The head of alienation comprehends every form by which a man transfers property to another : it comprehends, therefore, both alien ations made a person during his life, and the disposition of his property by his last will and testament. The disposition of property by will has this peculiarity about it, that though the instrument must be completed in legal form during the lifetime of the giver, the persons to whom the property is given do not thereby obtain the property ; they only obtain it by the death of the giver, who by that event becomes incapable of giving, but whose continuing intention to give is testified by the continuing existence of the instrument of gift.
The particular modes of alienation by deed are to a certain extent determined by the estate which the alienor possesses, and the estate or estates which be intends to transfer. The forms of alienation are noticed under their various heads.
4. The legal capacity for the acquisition of estates in lands, tene ments, and hereditaments, is most briefly and conveniently shown by the enumeration of the classes of persons who labour under legal incapacity ; and in like manner, as to the alienation or loss of estates, it is most conveniently shown by enumerating the persons who, owing to mental incapacity, infancy, or other causes, labour under legal incapacity to transfer or lose estates. This division comprehends so much of the status of aliens, infants, lunatics, and married women, as relates to the acquisition or loss of estates.
Personal property is not sufficiently described by the term " move ables," for certain estates iu land are personal property, mid aro comprehended under the term chattels real. Terms for years are an example of chattels real; and they pass together with the rest of a man's personal estate to the executor, the universal successor. Chattels personal are all other personal property, and are said by Blackstone " to be properly and strictly speaking things moreable, 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, jewels, coin, garments, and everything else that can properly be put in motion, and transferred from place to place." Personal property as thus defined corresponds to the mobilize or res mobiles of the Roman law; but this is a very inadequate description of personal property as recognised by the English law. And herein we first perceive the greater certainty and distinctness of the law relating to real property compared with the law relating to chattels; the things which can be the objects of real property aro defineable, as well as the estates that can bo had in them; the things that can be the objects of personal property are hardly determinable, and the estates, or more properly the interests, which a man may have in them, are perhaps also lees determinate. As examples of objects of personal property, which in no way come within Black stone's description, we may instance patent-rights, which are things incorporeal, though not hereditaments, and are the objecti of property.
A quantity of stock in the public funds is not money, though often talked of as such, but still it is property. Even debts due to a testator or intestate are considered as property with respect to probate and letters of administration ; still they are not expressed by the term goods and chattels in the letters of administratiop, but by the term " credits," for as debts are not the property of a man to whom they are due, so they cannot become property because he happens to die.
Things can be assigned by the person who has a claim to them, though they may be things which cannot be called his property : a chose in action is an instance of this. Blackstone observes : " the money duo on a bond is a chose in action : for a property iu the debt vests at the time of forfeiture mentioned in the obligation, but there is no possession till recovered by course of law." Ile had just before spoken of the nature of property in action being such that a man " hath not the occupation, but merely a bare right to occupy the thing in question.' From this it appears that he treats a debt due to a man as a property belonging to him, whereas the debt due merely gives a right of action to recover a determinate sum of money, or a sum which is less than some determinate sum. In this instance, says Blackstone, " the property or right of action depends upon an express contract or obligation to pay a stated sum." Here he uses property and right of action as synonymous, which is incorrect ; for property implies a determinate thing, and a right of action may be either for a detenni nate thing or to compel a person to do some determinate act. The thing claimed is properly enough called a " thing in action," but the action is not to have a thing, but that the defendant shall do a certain act. Blackatone observes, in a note, that the same idea and the same denomination of property prevailed hn tho civil law, but this is a mistake. In the first passage (`Dig.' 41, tit. 1, s. 52), to which he refers in support of his statement, it is clear that a corporeal definite thing is spoken of, which the commentator could hardly have doubted about, if he had given in his note the whole of the passage instead of a part of it. The passage is this : " a thing is a man's in bon is, whenever he can defend his possession of it by a plea (exceptio), or recover it when lost by an actio." This actio would be in rem : the declara tion of the plaintiff would affirm that the thing was his. In the other passage quoted by Blackstone (` Dig.' 50, tit. 16, s. 49), things which consist " in actionibus, petitionThus, persecutionibus" are included among the things in bon is ; but 'the things in action so spoken of are things which a man has not, as contrasted with things which a man has, in his possession, and these are things corporeal, things determinate. Besides, even if we should admit that the Roman law treated a debt as a thing in bon is, it did not treat it as property, for a thing in Louis was not property in the sense in which Blackstone is here using property. Further, when a Roman claimed a debt, his declaration was that something ought to be given to him or done for his benefit by the defendant ; and this "giving" always meant giving something which did not belong to the plaintiff, for it was a principle of Roman law that you could not give to a man what already belonged to him. But the Roman law had a precision in these matters of which the commentator had not the slightest idea.