were neglected; Jews became the capitalists, and capitalists were the prey of the barons; it was the ancestral acres alone which the ambitious and aspiring learned to regard with favor. Men fight and struggle for that which will best ensure them influence and social position; so, until a comparatively late period, the Anglo-Saxon found his worldly wishes for property and rank gratified chiefly, if not altogether, in the possession of real estate of a freehold character, with a tenantry beneath him, and hereditary honors to receive and transmit. Such, indeed, must be the natural bias of a rude and uncultivated, though vigorous race; for agriculture is the primitive employment of mankind, while the jurisprudence of movable property can only be perfected where commerce, manufactures, and the liberal arts flourish.

To be a freeholder, then, was to be a man of property indeed; and a freehold might be either one of inheritance, or for life only. But every estate in lands and tenements which fell short of a life interest was without dignity, and could not be deemed a freehold at all. Herein consisted the dignity of a freehold; that it should last for an indeterminate period of some sort. Any landed interest, expressed to be for a positive length of time, though it were for a thousand years, and logically more than a life interest, fell short of the rank of real estate; not being a fee, it did not attend the inheritance, nor could it be classed with lands and tenements at all. What kind of property, then, was such an estate in lands? Not, in all respects, movable property; and yet so little concern had the common law for interests less than freehold, that it stopped with denying them the rank of immovable property. One general designation sufficed for such inferior interests and for movables proper alike; whether leases for years, or money, farm stock, and furniture, all were comprehended under the name of chattels. As Blackstone gives the rule, whatever wanted either of two qualities, duration as to time, or immobility with regard to place, could not be, according to English law and the Norman custom, a real estate; consequently, it must be personal estate, or a chattel.

1 2 Bl. Com. 386; 1 Co. Inst. 118b; 2 Kent Com. 341, 312.

§ 7. Personal Property or Chattels in our Law the Residuum of the Freehold. It is obvious, therefore, that the word "chattels," at the common law, was never applied, in a strict sense, to things personal; that it did not serve to mark an exact contrast; that it had rather a negative than a positive signification. Instead of movables and immovables, we have freeholds and chattels. Instead of a property system which should display two distinct classes of equal importance, we find in the common law a sort of one-sided scheme. The jurisprudence of lands and tenements, artificial to the last degree, was the pride of the early English lawyer; for chattel learning he cherished little else than a profound contempt. Yet the last three centuries have wrought an entire change; and with the revival of trade and commerce came new species of personal property, such as bills and notes, and bonds and other securities for debt, to which are more lately added shares in stock companies, insurance policies, patentrights, and the like; all of these attesting the development of new sources of wealth, and the re-establishment of personal property a jurisprudence once nearly buried in the rubbish of the great Roman Empire as the co-equal of real property, if not indeed its superior, in legal importance.

We may do well, then, to avoid attempting a positive and exact definition of the term "personal property;" contenting ourselves with reminding the reader that what is now known as personal property was, at the common law, but the residuum of the freehold; and that such is the state of the law to-day, save where local statutes have made it otherwise.

§ 8. What is a Chattel at the Common Law. -Since "chattels" is the term usually employed at the common law to denote personal property in general, let us examine its meaning for a moment. It follows, from what has been already observed, that every species of property, movable or immovable, which is less than a freehold, must be a chattel. The origin of the term "chattel" is somewhat obscure. Coke says it is a

French word, and signifies goods, "which, by a word of art we call catalla."

1

And Blackstone observes: "The appella

1 1 Co. Inst. 118 b.

tion is in truth derived from the technical Latin word catalla, which primarily signified only beasts of husbandry, or (as we still call them) cattle, but in its secondary sense was applied to all movables in general."1 This derivation, if correct, serves to mark the simplicity of life in the early days of our law, when live stock could suffice as the representative of personal wealth. But some allege that the word "chattel" is contracted from capitalia, capital, from caput, "a word used in the Middle Ages for all goods, movable and immovable;" while others suggest that it possibly originated in a root signifying to get or possess, whence sprung also the Italian word catarre.2 Words are, after all, but the tools of the wise, fashioned after the common understanding of the day; and the symbols of etymology, though furnishing valuable aid in historical researches, may prove a blind guide to those who seek some lasting plan of consistent classification. Our English ancestors appear to have followed the Norman law in opposing the idea of chattel to that of feud or freehold.3

§ 9. Chattels Real and Chattels Personal. - In accordance with the foregoing distinctions, there are two leading classes of chattels set forth by the common-law writers: namely, chattels real and chattels personal. (Chattels real are interests less than freehold, which are annexed to or concern real estate; such as a lease of land for a certain number of years. Chattels personal are, properly and strictly speaking, things movable, which may be carried about by the owner, and which accompany him at law wherever he may go. Animals,

household goods, stock in trade, money and jewels, are chattels personal. So, also, are bills and notes, certificates of the public debt, corporation shares, legacies, loans on collateral security, and, indeed, debts, demands, and claims generally.* These subjects will be considered at length in succeeding chapters.

1 2 Bl. Com. 385. See Bouvier's Dict. "Chattel." Century Dict. ib. 2 See Webster's Dict. "Cattle." 32 Bl. Com. 385, 386.

4 See 1 Co. Inst. 118; 2 Bl. Com. 386, 387; 2 Kent Com. 340-342; Wms. Pers. Prop. Int. Ch.

§ 10. Fixtures, Heirlooms, and Emblements. But there is a border line which runs between real and personal property, freeholds and chattels, things immovable and things movable, which, as we approach it, cannot always be easily distinguished. Thus, a house firmly imbedded in the ground becomes part of the soil, and passes for immovable or real property. This is law. But a wooden shed might be built, which not only could be taken away in point of fact by its owner, but which he actually intended should be taken away and moved from place to place. Now, would the latter be personal property, or would it be real estate; part of the freehold or a mere chattel; a thing movable, or a thing immovable? Nay, there are late instances which some of our city readers may recall, where a large building of several stories has been lifted from its foundations and safely transported to an adjoining lot of ground; so wonderful are the appliances of mechanical art in these days. Whether things of a personal nature attached to the soil are legally chattels or not, must often therefore depend upon circumstances; and various important questions are raised in the courts, which we shall consider at length hereafter, under the head of "Fixtures."1

So, too, there are other chattels which the law permits to go with the freehold in case of the owner's death as heirlooms, instead of following the usual rule of distribution; this, partly from the consideration of inherent qualities, partly because of custom, and partly no doubt for mere convenience' sake or general policy. These, as well as the right to take away ripe crops, in certain contingencies, as emblements, require special treatment, likewise; and they will constitute the subject of a special chapter.2

§ 11. Choses in Possession and Choses in Action. There are other terms of familiar use in the law of personal property. Thus, chose is a well-known French word signifying "thing," which was imported into Great Britain by the Normans, as a term to be applied with especial, if not exclusive, reference to personal property. This word appears constantly in those bungling and barbarous phrases, choses in

1 See post, c. 6.

2 See post, c. 5.

possession and choses in action; or, to use the vernacular and better words, things in possession, and things in action.

The distinction which the law means to make by the use of these phrases seems to be more generally recognized than understood. The elementary writers tell us that choses in possession are personal things of which one has possession; and that choses in action are personal things of which the owner has not the possession, but merely a right of action for their possession. Or, to use the words of Blackstone, "Property in chattels personal may be either in possession, which is where a man hath not only the right to enjoy, but hath the actual enjoyment of the thing; or else it is in action, where a man hath only a bare right, without any occupation or enjoyment." If, then, my coat be stolen, and I seek to recover it from the thief, is it not my chose in action? No, is the answer: the coat is a chose in possession, whether you possess it or not. Or, if I own bank-stock, and draw regular dividends, is not the stock a chose in possession, since I occupy and enjoy it to the fullest extent? No, is the reply once more; for this is never any thing more than a chose in action. These terms, then, are certainly calculated to mislead; they do not intend just what they appear to express; and whoever reads Blackstone's chapter on "Property in Things Personal," should perceive that he confounds two senses of the word "property," the one signifying the thing possessed, the other the right of possessing.

This classification of property into choses or things in possession, and choses or things in action, is, in truth, a classification according to inherent qualities, and not with regard to the measure of the right of enjoyment at all. It is, as we are fully convinced, but a sort of modification of the more expanded idea of things corporeal and incorporeal; and this mode of classification results from the attempt to discriminate between objects of the sense and what are mere rights. Now, this grand division of property into things corporeal and things incorporeal is a perfectly natural and obvious one;

1 2 Bl. Com. 389. 397. See Bouv. 2 2 Bl. Com. c. 25. Dict. "Chose;" 1 Chitty Pract. 99.

?