« EdellinenJatka »
tion 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 estatetail 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 ;m10 for this, 1 2 Freem., 206.
m 1 P. Wms., 290. (9) 1 P. Wms., 652; 3 Meriv., 197. ders can be limited; but they may be
entailed by executory devise or by deed (10) At this day chattels real and per- of trust, as effectually as estates of insonal 'can not be directly entailed, but heritance, if it is not attempted to renthey may by deed of trust be as effect- der them unalienable beyond the duraually settled to one for life with remain- tion of lives in being and twenty-one ders over, as an estate of inheritance, if years after, and, perhaps, in the case of it be not attempted to render them un- a posthumous child, a few months more; alienable beyond the period allowed by a limitation of time not arbitrarily prelaw. (See Gilb., Uses, by Sugden, 121, scribed by our courts of justice, but n. (4).) Mr. Hargrave, in Co. Litt., 20, wisely and reasonably adopted in anala, n. (5), makes the following remarks: ogy to the case of freeholds of inherit“ Two things seem essential to an entail ance, which can not be so limited by within the statute De Donis. One requi- way of remainder as to postpone a comsite is, that the subject be land, or some plete bar of the entail by fine or recovother thing of a real nature. The other ery for a longer space. "It is also proprequisite is, that the estate in it be an er to observe that, in the case of terms inheritance. Therefore, neither estates of years and personal chattels, the vestpour autre vie in lands, though limited ing of an interest, which in realty would to the grantee and his heirs during the be an estate-tail, bars the issue, and all life of cestuy que vie, nor terms for years, the subsequent limitations, as effectually are entailable any more than personal as fine and recovery in the case of es chattels ; because, as the latter, not be- tates entailable, within the statute De ing either interest in things real or of in- Donis, or a simple alienation in the case heritance, want both requisites, so the of conditional fees and estates pour autre two former, though interests in things vie; and, further, that if the executory real, yet not being also of inheritance, limitations of personalty are on continare deficient in one requisite. However, gencies too remote, the whole property estates pour autre vie, terms for years, is in the first taker. Upon the whole, by and personal chattels may be só settled a series of decisions within the last two as to answer the purposes of an entail, centuries, and after many struggles in and be rendered unalienable almost for respect to personalty, it is at length setas long a time as if they were entailable tled that every species of property is in in the strict sense of the word. Thus substance equally capable of being setestates pour autre vie may be devised or tled in the way of entail; and though limited in strict settlement by way of the modes vary according to the nature remainder like estates of inheritance, of the subject, yet they tend to the same and such as have interest in the nature point, and the duration of the entail is of estates-tail may bar their issue and circumscribed almost as nearly within all remainders over by alienation of the the same limits as the difference of propestate pour autre vie, as those who are, erty will allow. As to the entail of esstrictly speaking, tenants in tail may do tates pour autre vie, see 2 Vern., 184, by fine and recovery; but then the hav- 225; 1 P. Wms., 290, 652; 3 P. Wms., ing of issue is not an essential preliminary 262; 1 Atk., 524; 2 Atk., 259, 376; 3 to the power of alienation in the case of Atk., 464; and 2 Ves., 681. As to the an estate pour autre vie limited to one entail of terms for years and personal and the heirs of his body, as it is in the chattels, see 8 Co., 94; 10 Co., 46, b; case of a conditional fee, from which the Sir Wm. Jones, 15; 3 Cha. Cas., 1; mode of barring by alienation was evi- Carth., 267; and 1 P. Wms., 1. See, dently borrowed. The manner of set- also, Fearne, on Conting. Rem., 2d ed., tling terms for years and personal chat- 122." tels is different, for in them no remain
* Personal property may be as effectually settled to one for life, with remainder over, as an estate of inheritance; but the absolute ownership can not be sus
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. [ 399] Next, as to the number of owners. Things personal may beNumber of long to their owners, not only in severalty, but also in joint
tenancy and in common, as well as real estates. They can not,
9 Page 193.
i i Vern., 217. Co. Litt., 182. P 1 Equ. Cas., Abr., 292. (11) As between partners in trade or (1 Vern., 217). But although there is farming, there is, generally speaking, no no survivorship as to partnership propsurvivorship of personal property in pos- erty in possession, yet at law there is as session, for each of their respective shares to choses in action, for when one of two or degrees of interest goes to their per partners having a joint legal interest in sonal representatives, who become ten. à contract dies, an action against the ants in common with the survivor of all other party must be brought in the name the partnership effects in possession, it of the survivor, and the executor or ad being a maxim, inter mercatores jus ac- ministrator of the deceased can not be crescendi locum non habet. (Co. Lit., joined, neither can he sue separately 3, 282, 182, a ; 1 Vern., 217 ; 1 Meriv., but must resort to a court of equity to 564; í Ld. Raym., 281 ; Vin. Ab., Parto obtain from the survivor the deceased's ners.) But it has been determined that share of the sum which has been recovthe good-will of a partnership survives ; ered. (1 East, 497 ; 2 Salk., 441; 1 Ld. although that has been disputed. (5 Raym., 346 ; Carth., 170; Vin. Ab Ves., 539 ; 15 Ves., 218; 1 Jac. & W., Partner, D.)--[CHITTY.] (See Cowp., 267.) A court of equity has barred sur- 445; 1 Ves. Sen., 242.) As to the convivorship, notwithstanding the deceased version in equity of real estate into partpartner, upon being informed that by nership stock, see 3 P. Wms., 158; 1 law there would be a survivorship, said Russ. & M., 45; 7 Sim., 271; 8 Id., 829; he was content the stock should survive 11 Id., 496. pended for more than two lives. In all other respects, limitations of future or contingent interests in personal property are subject to the rules prescribed by statute in relation to future estates in lands.-(1 Ř. S., 773, 1, 2.)
OF TITLE TO THINGS PERSONAL BY OCCUPANCY
We are next to consider the title to things personal, or the Titles to various means of acquiring and of losing such property as may sona
things per 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 The several or loss are principally twelve: 1. By occupancy. 2. By pre- quiring and rogative. 3. By forfeiture. 4. By custom. 5. By succession. losing the 6. By marriage. 7. By judgment. 8. By gift or grant. 9. By therein
property contract. 10. By bankruptcy. 11. By testament. 12. By administration.
modes of ac.
And, first, a property in goods and chattels may be acquired I. Title by by occupancy, which, we have more than oncea remarked, was the original and only primitive method of acquiring any prop, erty 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 [401 | personal, which has 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.
1. Thus, in the first place, it hath been said that any body 1, Goods of may seize to his own use such goods as belong to an alien enemy.b 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 seize 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
alien ene my.
a See pages 3, 8, 258.
b Finch, L., 178.
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 holdend that, where a foreigner is resident in England, and afterward 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 afterward 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 sunset puts in his claim of property :e which is agreeable to the law of nations, as understood in the time of Grotius,f 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 ( 4027 property can be changed, the goods must have been brought
into port, and have continued a night infra præsidia, in a place
f De J. B. & P., 1. 3, c. 6, $ 3.
e Ibid. Rocc., De Assecur. Not., 66.
(1) And by modern decisions, the comes valid, even though there was no right to sue upon contracts made with legal condemnation. (6 Rob., 142.) The him during peace is only suspended, title of a neutral will not be defeated by not forfeited, by war. (13 Ves., 71; 3 his subsequently becoming an enemy. B. & P., 191; 6 Taunt., 239; 7 Id., 439; (6 Rob., 45; see 1 Chitty's Com. Law, 1 Chitty's Com. L., 423 to 426.)* 433-4.) It has been established by
several acts of Parliament, that, among (2) Modern authorities require some- English subjects, ships or goods taken at thing more to vest the property of a cap- sea by an enemy, and afterward retured vessel in the captors. “I appre- taken, at any indefinite period of time, hend that, by the general practice of the and whether before or after sentence of law of nations, a sentence of condemna- condemnation, are to be restored to the tion is at present deemed generally nec- original proprietors, on payment of ceressary; and that a neutral purchaser in tain salvage. (2 Burr., 1198; and 1 W. Europe, during war, does look to the Bl., 27.) The statute 43 Geo. III., c. legal sentence of condemnation as one of 160, b. 39, makes an exception as to the title-deeds of the ship, if he buys a ships which have been set forth by the prize vessel. I believe there is no in- enemy as vessels of war; enacting that stance in which a man, having purchas- these shall not be restored to the original ed a prize vessel of a belligerent, has owners, but belong wholly to the recap, thought himself quite secure in making tors. And if the property recaptured that purchase, merely because that ship were captured first in an illegal trade, had been in the enemy's possession then the original right is divested, and twenty-four hours, or carried infra præ- the recaptors are not bound to restitasidia." (Sir Wm. Scott, 1 Rob., 139. tion. (2 Rob., 77.) In the case of The See, also, 3 Rob., 97, and 236-8; 2 Burr., Santa Cruz (i Rob., 49), Sir Wm. Scott 683; 10 Mod., 79; 3 Esp., 286; 15 Ves., said, “The actual rule of the English 139.) But if, after the transfer of a prize maritime law I understand to be this, to a neutral, a peace be concluded be- that the maritime law of England having tween the belligerents, the transfer be- adopted a most liberal rule of restitution
* The same doctrine is held in 10 Johns. R., 183; and it seems that aliens resident here at the commencement of the war may sue and be sued as in time of peace.-(8. C. & 13 Ib., 1.)
And as in the goods of an enemy, so also in his person, a man may acquire a sort of qualified property by taking him a prisoner in war,h at least till his ransom be paid.i' And this doctrine seems to have been extended to negro servantsi 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) consists rather in the perpetual service, than in the body or person of the captive. 2. Thus, again, whatever movables are found upon the sur-2.
found and face of the earth, or in the sea, and are unclaimed by any owner unowner, are supposed to be abandoned by the last proprietor, known. 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 they fall within the description of waifs, or estrays, or wreck, or hidden treasure; for these, we have formerly seen, are vested by law in the king, and form a part of the ordinary revenue of the crown. 3. Thus, too, the benefits of the elements, the light, the air, 3. Light, air,
& and the water, can only be appropriated by occupancy.
If I have an ancient window, overlooking my neighbor'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 can not compel him to demolish his wall; for there the first occupancy is rather in him than in me. If my neighbor makes a tan-yard, so as to [ 403 ] annoy and render less salubrious the air of my house or gar
b Bro. Abr., tit. Propertie, 18. H. redemptionem suam cum præfato A.
i We meet with a curious writ of pro vita suâ salvandâ fecerat satisfactum trespass in the register (102) for break- foret, detinuit) fregit, et ipsum É. cepit ing a man's house, and setting such his et abduxit, vel quo voluit abire permisit," prisoner at large. “ Quare domum ip- &c. sius A. apud W. (in qua idem A. quen- į 2 Lev., 201. dam H. Scotum per ipsum A. de guerra * Carth., 396. Ld. Raym., 147. Salk., captum tanquam prisonem suum, quous- 667. que sibi de centum libris, per quas idem I Book i., ch. 8. with respect to the recaptured property cue, when it is effected by the rising of of its own subjects, gives the benefit of the captured crew against the captors. that rule to its allies, till it appears that (1 Rob., 271; 4 Id., 147 ; 1 Edw., 68.) they act toward British property on a -[CHitty.] (As to the jurisdiction of less liberal principle; in such a case it the Admiralty, see 2 & 3 Vict., c. 65, s. adopts their rule, and treats them ac. 22, 23; 2 H. Bl., 533.) cording to their own measure of justice." But restitution in any case is not gratu- (3) Ransom of ships, &c., is now illeitous; for by the 43 Geo. III., c. 160, gal, unless in case of necessity, to be alcertain rates of salvage are secured to lowed by the Admiralty, by 22 Geo. III., the recaptors, for saving or recovering c. 25; 43 Geo. III., c. 160, s. 34, 35, 36; the property. One eighth of the bene- 45 Geo. III., c. 72; 2 Doug., 649; 3 ficial interest in the whole recaptured Taunt., 6. Securities for ransom in the property is given to king's ships, and hands of innocent holders for value. are one sixth to private ships. And the re- valid. (5 & 6 Will. IV., C. 41.) ward of salvage is given in cases of res