« PreviousContinue »
the heir was also entitled to his deceased ancestor's chattels for the purpose of paying the ancestor's debts. But afterwards all title of an owner of chattels passed, on bis death, either to the persous, whom he had appointed to perform his will and who were called his executors, or if he died intestate, then to the administrator of his effects, appointed in pursuance of a statute of Edward III. (le) from among the next friends of the deceased by the ecclesiastical authority, to whom the administration of intestates' effects had been previously committed (l). And the administrator of an intestate is bound (m) to distribute the surplus of his chattels, after payment of his debts, between his widow and children or next of kin, according to rules, which permit males and females in the same degree of relationship to sbare equally, giving no preference to males or to the eldest male (n).
A further distinction between property in land and As to the property in goods arose from the different nature of the nature of the remedies given for the deprivation of either. This remedies for distinction rests at bottom upon the physical difference of land and between land, which is immoveable and indestructible, goods. and goods, which are moveable and perishable. Hence a dispossessed landholder can always be restored by process of law to the identical holding, from which he has been ejected: while there is no such certainty of specific restitution in the case of goods. For goods
() Stat. 31 Edw. III. c. 11.
(0) Williams, R. P. 19, 20, 17th el.; Marriot v. Marriot, 1 Str. 666. After the year 1857 the adıninistrator of an intestate's effects was appointed by the Court o: Probate. Since 1875 he has been appointed by the Probate Division of the High Court of Justice. See stats. 20 & 21 Vict. c. 77, s. 4; 36 & 37 Vict, c. 66, *3. 16, 34,
(m) By stats. 22 & 23 Car. II. c. 10; 29 Car. II. c. 3, s. 25; 1 Jac. II. c. 17, s. 7; enforcing a mode of distribution which the ecclesiastical courts had previously attempted to secure ; see 1 Sir T. Raym. 497—499; 2 Black. Comm. 515.
(n) 2 Wms. Exors, Pt. III. Bk. IV. Ch. I.; post, Part 111. Ch. IV.
may always be taken out of the jurisdiction, lost or destroyed; when the law can give the dispossessed owner no remedy but pecuniary compensation (). Actions were therefore classificd in English law, as real or personal, according to the nature of the relief afforded thereby (p). Real actions were those brought for the recovery of lands or tenements (9), wherein specific restitution was obtainable by process of execution issuing directly against the thing demanded (in rem). Personal actions were brought to enforce an obligation imposed on man personally to make reparation for a breach of contract or a wrong; in other words, they were brought to obtain pecuniary compensation for a violation of right—what the English law calls damages. Actions in which claims for both kinds of relief were combined were called mixed actions (r). Not every kind of land-holding however was recoverable in a real action. From the reign of Henry II., owing to the permanent establishment of the King's Court, and the provision of special remedies therein for dispossessed landbolders, all the existing forms of landbolding were submitted to the classifying action of a general judge-made law. The result was that freeholdings of land, or free tenements, were the only form of property in land admitted to be protected in the King's Court by real or mixed action. This restriction left unprotected in the King's Court, and therefore without the pale of property, the humbler form of land holding known as tenure in villenage (8). Tenure in villenage, however, gave rise to the customary property in land, which in later times obtained complete legal protection as copyhold (t). But there were in early times certain valuable interests in land, which fell short of the dignity of freehold, without incurring
(0) Williams, R. P. 10, 11, 17th ed.
(P) Ib. 23, and n. (1). (9) Ib. 21, 24.
(r) Ib. 23, 24.
the degradation of villenage. The most important of these were tenancies for a term of years. Placed outside the class of free tenements, they nevertheless obtained special legal protection. But they were reckoned as chattels, and thus became the objects of the same liberty of alienation and liability for debt as attached to the ownership of other chattels. Chattel interests in land also came to be completely assimilated to other chattels with regard to the mode of succession after death, passing to the executor or administrator, not the heir (u).
Now, as free tenements were the only things recover- Realty and able in the realty, or specifically by real action, they
personalty. became known by the name of realty or of real things : while things recoverable in personal actions were termed personalty, or personal things (c). And when the word realty had thus come to denote the freehold, chattel interests in land were given the name of chattels real, Chattels real because, it was said, they concerned the realty; while or personal. moveable goods were distinguished as chattels personal, “ because for the most part they belong to the person of a man, or else ” (which seems the better reason) “ for that they are to be recovered by personal actions" (y). Io later times, however, when men began to speak of all their property or valuable rights as their estate, and to classify their estate as real or personal (3), the limits of the two classes of property were determined rather by the difference in the mode of succession after death than by the nature of the actions for their recovery. The term real estate was appropriated to the realty, which passed to the heir, or to real hereditaments; while chattels real, which passed to the executor, were
(u) Williams, R. P. 16–21, 45, D. (O), 253.
(x) Ib. 24.
(y) Co. Litt. 118 b; see Wil. iams, R. P. 25, 17th ed.
(z) This was hardly common before the Restoration of Charles II.; Williams, R. P. 8 and n. (e), 26 and 11. (m), 17th ed.
on that account placed in the class of personal estate (a). Thus in modern times what is called personal property or estate comprises all chattels, which go to the executor, be they chattels real, that is, chattel interests in land, or chattels personal, namely, moveable goods and other things, for the withholding of which damages only are recoverable (b). As the law respecting chattels real is a branch of the law of property in land, it has been noticed in the author's treatise on the “Law of Real Property;” and chattels real will only be incidentally mentioned in the present work, which treats of chattels personal.
§ 2. Of the Remedies for the Recovery of Goods. We have seen that, according to the better opinion, moveable goods are said to be called chattels personal or things personal because they are things recoverable in personal actions. How it came about, that goods were only recoverable in personal actions, will appear on examination of the various remedies for the wrongful deprivation of goods. This will also show us that, while the owner of goods, in respect of their freedom from the incidents of feudal tenure, enjoyed a fuller ownership than a freeholder in fee of land, in respect of the right to recover possession, which seems to be an essential part of the conception of ownership (c), the owner of goods was by no means so effectually protected as the freeholder of land. For the common law always gave the dispossessed freeholder the right to recover possession of his land from all others, whether he had been ejected or had parted voluntarily with possession for a space of time, which had come to an end, and whether the person who held him out of the land had taken or received possession thereof froin him directly, or by ejectment of or conveyance from the original wrongdoer or any of his successors (d). But it was only by tortuous steps that the dispossessed owner of goods acquired the right to recover possession of them as against all others, irrespective of the questions, whether he had parted with the goods against his will, or not, and whether the wrongful withholder of the goods had taken them directly from the owner, or from a previous wrongful taker. In the case of land too, the common law has accorded process enabling the freeholder, and ultimately the leaseholder and the copyholder, to obtain specific restitution (e). But the process given to enforce the restitution of goods was imperfect; besides, the perishable nature of goods renders any certainty of restitution impossible.
Examination of the remedies for the recovery of goods.
(a) Williams, R. P. 8, 25—28.
(1) Ib. 28. Personal estate also comprises personal heredita
ments ; ib. 28, n. (-).
(c) Ib. 2, 6, 7, 15, 17th ed.
The most ancient remedy for an owner of goods, who Action of had lost possession of them from theft or otherwise theft. unwillingly, was that which Bracton describes as an action of theft (actio furti) (f). A part of this remedy was the fresh pursuit of the thief or of the missing goods; and the action lay against any person, in whose possession the goods were found, whether he were the original thief or taker, or had acquired possession of them, honestly or dishonestly (g), from or through the original taker (h). By these proceedings the owner might obtain both the restitution of the goods and the punishment of the thief; for if the owner succeeded in maintaining the charge of theft and the goods were worth twelvepence or more, the thief was condemned to death for the felony. The person found in possession
(d) Bract. fo. 102 a, 104 a, 160, 161, 317 b et seq., 327 b et seq.
(2) Williams, R. P. 17, 18, 61, 424, 125, 17th ed.
(f ) Bract. fo. 150 b, 151, 154 b; Glanv. x. 15-17; Fleta, fo. 54,
55 ; Britt. liv. i. ch. 16, 25 ; and
(9) See Y. B. 13 Edw. IV. 3,
(h) Bract. fo. 103 b.