42

years, which pass like personalty to the executor of the owner.41 The duration of the term of the lease is immaterial, provided it be fixed and determinate, and there be a reversion or remainder in fee in some other person. It is but personal property, although it may extend to a thousand years, because the time being fixed, it falls below a freehold.43

464. Heir-looms are chattels considered as annexed and necessary to the enjoyment of the inheritance. Contrary to the nature of chattels, they descend to the heir, along with the inheritance, and do not pass to the executor of the last proprietor. These are charter deeds and other evidences of the title to the land, together with the box in which they are usually kept, the keys of the house, fish in an artificial pond, pigeons in a pigeon-house, and deer in a park." These differ from fixtures, which will be considered hereafter.

Heir-looms do not seem to be recognized in this country.

44

465. Chattels personal may be divided into those which are in possession, and those which are in action.

466. Having already considered the nature of possession of personal property and its effects, we will now consider the different kinds of such property, first of tangible personal property, and second of personal property not tangible.

467. Tangible personalty in possession includes not only things actually separated and movable, whether animate or inanimate, but also some things which, though annexed to, or proceeding out of real property, are considered in law, for some purposes and under some circumstances removable, and consequently treated as personal property; for example, a tenant's fixtures, removable during the term; growing trees when sold, though not actually severed; and emblements, whether growing corn, roots, or cultivated grass, and growing vegetables.

This tangible personal property in possession may itself be divided into two sorts an absolute and a qualified property.

468. Property in possession absolute is where a man has, solely and exclusively, the right, and also the occupation of any movable chattel, so that it cannot be transferred from him, or cease to be his without his act, consent, or default; unless, indeed, when such property is taken by authority of law for public use. In such case the owner is to be justly paid or indemnified. This kind of property is either animate or inanimate.

45

469. Animals are distinguished into such as are domita, of a tame or domestic nature; and such as are feræ naturæ, of a wild or savage disposition. In such animals as are tame and domestic, as horses, kine, sheep, poultry, and the like, a man may have an absolute property, as he may have in inanimate things, because they stay continually in his occupation, and will not stray from his house or person, unless by accident or fraudulent enticement, in either of which cases the owner does not lose his property." Where slavery is established a man has an absolute property in his slave, and if he runs away, the master may retake him, or establish his right by action."7

46

Coke, Litt. 118; 2 Kent, Comm. 342; 8 Viner, Abr. 296; Bacon, Abr. Baron and Feme (C 2).

21 Sharswood, Blackst. Comm. 386.

Coke, Litt. 46 a; Case of Gay, 5 Mass. 419; Brewster v. Hill, 1 N. H. 350; Bacon, Abr. Legacies, (B) Bouvier, ed.

1 Inst. 3 a; 1 Inst. 185 b.

45 2 Sharswood, Blackst. Comm. 389; Story, Bailm. ¿ 93, g, h, i.

52 Sharswood, Blackst. Comm. 390; Dig. 41, 1, 6; 3 Toullier, n. 373; 1 Chitty, Pract. 7, 8.

"Withers v. Smith, 4 Bibb, Ky. 170; Plumpton v. Cook, 2 A. K. Marsh. Ky. 450.

There is a class of animals in which a property of some kind may be had, yet, on account of their inferiority, they are not the subject of larceny; such as dogs, cats, bears, foxes, monkeys, or ferrets.49

48

The law recognizes no property whatever in rooks.50

470. Inanimate tangible property, either actually movable, or capable of being removed or separated without great injury to the realty, is generally known by the appropriate and technical name of goods and chattels. This term includes, for some purposes, money, valuable securities, and all other personal property, and even choses in action.51

471. Growing vegetables or emblements are deemed personal property. By emblement is understood the crops growing upon the land; but the word crops, as here used, signifies the products of the earth, which grow yearly and are raised by annual expense and labor, or "great manurance and industry," such as grain; but not fruits which grow on trees, which are not planted yearly, grass and the like, though they are annual."

472. Fixtures are sometimes considered as personal chattels, and, at other times, as part of the realty. Fixtures, technically speaking, are personal chattels annexed to land, and which may afterward be severed and removed by the party who has annexed them, or his personal representatives, with or without the will of the owner of the freehold.

To make a thing a fixture, it must be annexed to the freehold, either actually or by construction. The annexation must be made by joining the chattel to the freehold. Once annexed, in general it becomes a part of the realty. But to this rule there are various exceptions: first, when there is a manifest intention to use the fixtures in some employment distinct from that of the occupier of the real estate; and, second, when it has been annexed for the purpose of carrying on trade. But this distinction between fixtures for trade and those for agriculture does not seem to have been admitted to prevail generally in the United States.55 To entitle the tenant to remove them, he must do so within his lease.56

54

473. The right to remove fixtures depends on the situation of the parties who claim them. Persons standing in certain situations can claim them, when they would not be allowed to others. These classes of persons will be separately considered.

When the question, as to the right of removing fixtures, arises between the executor and the heir, the ancient rule that they belong to the real estate, is strict; unless the ancestor has manifested an intention that they should be considered as personal property."

57

48 4 Sharswood, Blackst. Comm. 236; Findlay v. Bear, 8 Serg. & R. Penn. 571; Comy, Dig. Biens, F; Bacon, Abr. Trover (D).

1 Chitty, Pract. 88.

50

2 Barnew. & C. 934; 4 Dowl. & R. 518.

61 12 Coke, 1; Bacon, Abr. Legacies (B), Bouvier, ed.

52 Coke, Litt. 55; Comyn, Dig. Biens, G.; 10 Barnew. & C. 720; 1 Chitty, Fract. 92, 93; 1 Greenleaf, Ev. 2 271; Warwick v. Bruce, 2 Maule & S. 205; Evans v. Roberts, 5 Barnew. & C. 829; Cutler v. Pope, 13 Me. 337; Stewart v. Doughty, 9 Johns. N. Y. 108; Forbes v. Shattuck, 22 Barb. N. Y. 568; Evans v. Inglehart, 6 Gill & J. Md. 188. See beyond Nos. 1582, 1583.

53 Buller, N. P. 34; 3 East, 38; Pothier, Des Choses, ? 1.

64 3 East, 88; Lemar v. Miles, 4 Watts, Penn. 330; Vanness v. Pacard, 2 Pet. 137; Swift v. Thompson, 9 Conn. 63; Gale v. Ward, 14 Mass. 352.

552 Pet. 137; Whiting v. Brastow, 4 Pick. Mass. 310; Holmes v. Tremper, 20 Johns. N. Y. 29; Smith, Lead. Cas. 5th Am. ed. 240.

56 White v. Arndt, 1 Whart. Penn. 91.

57 Bacon, Abr. Executors (H); House v. House, 10 Paige, Ch. N. Y. 158; Fay v. Mussy, 18 Gray, Mass. 56.

As between the vendor and vendee, the rule is as strict as between the executor and the heir; such fixtures pass to the vendee of the land."

Between the mortgagor and mortgagee, the rule seems to be the same as between the vendor and vendee.59

Between the devisee and executor, the former will be considered as a purchaser, and entitled to the fixtures.60

61

Between landlord and the tenant for years, the ancient rule is relaxed, and the right of the tenant to remove fixtures is the most extensive. But this right of removal will depend rather upon the question whether the estate will be left in the same condition in which he took it.62

In cases between tenants for life and their executors and the remainder-men or reversioners, the right to sever fixtures seems to be the same as that of tenant for years.63

In a case between the landlord and the tenant at will, there seems no reason why the same privilege of removing fixtures should not be allowed."

65

474. Stocks in corporations are in general considered as personal property. 475. By qualified property is understood that property which is not perfect in the hands of the possessor, but his right to it is qualified, or limited, or special.66

476. A man may have a qualified property in animals feræ naturæ on two accounts; first, because he has used his industry in reclaiming them, per industriam; and secondly, because such animals are so weak that they cannot go away, propter impotentiam.

69

When animals of a wild nature have been captured by a man, and are confined within his power, he has a qualified property in them:67 while so confined they are his own; but as soon as they regain their natural liberty, he loses his right to them.68 But the rule is different with wild animals which have been tamed; if they are in the habit of going and returning, the owner retains his property as long as this habit continues; but if they have gone away a sufficient length of time to raise a presumption that they have lost the habit of returning, the animum revertendi, the owner loses his property in them, and they become the property of the first occupant.70 Bees, for example, are feræ naturæ; but when hived and reclaimed, a man may have a qualified property in them when he hives them," for till that is done he has no more property in bees upon his trees than he has in the birds which happen to alight there.72

Miller v. Plum, 6 Cow. N. Y. 665; Holmes v. Tremper, 20 Johns. N. Y. 29; Phillipson v. Mallanphy, 1 Miss. 508; Farrar v. Stackpole, 6 Me. 157; Walker v. Sherman, 20 Wend. N. Y. 636; Teaff v. Hewett, 1 Ohio St. 511.

Amos & F. Fixt. 188; 15 Mass. 159; Winslow v. Merchants' Ins. Co. 4 Metc. Mass. 306; Robert v. Dauphin Bank, 19 Penn. St. 71.

See Merrington v. Becket, 2 Barnew. &. C. 80.
Elwes v. Maw, 3 East, 38.

34 Pick. Mass. 311.

62 Whiting v. Brastow, 4 Pick. Mass. 311. 64 4 Pick. Mass. 310.

4 Dane, Abr. 670; 1 Chitty, Pract. 96. There are a few exceptional cases where the corporation holding nothing but real estate, the stock has been held to be real estate. Wallis v. Cowles, 2 Conn. 567; Price v. Price, 6 Dan. Ky. 107.

Story, Bailm. 93, g, h, i; 2 Sharswood Blackst. Comm. 391; 2 Greenleaf, Ev. ? 637, "But they must be completely within his power, otherwise they may be captured by another. Young v. Hichens, 1 Dav. & M. 592; 6 Q. B. 606; Pierson v. Post, 3 Caines, N. Y. 175; Bacon, Abr. Game; Buster v. Newkirk, 20 Johns. N. Y. 75; Puffendorff, lib. 4, c. 6; Pothier De Propriété, prém. partie, c. 5, s. 1, n. 26. 69

Dig. 41, 1, 3 et 5.

Dig. 41, 1, 6.

Amory v. Flyn, 10 Johns. N. Y. 102.

"Puffendorff, lib. 4, c. 6, 5; Inst. 2, 1, 14; 3 Toullier, n. 374; 1 Sharswood, Blackst. Comm. 392.

Wallis v. Mease, 3 Binn. Penn. 546; Inst. 2, 1, 14; Dig. 41, 1, 5, 2; Sed vide Goff v. Kitts, 15 Wend. N. Y. 550; 1 Cow. N. Y. 243.

A qualified property may also be had in animals feræ naturæ on account of their weakness, ratione impotentiæ, as the young of birds before they can fly, and the whelps of other animals before they have the ability to go away.73

477. But property may also be of a qualified or special nature, on account of the peculiar circumstances of the owner, when the thing is capable of absolute ownership. A variety of examples of this might be given: a bailee has a qualified property in the thing bailed, and so has the bailor; the pledgor and the pledgee have also such property in the things which are the object of the bailment.

478. In considering personal chattels in possession, we have examined those which were tangible, in which could be had an absolute or qualified property; it will now be proper to take a view of those chattels in possession which are not tangible. These, though in possession as respects the right, and consequently not strictly choses in action, yet differ from goods, because they are neither tangible nor visible, though the thing produced from the right be perfectly so. In this class may be mentioned copy rights and patent rights, either in books, music, busts, sculpture, engravings, prints, machines, etc. In these cases the subject-matter of the right is not the book, the music, etc., produced, but the exclusive privilege of continually, for a certain time, printing or making or vending the article.

479. A chose in action is the right to receive or recover a debt, or money, or damages, for breach of contract, or for a tort connected with a contract, which cannot be enforced without action, and therefore termed a chose or thing in action.7

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480. A distinction must be made between the security or the evidence of the debt and the thing due: a deed, a bill of exchange, a promissory note, may be all in possession of the owner, but the money or damages due on them are no less choses in action.

481. There are some differences between personal tangible property in possession, and choses in action; the principal of which are: First, when money or goods are in possession, or the defendant is entitled to immediate possession, they may be taken in execution; but, in general, a chose in action, at common law, cannot be so taken. In some of the states of the Union the money due on them may be seized by a judgment creditor by a peculiar process authorized by a special statute.75 Second, the transfer of a chose in action differs from that of a personal chattel in possession, both in form and effect; for though, in general, the beneficial interest of a chose in action may be transferred by parol, and without writing, yet the legal interest does not pass so as to entitle the assignee to sue in his own name; he must use that of the assignor to enforce payment.76 But there is an exception to this rule; bills of exchange, and promissory notes, are by the law merchant transferable, and the legal as well as the equitable right passes to the transferee. In some states, by statutory provisions, bonds, mortgages, and other documents may be assigned, and the assignee receives the whole title, both legal and equitable. In order to perfect the transfer, the assignee of a common chose in action must give notice to the debtor, and a neglect to do so will render a payment to the assignor without

73 See 3 Inst. 109; 1 Russell, Cr. 153; 2 Sharswood, Blackst. Comm. 394. 74 Comyn, Dig. Biens; 1 Chitty, Pract. 99, 140.

75 In Pennsylvania, the plaintiff may issue an attachment execution, and seize such property as under a writ of foreign attachment.

The consequence of this is that the assignee can only recover what the assignor could, and all defences good against the assignor can be used against the assignee. If, however, after the assignment, the debtor expressly promises the assignee to pay him the debt, the assignee can then sue in his own name on the new promise. Wilson v. Hill, 10 Metc. Mass. 69; Thompson v. Emery, 27 N. H. 269.

notice equally available as if the thing had not been assigned; this is unnecessary when the possession of the thing accompanies the assignment of it. Third:

A thing tangible and in possession may be the subject of a donation mortis causa, when it is delivered; so also bonds, bills, notes may pass by such delivery when so given. But a chose in action, not evidenced by any written security, would not pass as a gift mortis causa. Fourth: A chose in possession at common law, vests in the husband upon marriage; a chose in action does not vest in him until he obtains possession.

482. Personal property may be limited as to its time of enjoyment. A bequest for life of the thing itself, or of its use only, with a limitation over upon the death of the legatee, will be supported, subject to the same limitation as executory devises of real estate that the property shall not be tied up for more than a life or lives in being and twenty-one years after."7

483. A chattel may belong in severalty to one person alone, to two or more persons in joint tenancy, or in common, as well as real estate. By severalty is understood the state of property which is held by only one person in his own right, without any other person being joined or connected with him in point of interest during the continuance of his estate.

484. Joint tenancy is where two or more persons hold lands, tenements, or chattels by the same title, obtained at the same time, for the same interest, and having the same possession.78 Upon the death of one the whole title vests in the survivor or survivors.

485. A tenancy in common is one of property held by two or more persons by unity of possession only. Upon the death of one his portion vests in his personal representatives.

486. It is a rule, that when chattels are held in ordinary and common partnerships in trade, upon the death of the joint tenants the right of the deceased vests in his personal representatives, it being a rule that inter mercatores jus accrescendi locum non habet,79 but the right to recover any debt due to the partnership, or for any past injury, vests in the survivor for the benefit of himself and the representatives of the deceased. If, however, the chattel be held by persons who are not partners, as joint tenants at common law, on the death of one the right of the deceased belongs to the other. But this has been changed by statute in a number of the states of the Union.

"Bacon, Abr. Bouvier ed. Legacies, B. 2.; Patterson v. Ellis 11 Wend. N. Y. 260.

7 Gilbert v. Richards, 7 Vt. 203; Shaw v. Hearsey, 5 Mass. 521; Dott v. Wilson, 1 Bay, So. C. 457.

79 Coke, Litt. 3, 282; 1 Mer. Ch. 564: 1 Sharswood, Blackst. Comm. 359.

111