THE MODERN LAW OF PERSONAL PROPERTY. CHAPTER I. PROPERTY-POSSESSION. Chap. I. Classes of ACCORDING to English Law, property is divided into real and personal, personal property being again subdivided into chattels real and chattels personal. Real property and chattels real are property. interests in land, and in this treatise we shall confine ourselves to the consideration of chattels personal, that is, personal property other than interests in land.3 If we chattels. The term "property" may be used to denote either things which are the subjects of rights, or the rights themselves. consider chattels personal according to their nature, we may divide them into, (1) corporeal chattels, i.e., those which have an actual Corporeal physical existence, which are capable of being touched, tasted or handled, such as money in specie, furniture, cattle, ships, and timber or minerals when severed from the land, and (2) incor- Incorporeal poreal chattels, i.e., those which have a mere notional existence, such as debts, including cash at a bank, Government stocks, shares and debentures of companies, patents and copyrights. On the other hand, if we consider them according to the rights that can be 5 See the meaning of the term "Property," discussed in M. L. R. P., pp. et and Campbell on Sale, 38 et seq. seq., 2 As to the origin and meaning of this division, see M. L. R. P., p. 6. 3 As to chattels which by common law or custom are so far annexed to the land as to be descendible to the heir, see M. L. R. P. 11: as to fixtures, ib. 24. 4 See M. L. R. P. 5. chattels. G.P.P. 1 Chap. I. Choses in possession. Choses in action. "Goods and chattels," exercised over them, it is convenient to divide them into those of which the owner has and those of which he has not actual possession. Personal chattels of the former class consist of corporeal chattels in the possession of the owner, and are called "choses in possession;" those of the latter class, which are called "choses in action," consist of corporeal chattels not in the possession of the owner, as, for example, when hired or lent to a stranger, and of incorporeal chattels,1 The words "goods and chattels," at the time when these terms were introduced into English law, were used to embrace all property not included under one or other of the terms "lands, tenements, and hereditaments;" and they are used in that sense at the present day as equivalent to personalty. The precise origin of the word "chattel" is obscure. Coke says, "Goods,' biens, bona, includes all chattels as well real as personal. 'Chattels' is a French word and signifies goods, which by a word of art we call catalla." Blackstone says that in the Grand Coustumier of Normandy the word "chattels" is used and set in opposition to a fief or feud, so that not only goods but whatever was not a feud were accounted chattels. "The words bona et catalla,' jointly or separately in our ancient statutes and law writers, denote personal property of every kind, as distinguished from real. Thus Magna Charta, c. 18, which provides that the King's debt shall be first paid, and the residue remain to the executors of the debtor, uses the words bona et catalla. . . . So the statute 31 Ed. 3, stat. 11, c. 1, which is in French, directs the ordinary to depute the next friends of an intestate to administer his goods, biens, and then proceeds to enact that the persons deputed may have an action to recover, as executors, the debts due to the intestate." 5 1 See Colonial Bank v. Whinney, 30 Ch. D. 282. The different classes of choses in action are discussed post, Chap. IX. 2 As to what passes by "goods and chattels" in a grant, see Shep. Touch. 97, 98; and in a will, Kendall v. Kendall, 4 Russ. 370; 28 R. R. 125; that the phrase, as used in all Bankruptcy Acts from that of James I. downwards, includes choses in action, see Colonial Bank v. Whinney, 30 Ch. D. 280; and see the Bankruptcy Act, 1883 (46 & 47 Vict. c. 52), s. 168. Choses in action are not included in "goods, wares, and merchandizes" as used in the Statute of Frauds (29 Car. 2, c. 3), s. 17; Humble v. Mitchell, 11 A. & E. 205; nor in the word "goods" in the Sale of Goods Act, 1893 (56 & 57 Vict. c. 71), and in the Factors Act, 1889 (52 & 53 Vict. c. 45); and probably not in "goods," in the Mercantile Law Amendment Act (19 & 20 Vict. c. 97); nor in "personal chattels" in the Bills of Sale Act, 1878 (41 & 42 Vict. c. 31), s. 4. 3 Co. Litt. 1186. 4 2 Bl. 385. 5 Per Abbott, C.J., Bullock v. Dodds, 2 B. & Ald. 276; 20 R. R. 420. The distinction between choses in possession and choses in action has always been recognised by our law; and the following points of difference may be here specially noted. Chap. I. Choses in possession and in action At common law, choses in possession have always been capable distinguished. of being assigned by delivery, or by deed. On the other hand, choses in action are (with a few exceptions) incapable at common law of being assigned.* Prior to the Married Women's Property Act, 1882,5 a wife's choses in possession, to which she was entitled in her own right, rested absolutely in her husband on the marriage. Her choses in action, if the husband reduced them into possession by receiving them or recovering them by action, belonged to him; if he did not reduce them into possession, and the wife survived him, they remained her property. If the husband survived the wife, they belonged to him on taking out administration to her." Choses in possession could at common law be seized by the sheriff under a fi. fa.; choses in action could not, prior to 1 & 2 Vict. c. 110, be taken in execution.7 qualified, or The rights that a man may have in chattels personal may be Property absolute, qualified, or possessory. He may have absolute property absolute, in inanimate objects, including trees and vegetables, when possessory. separated from the land, and in animals domitæ naturæ, namely, Animals. those which we generally see tame and but rarely wandering at large; and, if an animal of this nature strays from his owner and is lost, the owner does not lose the property in it.9 But a man cannot have absolute property in animals fere nature. Coke says:- 10 "Property qualified and possessory a man may have in those which are feræ naturæ; and to such property a man may attain by two p. 17. As to who is entitled to timber 9 Ireland v. Higgins, Cro. El. 125; 10 The Case of Swans, 7 Rep. 176. See the passage in the text commented on by Lord Westbury, C., Blades v. |