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in the view of the person who had originally found, started, and chased it. The mere pursuit, and being within view of the animal, did not create a property, because no pos session had been acquired; and the same doctrine was afterwards declared in the case of Buster v. Newkirk.a

The civil law contained the same principle as that which the Supreme Court adopted. It was a question in the Roman law, whether a wild beast belonged to him who had wounded it so that it might easily be taken. The civilians differed on the question; but Justinian adopted the opinion, that the property in the wounded wild beast did not attach until the beast was actually taken. So, if a swarm of bees had flown from the hive of A., they were reputed his so long as the swarm remained in sight, and might easily be pursued, otherwise they became the property of the first occupant.c Merely finding a tree on the land of another, containing a swarm of bees, and marking it, does not vest the property of the bees in the finder.d Bees which swarm upon a tree, do not become private prom perty until actually hived.

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A qualified property in chattels may also subsist, when goods are bailed, or pledged, or distrained. In those cases, the right of property and the possession are separated, and the possessor has only a property of a temporary or quali fied nature, which is to continue until the trust be performed, or the goods redeemed; and he is entitled to protect this property, while it continues, by action, in like manner as if he was absolute owner.

3. Personal property may be held by two or more persons in joint tenancy, or in common; and, in the former case, the same principle of survivorship applies which ex

a 20 Johns. Rep. 75.

b Inst. 2. 1. 13. Dig. 41. 1. 5. 2.

c Inst. 2. 1. 14.

d Gillet v. Mason, 7 Johns. Rep 16.

e Inst. 2. 1. 14. Wallis v. Mease, 3 Birney, 5 46.

ists in the case of a joint tenancy in lands.

But by reason

of this very effect of survivorship, joint tenancy in chattels is very much restricted. It does not apply to stock used in any joint undertaking, either in trade or agriculture; for the forbidding doctrine of survivorship would tend to damp the spirit and enterprise requisite to conduct the business with success. When one joint partner in trade, or in agriculture, dies, his interest or share in the concern does not survive, but goes to his personal representatives. Subject to these exceptions, a gift, or grant of a chattel interest, to two or more persons, creates a joint tenancy, and a joint tenant it is said, may lawfully dispose of the whole property. In legacies of chattels, the courts, at one time, leaned against any construction tending to support a joint tenancy in them, and testators were presumed to have intended to confer legacies in the most advantageous manner. But in Campbell v. Campbell, the Master of the Rolls reviewed the cases, and concluded, that where a legacy was given to two or more persons, they would take a joint tenancy, unless the will contained words to show that the testator intended a severance of the interest, and to take away the right of survivorship. This same rule of construction has been declared and followed in the subsequent cases.f

a Co. Litt. 182. a.

b o. Litt. 182. a. Noy's Rep. 55. Jeffereys v. Small, 1 Vern. 217. Elliot v. Brown, cited in Rathby's note to 1 Vern. 217.

c Best, J. in Barton v. Williams, 5 Barn. & Ald. 395. If this dictum be not confined to joint tenancy in merchandise, where it undoubtedly applies, it must at least be restricted to chattel interests, and there it has some colour from what Lord Coke says in Co. Litt. 185. a. A joint tenant of an estate in fee can only convey his part, and if he should levy a fine of the whole estate, or convey it by bargain and sale, it would only reach his interest, and au ount to a severance of the joint tenancy. Co. Litt. 186. a. Ford v. Lord Grey, 6 Mod. 44. 1 Salk. 286.

d Perkins v. Baynton, 1 Bro. 118.

e 4 Cro 15.

f Modey v. Bird, 3 Vesey, 628, Crooke v. De Vandes, 9 Vescy, 197. Jackson v. Jackson, i›ul. 591.

4. Another very leading distinction, in respect to goods and chattels, is the distribution of them into things in possession, and things in action. The latter are personal rights not reduced to possession, but recoverable by suit at law. Money due on bond, note, or other contract, damages due for a breach of covenant, for the detention of chattels, or for torts, are included, under this general head of title to things in action. It embraces the most diffusive, and, in this commercial age, the most useful learning in the law. By far the greatest part of the questions arising in the intercourse of social life, or which are litigated in the courts of justice, are to be referred to this head of personal rights in action.

5. Chattels may be limited over by way of remainder, after a life interest in them is created. The law was very early settled, that chattels real might be so limited by will.a A chattel personal, may also be given by will, (and it is said, that the limitation may be equally by deed,) to A. for life, with remainder over to B., and the limitation over after the life interest in the chattel has expired, is good. Anciently, there could be no limitatiom over of a chattel, but a gift for life carried the absolute interest. Then a dis tinction was taken between the use and the property, and it was held that the use might be given to one for life, and the property afterwards to another, though the devise over of the chattel itself would be void. It was finally settled, that there was nothing in that distinction, and that a gift for life of a chattel, was a gift of the use only, and the remainder over was good as an executory devise. This limi

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a Manning's case, 3 Co. 95. Lampett's case, 10 Co. 46. Child ▾ Baylie, Cro. J. 459.

b 2 Blacks. Com. 398. The cases which I have seen, all arose upon wills; but in Child v. Baylie, Cro. J. 459, the court speak of such a remainder as being created equally by grant or devise.

c 37 H. 6. abridged in Bro. tit. Devise, pl. 13. Hastings v. Douglass, Gro. C. 343

tation over in remainder, is good as to every species of chartels; and there is no difference in that respect between money and any other chattel interest. The general doctrine is established by numerous English equity decisions,a and it has been very extensively recognised and adopted the existing rule of law in this country; but not until the question had been very ably and thoroughly discussed, particularly in the Supreme Court of Errors of the state of Connecticut.b

as

There is an exception to the rule in the case of a bequest of specific things, as for instance, corn, hay, and fruits, of which the use consists in the consumption. The gift of such articles for life, is of necessity a gift of the absolute property, and there cannot be any limitation over, for the use and the property cannot exist separately. Nor can there be an estate tail in a chattel interest, for that would lead to a perpetuity, and no remainder over can be permitted on such a limitation,d It is a settled rule, that the same words which, under the English law, would create an estate tail as to freeholds, give the absolute interest as to chattels.e

The interest of the party in remainder in chattels, is precarious, because another has an interest in possession; and chattels, by their very nature, are exposed to abuse, loss, and destruction. It was understood to be the old rule in

a Smith v. Clever, 2 Vern. 59. Hyde v. Parralt, 1 P. Wms. 1. Tissen v. Tissen, ibid. 500 Pleydell v. Pleydell, ibid. 748. Porter v. Tournay, 3 Vesey, 311. Randall v. Russell, 3 Merivale, 190.

b Moffat v. Strong, 10 Johns. Rep. 12. Westcott v. Cady, 5 Johns. Ch. Rep. 334. Griggs v. Dodge, 2 Day's Rep. 23. Taber v. Packwood, ibid. 52. Scott. v. Price, 2 Serg & Rawl. 59. Deihl v. King, 6 ibid 29. Reyall v. Eppes, 2 Munf. 479. Mortimer v. Moffatt, 4 H. & Munf. 503. Logan v. Ladson, 1 S. C. Eq. Rep. 271.

c Randall v. Russell, 3 Merivale, 194.

d Dyer, 7. pl. 8.

e Seale v. Seale 1 P. Wms. 290. Chandless v. Price, 3 Vesey, 99. Brouncker v. Bagot, 1 Merivale, 271. Tothill v. Pitt, Maddock's Ch. Rep. 488. Garth v. Baldwin, 2 Vesey, 646.

Chancery," that the person entitled in remainder could call for security from the tenant for life, that the property should be forth coming at his decease; but that practice has been overruled. Lord Thurlow said, that the party entitled in remainder could call for the exhibition of an inventory of the property, and which must be signed by the legatee for life, and deposited in court, and that is all he is But it is admitted, that the securiordinarily entitled to. ty may still be required, in a case of real danger that the property may be wasted, secreted, or removed.c

a 2 Freeman, 206, case 280.

b Foley v. Burnett, 1 Bro. 279.

c Fearne's Executory Devises, vol. ii. 35. 4th edit. by Powel. Morti mer v. Moffatt, 4 H. & Munf. 503.

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