scope of the 17th section. In 1845 it was decided that a contract for the sale of railway shares might be the subject of an action at law; it was argued that being only choses in action, they were not the subject-matter of a legal sale, but Maule J. showed the fallacy of the argument: A chose in action cannot be transferred so as to enable the transferee to sue at law, but there is no illegality in the transfer. The law takes notice of these shares as things of value."

But although stocks and shares are choses in action within the rules as to reduction into possession and reputed ownership, and for other purposes, they are in some respects treated as being (what they really are) property of a special kind. We speak of the 'legal estate' in shares as opposed to equitable rights and interests, just as if they were land or other tangible property 3. Again, in questions of priority between various claimants, the law relating to the transfer of shares is quite different from that governing the assignment of ordinary choses in action, such as debts. If a share were a 'chose merely in action,' an assignment of it in writing, followed by notice to the company, would vest it in the assignee, and he would take subject to prior equities. But in the case of a company governed by the Companies Act, 1862, or the Companies Clauses Act, 1845, registration is an all-important element in the transfer of shares; in fact, registration is equivalent to seisin, for when a transfer to a bona fide transferee for value without notice has been registered, he acquires the legal estate' in the shares free from any equities affecting prior holders *, but until he is registered, or has acquired an absolute and immediate right to be registered, his title is liable to be defeated by the prior equitable interest of some one else 5. And according to the better opinion, in questions between equitable assignees of shares, priority is determined by order of date, not of notice to the company: in other words, the doctrine of Dearle v. Hall does not apply to shares in companies 6.

1 Per Denman C.J. in Humble v. Mitchell, 11 Ad. & E. at p. 208. Tempest v. Kilner, 2 C. B. at p. 308.

3 See the cases cited in the next three notes, and Colonial Bank v. Hepworth (1887), 36 Ch. D. 36, which was the case of shares in an American company.

Dodds v. Hills (1865), 2 H. & M. 424; France v. Clark, 26 Ch. D. 257.

5 Roots v. Williamson (1888), 38 Ch. D. 485; Moore v. North Western Bank, '91, 2 Ch. 599; Powell v. London & Prov. Bank, '93, 2 Ch. 555.

Per Lord Selborne, Société Générale v. Walker (1885), 11 App. Ca. at p. 30; per Lindley L.J., S. C., 14 Q. B. D. at p. 457; Lindley on Companies, 477. This rule does not of course affect the application of the principle of Hopkinson v. Rolt to mort. gages of shares (Bradford Banking Co. v. Briggs (1886), 12 App. Ca. 29). And it may be a question whether the rule applies to companies governed by the Companies Clauses Act, 1845, s. 20 of which is not so explicit as s. 30 of the Companies Act, 1862. It will be noticed that in Société Gén. v. Walker and Colonial Bank v. Whinney, Lord Blackburn based his opinion almost entirely on considerations connected with the share certificates. As to the effect of a certificate, see Shropshire Union Co. v. Reg., L. R. 7 H. L. 496; Re Ottos Kopje Co., '93, I Ch. 618.

6

There remains the question whether chose in action' includes a right of action for tort, and whether the term ought to be extended to patents, copyrights, and similar kinds of property.

As regards rights of action for tort, Mr. Cyprian Williams's treatment of the subject in a recent number of this REVIEW1 makes it unnecessary to consider it here. I would merely add that the article on choses in action in Jacob's Law Dictionary (which is the most compendious and accurate note on the subject which I have found in any law dictionary) expressly includes torts 2, and that Blackstone's definition is so incomplete as to be almost worthless. It excludes not only rights of action for tort, but such property as stock in the funds, or in a trading company, which had been settled to be a chose in action before Blackstone wrote; he also takes no notice of choses in action real. His treatment of the subject has not been adopted by his editors 3, and did not always commend itself to Sir Howard Elphinstone. But it does not follow that chose in action' is always used in such a sense as to include rights of action for tort. On the contrary, the term as used in modern reports, statutes, and text-books prima facie means a right or property which is assignable. It would require some courage to seriously maintain that s. 25 of the Judicature Act, 1873, has made it possible to assign a right of action for tort. That section is clearly inapplicable to stocks, shares, patents, and other choses in action the title to which depends on a statutory register, and there is some doubt whether it applies to future rent 5.

As regards patents, copyrights, and similar forms of property, no writer on the subject, so far as I know, has included them among choses in action without an apology. The late Mr. Joshua Williams classified them as incorporeal property, and rightly so, because whether they are or are not choses in action for some purposes, their essential quality is that they are permanent property -not necessarily perpetual, but wholly different from such transient things as debts and other rights of action. It does not appear to have been decided whether they are choses in action or not, partly no doubt because no question could well be raised as to their assignability. It is clear that on the bankruptcy of the owner

1 P. 143, supra.

All causes of suit for any debt, duty or wrong, are to be accounted choses in action.'

3 See the editor's note in the 21st edition of the Commentaries; Steph. Comm. ii. 11, note (C) (11th edit.); and Mr. Hadley's revision of Blackstone's chapter (Broom and Hadley's Comm. ii. 576 seq.).

Elphinstone Introduction to Conveyancing (3rd edit.), 170. In Williams on Executors torts are included among choses in action.

5 Southwell v. Scotter (1880), Week. N. 49; 49 L. J. Q. B. 356.

they pass to the assignee or trustee under the provisions of the various Acts relating to bankrupts, but whether they are things in action' within the reputed ownership clauses of the Bankruptcy Acts, 1869 and 1883, or within the doctrine of reduction into possession by a husband, are questions which do not appear to have been decided. It is however difficult to conceive that patents, copyrights, and trademarks can be 'goods' or 'chattels personal or chattels personal in possession,' when the alternative of classifying them as 'choses in action' is open to us. The correct view, it is submitted, is that they are choses in action within the doctrines of reputed ownership and reduction into possession, and that in the case of a husband becoming entitled to them in right of his wife under the old law, they could have been reduced into possession by being registered in his name, by analogy to stocks and shares. This question is not likely now to arise.

2

The mode in which questions of priority relating to patents, copyrights, and trademarks should be determined is not very clear, owing to the loose way in which the Copyright Acts and the Patents, Designs and Trademarks Act, 1883, are drawn. As regards patents, designs, and trademarks, the register is in the nature of a register of title, for the registered proprietor in granting licenses or assigning or otherwise dealing with his privilege, does so subject to any rights appearing from the register to be vested in any other person 5, and although no trusts can be entered on the register, equitable assignments can be registered, at all events in the case of patents 7. It seems to follow, first, that if A appears on the register as the proprietor and assigns his patent to B, the registration of B vests the patent in him free from all equities not appearing on the register, and secondly, that if A, instead of assigning the patent to B, gives him an equitable interest in it by a registered instrument, B takes priority over an equitable assignee under a document earlier in date, but either not registered at all, or registered after B's assignment. In the case of copyright

1 Hesse v. Stevenson (1803), 3 Bos. & P. 565.

2 Bankruptcy Act, 1883, ss. 44, 168. 3 Co. Litt. 351 b.

The cases deciding that copyright came within the words 'goods and chattels ' in the reputed ownership clauses of the old Bankruptcy Acts (Longman v. Tripp (1805), 2 B. & P., N. R. 67, 9 R. R. 617; Ex parte Foss (1858), 2 De G. & J. 230) are not very satisfactory, but they proceeded on the ground that goods and chattels ' include intangible property,' that is, choses in action. On the same principle a policy of insurance was held to be covered by the words 'goods and chattels' (see Williams v. Thorp (1828), 2 Sim. 257; Green v. Ingham (1867), L. R. 2 C. P. 525) ; a policy being a thing in action is now excluded from the reputed ownership clause (Ex parte Ibbetson (1878), 8 Ch. D. 519). • Sec. 85.

5 Patents Act, 1883, s. 87.

7 Patent Rules, 1890, rr. 68, 71; Re Casey's Patents, '92, 1 Ch. 104.

in the United Kingdom, registration is only necessary to enable the proprietor to sue for infringements; it does not appear to affect the question of title or priority.

The chief result of this investigation is to confirm Sir Howard Elphinstone's conclusion that 'chose in action' is used in at least two meanings. Prima facie, it means a debt, or sum of money payable under a contract. It is so used in the Judicature Act, and also in ordinary parlance. We should never think of describing a transfer of stock as an assignment of a chose in action. In a more extended and technical sense, however, it includes shares and stocks; it is so used in the Bankruptcy Act, and in the old law of husband and wife. In a still wider sense it includes many rights which the old books treated as choses in action or things of that nature,' such as rights of action for torts, rights of entry, annuities, rights of presentation, &c., and also (it is submitted) some rights of more modern origin, such as patents, copyrights, and trademarks.

Possibly, too, a moral may be drawn from the history of choses in action, and that is, that parliamentary draftsmen should not use technical terms without knowing what they mean.

Following the example of Sir Howard Elphinstone, I have not attempted to deal with equitable choses in action. This branch of the subject is much less difficult-and less interestingthan choses in action at common law.

CHARLES SWEET.

WHAT IS A THING?

THE question what is a Thing is much less simple than the

question what is a Person. Roman law will tell us that some things are corporeal and others incorporeal; the Common Law will tell us that some things are in possession and others in action. The Roman division is easier on a first view; the English one is no doubt subtler, less clearly defined, and more difficult for beginners to grasp. It is therefore commonly assumed that the Roman conception is rational and the English is not. We must have a little patience before we are ready to form an opinion.

A thing is, in law, some possible matter of rights and duties conceived as a whole and apart from all others, just as, in the world of common experience, whatever can be separately perceived is a thing.

The kind of 'things' with which we are most familiar are material sensible objects which can be dealt with in the way of manual use. No difficulty occurs in treating a house, a book, or a sheep, as things. As borrower of a book, I have the right of keeping the book for the agreed time, or until re-demanded, and the duty of returning it. The book is plainly not the same as my rights, or any one's, regarding the book, or the sum of all possible rights. It would still be a real book if it belonged to nobody. We are not now considering what the possible rights, of ownership or otherwise, may be. We take it provisionally as common knowledge that an owner who has not parted with any of his rights has large powers of use and disposal over the thing owned, powers which are indefinite even though they may be limited in certain directions by rules of law.

There is no trouble, again, in extending this notion of a 'thing' to an aggregate of material things, such as land with a house and other buildings on it, a library with all the books in it, a flock of sheep. Any of these aggregates may be treated as a single thing if we find it convenient. Physical continuity is in no way essential to the identity and singleness of the rights existing over material objects. Physical discontinuity makes it, no doubt, easier to separate those rights and form new combinations; but easier only in degree. One sheep may be bought and driven off from the flock; one chair out of a set may be sold or given away. But also