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And, having thus distinguished the different degree or quantity of dominion or property to which things personal are subject, we may add a word or two concerning the time of their enjoyment, and the number of their owners ; in conformity to the method before observed in treating of the property of things real.

First, as to the time of enjoyment. By the rules of the As to the time antient common law, there could be no future property, to

of enjoyment

of things per take place in expectancy, created in personal goods and sonal. 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 (0): though originally that indulgence was only shewn, when merely the use of the goods, and not the goods themselves, was given to the first legatee (k); the property being supposed to continue all the time in the executor of the devisor. But now that distinction is disregarded (1): 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 limitation (m) (4). 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 ana

(i) 1 Eq. Cas. Abr. 360. (k) Mar. 106.

(1) 2 Freem. 206.
(m) 1 P. Wms. 290.

(4) See ante, p. 175, and note (16) thereto subjoined.

[ *399 ] As to the number of owners.

logous to the fee-simple which a tenant in tail may acquire in a real estate.

* Next, as to the number of owners. Things personal may belong to their owners, not only in severalty, but also in joint-tenancy, and in common, as well as real estates (5). They cannot indeed be vested in co-parcenary; because they do not descend from the ancestor to the heir, which is necessary to constitute co-parceners. But if a horse, or other personal chattel, be given to two or more, absolutely, they are joint-tenants hereof; and, unless the jointure be severed, the same doctrine of survivorship shall take place as in estates of lands and tenements (n). 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 1001. be given by will to two or more, equally to be divided between them, this makes them tenants in common (p); as we have formerly seen (9), the same words would have done in regard to real estatest. But, for the encouragement 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 (r).

(n) Litt. s. 282. 1 Vern. 482. (9) Pag. 193.
(0) Litt. s. 321.

(r) 1 Vern. 217. Co. Litt. 182. (p) i Eq. Cas. Abr. 292.

(5) See ante, pp. 179—194, chapter 12, with the notes thereto.

† Mr. Christian observes, that “re- vided will pass to the survivor or sursiduary legatees and executors are joint- vivors. (2 P. Wms. 103. 3 Bro. 455)." tenants, unless the testator uses some [Thicknesse v. Vernon, 2 Freem. 84, expression which converts their inter- 2nd edit. Cox v. Queenlock, Rep. temp. est into a tenancy in common; and if Finch, 176. Jackson V. Jackson, 9 Ves. one dies before a division or severance 595. White v. Williams, 3 Ves. & of the surplus, the whole that is undi. Bca. 75.-ED.]

400

CHAPTER XXVI.

OF TITLE TO THINGS PERSONAL BY

OCCUPANCY.

We are next to consider the title to things personal, or the of the means of various means of acquiring, and of losing, such property of losing title to as may be had therein: both which considerations of gain things personal. 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. 11. By testament. 12. By administration.

And, first, a property in goods and chattels may be ac- I. By occupanquired by occupancy: which we have more than once (a) cyremarked, 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 has once been acquired by the owner. And, where such

(a) See pag. 3, 8, 258.

1. Of the goods of an alien enemy;

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.

1. Thus, in the first place, it hath been said, that any body may seize to his own use such goods as belong to an alien enemy (6). 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 seizeupon 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 authorized by the public authority of the state, residing in the crown (c); and to such goods as are brought into this country by an 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 seized. It hath also been adjudged, that, if an enemy take the goods of an Englishman, which are afterwards re-taken 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 (e). 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 (g) require, that, before the property can

(6) Finch, L. 178.
(c) Freem. 40.

(d) Bro. Abr. tit. Propertie, 38. For.
feiture, 57.

(e) Ibid.
(f) De j. b. & p. 1. 3, c. 6, s. 3.

(g) Bynkersh. quæst. jur. publ. I. 4, Rocc. de Assecur. not. 66.

upon the sur

be changed, the goods must have been 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.

And, as in the goods of an enemy, so also in his person, or of his person, a man may acquire a sort of qualified property, by taking prisoner in war. him a prisoner in war (h); at least till his ransom be paid (i). And this doctrine seems to have been extended to negro servants (k), who are purchased when captives, of the nations with whom they are at war, and are, therefore, supposed to continue, in some degree, the property of their masters who buy them: though, accurately speaking, that property (if it indeed continues (1)), consists rather in the perpetual service, than in the body or person of the captive (I).

2. Thus again, whatever moveables are found upon the 2. Of unclaimed surface of the earth, or in the sea, and are unclaimed by

moveables found any owner, are supposed to be abandoned by the last pro- face of the earth,

or in the sea; prietor; 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 fortunate finder, unless save waifs, esthey fall within the description of waifs, or estrays, or hidden treasure,

trays, wrecks, or wreck, or hidden treasure; for these, we have formerly which are vested

in the king. seen (m), are vested by law in the king, and form a part of the ordinary revenue of the crown.

3. Thus, too, the benefit of the elements, the light, the 3. Of the eleair, and the water, can only be appropriated by occupancy. and water;

ments, light, air, (h) Bro. Abr. tit. Propertie, 18. per quas idem H. redemptionem suam

(i) We meet with a curious writ of cum prefato A. pro vita sua salvan-
trespass in the register (102), for break- da fecerat, satisfactum foret, detinuit)
ing a man's house, and setting such his ' fregit, et ipsum H. cepit et abduxit,
prisoner at large, Quare dumum ip- vel quo voluit abire permisit, &c.”
sius A. apud W. (in qua idem A. (k) 2 Lev. 201.

quendam H. Scotum per ipsum A. de (1) Carth. 396. Ld. Raym. 147.
guerra captum tanquam prisonem Salk. 667.
suum, quousque sibi de centum libris, (m) Book I. ch. 8.

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(1) See the statute of 5 Gco. IV. c. the laws relating to the abolition of the 113, which amends and consolidates slave trade.

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