THE LAW OF PERSONAL PROPERTY.

PART I.

INTRODUCTORY.

§ 1. General Division of the Subject. It will be convenient, for the due treatment of our present comprehensive subject, to consider it under these three consecutive heads: I. NATURE AND GENERAL INCIDENTS OF PERSONAL PROPERTY; II. LEADING CLASSES OF PERSONAL PROPERTY; III. TITLE TO PERSONAL PROPERTY. The first two heads receive consideration in the present volume. The third head is reserved for a second and still later volumes; the development of the law of Title to Personal Property leading us to an extended investigation of such important topics of jurisprudence as Original Acquisition, Gift, Sale, and Bailment; not to add others which elementary writers have seen fit to include under the same general head.1

1 The present author, having been gradually led on to investigate the law of personal property, after the present volume was issued in 1873, has, in the course of ten years, prepared and published three other volumes, which finally conclude his labors on this extensive subject. (1) Volume II. of Personal Property (or, as he would pre

fer to call it, Gifts and Sales), embracing the topics of Original Acquisition, Gift, and Sale. (2) Bailments, including Carriers, Innkeepers, and Pledge. (3) The Law of Executors and Administrators. These volumes develope the idea of Title; i. e., how personal property of various kinds may be acquired, enjoyed, and transferred.

PART II.

NATURE AND GENERAL INCIDENTS OF PERSONAL

PROPERTY.

CHAPTER I.

PERSONAL PROPERTY IN GENERAL.

The

§ 2. Personal Property at the Common Law Defined. term PERSONAL PROPERTY- using the word "property with reference to the thing owned, and not the right of ownership embraces at the common law all those things in which one may have a right and interest to the exclusion of others, with the exception of what we commonly designate in these days as real property or real estate.

§ 3. Mobility the Leading Essential Quality of Personal Property. The leading essential quality of personal property, in all systems of jurisprudence, that which serves more nearly than any thing else to mark the meaning and to distinguish personal from real property. - is its mobility. Things real, like lands, trees, and houses, have a fixed locality; they are immovable, so to speak. But things personal, such as money, jewelry, clothing, household furniture, boats, and carriages, are said to follow the person of the owner, wherever he goes; they need not be enjoyed in any particular place; and hence they are movable. This fundamental division of property into immovables and movables is the primary and most obvious one; and to each class we find that a separate set of legal principles has been universally applied. The popular appli

cation of the terms "real" and "personal," in the English tongue, is to the same effect.1

§ 4. Division of Things into Movables and Immovables; Changes from the one Kind to the other by Severance or Incorporation with Soil. And here we may observe how frequently things which were originally immovable become, through the operations of nature, or by the art of man, movable, so as to change from real to personal property; and, on the other hand, how things once movable, or personal property, acquire the characteristics and become subject to the law of real property. Thus, a tree is real property so long as it stands in its native soil; but cut that tree down and make a pile of wood, and you may subject it to the laws of personal property; use that wood in making a chair or a table, or deposit it in your neighbor's cellar for fuel, and it is unquestionably personal property. A mineral or metal in the earth is real property; but dig out the precious substance, and you have an article of merchandise, which is personal property. There is the orchard with its hanging fruit; and here is the gathered fruit ready for sale in the market. The act of complete severance, then, is commonly what changes property from real to personal, from immovable to movable; although the thing itself which we carry from place to place may not be the result of a mere severance, like fruits, vegetables, hewn trees, and coal, but the result of a severance followed by other acts of workmanship, as in the case of money wrought up from gold and silver ore, furniture from trees, and necklaces from precious stones once imbedded in the ground.

Personal property may be changed into real property, likewise; as in the very common instance where one takes building stone, bricks, and mortar, all personal property, -and fashions them into a house, which becomes, as it were, incorporated with the soil, and is subject to the rules which regulate real property. And yet, once more, that same house

1 See Bouvier's Dict. "Personal Civil Law, prel. book, tit. 3; 2 BI. Chattels;" Webster's Dict. "Person- Com. 384-388; § 53 post.

al;" Worcester's Dict. do.; 1 Domat

may, in the lapse of time, be pulled down; and the building materials may then be sold, as such, and acquire again the characteristics of personal property, whatever the article be styled in its various modifications.

Therefore, a thing may be first real, then personal, then real again, then personal again; and indeed the changes may go on, indefinitely, so long as the thing itself lasts. Nor is its identity necessarily lost in this process, nor need a great variety of names be applied to an original substance undergoing the transmutation; since a growing tree might first be taken from a nursery; next, pass for sale in the market as personal property; and, lastly, be transplanted and grow up in a new soil, where the law would regard the tree as part of the soil itself.

§ 5. Things Movable are Animate or Inanimate. Things movable may be further separated into things animate, and things inanimate; that is, into such things, the subject of ownership, as can move themselves, namely, animals; and those things which are inanimate and movable only through the application of force from without. Human beings, happily, cannot at this day be the subject of property at all, by the English or American law; but where slavery once existed man was classed with things personal; and all the lower animals, so far as they are owned, are subject to the law of personal, and not real, property, since they are to be deemed movables.

§ 6. Duration of Enjoyment considered; Peculiar Distinction at Common Law between Freehold and Chattel. If, then, we were permitted to treat these elementary divisions of things real and things personal as corresponding in meaning with the civil law terms, things immovable and things movable, our definition of personal property would be an easy one. But, at the common law of England, we find another element introduced for our consideration, as concerns things real; namely, duration of the time of enjoyment. The feudal system, which prevailed in the early days of English law, ascribed to the possession of landed estates an especial importance. During the Middle Ages trade and commerce