Page images
PDF
EPUB

the tenant of the freehold might at any time have destroyed their interest, till the reign of Henry VIII. (e)

It is unnecessary for us here to dwell upon the nature of these lesser interests in lands which are included in the name of chattels, having already discussed at some length their several natures and properties (f). (396)

The expression chattels personal (or goods and chattels, which was the more common phrase), anciently therefore included every item of property that was not an interest in land, and being usually of a moveable Chattels personal. [*574] nature, or capable of being carried about with the person, received the name personal; though Sir Edward Coke also gives another reason, that they were capable of being recovered by a personal action (g). The two reasons, however, having probably much the same foundation, since the word personal action must have received its name from its being adopted to recover things connected with the person. Whatever was its origin, however, the expression does not sufficiently denote all the present classes of property not connected with land; nor does the phrase "goods, wares and merchandise," used in the Statute of Frauds (h), or that of "goods and commodities," used in several other acts of parliament.

The practices of modern times have given rise to a large variety of other kinds of property, not thought of in ancient times, which are not the objects of any bodily sense, yet are included among personal things, and subject to laws similar to those governing tangible things, such as animals, furniture, and the like (i).

Formerly the only important member of this class which existed was the right to demand a sum of money, either founded upon debt or upon other grounds. From this the name "thing," or "chose in action," Things in action. was adopted to describe them. The name indicates that the material value of the property consisted in the right to invoke the aid of the court: and the peculiar notions which our ancestors entertained as to this right, have given rise to many of the most remarkable, and some of the most inconvenient, doctrines which have affected this species of property, and which are only now gradually disappearing, but not yet altogether gone (j).

*But many of the species of property which now exist are not in [*575] their nature at all connected with actions at law, and therefore, though they frequently are described as choses in action, yet such description is not accurate, and the peculiar notions before alluded to do not apply to

them.

Concerning the first class of personal things, or things capable of bodily sense, such as furniture, plate, implements of husbandry or of war, jewels, and the like, which from the visible possession which may be had of them, are called things in possession, thereby distinguishing them from things in action, it is not necessary to say much. The complete ownership of them involves the right to use them in the most absolute way, even though such user may entirely consume them.

(e) Ante, p. 277.

(f) Ante, c. 9.

(g) Co. Litt. 118 b.

(h) Colt v. Nettervill, 2 P. W. 304, where it

was stated the twelve judges were equally

divided, six against six, whether a contract
for stock was a contract within the Statute
of Frauds.

(i) See In re Cleland, L. R. 2 Ch. 466.
(j) See vol. iii. p. 44.

(396) See Schouler on Personal Property, 45-75, where the subject is fully discussed.

The law concerning some few particular varieties, such as heirlooms, heriots (usually now consisting only of a money payment, though formerly a chattel)," and mortuaries (like heriots, now consisting of a money payment, though formerly not so), is regulated by custom. As to others, such as fixtures, emblements, &c., we have seen (k) that whilst affixed to or ground in the soil they are subject to special conditions as to ownership and enjoyment. Of others, of which ships are the most important, the law depends entirely upon legislative enactment.

Ships.

Ships, from the circumstances attending their user, their constant absence from this country and, often, from the visible possession of their owner, have, by the policy of the law, been placed upon a peculiar footing, and made subject to peculiar laws. In the year 1854 all previous acts on the subject were repealed (7), and a general act consolidating the law relative to merchant shipping was passed (m). By this act (n) no ship is to be deemed a British ship unless owned by British subjects, and every * British ship is subject to the laws prescribed by the act.

act cannot find a place here.

The details of the [* 576]

The second class of personal things are of an intangible, incorporeal nature, called by the general name things or choses in action.

Choses in action.

Choses in action, strictly so called, depend, in general, upon contract; the peculiarities and varieties of their nature depend, for the most part, upon the mode and extent of the relief which the courts afford to contracting parties. Of this we shall speak at large in the third book of these commentaries. We say, in general, for there are some rights of action which depend upon other grounds. Instances of these are, damages for slander or libel; for injury to one's person, or the loss of the life of a near relation, upon whom one depends for support (0), arising from the improper negligence of another. These and the like hardly rest upon contract, unless it be the general contract which is implied in the very essence of society, the contract not to injure any other member of the society; and in many instances it has required the authority of parliament to give them a legal sanction.

The other species of property (often, though not reasonably) included in the name of choses in action, consists of such artificial contrivances as have been developed principally in recent times. The first and most important of these is stock in the public funds of a nation, that is to say, a portion of a national debt, which differs from every other debt in this respect, that the courts can afford no aid to the creditor. As to the English public funds, they are in reality nothing more than the right, sanctioned by parliament, to receive certain annuities from the State. No right exists in the holder of 1007. 3 per cent. Consolidated* Annuities (as one of the kind is called) to demand [* 577] payment of the 1007., but only the right to an annual payment of 31. The Government, on the other hand, have the right to redeem the annuity by payment of the nominal amount of the stock-a right, however, which is never exercised, as the market price is hardly ever equal to the nominal amount.

(k) Ante, pp. 236, 282.

(1) By 17 & 18 Vict. c. 120.

(m) 17 & 18 Vict. c. 104, amended by 18 & 19 Vict. c. 91; 25 & 26 Vict. c. 63; 30 & 31 Vict. c. 124.

(n) 17 & 18 Vict. c. 104, s. 18.

(0) Under Lord Campbell's Act, 9 & 10 Vict.

c. 93. Before this act, though, if a man were injured, but not killed he might have redress in damages; yet if his support were altogether lost to his family by death, no redress could be obtained by those who were thus deprived of their subsistence.

When the commissioners for the reduction of the national debt have money applicable to the purpose for which they hold their office, they purchase stock in the market from those who are willing to sell at the market price, and the stock so purchased is cancelled (p).

Other Governments, such as those of British India and the autonomous colonies, have invariably adopted a different system in this respect, their public loans being all made repayable at fixed dates, with interest in the meantime. Holders of these securities must rely upon the good faith of the Government which guarantees the payment, a reliance which is readily placed upon the Imperial and British Colonial Governments, and, indeed, upon many foreign powers. But, as is obvious, should there be any disregard of the rights possessed by fundholders, no remedy can be obtained by aid of the

courts.

A convenient system of registration of fundholders in the English and Indian funds has been adopted at the expense of the State, by which the names of the legal holder or holders are inscribed in the books of the governor and company of the Bank of England. The stock is considered as legally vested in those whose names are so inscribed, and can be transferred only by the owner or his duly-constituted attorney signing suitable transfers in books kept for that purpose by the same bank. The bank only recognizes the person appearing on their books as the owner, and does not take any notice of trusts, and is not bound to do so even if express notice be given to them. Moreover, the bank will only open one account with the same individual, and in no case [* 578] will allow more than four persons to have a joint account. The bank, however, will so far recognize the interest of other persons besides those named in its books, that it accepts service of a writ of distringas, as it is called, which may be issued out of Chancery, in a fictitious suit (q), by any person who claims to be beneficially interested in any manner in stock. The effect of this writ is, that the bank is bound to give notice to the person who has served it before registering a transfer, which may have been attempted to be made by the person in whom the stock is legally vested. The bank is not able to refuse to transfer the stock for more than eight days after request has been made, unless in the meantime an order is made by the court in a properly-constituted suit (r).

Under the Trustee Acts (8) the Court of Chancery may, in proper cases, similar to those already noticed (t) as to the legal estates in land vested in trustees, make orders to vest the legal interest in stock in such person as the court may direct, and in such cases the order of the court operates as a transfer, which the bank is bound to regard, and is by the act indemnified in so doing (u).

Trustee acts.

By a recent act (v) the Bank of England may issue certificates of title of stock in respect of any sum of stock being 501., or a multiple of 50%. (not exceeding 10001.), with coupons attached for the dividends accruing due for a period of five years from the date of the certificate (w). They are of two kinds-one entitling the bearer to the stock therein described;

[* 579]

(p) 29 Vict. c. 11.

(q) It formerly issued out of the Court of Exchequer, but when the jurisdiction in equity of that court was transferred to chancery, the power to issue this writ was also transferred. 5 Vict. c. 5, s. 5.

(r) 2 Dan. Ch. Pr. 1530.

(8) 13 & 14 Vict. c. 60; 15 & 16 Vict. c. 55.
(t) Ante, p. 556.

(u) 13 & 14 Vict. c. 60, ss. 22-26.
(v) 26 & 27 Vict. c. 28.

(20) By sect. 2, trustees are expressly forbid

the other nominal, entitling the person therein named to the stock; and in the latter case the bank will only recognize the person so named, or some person who has become entitled by devolution of law as being the legal personal representative, or assignee in bankruptcy, or husband of the person named in the certificate (x).

Foreign bonds.

The ownership of the public funds of British colonies and of foreign governments is usually evidenced by the possession of formal documents or bonds, the mere possession of which carries with it the right of receiving the annual interest and the principal sum secured, and which pass by simple delivery from hand to hand. To them are usually affixed coupons for interest due at intervals between the date of the loan and the period fixed for repayment. English exchequer bills or bonds are of this character (y).

Exchequer bills.

Shares in public incorporated companies are another most important branch of this kind of property. They are declared to be personal property by act of Shares in incorpo- parliament (z), with the single exception of shares in the New rated companies. River Company, a very old company. It is impossible here to enter into an account of the law regulating these; we may simply remark, that they may be either accompanied with unlimited liability on the part of the owners of the shares to discharge the company's debts, or such liability may be, as it usually now is, limited to the nominal amount of the shares (a). Another important species of rights, which must be included in the present class, are those which * depend upon the art and ingenuity and indus[* 580] try of man, and the estimation given to the products arising from those qualities. It includes several varieties: 1. Copyright of books and writings. 2. Patents for invention. 3. Designs for manufacture. 4. The indicia of commercial reputation, trade-mark, and the good will of a business. The first three of these depend now upon statutory enactment, although they were not wholly unprotected by the common law (b); the last still rests upon the doctrines of the courts. We will say a few words upon each subject, though our disquisition must necessarily be short.

Copyright of ings.

1. The copyright of books and other writings is the right which the law affords for protecting the produce of man's intellectual industry from being made use of by others without adequate recompense to him. When a man, books and writ- by the exertion of his rational powers, has produced an original work, he seems to have clearly a right to dispose of that identical work as he pleases, and any attempt to vary the disposition he has made of it appears to be an invasion of that right. Now the identity of a literary composition consists entirely in the sentiment and the language (c); the

den to avail themselves of this act, unless specially authorized by their trust. Contravention of this section is to be deemed a breach of trust, and punishable accordingly. An act of the present year, 1869, also directs the bank to issue to fundholders interest warrants upon inscribed stock. 32 & 33 Vict. c. 104.

(x) Sect. 6. As to the rights of executors, see 8 & 9 Vict. c. 97; and as to unclaimed dividends, see 8 & 9 Vict. c. 62.

(y) See 29 Vict. c. 25.

(2) As to shares in railway and other companies incorporated by special acts, see 8 & 9 VOL. I.-100

Vict. c. 16, s. 7; as to shares in other companies, 25 & 26 Vict. c. 89, s. 22.

(a) As to railway and similar companies, see 8 & 9 Vict. c. 16, ss. 21, 36; as to other companies, 25 & 26 Vict. c. 89, s. 38.

(b) Miliar v. Taylor, 4 Burr. 2303; Donaldson v. Beckett, ib. 2408.

(c) See Pike v. Nicholas, 38 L. J. Ch. 529; Kelley v. Morris, L. R. 1 Eq. 697; Morris v. Ashbee, L. R. 7 Eq. 34; in which last two cases the rights of a compiler of a directory (in which no sentiment can be involved, but merely the result of labour) were discussed and sustained.

same conceptions, clothed in the same words, must necessarily be the same composition: and whatever method be taken of exhibiting that composition to the ear or the eye of another, by recital, by writing, or by printing, in any number of copies, or at any period of time, it is always the identical work of the author which is so exhibited ; and no other man (it has been thought) can have a right to exhibit it, especially for profit, without the author's consent (397).

*

Before the era of printing these rights must necessarily have stood [*581] upon a footing different in many respects to that on which they are now placed. The mechanical process of publishing works must then have had an importance greater, relatively to the matter published, than now. Consequently the necessity of protection by law was less, if at all, felt. Accordingly the Roman law is silent upon the subject of an author's rights; all the notice which it took of writings was simply to declare, that if one man wrote on the paper or parchment of another, the ownership of the blank materials remained unaffected (d). Not that the law was regardless of the respect due to genius and intellectual or artistic power, for the same law declared (e) that a painter, who used another's canvas, by the fact of his artistic creation acquired the property in the picture, being, it is presumed, bound to indemnify the owner of the canvas. So we find but few instances in our ancient law in which the matter has been discussed, though it is certain that the law considered an author entitled to protection (f). The law, however, having been settled by statute, the common law on the subject, whatever it was, has been abrogated. The earliest statute is 8 Anne, c. 19, which, after being several times amended and altered (g), has been repealed; and the right now wholly rests upon an act of the present reign (h), by which "the sole and exclusive liberty of printing or otherwise multiplying copies" (i) of any "book" (which word in the act referred to has a very extensive signification) (k) is reserved to the author and his representatives for the term of his natural life and ten years afterwards, or for the term of forty-two years, whichever * is the longer [* 582] period. This right is made subject to certain conditions, the most important of which are the presentation within one month after publication, of a copy to the British Museum, and within twelve months to the Bodleian library at Oxford, the Cambridge University library, the Advocates' library at Edinburgh, and that of Trinity College, Dublin. The proprietorship must also be registered at Stationers' Hall in a book kept for that purpose (1). In order to secure the benefit of the copyright the book must be first published in England (1).

We may add, that the same act secured to musical composers and dramatic

[blocks in formation]

(397) See 2 Kent's Com. 373-384; Curtis on Copyright; Schouler on Personal Property, 654, 671; Act of Congress of July 8, 1870 (16 U. S. Stat, at Large, 212, ch. 230, § 85), etc.

« PreviousContinue »