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chattels; because, being things transitory, and by many accidents subject to be lost, destroyed, or otherwise impaired, and the exigencies of trade requiring also a frequent circulation thereof, it would occasion perpetual suits and quarrels, and put a stop to the freedom of commerce, if such limitations in remainder were generally tolerated and allowed. But yet in last wills and testaments such limitations of personal goods and chattels, in remainder after a bequest for life, were permitted: though originally that indulgence was only shown when merely the use of the goods, and not the goods themselves, was given to the first legatee: the property being supposed to continue all the time in the executor of the devisor. But now that distinction is disregarded:" and therefore if a man either by deed or will limits his books or furniture to A. for life, with remainder over to B., this remainder is good. But, where an estate-tail in things personal is given to the first or any subsequent possessor, it vests in him the total property; and no remainder over shall be permitted on such a limitation. For this, if allowed, would tend to a perpetuity, as the devisee or grantee in tail of a chattel has no method of barring the entail: and therefore the law vests in him at once the entire dominion of the goods, being analogous to the fee-simple which a tenant in tail may acquire in a real estate. And the rule as to perpetuities equally applies to personal estate as to real estate; as does also the statute against accumulations, as has been already noticed.

number of

owners.

Next, as to the number of owners. Things personal may [ 399 ] belong to their owners, not only in severalty, but also in As to the joint-tenancy, and in common, as well as real estates. They cannot indeed be vested in coparcenary; because they do not descend from the ancestor to the heir, which is necessary to constitute coparceners. But if a horse, or other personal chattel, be given to two or more, absolutely, they are joint tenants thereof, and an undivided moiety thereof

1 Equ. Cas. Abr. 360.

m Mar. 106.

n 2 Freem. 206.

Mr. J. Coleridge, however, doubts whether this would be valid without

the intervention of trustees.

P 1 P. Wms. 290.

P See ante, p. 208.

4 See ante, p. 210.

may be sold; and, unless the jointure be severed, the same doctrine of survivorship shall take place as in estates of lands and tenements. And, in like manner, if the jointure be severed, as by either of them selling his share, the vendee and the remaining part-owner shall be tenants in common, without any jus accrescendi or survivorship. So also if £100 be given by will to two or more, equally to be divided between them, this makes them tenants in common;" as we have formerly seen," the same words would have done, in regard to real estates. But, for the encou ragement of husbandry and trade, it is held that a stock on a farm, though occupied jointly, and also a stock used in a joint undertaking, by way of partnership in trade, shall always be considered as common and not as joint property; and there shall be no survivorship therein.*

118.

Marson v. Short, 2 Bing. N. C.

Litt. s. 212; 1 Vern. 217.

Litt. s. 321.

1 Equ. Cas. Abr. 292. w Page 229.

* 1 Vern. 217; Co. Litt. 181.

CHAPTER THE TWENTY-EIGHTH.

OF TITLE TO THINGS PERSONAL BY OCCUPANCY. [ 400 ]

things per

WE are next to consider the title to things personal, or The title to the various means of acquiring, and of losing, such property sonal. as may be had therein: both which considerations of gain and loss shall be blended together in one and the same view, as was done in our observations upon real property; since it is for the most part impossible to contemplate the one, without contemplating the other also. And these methods of acquisition or loss are principally twelve: 1. By occupancy. 2. By prerogative. 3. By forfeiture. 4. By custom. 5. By succession. 6. By marriage. 7. By judgment. 8. By gift or grant. 9. By contract. 10. By bankruptcy and insolvency. 11. By testament. 12. By administration.

cupancy.

And first, a property in goods and chattels may be ac- Title by ocquired by occupancy: which we have more than once" remarked, was the original and only primitive method of acquiring any property at all; but which has since been restrained and abridged by the positive laws of society, in order to maintain peace and harmony among mankind. For this purpose, by the laws of England, gifts, and contracts, testaments, legacies, and administrations have been introduced and countenanced, in order to transfer and continue that property and possession in things personal which have once been acquired by the owner. And, where such things are found without any other owner, they for the most part belong to the king by virtue of his prerogative; except in some few instances wherein the original and natural right of occupancy is still permitted to subsist, and which we are now to consider.

a See p. 3, 8, 302.

1. Any one may seize

belong to an

1. Thus in the first place, it hath been said, that anysuch goods as body may seise to his own use such goods as belong to an alien enemy, alien enemy. For such enemies, not being looked upon as members of our society, are not entitled during their state of enmity to the benefit or protection of the laws; and therefore every man that has opportunity is permitted to seise upon their chattels, without being compelled as in other cases to make restitution or satisfaction to the owner. But this, however generally laid down by some of our writers, must in reason and justice be restrained to such captors as are authorised by the public authority of the state, residing in the crown; and to such goods as are brought into this country by the alien enemy, after a declaration of war, without a safe conduct or passport. And therefore it hath been holden,d that where a foreigner is resident in England, and afterwards a war breaks out between his country and ours, his goods are not liable to be seised. It hath also been adjudged, that if an enemy take the goods of an Englishman, which are afterwards retaken by another subject of this kingdom, the former owner shall lose his property therein, and it shall be indefeasibly vested in the second taker; unless they were retaken the same day, and the owner before sun-set puts in his claim of property. Which is agreeable to the law of nations, as understood in the time of Grotius, even with regard to captures made at sea; which were held to be the property of the captors after a possession of twenty-four hours; though the modern authorities require, that before the property can be changed, the goods must have been [492] brought into port, and have continued a night intra præsidia, in a place of safe custody, so that all hope of recovering them was lost.

qualified

and obtain a And, as in the goods of an enemy, so also in his person, property in a man may acquire a sort of qualified property, by taking him a prisoner in war; at least till his ransom be paid.'

his person.

b Finch. L. 178.

e Freem. 40.

d Bro. Abr. tit. propertie, 38, Forfeiture, 57.

e Ibid.

De j. b. and p. 1. 3, c. 6, s. 3.

Bynkersh. quæst. jur. publ. I. 4 ; Rocc. de Assecur. not. 66.

h Bro. Abr. tit. propertie, 18.

We meet with a curious writ of trespass in the register (102) for breaking a man's house, and setting

And this doctrine seems to have been extended to negroservants, before the abolition of negro-slavery,' who were purchased, when captives, of the nations with whom they were at war, and were therefore supposed to continue in some degree the property of their masters who bought them though, accurately speaking, that property (if it indeed continued) consisted rather in the perpetual service, then in the body or person of the captive."

found on the

surface of the

earth or sea.

2. Thus again, whatever moveables are found upon the 2. Moveables surface of the earth, or in the sea, and are unclaimed by any owner, are supposed to be abandoned by the last proprietor; and, as such, are returned into the common stock and mass of things: and therefore they belong, as in a state of nature, to the first occupant or finder, unless they fall within the description of waifs, or estrays, or wreck, or hidden treasure; for these, we have elsewhere seen," are vested by law in the king, and form a part of the ordinary revenue of the crown. But the finder is bound to restore the property found to the owner if possible; and if he keeps it when the owner may be reasonably ascertained, he will be guilty of larceny."

fit of the ele

3. Thus too the benefit of the elements, the light, the 3. The bene air, and the water, can only be appropriated by occupancy. ments. If I have an ancient window overlooking my neighbour's ground, he may not erect any blind to obstruct the light: but if I build my house close to his wall, which darkens it, I cannot compel him to demolish his wall; for there the first occupancy is rather in him than in me. If my neighbour makes a tan-yard, so as to annoy and render less salubri- [ 403 ] ous the air of my house or gardens, the law will furnish me with a remedy; but if he is first in possession of the air, and I fix my habitation near him, the nuisance is of

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