of "all the rest of VOL. I. his money," after the pecuniary legacy, (a) See Ry. & Mood. C. C. 155. H CHAP. III. will not be punishable under this act, (b) though it would be I. RIGHTS ΤΟ PERSONALTY. 2. Personal rights in possession, but not tangible, as copyrights, &c. otherwise as respects forgery. (c) At common law also actions may be supported for injuring or taking away either of those documents, when of any value, precisely the same as if they were any other personal chattel; (d) and when they relate to real estate, the ownership of the latter generally draws to it the property in the deeds; (e) and a person may even be held to bail and arrested in an action of trover or detinue, for a deed sworn to be of a named value, by leave of a judge. (f) So that although these documents are mere evidence of a right to receive money or property, and are not the thing itself, and are therefore considered to be choses in action, yet for many purposes they are considered to be of equal value, and, as in the instance of bank notes, are transferred from one to another precisely as money. 2. There are also a description of personal property which, though in possession as respects the right, and consequently not strictly choses in action, yet differ from mere goods, because they are not tangible or visible, though the thing produced from the right may be perfectly so. Such as copyrights and patent rights, either in books, music, (g) busts and sculptures, (h) engravings and prints, (i) and patterns for prints for linens, cottons and calicoes, (k) and patents in general.(1) These are protected and regulated by various acts and decisions. (m) In these instances the subject-matter of the right is not the book, the bust, &c. produced, but the exclusive privilege of continually, for a certain term, printing or making and vending the article; such right or privilege is obviously not tangible; it is, therefore, a chattel unlike tangible, moveable property; it could not be seized or sold under an execution against the goods of the proprietor, could not be attached, nor be the subject of a donatio mortis causa, and, independently of any statute regulation, could not in any case pass by delivery, for it exists only in legal contemplation. The transfer of a copyright in a book or song must, by express enactment, be in writing, and attested by two witnesses, so as to pass the interest, and enable the assignee to maintain an action for pirating (g) 8 Anne, c. 19; 54 Geo. 3, c. 156. (h) 54 Geo. 3, c. 56. (i) 8 Geo. 2, c. 13; 7 Geo. 3, c. 38; 17 Geo. 3, c. 57. (k) 27 Geo. 3, c. 38; 34 Geo. 3, c. 23. (1) 21 Jac. 1, c. 3. (m) See the above acts and decisions collected. Chit. Col. Stat. tit. Copyrights, and fully, post, Injunctions. it; (2) though, perhaps, an admission of an assignment by a wrong-doer might suffice. (o) In all other respects the interest CHAP. III. I. RIGHTS ΤΟ in the privilege resembles other personal property, and would PERSONALTY. pass under the Bankrupt Act and Insolvent Act to the assignee and to the executor or administrator, in case of death, under a bequest of goods and chattels. action. 3. The next principal description of personal property are 3. Choses in choses in action, that is, rights to receive or recover a debt, or money, or damages, for breach of contract, or for a tort coNNECTED with contract, but which cannot be enforced without action, and, therefore, termed choses, or things in action.(p) Here we must distinguish between the deed, or bill of exchange, or other security for a debt, or document affording evidence and security of a right, and the thing ultimately to be recovered, though in general both are denominated choses in action. The deed, or writing, whether on parchment or paper, is itself, for some purposes, a chose in possession; and we have seen that the delivery of bills of exchange, by way of fraudulent preference, has been holden to be a delivery of goods and chattels within the Bankrupt Act. (q) But the money and damages, thereby secured, are strictly choses in action until actually reduced into possession. tween things in First, possession and execu- choses in action. The principal distinctions between personal tangible pro- Distinctions beperty in possession, and choses in action, are several. the former, whether money or goods, may be taken in tion and sold for the debt of the owner, whilst he either has or is entitled to immediate possession; (r) whereas no chose in action, or mere security for a debt or performance of a contract, can be so taken or legally seized or transferred, not even a bank note, (s) and a fortiori, not a bill of exchange, promissory note or check on a banker, or a deed, or any writing, although the money thereby secured might be immediately received. (t) Nor can a debt or claim upon a third person for damages, though intrinsically as valuable as any goods in possession, be (n) 3 Maule & S. 7; 2 B. & Cres. 866; 2 Stark. R. 382. (0) 4 Campb. 9; 1 Jac. & W. 481. To pass the contingent benefit of survivorship, see post, 107, n. (y) (p) See in general 2 Bla. Com. 396, 397; Com. Dig., Biens; Harrison's Dig. tit. Chose in action; Chit. Eq. Dig. Chose in action. Mr. Justice Blackstone states, that all property in action depends entirely upon contracts, express or implied. But it is apprehended that such explanation of the term chose in action is too li mited; they certainly include rights to (q) Per Tindal, C. J., 6 Bing. 371, ante, 90. (r) Goods and cattle in all cases, and (s) Rep. T. Hardw. 53; 9 East, 48. CHAP. III. I. RIGHTS ΤΟ taken adversely in execution at the suit of a subject. So an interest in the stocks or funds cannot be seized or sold under PERSONALTY. a writ of fieri facias, or other process, at the suit of a single creditor, (u) though in case of genernl insolvency and bankruptcy or discharge under the Insolvent Act it is otherwise. (v.) Secondly, the transfer of a chose in action differs in form and effect from that of a personal thing in possession, for though in general the beneficial interest in a chose in action may be transferred by parol and without writing, yet (with the exception of bills of exchange and notes, and a few other particular documents,) the legal interest does not pass so as to enable the assignee of the interest to enforce payment or sue in his own name; and he must, in general, proceed in the name of the original proprietor. In order also to perfect the transfer, even of the beneficial interest, it is essential that the assignee or purchaser should give notice of the transfer to the debtor, or other contracting party, for otherwise, in case of the bankruptcy of the transferer, the benefit of the intended transfer will be lost, (w) but which notice is wholly unnecessary when the possession of tangible property itself is immediately delivered to the purchaser. A third distinction has prevailed between tangible things in possession, and at least some choses in action, namely, that the former always might pass as donations mortis causa, (i. e. delivery by way of gift without consideration, in immediate expectation of, and shortly afterwards followed by death.(x) So also some descriptions of choses in action, as bonds and bank notes, were always held to pass by such a delivery; (y) but until recently it was considered that bills of exchange, promissory notes, checks, and other documents, could not so pass; (2) and though it has been recently established in the House of Lords, that the latter securities also may so pass by such gift; (a) yet where there is no written security, it would be otherwise; and a free gift must be most distinctly established to have been made without fraud on the part of the donee. (b) And here it may be expedient to advert to the construction of the terms of a will or deed, as applicable to personal property. Upon a devise in this country, merely of a "farm," (u) Ante, 96; 1 Ball & B. 387. (v) Ante, 96. (w) 2 Simons, 257, 570; 3 Russ. R. 12, 13. (1) See in general Chit. Eq. Dig. Donatio Mortis Causa, 323, and post, 105. (y) Id. ibid. (2) Id. ibid. Chit. on Bills, 7 & 8 ed. page 1 & 2 in notes. (a) Duffield v. Hicks, 1 Bligh's R. New S. 497; 1 Dow. New S. 1; Ranken v. Weguelin, at Rolls, 14 June, 1832; Chit. on Bills, 8th ed. 791; and see Semins v. Cox, 3 Law J. 44. (b) Semins v. Cox, S Law J. 44, and Chit. on Bills, 8th ed. 791. |