The qualified property which we have hitherto considered extends only to animals ferae naturae, when either reclaimed, impotent, or privileged. Many other things may also be the objects of qualified property. It 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. If a man disturbs another, and deprives him of the lawful enjoyment of these; if one obstructs another's ancient windows, (a) corrupts the air of his house or gardens, (b) fouls his water, (c) or unpens and lets it out, or if he diverts an ancient watercourse that used to run to the other's mill or meadow; (d) the law will animadvert hereon as an injury, and protect the party injured in his possession. But the property in them ceases the instant they are out of possession; for, when no man is engaged in their actual occupation, they become again common, and every man has an equal right to appropriate them to his own use.

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 or special nature, on account of the peculiar circumstances of the owner, when the thing itself is very capable of absolute ownership. [396] As in case of bailment, or delivery of goods to another person for a particular use as to a carrier to convey to London, to an innkeeper 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, immediately, his possession also. (e) 12 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. (f) The same may be said of goods distrained for rent, or other cause of distress: which are in the nature of a pledge, and are not, at the first taking, the absolute property of either the distreinor, or party distreined upon; but may be redeemed, or else forfeited, by the subsequent conduct of the latter. But a servant, who hath the care of his master's goods or chattels, as a butler of plate, a shepherd of sheep, and the like, hath not any property or possession, either absolute or qualified, but only a mere charge or oversight. (g)

Having thus considered the several divisions of property in possession, which subsists there only, where a man hath both the right and also the occupation of the thing; we will proceed next to take a short view of the nature of property in action, or such where a man hath not the occupation, but merely a bare right to occupy the thing in question; the possession whereof may however be recovered by a suit or action at law; from whence the

thing so recoverable is called a thing, or chose in action. (h) Thus [397] money due on a bond is a chose in action; for a property in the debt vests at the time of forfeiture mentioned in the obligation, but there is no possession till recovered by course of law. If a man promises, or covenants with me, to do any act, and fails in it, whereby I suffer damage, the recompense for this damage is a chose in action; for though a right to some recompense vests in me at the time of damage done, yet what and how large such recompense shall be, can only be ascertained by verdict; and the possession can only be given me by legal judgment and execution. In the former of these cases the student will observe, that the property, or right of action, depends upon an express contract or obligation to pay a stated sum and in the latter it depends upon an implied contract, that if the covenantor does not perform the act he engaged to do, he shall pay me the damages I sustain by this breach of covenant. And hence it may be collected, that all property in action depends entirely upon contracts, either express or implied; which are the only regular means of acquiring a chose in action, and of the nature of which we shall discourse at large in a subse quent chapter.

:

At present we have only to remark, that upon all contracts or promises, either express or implied, and the infinite variety of cases into which they are and may be spun out, the law gives an action of some sort or other to the party injured in case of non-performance; to compel the wrongdoer to do justice to the party with whom he has contracted, and, on failure of performing the identical thing he engaged to do, to render a satisfaction equivalent to the damage sustained. But while the thing, or its equivalent, remains in suspense, and the injured party has only the right and not the oc

cupation, it is called a chose in action; being a thing rather in poten[398] tia than in esse: though the owner may have as absolute a property in, and be as well entitled to, such things in action, as to things in

possession.

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 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: (1) 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 re

h The same idea, and the same denomination, of property prevailed in the civil law. "Rem in bonis nostris habere intelligimur, quotiens ad recuperandum eam actionem habeamus." (Ff. 41. 1. 52.) And again, aeque bonis adnumerabitur etiam, si quid est in actionibus, petitionibus, persecutionibus. Nam et hare in bonis esse videntur." (Ff. 50. 16. 49.)

i Equ. Cas. Abr. 360

k Mar. 106.

12 Freem. 206

mainder 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 (m) 13 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 goods, being analogous to the fee-simple which a tenant in tail may acquire in a real

estate.

Next, as to the numbers of owners.1 Things personal may belong [399] to their owners, not only in severalty, but also in 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

m 1 P. Wms. 290.

(13) At this day chattels real and personal cannot be directly entailed, but they may by deed of trust be as effectually settled to one for life with remainders over, as an estate of inheritance, if it be not attempted to render them unalienable beyond the period allowed by law. See Gilb. Uses and Trusts, by Sugden, 121. note 4 Mr. Hargrave in Co. Litt. 20. a. note 5. makes the following valuable remarks. "Two things seem essential to an entail within the statute de donis. One requisite is, that the subject be land, or some other thing of a real nature. The other requisite is, that the estate in it be an inheritance. Therefore neither estates per auter vie in lands, though limited to the grantee and his heirs during the life of cestui que vie, nor terms for years are entailable any more than personal chattels, because, as the latter, not being either interest in things real or of inheritance, want both requisites, so the two former, though interests in things real, yet not being also of inheritance, are deficient in one requisite. However, estates per auter vie, terms for years, and personal chattels may be so settled, as to answer the purposes of an entail, and be rendered unalienable almost for as long a time as if they were entailable in the strict sense of the word.

(14) When legacies are given to two or more persons in undivided shares, as 100l. “ to A. and B." or to the children of C.; or in case of a bequest to two without words of severance, the legatees will take as joint-tenants. 2 P. Wm. 347. 529. 4 Bro. C. C. 15. 3 Ves. J. 628. 632. 6

Ves. J. 130.

When the legacies are given in divided shares, as so much of a sum of money to B. and so much to C., the legatees will be considered as tenants in common; as in instances where legacies are given to two or more persons, "share and share alike," or "to and among them," or "to them respectively," or "to be equally divided amongst them," such words will create a tenancy in common. 3 Atk. 731. 2 Atk. 441. 2 Atk. 121. 1 Atk. 494. 3 Bro. C. C. 25. 5 Ves. J. 510. Cases have occurred in which the determination that the above words or expres sions should create a tenancy in common, would have seemingly involved a contradiction, as in those instances where such words of severance occurred, and a bequest over to surviving legatees was immediately grafted upon them. In those instances the court of chancery, in order to give effect to every word in the bequest, has considered the words creating the survivorship among the legatees, as intended to be confined to the time of the death of the testator, and therefore decreed that the legatees should be considered tenants in common from that period, with benefit of survivorship, in case of the death of any before the testator. 1 P. Wms. 96. 2 P. Wms. 280. 1 Eq. C. A. 292. Prec. Ch. 78. 2 Eq. C. A. 343. 2 Ves. J. 265. 634. 3 Ves. J. 205. 450. 4 Ves. J. 551. 5 Ves. J. 806. We must observe that the operation of a bequest to "survivors," grafted upon a tenancy in common, will not be confined to the period of the testator's death, if it can be further extended with propriety; therefore in several cases such bequest to survivors, from the particular construction of each will, was considered efficient during the minority of the legatees, as they were not entitled to the benefit of the provisions, before the age of twenty-one; and, perhaps, in order to effectuate the intention and prevent a lapse, when a life interest is given prior to the distribution, directed among the legatees, the period of survivorship will be extended during the life of the tenant for life. Ves. 13. 3 Atk. 619. Amb. 383. A bequest to two or more," in joint and equal proportions," or "jointly and between them," will create a tenancy in common; the terms "joint or jointly" not being considered as intended to impart a joint interest to the legatces, but to signify a gift to them altogether. Ambl. 656. 1 Bro. C. C. 118. Although, as we have already seen, the words "equally to be divided," " and share and share alike," &c. will create a tenancy in common; yet when it appears from the context of the will, that a joint-tenancy was intended, such words will not be permitted to sever the interests of the legatees. 3 Bro. C. C. 215. Holt's Rep. 370. Roper on Legacies, 2 vol. 259 to 287. Residuary legatees and executors are joint-tenants, unless the testator use some expression which converts their interest into a tenancy in common; and if one dies before a division or severance of the surplus, the whole that is undivided will pass to the survivor or survivors. 2 P. Wms. 529. 3 Bro. 455. see p. 193. ante. Chitty.

chattel, be given to two or more, absolutely, they are joint-tenants thereof; 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. (0) 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 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. (r) 15

CHAP. XXVI.

OF TITLE TO THINGS PERSONAL BY OCCUPANCY.

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 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. 11. By testament. 12. By administration.

And, first, a property in goods and chattels may be acquired by occupan

(15) As between parties in trade or farming, there is, generally speaking, no survivorship between them as to personal property in possession, for each of their respective shares or degrees of interest go to their personal representatives, who become tenants in common with the survivor of all the partnership effects in possession, for it being a maxim, inter mercatores jus accrescendi locum non habet. Co. Lit. 3. 282. 182. a. 1 Vern. 217. 1 Meriv. 564. 1 Ld. Raym. 281. Vin. Ab. Partners. But it has been determined that the good-will of a partnership survives, but that has been disputed. 5 Ves 539. 15 Ves. 218. 1 Jac. and W. 267. A court of equity has barred survivorship, although the deceased partner, upon being informed that by law there would be a survivorship, said he was content the stock should survive, 1 Vern. 217.; and though if two persons take a farm, the lease will survive, but if they lay out money jointly upon it, in the way of trade, that turns round the estate at law, and makes it equitable. 1 Ves. J. 435; see further, 3 Chitt. Com. L. 235, 6. But although there is no survivorship as to partnership property in possession, yet at law there is as to choses in action, for when one or more partners having a joint legal interest on a contract, dies, an action against the said parties must be brought in the name of the survivor, and the executor or administrator of the deceased cannot be joined, neither can he sue separately, but must resort to a court of equity to obtain from the survivor the testator's share of the sum which has been recovered. i East, 497. 2 Salk. 441. 1 Ld. Raym. 346. Carth. 170. Vin. Ab. Partner, D. (1) See in general, 2 Wooddes. Vin. L. 389 to 396.; Schultes on Aquatic Rights, 20. 28, 106. Chitty.

cy: which, we have more than once remarked, (a) 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 tranfer and continue that property and possession in things personal, [401] 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.

2

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. (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 justice be restrained to such captors as are authorized by the public authority or 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. 3 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. (e) Which is agreeable to the law of nations, as understood in the time of Grotius, (ƒ) even with regard to captures made at sea; which were held to be the property of the captors after a possession of twentyfour hours; though the modern authorities (g) require, that before the property can be changed, the goods must have been brought [402] into port, and have continued a night intra presidia, in a place of safe custody, so that all hope of recovering them was lost.

a See pag. 3. 8. 258.
d Bro. Abr. tit. propertie, 38. forfeiture, 57.
e Ibid.
g Bynkersh. quaest. jur. publ. 1. 4. Rocc. de Assecur. not. 66.

b Finch. L. 178.

c Freem. 40. f de j. b. & p. l. S. c. 6. § S.

(2) Questions respecting the seizure of property as prizes, seldom arise in the common law or equity courts, they being, in general, cognizable only in the admiralty courts; and when a ship is bona fide seized as prize, the owner cannot sustain an action in a court of common law for the seizure, though she be released without any suit being instituted against her, his remedy, if any, being in the court of admiralty, 2 Marsh. R. 133.; and, the same rule applies to the imprisonment of the person when it has taken place merely as a consequence of taking a ship as prize, although the ship has been acquitted. 1 Le Caux v. Eden, Dougl. 594. For the law respecting seizures and captures, and the modes of acquiring and losing property thereby, see the admiralty decisions of Sir Wm. Scott, collected and arranged in 1 Chitty's Commercial L. 377 to 512. and

2 Wooddes. 435 to 457.

(3) And by modern decisions, the right to sue upon contracts made with him during peace, is only suspended, not forfeited, by war. 13 Ves. J. 71. 3 B. & P. 191. 6 Taunt. 239. 1Chitty's Com. L. 423 to 426.

(4) Modern authorities require something more to vest the property of a captured vessel in the captors. "I apprehend that by the general practice of the law of nations, a sentence of condemnation is at present deemed generally necessary; and that a neutral purchaser in Europe, during