erty is not absolute, but defeasible; a property that may be destroyed if they resume their ancient wildness, and are found at large. For if the pheasants escape from the mew, or the fishes from the trunk, and are seen wandering at large in their proper element, they become ferae naturae again; and are free and open to the first occupant that has ability to seize them. But while they thus continue a person's qualified or defeasible property, they are as much under the protection of the law, as if they were absolutely and indefeasibly his. We must bear in mind that special laws have been made concerning certain birds and animals falling under the legal definition of "game:" of these we shall say somewhat more presently.

2. Qualified property, propter impotentiam.

2. A qualified property may also subsist with relation to animals ferae naturae, ratione impotentiae, on account of their own inability. As when hawks, herons, or other birds build in a man's trees, or coneys or other creatures make their nests or burrows in his land, and have young ones there; he has a qualified property in those young ones till such time as they can fly or run away, and then the property expires (t): but till then, it is in some cases trespass, and in others a criminal offence, for a stranger *to take them away (u). For here, as the owner of the land has it in his power to do what he pleases with them, the law therefore vests [*591] a property in him of the young ones, in the same manner as it does of the old ones if reclaimed and confined: for these cannot, through weakness, any more than the others through restraint, use their natural liberty and forsake him. 3. A man may, lastly, have a qualified property in animals ferae naturae, propter privilegium: that is, he may have some special privilege of hunting, taking, and killing them, in exclusion of other persons. Here he has a transient property in these animals, usually called game, privilegium. so long as they continue within his liberty (x); and may restrain any stranger from taking them therein; but the instant they depart into another liberty, this qualified property ceases. Of this we have already spoken (y), and will presently add somewhat more.

3. Qualified property, propter

other matters

and things.

The qualified property which we have hitherto considered, extends only to animals ferae naturae, when either reclaimed, impotent, or privileged. Many Secondly, quali- other things may also be the objects of qualified property. It fied property in may subsist in the very elements, of fire or light, of air, and of water. A man can have no absolute permanent property in these, as he may in the earth and land; since these are of a vague and fugitive nature, and therefore can admit only of a precarious and qualified ownership, which lasts so long as they are in actual use and occupation, but no longer. The law regulating all rights concerning them has been sufficiently dealt with whilst discussing the nature of easements.

These kinds of qualification in property depend upon the peculiar circumstances of the subject-matter, which is not capable of being under the absolute dominion of any proprietor. But property may also be of a Qualified property arising out qualified or * special nature, on account of the particular [* 592] circumstances of the owner, when the thing itself is possession. very capable of absolute ownership. As in case of bailment, or delivery of goods to another person for a particular use: as to a carrier to con

of the circum

stances of the

(t) Carta de forest. 9 Hen. 3, c. 13. (u) 7 Rep. 17; Lamb. Eiren. 274.

(x) Cro. Car. 554; Mar. 48; 5 Mod. 376; 12 Mod. 144.

(y) Ante, p. 101, et seq.

vey to London, to an inn-keeper to secure in his inn, or the like. Here there is no absolute property in either the bailor or the bailee, the person delivering, or him to whom it is delivered: for the bailor hath only the right, and not the immediate possession; the bailee hath the possession and only a temporary right. But it is a qualified property in them both: and each of them is entitled to an action, in case the goods be damaged or taken away: the bailee on account of his immediate possession; the bailor, because the possession of the bailee is, mediately, his possession also (z). So, also, in case of goods pledged or pawned upon condition either to repay money or otherwise; both the pledgor and pledgee have a qualified, but neither of them an absolute, property in them: the pledgor's property is conditional, and depends upon the performance of the condition of repayment, &c.; and so too is that of the pledgee, which depends upon its non-performance (a). So the finder of a chattel has the right of possession against everybody except the true owner who lost it (b). (402) But a servant, who has the care of his master's goods or chattels, as a butler of plate, a shepherd of sheep, and the like, has not any property or possession, either absolute or qualified, but only a mere charge or oversight (c).

And having thus distinguished the different degree or quantity of dominion or property to which things personal are subject, and set forth their nature, 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

Personal prop

erty considered enjoyment and

as to time of

number of

owners.

[* 593]

Time of enjoy

ment.

real.

*First, as to the time of enjoyment. By the rules of the ancient common law, there could be no future property, to take place in expectancy, created in personal goods and 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 (d): 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 (e); the property being supposed to continue all the time in the executor of the devisor. But now that distinction is disregarded (ƒ): and therefore, if a man, either by deed or will, limits his books or furniture to A.

(2) 1 Roll. Abr. 607.

(a) Cro. Jac. 245.

(b) 1 Str. 504; post, p. 597.

(c) 3 Inst. 108.

(d) 1 Eq. Cas. Abr. 360.
(e) Mar. 106.

(f) 2 Freem. 206.

(402) The right of the finder of a chattel to maintain trover for its conversion as against every one but the true owner and those claiming under him is well established in this country. Poole v. Symonds, 1 N. H. 289; Pinkham v. Gear, 3 id. 484; Ellery v. Cunningham, 1 Metc. (Mass.) 112; Magee v. Scott, 9 Cush. (Mass.) 148; McLaughlin v. Waite, 9 Cow. 670; 5 Wend. 404; Harker v. Dement, 9 Gill. (Md.) 7; Clark v. Maloney, 3 Harr. (Del.) 68; see Armory v. Delamirie, 1 Smith's Lead. Cas. 470 (636), and the cases there collected.

for life, with remainder over to B., this remainder is good (g): (403) unless, indeed, the property is such, that ipso usu consumitur; for instance, food or fuel; for then a gift of a life interest in it confers an absolute ownership (). 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 (i). For this, if allowed, would tend to a perpetuity (j): 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. By the aid of trusts binding in a court of equity, but not recognized at law, settlements of personalty may be made extending * over the period which we have already mentioned when discussing [* 594] the rules against perpetuity (k) as governing the limitations of real estates; and this is the usual mode of settlement of personalty upon a marriage. 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. (404) co-parcenary; because that

Number of owners.

(g) 1 P. Wms. 652; Randall v. Russell, 3 Meriv. 194.

(h) Randall v. Russell, 3 Meriv. 194. (i) 1 P. Wms. 290.

They cannot indeed be vested in ownership is peculiar to realty. But

(j) See Ld. Dungannon v. Smith, 12 Cl. & Fin. 546; Ibbetson v. Ibbetson, 5 M. & Cr. 26; post, p. 611.

(k) Ante, p. 335.

(403) In this country it is a well-established rule that every species of chattels of a dura. ble nature may be given to one person for life, with a valid remainder over to another person. Griggs v. Dodge, 2 Day, 28; French v. Hatch, 28 N. H. 331, 352; Covenhoven v. Shuler, 2 Paige, 122; Westcott v. Cady, 5 Johns. Ch. 334; Scott v. Price, 2 Serg. & Rawle, 59; Deihl v. King, 6 id. 29; Royail v. Eppes, 2 Munf. 479; Mortimer v. Moffatt, 4 Hen. & Munf. 503; Logan v. Ladson, 4 Desauss. 271; Geiger v. Brown, 4 McCord, 427; Brummet v. Barker, 2 Hill (S. C.), 543; Bell v. Warn, 4 Hun, 406.

(404) Lands may be held in severalty, by joint-tenancy, by co-parcenary, or in common, but while real estate is theoretically the subject of tenure, personal property is owned; and, therefore, it would be more correct to designate persons as joint-owners or owners in common, than as tenants in common. Schouler on Pers. Prop. 186.

Where one person holds or owns personal property in his sole right, without any one joined in that right, he is a sole or several owner of such property. Where two or more persons are joined together with reference to the saine personal property, having unities of title, time, interest and possession, they are joint owners of such property. Ib. 187.

In joint ownership in such a case, unity of title is necessary, that is to say, the title should arise under one and the same instrument, or be created by the same act on the part of the donor or seller; unity of time, that is, each interest should vest at the same moment; unity of interest, that is, these interests in the property should be for the same duration and the same quantity; and unity of possession, that is, each tenant or owner must have an undivided possession of each entire part as of the whole, and not possess, one a distinct and separate portion, and the other another distinct and separate portion. The creation of such an ownership depends upon the acts of the parties, for it does not result from operation of the law. Ib.

Personal property may be owned by several persons in common, as well as by a jointownership, with this difference as to the origin of the title, that a joint-ownership must arise by one or the same title or instrument, while owners in common may derive title at different times, and from different persons or sources of title. An agreement that one person will find timber, and that another will manufacture it into shingles, will make the parties tenants in common of the shingles made. White v. Brooks, 43 N. H. 402.

Owners in common of chattels may each sell his shares and the purchaser will take his interest; but one owner in common cannot sell the entire property so as to bind the other owners in common, White v. Osborn, 21 Wend. 72; Nowlen v. Colt, 6 Hill, 461.

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 (7). 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 (m). So, also, if 1007. be given by will to two or more, equally to be divided between them, this makes them tenants in common (n); which, as we have formerly seen (0), the same words would have done in regard to real estates. 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 (p).

[*595]

* CHAPTER XXVI.

TITLE TO THINGS PERSONAL BY OCCUPANCY.

Titles to things personal.

WE are next to consider the title to things personal, or the various means of acquiring, and of losing, such property as may be had in them: 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 ten: 1. By occupancy. 2. By prerogative. of acquiring and 3. By forfeiture. 4. By custom. 5. By succession. riage. 7. By contract, including gift or grant. 8. By bankruptcy. 9. By testament. 10. By administration.

The several modes losing the prop

erty therein.

Contract.

6. By mar

Of these species of title the seventh, that by contract, since it can have no validity, except such as the law, by the aid of its courts, will enforce, will be more properly discussed in that part of these Commentaries in which the grounds of actions at law and suits in equity are unfolded. It, therefore, will be treated of in the third part of these Commentaries. We need only here notice that personal property may be assigned by manual delivery, where the nature of the case admits of it, or by deed or any other suitable instrument of transfer. When, however, personal chattels are assigned by deed, but possession is not delivered to the assignee (which usually occurs on the occasion of a mortgage), the assignment, which is then called a bill of sale, is void not only as against the trustee under a subsequent bankruptcy of the assignor, but even * against the sheriff seizing the property [* 596] in execution, unless a copy of the deed has been filed in the court of queen's bench; moreover, the registry so made must be renewed every five years during the subsistence of the security (a).

(7) Litt. § 282; 1 Vern. 482.

(m) Litt. § 321.

(n) 1 Equ. Cas. Abr. 292.

(0) Ante, p. 344.

(p) 1 Vern. 217; Co. Litt. 182.

(a) 17 & 18 Vict. c. 36; 29 & 30 Vict. c. 96. As to the rights of the trustee in bankruptcy, see post, pp. 629, 630.

Title by occupancy.

And, first, a property in goods and chattels may be acquired by occupancy: which, we have more than once (b) remarked, seems to be 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 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 occupaney is still, to some extent, permitted to subsist. These, however, will require scarcely more than a passing notice. Thus, in the first place, it has been said, that anybody may seize to his own use such goods as belong to an alien enemy (c), upon the ground that during their enmity they can claim no protection from the law, and therefore any man may, when opportunity offers, seize their property with impunity. But this, however generally laid down by some writers, cannot extend beyond such seizures as are duly authorised by the public authority of the state residing in the crown (d); and cannot in any case apply to goods belonging to an enemy, and in this country at the time of the declaration of war. Such goods are not liable to be seized (e), and goods brought into the country* afterwards may be protected by a safe conduct or [* 597] passport. So a contract made with a foreigner during peace, though it cannot be enforced by him during the period of the war, continues valid, and the right of action upon it revives after the termination of hostilities (f).

Goods of alien enemy.

The title to goods of an enemy founded upon this right of occupancy has usually occurred by capture at sea, or in the plunder of towns taken by assault. By the practice of the law of nations, in order to vest the propNaval prizes. erty (at least of a ship taken at sea) in the captors, a legal sentence of condemnation by a prize court is necessary (g). This is now the law of England, and is regulated by statute (h). The practice of permitting privateers to attack the property of an enemy is looked upon with great disfavour in modern times, and has been unknown on the part of the English during recent wars. It is unnecessary to enlarge upon it here.

As to booty taken by soldiers in a campaign, it is now (when any is captured, which is rare, as it is contrary to our present principles of carrying on war to plunder the enemy) taken possession of and sold by Captures in war. agents appointed for the purpose, and the proceeds remitted to the treasurer of Chelsea hospital, and by him distributed among the troops. The title does not accrue to individuals, but rather the state (i).

Next, whatever moveables are found upon the surface of the earth, or in the

(b) Ante, pp. 6, 268, 411.

(c) Finch, L. 178.

(d) Freem 40. See ante, vol. i. p. 307.

(e) Bro. Abr. tit. Propertie, 38. Forfeiture, 57.

(f) Antoine v. Morshead, 6 Taunt. 239. (g) 1 Rob. 139; 3 Rob. 97 and 236.

VOL. I.-102

(h) 27 & 28 Vict. c. 25.

(i) See 2 Will. 4, c. 53, amended by 27 & 28 Vict. c. 36; 29 & 30 Vict. c. 47. The principles of this distribution were much discussed in a recent celebrated case, that of the Banda and Kurwee booty, taken during the Indian mutiny in 1857.