Chattels personal, then, are the subjects of the present treatise. In ancient times they consisted entirely of moveable goods, visible and tangible in their nature, and in the possession either of the owner or of some other person on his behalf. Nothing of an incorporeal nature was anciently comprehended within the class of chattels personal. In this respect the law of personal property strikingly differs from that of real property, in which, from the earliest times, incorporeal hereditaments occupied a conspicuous place. But although there was formerly no such thing as an incorporeal chattel personal, there existed not unfrequently a right of action, or the liberty of proceeding in the courts of law either to recover pecuniary damages for the infliction of a wrong, or the nonperformance of a contract, or else to Chose in action. procure the payment of money due. Such a right was called, in the Norman French of our early lawyers, a chose or thing in action, whilst moveable goods were denominated choses in possession. Choses in action, though valuable rights, had not in early times the ordinary incident of property, namely, the capability of being transferred; for, to permit a transfer of such a right was, in the simplicity of the times, thought to be too great an encouragement to litigation (h); and the attempt to make such a transfer involved the guilt of maintenance or the maintaining of another person in his suit. It was impossible, however, that this simple state of things should long continue. Within the class of choses in action was comprised a right of growing importance, namely, that of suing for money due, which right is all that constitutes a debt. That a debt should be incapable of transfer was obviously highly inconvenient in commercial transactions; and in early times the custom of merchants rendered debts secured by bills of exchange assignable by indorsement and delivery of the bills.

Maintenance.

A debt.

(h) 10 Rep. 48 a.

But choses in action, not so secured, could only be sued for by the original creditor, or the person who first had the right of action. In process of time, however, an indirect method of assignment was discovered, the assignee being empowered to sue in the name of the assignor; and in the reign of Henry VII. it was determined that "a chose in action may be assigned over for lawful cause as a just debt, but not for maintenance, and that where a man is indebted to me in £20, and another owes him £20 by bond, he may assign this bond and debt to me in satisfaction, and I may justify for suing for it in the name of the other at my own costs (i)." Choses in action, having now become assignable, became an important kind of personal property; and their importance was increased by an act of the following reign (k), whereby the taking of interest for money, which had previously been unlawful, was rendered legal to a limited extent. Loans and mortgages soon became common, forming a kind of incorporeal personal property unknown to the ancient law. In the reign of Queen Anne, promissory notes were rendered, by act of parliament, assignable by indorsement and delivery in the same manner as inland bills of exchange (1). But other choses in action continue to this day assignable at law only by empowering the assignee to sue in the name of the assignor.

In addition to the mass of incorporeal personal pro- Equitable perty, which now exists in the form of choses in action choses in action. recoverable by action at law, there exist also equitable choses in action, or rights to be enforced by suit in equity; of these a pecuniary legacy is a familiar instance, for which, if the executor withhold payment, the legatee

(i) Bro. Abr. tit. Chose in Action, pl. 3, 15 Hen. VII. 2. (k) Stat. 37 Hen. VIII. c. 9.

(1) Stat. 3 & 4 Anne, c. 9, made perpetual by stat. 7 Anne, c. 25, s. 3.

Funds, shares, &c.

How personal property differs

from real.

can maintain no action at law (m), but must either proceed in the Ecclesiastical Court, or bring a suit in equity. This kind of chose in action may be assigned directly from one person to another, and the assignee may sue in equity in his own name. For equity, being of more modern origin than the common law, is guided in its practice by rules more adapted to the exigencies of modern society.

In modern times also several species of property have sprung up which were unknown to the common law. The funds now afford an investment, of which our forefathers were happily ignorant, whilst canal and railway shares, and other shares in joint stock companies, and patents and copyrights, are evidently modern sources of wealth. These kinds of property are all of a personal nature, many of them having been made so by the acts of parliament, under the authority of which they have originated. For want of a better classification, these subjects of personal property are now usually spoken of as choses in action. They are, in fact, personal property of an incorporeal nature, and a recurrence to the history of their classification amongst choses in action will, as we shall hereafter see, help to explain some of their peculiarities.

Such is a general outline of the subjects of modern personal property. They are distinguished from real property by being unaffected by the feudal rules of tenure, by being alienable by methods altogether different, by passing in the first instance to the executors, when bequeathed by will, and by devolving, on their

(m) Deeks v. Strutt, 5 T. Rep. 690; Braithwaite v. Skinner, 5 Mee. & Wels. 313. Legacies under twenty pounds may now be recovered in the county courts,

under the act for the more easy recovery of small debts and demands in England. Stat. 9 & 10 Vict. c. 95, s. 65.

held by estates.

owner's intestacy, not on his heir, but on an administrator appointed by the Ecclesiastical Court, by whom they are distributed amongst the next of kin of the deceased. On the first of these characteristics, however, mainly depends the nature of the property which exists in things personal. The first lesson to be learned on the nature of real property is this-that of such property there can be no such thing as an absolute ownership; the utmost that can be held or enjoyed in real property is an estate (n). There may be an estate for Real property life, or an estate tail, or an estate in fee simple; but, according to the law of England, there cannot exist over landed property any absolute and independent dominion. All the land in the kingdom is the subject of tenure; and if the estate is not holden of any subject, at any rate it must be held of the crown. With regard to personal property, however, the primary rule is precisely the reverse. Such property is essentially the Personal pro. subject of absolute ownership, and cannot be held for perty the subject of absolute any estate. It is true that the phrase personal estate is ownership. frequently used as synonymous with personal property; but this general use of the term estate should not mislead the student into the supposition that there can be any such thing as an estate in personalty properly so called. The rule that no estate can subsist in personal property would seem to have originated in the nature of such property in early times. Goods and chattels of a personal kind, in other words, moveable articles, then formed, as we have seen, the whole of a man's personal estate. And such articles, it is evident, may be the subjects of absolute ownership, and have not those enduring qualities which would render them fit to be holden by any kind of feudal tenure. As personal property increased in value and variety, many kinds of property of a more permanent nature became, as we have seen, comprised within the class of personal, such (2) Principles of the Law of Real Property, 16.

as leases for years, of whatever length, and Consolidated Bank Annuities. But the rule that there can be no estate in chattels, the reason of which was properly applicable only to moveable goods, still continues to be applied generally to all sorts of personal property, both corporeal and incorporeal. The consequences of this rule, as we shall hereafter see, are curious and important. But in the first place it will be proper to consider the laws respecting those moveable chattels, or choses in possession, which constitute the most ancient and simple class of personal property; the class however which has given to the rest many of the rules for regulating their disposition.