till after her death; and, if she does not take it, nobody else can. (18) So, also, where a devise is of black-acre to A, and of white-acre to B in tail, and if they both die without issue, then to C in fee; here A and B have cross remainders by implication, and on the failure of either's issue, the other or his issue shall take the whole; and C's remainder over shall be postponed till the issue of both shall fail. (t) But, to avoid confusion, no such cross remainders are allowed between more than two devisees: (u) (19) and, in general, where any implications are allowed, they must be such as are necessary (or at least highly *probable) and not merely possible implications. (w) (20) And herein there is no distinction between the rules of law and of equity; for the [*382 ] will, being considered in both courts in the light of a limitation of uses, (x) is construed in each with equal favour and benignity, and expounded rather on its own particular circumstances, than by any general rules of positive law. (21) And thus we have taken a transient view, in this and the three preceding chapters, of a very large and diffusive subject, the doctrine of common assurances which concludes our observations on the title to things real, or the means by which they may be reciprocally lost and acquired. We have before considered the estates which may be had in them, with regard to their duration or quantity of interest, the time of their enjoyment, and the number and connexions of the persons entitled to hold them: we have examined the tenures, both ancient and modern, whereby those estates have been, and are now, holden: and have distinguished the object of all these inquiries, namely, things real into the corporeal or substantial and incorporeal or ideal kind; and have thus considered the rights of real property in every light wherein they are contemplated by the laws of England. A system of laws that differs much from every other system, except those of the same feudal origin, in its notions and regulations of landed estates; and which, therefore, could in this particular be very seldom compared with any other. The subject which has thus employed our attention, is of very extensive use, and of as extensive variety. And yet, I am afraid, it has afforded the student less amusement and pleasure in the pursuit, than the matters discussed in the preceding book. To say the truth, the vast alterations which the doctrine of real property has undergone from the conquest to the present time; the infinite determinations upon points that continually arise, and which have been heaped one upon another for a course of seven centuries, without any order or *method; and the multiplicity of acts of parliament which have amended, or sometimes only altered, the common law: these causes have made the [*383] study of this branch of our national jurisprudence a little perplexed and intricate. It hath been my endeavour, principally, to select such parts of it as were of the most general use, where the principals were the most simple, the reasons of them the most obvious, and the practice the least embarrassed. Yet I cannot presume that I have always been thoroughly intelligible to such of my readers as were before strangers even to the very terms of art which I have been obliged (u) Cro. Jac. 655. 1 Ventr. 224. 2 Show. 139. (x) Fitzg. 236. 11 Mod. 153. (t) Freem. 484. (w) Vaugh. 262. (18) [But the heir shall not be disinherited but by a plain, and not merely a probable intention. Doe v. Wilkinson, 2 T. R. 209.] (19) [The contrary has for some time been fully established; and this has been laid down by Lord Mansfield, as a general rule, viz.: wherever cross remainders are to be raised between two and no more, the favorable presumption is in support of cross remainders; where between more than two, the presumption is against them; but the intention of the testator may defeat the presumption in either case. Perry et al. v. White, Cowp. 777, 797; 4 T. R. 710.] In a will there may be cross remainders among any number by implication, where it is the manifest intention of the testator, though he bas given the estates to the respective heirs of their bodies. 2 East, 36. See 1 Taunt. 234; 2 Jarm. on Wills, 457.] (20) See what is said by Lord Eldon on this subject in 1 Ves. and B. 466. (21) For Mr. Jarman's rules for the construction of wills, see 2 Jarm. on Wills, ed. 1861, 762 et. seq.; Redf. on Wills, 425, note. For general rules on the same subject, see Mann v. Mann, 14 Johns. 1; Christie v. Phyfe, 19 N. Y. 344. VOL. I-74 585 to make use of; though, whenever those have first occurred, I have generally attempted a short explication of their meaning. These are indeed the more numerous, on account of the different languages which our law has at different periods been taught to speak; the difficulty arising from which will insensibly diminish by use and familiar acquaintance. And therefore I shall close this branch of our inquiries with the words of Sir Edward Coke: (y) “Albeit the student shall not at any one day, do what he can, reach to the full meaning of all that is here laid down, yet let him no way discourage himself, but proceed: for on some other day, in some other place" (or perhaps upon a second perusal of the same), "his doubts will be probably removed." CHAPTER XXIV. OF THINGS PERSONAL. UNDER the name of things personal are included all sorts of things movable, which may attend a man's person wherever he goes; (1) and, therefore, being only the objects of the law while they remain within the limits of its jurisdiction, and being also of a perishable quality, are not esteemed of so high a nature, nor paid so much regard to by the law, as things that are in their nature more permanent and immovable, as lands and houses and the profits issuing thereout. These being constantly within the reach, and under the protection, of the law, were the principal favourites of our first legislators: who took all imaginable care in ascertaining the rights, and directing the disposition, of such property as they imagined to be lasting, and which would answer to posterity the trouble and pains that their ancestors employed about them; but at the same time entertained a very low and contemptuous opinion of all personal estate, which they regarded as only a transient commodity. The amount of it indeed was comparatively very trifling, during the scarcity of money and the ignorance of luxurious refinements, which prevailed in the feudal ages. Hence it was, that a tax of the fifteenth, tenth, or sometimes a much larger proportion, of all the movables of the subject, was frequently laid without scruple, and is mentioned with much unconcern by our ancient historians, though now it would justly alarm our opulent merchants and stockholders. And hence, *likewise, [ *385] may be derived the frequent forfeitures inflicted by the common law, of all a man's goods and chattels, for misbehaviours and inadvertencies that at (y) Proeme to 1 Inst. (1) ["Chattels" are real or personal. Co. Lit. 118, b. Chattels real are such as concern the realty, as a term for years. Id. Chattels personal are cattle, stuff, &c., fowls, tame or reclaimed, deer, coneys tame, fish in a trunk, tithes severed from the nine parts, trees sold or reserved upon a sale,—Hob. 173—and emblements. Com. Dig. Biens, A. 2. The terms "goods and chattels" include choses in action as well as those in possession. 12 Co. 1; 1 Atk. 182. But a bill of exchange, mortgage, bond, and banker's receipt, will not pass by a bequest of all the testator's "property" in a particular house, though cash and bank notes would have passed, they being quasi cash; for bills, bonds, &c., are mere evidence of title to things out of the house and not things in it. 1 Sch. and Lef. 318; 11 Ves. 662. The term "chattels" is more comprehensive than "goods," and will conclude aniinate as well as inanimate property. The term "goods" will not include fixtures; but the word "effects" may embrace the same. 7 Taunt. 188; 4 J. B. Moore, 73; 4 B. and A. 206. Invalid exchequer bills are securities and effects within meaning of 15 Geo. II, c. 13. 1 New. R. I. The terms "effects, both real and personal," in a will, pass freehold estates, and all chattels real and personal. 3 Bro. P. C. 388. As to trees, see Com. Dig. Biens, H.; 2 Saund. index, Trees: Bridgi. index, tit. Timber, when severed or contracted to be severed, from the land passes as personal property. Hob. 173; 11 Co. 50; Com. Dig. Biens; H. Toller's L. Ex. 195, 196.] Upon the general subject, see the very complete and satisfactory treatise on Personal Property by Mr. Williams. present hardly seem to deserve so severe a punishment. Our ancient law-books, which are founded upon the feudal provisions, do not, therefore, often condescend to regulate this species of property. There is not a chapter in Britton, or the Mirror, that can fairly be referred to this head; and the little that is to be found in Glanvil, Bracton, and Fleta, seems principally borrowed from the civilians. But of later years, since the introduction and extension of trade and commerce, which are entirely occupied in this species of property, and have greatly augmented its quantity, and, of course, its value, we have learned to conceive different ideas of it. Our courts now regard a man's personalty in a light nearly, if not quite, equal to his realty: and have adopted a more enlarged and less technical mode of considering the one than the other; frequently drawn from the rules which they found already established by the Roman law, wherever those rules appeared to be well grounded and apposite to the case in question, but principally from reason and convenience, adapted to the circumstances of the times; preserving withal a due regard to ancient usages, and a certain feudal tincture, which is still to be found in some branches of personal property. But things personal, by our law, do not only include things movable but also something more: the whole of which is comprehended under the general name of chattels, which, Sir Edward Coke says, (a) is a French word, signifying goods. The appellation is in truth derived from the technical Latin word, catalla: which primarily signified only beasts of husbandry, or (as we still call them) cattle, but in its secondary sense was applied to all movables in general. (b) In the grand coustumier of Normandy (c) a chattel is described as a mere movable, but at the same time it is set in opposition to a fief or feud: so that not only goods, but whatever was not a feud, were accounted chattels. *And it is in this latter, more extended, negative sense, that our law adopts it; [*386] the idea of goods, or movables only, being not sufficiently comprehensive to take in everything that the law considers as a chattel interest. For since, as the commentator on the coustumier (d) observes, there are two requisites to make a fief or heritage, duration as to time, and immobility with regard to place; whatever wants either of these qualities is not, according to the Normans, an heritage or fief; or, according to us, is not a real estate; the consequence of which in both laws is, that it must be a personal estate, or chattel. Chattels therefore are distributed by the law into two kinds; chattels real, and chattels personal. (e) 1. Chattels real, saith Sir Edward Coke, (f) are such as concern, or savour of, the realty; as terms for years of land, wardships in chivalry (while the military tenures subsisted), the next presentation to a church, estates by a statutemerchant, statute-staple, elegit, or the like; of all which we have already spoken. And these are called real chattels, as being interests issuing out of, or annexed to, real estates of which they have one quality, viz., immobility, which denominates them real; but want the other, viz., a sufficient, legal, indeterminate duration; and this want it is that constitutes them chattels. The utmost period for which they can last is fixed and determinate, either for such a space of time certain, or till such a particular sum of money be raised out of such a particular income; so that they are not equal in the eye of the law to the lowest estate of freehold, a lease for another's life; their tenants were considered upon feudal principles as merely bailiffs or farmers; and the tenant of the freehold might at any time have destroyed their interest, till the reign of Henry VIII. (g) A freehold, which alone is a real estate, and seems (as has been said) to answer to the fief in Normandy, is conveyed by corporal investiture and *livery of seisin; which gives the tenant so strong a hold of the land, that it never [ *387] after can be wrested from him during his life, but by his own act of voluntary transfer or of forfeiture; or else by the happening of some future contingency, (b) Dufresne II, 409. (c) C. 87. (a) 1 Inst. 118. (e) So, too, in the Norman law, Cateux sont meubles et immeubles ; si comme vrais meubles sont qui transporter se peuvent et ensuivir le corps; immeubles sont choses qui ne peuvent en suivir le corps, ni estre transportees, et tout ce qui n'est point en heritage. LL. Will. Nothi. c. 4, apud Dufresne, II, 409. (f) 1 lust. 118. (g) See page 142. as in estates per auter vie, and the determinable freeholds mentioned in a former chapter. (h) And even these, being of an uncertain duration, may by possibility last for the owner's life; for the law will not presuppose the contingency to happen before it actually does, and till then the estate is to all intents and purposes a life-estate, and therefore a freehold interest. On the other hand, a chattel interest in lands, which the Normans put in opposition to fief, and we to freehold, is conveyed by no seisin or corporal investiture, but the possession is gained by the mere entry of the tenant himself; and it will certainly expire at a time prefixed and determined, if not sooner. Thus a lease for years must necessarily fail at the end and completion of the term; the next presentation to a church is satisfied and gone the instant it comes into possession, that is, by the first avoidance and presentation to the living; the conditional estates by statutes and elegit are determined as soon as the debt is paid; and so guardianship in chivalry expired of course the moment that the heir came of age. And if there be any other chattel real, it will be found to correspond with the rest in this essential quality, that its duration is limited to a time certain, beyond which it cannot subsist. (2) 2. Chattels personal, are, properly and strictly speaking, things movable; which may be annexed to or attendant on the person of the owner, and carried about with him from one part of the world to another. Such are animals, household stuff, money, jewels, corn, garments, and everything else that can properly be put in motion, and transferred from place to place. And of this kind of chattels it is that we are principally to speak in the remainder of this book; having been unavoidably led to consider the nature of chattels real, and their incidents, in the former chapters, which were *employed upon real [*388] estates; that kind of property being of a mongrel, amphibious nature, originally endowed with one only of the characteristics of each species of things; the immobility of things real, and the precarious duration of things personal. Chattel interests being thus distinguished and distributed, it will be proper to consider, first, the nature of that property, or dominion, to which they are liable; which must be principally, nay solely, referred to personal chattels: and, secondly, the title to that property, or how it may be lost and acquired. Of each of these in its order. CHAPTER XXV. OF PROPERTY IN THINGS PERSONAL. PROPERTY in chattels personal may be either in possession: which is where a man hath not only the right to enjoy, but hath the actual enjoyment of, the thing or else it is in action; where a man hath only a bare right, without any occupation or enjoyment. And of these the former, or property in possession, is divided into two sorts, an absolute and a qualified property. I. First, then, of property in possession absolute, (1) which is where a man nath, solely and exclusively, the right, and also the occupation, of any movable (h) Page 120. (2) [It is a rule of the law of England, in common with that of most other nations, that the title by succession to personal property, wherever it is situated, shall be determined by the law of the domicile of the deceased owner. 1 H. Bl. 670; 5 Ves. 750; 5 B. and Cr. 451; 1 Hagg. 474, 498; 8 Sim. 310. But it has been denied by a justly esteemed writer that this rule extends to chattels real, on the ground that the treatment of such property as personalty is peculiar to our own law. 1 Jarm. on Wills, 4; 2 id. 740. The point appears to be unaffected by decision, and is perhaps open to argument on both sides. See 2 P. Wms. 622.]. (1) [It is a rule of law, that the absolute or general property of personal chattels, draws to it the supposed possession. 2 Saund. 47, a.] Chap. 25.] PROPERTY IN ANIMALS. chattels; so that they cannot be transferred from him, or cease to be his, without his own act or default. Such may be all inanimate things, as goods, plate, money, jewels, implements of war, garments and the like: such also may be all vegetable productions, as the fruit or other parts of a plant, when severed from the body of it; or the whole plant itself, when severed from the ground; none of which can be moved out of the owner's possession without his own act or consent, or at least without doing him injury, which it is the business of the law to prevent or remedy. Of these, therefore, there remains little to be said. But with regard to animals which have in themselves a principle and power of motion, and (unless particularly confined) can convey themselves from one part of the world to another, there is a great difference made with respect to [*390] *their several classes, not only in our law, but in the law of nature and of all civilized nations. They are distinguished into such as are domitæ, and such as are feræ naturæ: some being of a tame and others of a wild disposition. inaniIn such as are of a nature tame and domestic (as horses, kine, sheep, poultry, and the like), a man may have as absolute a property as in mate beings; because these continue perpetually in his occupation, and will not stray from his house or person, unless by accident or fraudulent enticement, in either of which cases the owner does not lose his property: (a) in which our law agrees with the laws of France and Holland. (b) The stealing, or forcible abduction, of such property as this, is also felony; for these are things of intrinsic value, serving for the food of man; or else for the use of husbandry. (c) But in animals feræ naturæ a man can have no absolute property. any Of all tame and domestic animals, the brood belongs to the owner of the dam or mother; the English law agreeing with the civil, that "partus sequitur ventrem" in the brute creation, though for the most part in the human species it disallows that maxim. And therefore in the laws of England, (d) as well as Rome, (e) "si equam meam equus tuus prægnantem fecerit, non est tuum sed meum quod natum est." And, for this Puffendorf (f) gives a sensible reason: not only because the male is frequently unknown; but also because the dam, during the time of her pregnancy, is almost useless to the proprietor, and must be maintained with great expense and care: wherefore, as her owner is the loser by her pregnancy, he ought to be the gainer by her brood. An exception to this rule is in the case of young cygnets; which belong equally to the owner of the cock and hen, and shall be divided between them. (g) But here the reasons of. the general rule cease, and "cessante *ratione cessat et ipsa lex :" for the male is well known, by his constant association with the female; and [*391] for the same reason the owner of the one doth not suffer more disadvantage, during the time of pregnancy and nurture, than the owner of the other. II. Other animals, that are not of a tame and domestic nature, are either not the objects of property at all, or else fall under our other division, namely, that of qualified, limited, or special property; which is such as is not in its nature permanent, but may sometimes subsist, and at other times not subsist. In discussing which subject, I shall in the first place show, how this species of property may subsist in such animals as are feræ naturæ, or of a wild nature; and then how it may subsist in any other things, when under particular circumstances. First, then, a man may be invested with a qualified, but not an absolute, property in all creatures that are feræ naturæ, either per industriam, propter impotentiam, or propter privilegium. 1. A qualified property may subsist in animals feræ naturæ per industriam hominis (2) by a man's reclaiming and making them tame by art, industry, and education; or by so confining them within his own immediate power, that (b) Vin. in Inst. l. 2, tit. 1, 15. (c) 1 Hal, P. C. 511, 512. (f) L. of N. 1, 4, c. 7. (g) 7 Rep. 17. (2) See Williams on Real Prop. 19, and the observations by Mr. Justice Bayley, 2 B. and C. 937. 589 |