strument.

in his presence, lest by any possibility they should mistake the inBut the testator's signature, made by himself or some one in his presence, must now be at the foot or end of the will, and must be made or acknowledged in the presence of two witnesses, present at the same time, who must attest and subscribe the will in the presence of the testator. No particular form of attestation is, however, necessary.

Many questions were raised under the old law, as to the competency of the witnesses to a will. In one case, determined by the court of King's Bench, the judges were extremely strict in regard to the credibility, or rather the competency, of the witnesses; for they would not allow any legatee, nor by consequence a creditor, where the legacies and debts were charged on the real estate, to be a competent witness to the devise, as being too deeply concerned in interest not to wish the establishment of the will; for, if it were established, he gained a security for his legacy or debt from the real estate, whereas otherwise he had no claim but on the personal assets. This determination, however, alarmed many purchasers and creditors, and threatened to shake most of the titles in the kingdom that depended on devises by will. For, if the will was attested by a servant to whom wages were due, by the apothecary or attorney whose very attendance made them creditors, or by the minister of the parish who had any demand for tithes or ecclesiastical dues, and these are the persons most likely to be present in the testator's last illness, and if, in such case, the testator had charged his real estate with the payment of his debts, the whole will, and every disposition therein, so far as related to real property, were held to be utterly void. This occasioned the statute 25 Geo. II., c. 6, which restored the competency and credit of such legatees; by declaring void all legacies given to witnesses, thereby removing all possibility of their interest affecting their testimony. The same statute established the competency of creditors; by directing their testimony to be admitted, but leaving their credit to be considered by the court before whom such will should be contested.

The statute 1 Vict., c. 26, having repealed the act of Geo. II., re-enacts and extends some of its provisions. It avoids bequests, not only to an attesting witness, but to the husband or wife of such witness; and expressly provides that the incompetency of a witness to prove the execution of a will, shall not render it invalid. It fur ther enacts that any creditor, or the wife or husband of any creditor, whose debt is charged upon the property devised or bequeathed by the will, may be admitted to prove the execution thereof as an attesting witness; and that an executor of a will may be admitted to prove its execution, a point on which some doubts had previously existed.

Another inconvenience was, soon after its introduction, found to attend the method of conveyance by devise; in that creditors by specialties which affected the heir, provided he had assets by descent, were now defrauded of their securities, not having the same remedy against the devisee of their debtor. This was remedied by 3 & 4 W. & M., c. 14, since repealed; but the payment of simple contract as well as specialty debts, out of the real estate of the deceased debtor, has been provided for by other statutes.

A will of lands, made under the earlier statutes, was considered by the courts of law not so much in the nature of a testament, as of a conveyance declaring the uses to which the land should be subject. And upon this notion was founded a distinction between such devises and testaments of personal chattels; the latter operating upon whatever the testator died possessed of, the former only upon such real estates as were his at the time of executing and publishing his will. No after-purchased lands therefore passed under such devise, unless, subsequent to the purchase or contract, the devisor re-published his will; but the Wills Act, 1 Vict., c. 26, has abolished this distinction; and all property of whatever kind, of or to which a man is possessed or entitled, at the time of his death, passes by his will; as the instrument now, with reference to the real and personal estate comprised in it, speaks and takes effect as if executed immediately before the testator's death, unless a contrary intention appears by the document itself.

And thus we have taken a transient view of a very large and diffusive subject, the doctrine of common assurances: which concludes our observations on the title to things real, or the means by which they may be reciprocally lost and acquired. The subject is one of very extensive use, and of as extensive variety. And yet I am afraid it has afforded the student less amusement and pleasure in the pursuit, than the matters discussed in the preceding part of these commentaries. To say the truth, the vast alterations which the doctrine of real property has undergone from the Conquest to the present time; and the multiplicity of acts of parliament which have amended, or sometimes only altered, the common law, have made the study of this branch of our national jurisprudence a little perplexed and intricate. It has been my endeavour to select such parts of it as were of the most general use, where the principles were the most simple, the reasons of them the most obvious, and the practice the least embarrassed. Yet I cannot presume that I have always been thoroughly intelligible to such of my readers as were before strangers even to the very terms of art, which I have been obliged to make use of; though, whenever those have first occurred, I have generally attempted a short explanation of their

meaning. And therefore I shall close with the words of Sir Edward Coke: "Albeit the student shall not at any one day, do what he 66 can, reach to the full meaning of all that is here laid down, yet let "him no way discourage himself, but proceed; for on some other "day, in some other place," or perhaps on a second perusal of the same, "his doubts will be probably removed."

CHAPTER XXI.

OF THINGS PERSONAL.

Chattels real-Chattels personal.

UNDER the name of things personal are included all sorts of things movable, which may attend a man's person wherever he goes; and, therefore, being only the objects of the law while they remain within the limits of its jurisdiction, and being also of a perishable quality, are not esteemed of so high a nature, nor paid so much regard to by the law, as things that are in their nature more permanent and immovable, as lands and houses, and the profits issuing thereout. These, being constantly within the reach, and under the protection of the law, were the principal favourites of our first legislators: who took all imaginable care in ascertaining the rights, and directing the disposition, of such property as they imagined to be lasting; but entertained a very low opinion of all personal estate, which they regarded as only a transient commodity. The amount of it, indeed, was comparatively very trifling during the scarcity of money and the ignorance of luxurious refinements which prevailed in the feudal ages. Hence it was, that a tax of the fifteenth, tenth, or sometimes a much larger proportion, of all the movables of the subject, was frequently laid without scruple, though now it would justly alarm our opulent merchants and stock-holders. And hence, likewise, may be derived the frequent forfeitures, inflicted by the common law, of all a man's goods and chattels, for misbehaviours that at present hardly seem to deserve so severe a punishment. Our ancient law-books do not often therefore condescend to regulate this species of property. There is not a chapter in Britton or the Mirror that can fairly be referred to this head; and the little that is to be found in Glanvil, Bracton, and Fleta, seems principally borrowed from the civilians. But since the extension of trade and commerce, which are entirely occupied in this species of property, we have learned to conceive different ideas of it. Our courts now regard a

man's personalty in a light quite equal to his realty and have adopted a less technical mode of considering the one than the other; frequently drawn from the rules which they found already established by the Roman law, but principally from reason and convenience, adapted to the circumstances of the times; preserving withal a due regard to ancient usages, and a certain feudal tincture, which is still to be found in some branches of personal property.

But things personal, by our law, do not only include things movable, but also something more: the whole of which is comprehended under the general name of chattels, derived from the technical Latin catalla; which primarily signified only beasts of husbandry, or cattle, but in its secondary sense was applied to all movables in general. In the Grand Coustumier of Normandy, a chattel is described as a mere movable, but at the same time it is set in opposition to a fief or feud: so that, not only goods, but whatever was not a feud, were accounted chattels. And it is in this latter more extended, negative sense, that our law adopts it; the idea of goods, or movables only, being not sufficiently comprehensive to take in everything that the law considers as a chattel interest.

Chattels, therefore, are distributed into two kinds, chattels real, and chattels personal.

1. Chattels real are such as concern, or savour of, the realty; as terms for years of land, the next presentation to a church, estates by elegit, or the like. And these are called real chattels, as being interests issuing out of real estates: of which they have one quality, viz., immobility, which denominates them real; but want the other, viz., a sufficient legal indeterminate duration: and this want it is that constitutes them chattels. The utmost period for which they can last is fixed and determinate, so that they are not equal in the eye of the law to the lowest estate of freehold, a lease for another's life.

2. Chattels personal are, properly and strictly speaking, things movable; which may be annexed to or attendant on the person of the owner, and carried about with him from one part of the world to another. Such are animals, household stuff, money, corn, and everything else that can properly be transferred from place to place. And of this kind of chattels it is that we are principally to speak in the remainder of this book; having been unavoidably led to consider the nature of chattels real, and their incidents, in the former chapters which were employed upon real estates.

Chattel interests being thus distinguished and distributed, it will be proper to consider, first, the nature of that property, or dominion, to which they are liable; and, secondly, the title to that property, or how it may be lost and acquired.

CHAPTER XXII.

OF PROPERTY IN THINGS PERSONAL.

Property in possession- Absolute property-Qualified property-In animalsIn things personal-Property in action-Damages-Partnership pro perty.

PROPERTY, in chattels personal, may be either in possession; which is where a man has not only the right to enjoy, but has the actual enjoyment of the thing: or else it is in action; where a man has only a bare right, without any occupation or enjoyment. And of these the former, or property in possession, is divided into two sorts, an absolute and a qualified property.

I. First, then, of property in possession absolute; which is where a man has, solely and exclusively, the right, and also the occupation, of any movable chattels; so that they cannot be transferred from him, or cease to be his, without his own act or default. Such may be all inanimate things, as goods, plate, money, jewels, and the like. such also may be all vegetable productions, as the fruit of a plant, when severed from the body of it; or the whole plant itself, when severed from the ground.

But with regard to animals, which have in themselves a principle and power of motion, and can convey themselves from one part of the world to another, there is a great difference made with respect to their several classes, not only in our law, but in the law of nature and of all civilized nations. They are distinguished into such as are domite, and such as are feræ naturæ: some being of a tame and others of a wild disposition. In such as are of a nature tame and domestic, as horses, kine, sheep, poultry, and the like, a man may have as absolute a property as in any inanimate beings; because these continue perpetually in his occupation, and will not stray from his house or person, unless by accident or fraudulent enticement, in either of which cases the owner does not lose his property.

Other animals, that are not of a tame and domestic nature, are either not the objects of property at all, or else fall under our other division, namely, that of qualified, limited, or special property. In discussing which subject, I shall in the first place show how this species of property may subsist in such animals as are feræ naturæ, or of a wild nature; and then, how it may subsist in any other things, when under particular circumstances.