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. (10) 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 freedon 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: (i) 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 À 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. (m) 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. *Next, as to the number of owners. Things personal may belong to their owners, not only in severalty, but also in joint-tendency and in [*399] 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 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. (0) So, also, if 1007. 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, (q) 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) (11) (i) Equ. Cas. Abr. 360. (k) Mar. 106. (1) 2 Freem. 206. (2) Page 193. (10) [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, and Mr. Hargrave's note 5 to Co. Litt. 20 a.] (11) [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. 1 East, 497; 2 Salk. 441; 1 Ld. Raym. 346; Carth. 170; Vin. Ab. Partner, D. See Cowp. 445; 1 Ves. Sen. 242. As to the conversion in equity of real estate into partnership stock, see 3 P. Wms. 158; 1 Russ. and M. 45; 7 Sim. 271; 8 id. 829; 11 id. 496.] CHAPTER 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 occupancy: 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 transfer and continue that property and possession in things personal, which has once been acquired by the owner. And, [*401] 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 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 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. (1) 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 only 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; thongh the modern authorities (g) require, that before the property can be [*402] changed, the goods must have been brought into port, and have continued a night intra presidia, in a place of safe custody, so that all hope of recovering them was lost. (2) (a) See pages 3. 8, 258. (b) Finch. L. 178. (c) Freem. 40. (e) Ibid. (d) Bro. Abr. tit. propertie. 38. forfeiture, 57. (f) De j. b. & p. 1. 3, c. 6, i 3. (1) And his right to bring suit upon contracts made during peace is only suspended, not forfeited, by the war. Wheat. Int. Law, pt. 4, ch. 1, § 12. (2) [By the practice of the law of nations, in order to vest the property, at least of a ship taken at sea, in the captors, a legal sentence of condemnation by a prize court is necessary. 1 Rob. 139; 3 id. 97 and 236.] This is now the law of England, and is regulated by statute 27 and 28 Vic. c. 25. 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) (3) And this doctrine seems to have been extended to negro servants, (j) 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 the 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. (k) 2. Thus again, whatever movables are found upon the 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 fortunate finder, unless they fall within the description of waifs, or estrays, or wreck, or hidden treasure; for these, we have formerly seen, (7) 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 air, and the water, can only be appropriated by occupancy. If I have an ancient window (4) 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 salubrious the air of my house and gardens, the law will furnish me [*403] with a remedy; but if he is first in possession of the air, and I fix my habitation near him, the nuisance is of my own seeking, and may continue. If a stream be unoccupied, I may erect a mill thereon, and detain the water; yet not so as to injure my neighbour's prior mill, or his meadow: for he hath by the first occupancy acquired a property in the current. (5) 4. With regard, likewise, to animals feræ naturæ all mankind had by the original grant of the Creator a right to pursue and take any fowl or insect of the air, any fish or inhabitant of the waters, and any beast or reptile of the field: and this natural right still continues in every individual, unless where it is restrained by the civil laws of the country. And when a man has once so seized them, they become while living his qualified property, or if dead, are absolutely his own: so that to steal them, or otherwise invade this property, is, according to their respective values, sometimes a criminal offence, sometimes only a civil injury. The restrictions which are laid upon this right, by the laws of England, relate principally to royal fish, as whale and sturgeon, and such terrestrial, aerial, or aquatic animals as go under the denomination of game; the taking of which is made the exclusive right of the prince, and such of his subjects to whom he has granted the same royal privilege. (6) But those animals which are not expressly so reserved, are still liable to be taken and appropriated by any of the king's subjects, upon their own territories; in the same manner as they might have taken even game, itself, till these civil prohibitions were issued: (h) Bro. Abr. tit. propertie, 18. (i) We meet with a curious writ of trespass in the register (102), for breaking a man's house, and setting such his prisoner at large. "Quare domum ipsius A. apud W. (in qua idem A. quendam H. Scotum per ipsum A. de guerra captum tanquam prisonem suum, quousque sibi de centum libris, per quas idem H. redemptioner: suam cum præfato A. provita sua salvanda feceret satisfactum foret, detinuit) fregit, et ipsum H. cepit et abduxit, vel quo voluit abire permisit, &c." (j) 2 Lev. 201. (k) Carth. 396. Ld. Raym. 147. Salk. 667. (7) Book I, ch. 8. (3) In England the ransom of ships, except in cases of necessity to be allowed by the admiralty, is made illegal by statute. See 2 Doug. 649; 3 Taunt. 6. (4) [The subject of this paragraph does not belong to the head of personal property. Rights to light, air, &c., are not of a personal nature, but are incidents to the enjoyment of real estate; and even easements annexed to the person, or in gross, are real property.] See ante, p. 395, note. (5) See the preceding note. And on the general subject of rights in water courses, see the treatise on that subject by Mr. Angell. (6) [See this controverted in page 419, note.] there being in nature no distinction between one species of wild animals and another, between the right of acquiring property in a hare or a squirrel, in a partridge or a butterfly: but the difference, at present made, arises merely from the positive municipal law. 5. To this principle of occupancy, also, must be referred the method of acquiring a special personal property in corn growing on the ground, or other emble [*404] ments, (7) by any possessor of the land who hath sown or planted it, whether he be owner of the inheritance, or of a less estate which emblements are distinct from the real estate in the land, and subject to many, though not all, the incidents attending personal chattels. They were devisable by testament before the statute of wills, (m) and at the death of the owner shall vest in his executor and not his heir; they are forfeitable by outlawry in a personal action; (n) and by the statute 11 Geo. II, c. 19, though not by the common law, (0) they may be distreined for rent arrere. The reason for admitting the acquisition of this special property, by tenants who have temporary interests, was formerly given; (p) and it was extended to tenants in fee, principally for the benefit of their creditors: and therefore, though the emblements are assets in the hands of the executor, are forfeitable upon outlawry, and distreinable for rent, they are not in other respects considered as personal chattels; and particularly they are not the object of larceny before they are severed from the ground. (q) 6. The doctrine of property arising from accession is also grounded on the right of occupancy. By the Roman law, if any given corporeal substance received afterwards an accession by natural or by artificial means, as by the growth of vegetables, the pregnancy of animals, the embroidering of cloth, or the conversion of wood or metal into vessels and utensils, the original owner of the thing was entitled, by his right of possession, to the property of it under such its state of improvement: (r) but if the thing itself, by such operation, was changed into a different species, as by making wine, oil, or bread out of another's grapes, olives, or wheat, it belonged to the new operator; who was only to make a satisfaction to the former proprietor for the materials which he had so converted. (s) (8) And these doctrines are implicitly [ *405] copied and adopted by our Bracton, (t) and have since been *confirmed by many resolutions of the courts. (u) It hath even been held, that if one takes away and clothes another's wife or son, and afterwards they return (m) Perk. 512. (p) Pages 122, 146. (8) Inst. 2, 1, 25, 34. (n) Bro. Abr. tit. emblements, 21. 5 Rep. 116. (t) l. 2, c. 2 and 3. (7) [The right to emblements does not seem to be aptly referred to the principle of occupancy; for they are the continuation of an inchoate, and not the acquistion of an original right.] (8) [This also has long been the law of England; for it is laid down in the Year books, that whatever alteration of form any property has undergone, the owner may seize it in its new shape, if he can prove the identity of the original materials; as if leather be made into shoes, cloth into a coat, or if a tree be squared into timber, or silver melted or beat into a different figure. 5 Hen. VII, fo. 15; 12 Hen. VIII, fo. 10. See also 2 Campb. 576; 15 Ves. 442.] An intermixture of property by accident, or without the fault of parties, does not deprive either owner of his right; but if the intermixture be intentional, and with fraudulent purpose on the part of the party causing it, and it is impossible afterwards to distinguish what belonged to each, the innocent party shall have all. Hart v. Ten Eyck, 2 Johns. Ch. 62; Willard v. Rice, 11 Met. 493; Hesseltine v. Stockwell, 30 Me. 237; Jenkins v. Steanka, 19 Wis. 126. And in a well reasoned case in New York, it has been held, that where a willful trespasser takes corn and converts it into whisky, the property is not changed, and the owner of the corn may reclaim it. Silsbury v. McCoon, 3 N. Y. 379. See the valuable brief of Mr. Hill in this case. See also Snyder v. Vaux, 2 Rawle, 427; Riddle v. Driver, 12 Ala. 590. But where the admixture was not fraudulent, even though done purposely-for example, under a claim of right-the party causing it does not lose his right. Ryder v. Hathaway, 21 Pick. 298. Nor in any other case, if the property of each can be afterwards distinguished. Frost v. Willard, 9 Barb. 440. Nor would he, even when it could not be distinguished, if the property of each was of the same description, so that an equal quantity to what he before possessed, restored to each from the common mass, would place him substantially in statu quo. See Stephenson v. Little, 10 Mich. 433; Seymour v. Wyckoff, 10 N. Y. 213; Lupton v. White, 15 Ves. 442.] home, the garments shall cease to be his property who provided them, being annexed to the person of the child or woman. (w) 7. But in the case of confusion of goods, where those of two persons are so intermixed that the several portions can be no longer distinguished, the English law partly agrees with, and partly differs from, the civil. If the intermixture be by consent, I apprehend that in both laws the proprietors have an interest in common, in proportion to their respective shares. (x) But if one willfully intermixes his money, corn, or hay, with that of another man, without his approbation or knowledge, or casts gold in like manner into another's melting pot or crucible, the civil law, though it gives the sole property of the whole to him who has not interfered in the mixture, yet allows a satisfaction to the other for what he has so improvidently lost. (y) But our law, to guard against fraud, gives the entire property, without any account, to him whose original dominion is invaded, and endeavoured to be rendered uncertain without his own consent. (z) 8. There is still another species of property, which (if it subsists by the common law) being grounded on labour and invention, is more properly reducible to the head of occupancy than any other; since the right of occupancy itself is supposed by Mr. Locke, (a) and many others, (b) to be founded on the personal labour of the occupant. (9) And this is the right which an author may be supposed to have in his own original literary compositions: so that no other person without his leave may publish or make profit of the copies. When a man by the exertion of his rational powers has produced an original work, he seems to have clearly a *right to dispose of that identical work as he pleases, and any attempt to vary the disposition he has made of it appears to be [*406 ] an invasion of that right. Now the identity of a literary composition consists entirely in the sentiment and the language; the same conceptions, clothed in the same words, must necessarily be the same composition: and whatever method be taken of exhibiting that composition to the ear or the eye of another, by recital, by writing, or by printing, in any number of copies, or at any period of time, it is always the identical work of the author which is so exhibited; and no other man (it hath been thought) can have a right to exhibit it, especially for profit, without the author's consent. This consent may perhaps be tacitly given to all mankind, when an author suffers his work to be published by another hand, without any claim or reserve of right, and without stamping on it any marks of ownership; it being then a present to the public, like building a church or bridge, or laying out a new highway; but, in case the author sells a single book, or totally grants the copyright, it hath been supposed, in the one case, that the buyer hath no more right to multiply copies of that book for sale, than he hath to imitate for the like purpose the ticket which is bought for admission to an opera or a concert; and that, in the other, the whole property, with all its exclusive rights, is perpetually transferred to the grantee. On the other hand it is urged, that though the exclusive property of the manuscript, and all which it contains, undoubtedly belongs to the author, before it is printed or published; (w) Moor. 214. (x) Inst. 2. 1, 27, 28. 1 Vern. 217. (y) Inst. 2, 1, 28. (z) Poph. 33. 2 Bulstr. 325. 1 Hal. P. C. 513. 2 Vern. 516. (a) On Gov. part 2, ch. 5. (b) See page 8. (9) Mr. Sweet calls attention to the fact that the right to the exclusive use of distinctive trade marks, or of a particular partnership firm, for the purpose of enabling the public to know if it is dealing with or buying the manufactures of a particular person, is somewhat analogous to literary copyright, and though partially founded on the notion of protecting the public from fraud: 3 Myl. and Cr. 338; 8 Sim. 477; is an example of a right much more evidently arising out of occupancy. And he cites 3 Doug. 293; 3 B. and C. 541; 2 Ves. and B. 218; 2 Keen, 213; 3 Myl. and Cr. 1, 338; 5 Scott, N. S. 562. The court of chancery will restrain the violation of a trade mark : Motley v. Downman, 3 Myl. and Cr. 1; Millington v. Fox, ib. 338; Perry v. Truefelt, 6 Beav. 66; Franks v. Weaver, 10 Beav. 297; Sexio v. Provezende, Law Rep. 1 Ch. Ap. 192; Barrows v. Knight, 6 R. I. 434; Devinger v. Plate, 29 Cal. 292; Kerr on Injunctions (by Herrick), 474, et seq. But not where the trade mark itself is an imposition, and designed for purposes of fraud. Clark v. Freeman, 10 Beav. 112; Stewart v. Smithson, 1 Hilt. 119; Kerr on Injunctions, 481. |