PART II.

DISTINCTIONS PECULIAR TO PERSONAL PROPERTY.

CHAPTER I.

ATTRIBUTES OF OWNERSHIP, INCLUDING THE POWER TO USE, SELL, EXCHANGE, ETC.

VARIOUS terms are used to indicate personal property. Among these may be mentioned goods, chattels, wares, merchandise, and things (either in possession or "in action"). These words, for the most part, may be used indiscriminately. In the matter of the construction of written instruments in which they are found,such as wills or statutes, differences in their meaning may become important. The word "chattel" has a very broad and comprehensive meaning, including movable property in every variety of form. The phrase "thing in action" is used of rights from the point of view of their being enforceable in a court of justice, including both contracts and causes of action springing from a tort or wrong.

SECTION I. The Power to sell or exchange. — It is a well-settled rule that the right of property in chattels includes the free and unfettered right on the part of the owner to make use of them and dispose of them as he may see fit, in the way of enjoyment or profit, unless his act be inconsistent with the public welfare. This clear right is secured by constitutional provisions. These have already been noticed while discussing the police power.

The right to convey land did not exist under the feudal system. Under the relation of feudal lord and vassal, the land, though apparently transferred in full ownership or "in fee," was assumed to have been granted in confidence in such a way as to create a personal relation, so that the lord could not sell his interest, perhaps for a money rent or services, without the consent of the vassal, or the latter without the consent of the lord. This rule led to a practice, which was recognized in law, that the lord might lawfully exact from the vassal (grantor) a sum of money for allowing him to alienate or convey the property. This was termed a "fine

for alienation." A statute of great importance was enacted in the eighteenth year of Edward I. (Statute of Westminster III.),1 which permitted a sale so that a purchaser would hold the land bought by him of the "chief lord," and not of the vendor. The consequence was that on a second sale no "fine for alienation" could be exacted. The land was freely alienable. This statute does not prevent restrictions upon the assignment of a limited or partial interest, e. g., a lease. It has generally been re-enacted in this country. It has been decided in New York, where the statute prevails, that a clause in a conveyance reserving to a grantor a right to exact a sum of money on a sale by his vendee, is repugnant to the nature of the estate, and void.2 Such clauses frequently exacted as much as a quarter of the purchase-money on a second sale, and were known as "quarter sales."

No such general rule ever prevailed as to personal property. Without freedom of sale or exchange, ownership is not complete. Many movable articles are produced in great excess of the wants of the producer. To deny the right of sale would be to make the article comparatively valueless, and to check and embarrass production. In case of sale, the unrestricted right to make a succeeding sale passes to a purchaser. If one should attempt to restrict a subsequent transfer, the restriction would be inoperative and void.

The validity of this rule, as applicable to personal property, is shown in the decisions upon the laws prohibiting the sale of ardent spirits. To test the question, let it be assumed that ardent spirits have been and are at this moment "property," and so recognized by the laws. A law is then passed that ardent spirits shall not be sold except, perhaps, for medicinal purposes. The existing owners are thus deprived of the general power of sale. The question, then, is, has there been a violation of a right of property?

This question was discussed, as a constitutional question, with great care in a case in New York." It was there decided that such a law substantially destroyed the ownership in intoxicating liquors at the time vested in persons within the State, and so violated the constitutional provision that a person shall not be deprived of life, liberty, or property without due process of law. Such a law. might be enacted if it were prospective in its operation.1

1 18 Edw. I. c. 1, known as the statute of Quia Emptores.

2 De Peyster v. Michael, 6 N. Y. 467. 8 Wynehamer v. The People, 13 N. Y. 378.

4 This decision must, however, be com:

pared with Mugler v. Kansas, 123 U. S. 623, to the effect that such a law, though an invasion of the right of property, is justifiable under the "police power." Ante, p. 432.

Similar rules would apply to the right of an owner to create temporary or limited interests in his property, e. g., to pledge it. Rules of public policy may, however, in some instances, intervene to prevent transfers. These are unobjectionable, particularly when not retrospective. Prominent among such rules are those which forbid the assignment of mere rights of action, perhaps to prevent litigation, or with a view to secure an income without anticipation, or on public grounds, as, for instance, salaries of public officers not yet due, or seamen's wages, or a life insurance held by a married woman upon her husband's life. Rules of this kind for the most part originate in statute, and are to be treated as exceptions to a general rule, justified by the special circumstances of the case.

SECTION II. The Right to abandon. - Ownership of personal property appears also to include not only the power to give it away to another, but also the right to abandon or destroy it, having due regard to the rights of others.

The right to abandon is not, however, very well settled in the decisions. It has been presented to the courts as a question of liability on the part of an owner, as where a ship has been sunk by an unavoidable accident in a public navigable river. It has been held, in such a case, that in some instances on abandonment of the possession and control of the ship all liability ceases.1 It has, however, been decided in this country that an abandonment at sea does not divest the owner of his property.2 In the State of Louisiana, abandonment may take place by force of the Revised Civil Code, § 3448. Decisions of the courts will be found in a note.3

SECTION III. The Power to dispose of Property by Will. - It may be doubted whether the power to dispose of property by will is fairly to be implied from ownership. The power of disposing of personal property by will appears to be coeval with the common law. The general power to devise real estate did not exist until the year 1540, except in certain localities, by custom. In the year just named, general power to devise land was conferred by statute.4

A distinguished writer is of opinion that a true power of devising or bequeathing property originally existed in no society except the Roman. He accordingly turns to Roman jurispru

See

1 White v. Crisp, 10 Exch. 312. also Brown v. Mallett, 5 C. B. 599. 2 Whitwell v. Wells, 24 Pick. 25. Hereford v. Police Jury, 4 La. Ann. 172; Creevy v. Breedlove, 12 Id. 745;

McGregor v. Ball, 4 Id. 289, on an Arkansas statute.

4 32 Hen. VIII. c. 1, as supplemented by 34 Id. c. 5.

dence for the source of all our modern ideas respecting wills. The whole subject is from this point of view to be considered historically, by tracing the origin and progress of the idea of testation in the Roman law, and its adoption in modern Europe down to our own time.

The original theory of a will was that it was an act of legislation, occurring at Rome in the peaceable assemblies of the people, or while they were engaged in a military campaign.1 (a) This method was used by the patricians alone, as the plebeians had no standing in the assembly referred to. The wills thus made were entirely oral. The general right to make a will is recognized in the Twelve Tables. It would appear that the clause to this effect was framed to allow the plebeians to make a will. There thus came into use the will by a fictitious sale or conveyance, called "per aes et libram," or "by copper and scales." This was made in the presence of five witnesses and a balanceholder, together with the fictitious purchaser, or, as then called, "heir."

This form of will was thus a conveyance inter vivos, by which, through certain prescribed forms, the testator passed over his estate to his "heir," or, as we would say, devisee or legatee. No writing was then necessary. The peculiarity of it was that it was irrevocable; so that the testator was henceforward at the mercy of the fictitious purchaser. Wills were, therefore, as a rule probably made only when the testator supposed himself to be near his end. By-and-by, in the course of judicial decision, the prætor (or Roman judge) introduced a less formal method, whereby the real intent of the conveyance could be disclosed in a writing, in the presence of seven witnesses, who affixed their seals to the outside as fastenings, so that it could not be broken open. At first, the devisee (purchaser) was necessarily informed of his rights, so that wills became immediately public; when the prætor's method took its place, the conveyance (per aes et libram) became a mere form. The accompanying writing disclosed the testator's intentions, which might be secret, and hence revocable. The next step was

1 In the former case it was said to be made in the Comitia Calata, and in the latter, in procinctu.

(a) The theory that the making of wills in the Comitia Calata was a legis lative act is combated by Sir Henry Maine. Ancient Law (11th ed.), p. 199. But see Hunter's Roman Law, p. 766, and Moyle's Institutes of Justinian, vol. 1, p. 235,

2 Maine's Ancient Law (11th Ed.), 202. Pater familias uti de pecuniâ tutelâve rei suae legâssit, ita jus esto.

note, where the doctrine of the text is adopted. Almost nothing is known of the nature of the will in procinctu. Moyle states that it also was an act of legisla tion of the whole populus engaged in a campaign in the field.

taken after the empire was established, and signing by the witnesses became necessary.

There were thus, in the time of Justinian, three historical sources of a Roman will, and in general controlling its validity and execution: the witnesses and the requirement of their continuous presence together, in order to publish the will, from the old law (jus civile); the seals, and the number of the witnesses, from the prætor's edict; and the subscribing by the testator and the witnesses, from the imperial constitutions. But even down to this time the oral will, in the presence of seven witnesses, could be adopted.2

The progress in this law through the prætor's edict resembled to some extent the development of the principles of equity jurisprudence. The formal conveyance by the testator conferred the legal title to the property upon the transferee, while the equitable title was created by the writing, which the prætor or judge would cause the holder of the formal title to respect. After a short period of possession, the equitable owner was clothed by a legal rule with the absolute title as against all claimants.

The law, having reached this stage, was, after the destruction of the Roman empire, brought down to modern times through the medium of the church or ecclesiastical courts, which, from an early period, had the cognizance of wills of personal property; though wills of real estate could not be regularly made, as has been seen, until a statute was enacted in the reign of Henry VIII.

The right to make a will has been declared in this country to be a creature of positive law, and not a natural right.8

SECTION IV. Succession to the Property of an Owner dying intestate. A similar question may be raised as to this point. Is succession derived from the law of nature, or is it a mere positive regulation? Is it an incident of property?

As a matter of philosophy, it is difficult to see how the rights of property in a particular owner can be prolonged to his kindred. after his death. Succession is, no doubt, an older conception than that of testamentary disposition. If it be conceded, as is now claimed by many leading jurists, that the idea of property is closely connected in its origin with that of the family, and that under the patriarchal system the family was represented by its head, then the step is a natural one to the proposition that on the death of the head some one should stand in his place and represent him, not

1 Justinian's Institutes, Book II., Tit. 10, § 3.

2 Id. § 14.

8 Patton v. Patton, 39 Ohio St. 590, 597.