« SebelumnyaLanjutkan »
and liable to be lost, impaired or destroyed, and the exigencies of trade requiring also a frequent circulation thereof, it would occasion perpetual quarrels, and check commerce, if such limitations in remainders were generally allowed.
Exception in the Case of Wills. But yet in last wills and testaments, such limitations of personal goods, in remainder, after a bequest for life, were permitted. Originally that indulgence was only shown, when merely the use of the goods, and not the goods themselves, was given to the first legatee, the property being supposed all the time, to continue in the executor of the devisor.
Present Law on the subject. But now that distinction is disregarded, and therefore if a man, either by deed or will, limits his goods to one man for life, with remainder to another, it is good. But where an estate-tail in things personal is given to a man, it vests in him the total property, for if there were a remainder over, it would tend to a perpetuity, as the devisee or grantee in tail of a chattel cannot bar the entail.
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. They cannot 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 thereof, and unless the jointure be severed, the same doctrine of survivorship shall take place as in real property. 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. For the encouragement of husbandry and trade, it is held that stock on a farm, though occupied jointly, as also a stock in partnership in trade, shall always be considered as common and not as joint property, and there shall be no survivorship therein.
CHAPTER XXVI.—TITLE TO THINGS PERSONAL BY
Personal Property Acquired or Lost. The methods by which personal property may be acquired or lost are twelve:
7. Judgment. 2. Prerogative.
8. Gift or grant. 3. Forfeiture.
9. Contract. 4. Custom.
10. Bankruptcy. 5. Succession.
11. Testament. 6. Marriage.
12. Administration. TITLE BY OCCUPANCY.
Curtailed by Laws. This was the original method of acquiring any property, but has since been restrained by the positive laws of society, to maintain harmony among mankind. For this purpose, gifts and contracts, testaments, legacies and administrations have been introduced, in order to continue and transfer 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, except in a few instances, where the right of occupancy is still permitted to exist.
1. Goods of an Alien Enemy, It is said that anybody may seize, to his own use, the goods of an alien enemy. While enemies, they are not entitled to the protection of our laws, and no restitution need be made them for chattels that may be seized. But this right of seizure of an alien enemy's goods must be limited to captors, authorized by the public authorities, and to such goods, as are brought into this country by such alien enemy, after a declaration of war, without a safe conduct or passport. Hence 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. Also 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 vested in the second taker; unless the goods were retaken the same day, and the owner before sunset puts in his claim for the property.
2. Unclaimed Movables. Whatever unclaimed movables are found presumably abandoned by the last proprietor belong to the finder, unless they be waifs, estrays, wrecks or hidden treasure, for these belong by law to the king.
3. The Elements: Light, Air and Water. These can only be appropriated by occupancy. If I have an ancient win
dow, overlooking my neighbor'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 was in him. If my neighbor makes a tan-yard, which affects the atmosphere of my house or garden injuriously, the law gives me a remedy, but if he first erects such nuisance, and I subsequently move next door, I have no remedy. If a stream be unoccupied, I may erect a mill thereon and detain the water, yet not so as to injure my neighbor's prior mill or his meadow, for he had a prior occupancy.
4. Animals Ferae Naturae. By the original grant of the Creator, all men had a right to take such animals, and may still do so, unless restrained by law. When so seized, they become, while living, a man's qualified property, or if dead, are absolutely his own, so that to steal them becomes sometimes a criminal offence, and in other cases, a civil injury. The restrictions laid on this right in England relate principally to royal fish, as whale and sturgeon, and also to game, the taking of which belong to the prince or to those to whom he has granted such privilege.
5. Emblements. To this principle of occupancy may be referred the method of acquiring a special personal property in growing corn or other emblements, by any possessor of the land, who had sown or planted it, which emblements are distinct from the real estate in the land, and subject to many of the incidents attending personal chattels. They were devisable by testaments, before the statute of wills, and at the death of the owner, shall vest in his executor and not in his heir, and by statute, but not by common law, are distrainable for rent. They are not the subject of larceny, before being severed from the land.
6. Accessions. By the Roman law, if any corporeal substance received afterwards an accession by natural or artificial means, as by the growth of vegetables, the pregnancy of animals, the embroidery of cloth, the conversion of wood or metal into 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. But if the thing itself, by such operation, was changed to a different species, as by making wine or bread out of another's grapes or wheat, it belonged to the new operator, who was only to make satisfaction to the former proprietor for the materials which he had converted. Our courts hold the same doctrine. It is also held, that if one takes away garments, and clothes another's wife or son, and afterwards they return home, the garments cease to be the property of him who provided them, being annexed to the person of the wearer.
7, Confusion of Goods. Where the goods of two persons are so intermixed, that they can no longer be distinguished, the English law partly differs from the civil. If it have been by consent, probably the proprietors have an interest in common in proportion to their respective shares. But if one wilfully intermix the property, without consent or knowledge of the other, the civil law, though it gives the sole property to the party who did not interfere, yet allows a satisfaction to the other for the loss. But our law, to guard against fraud, gives the entire property, without any account, to him whose original dominion is invaded.
8, Literary Composition. This property is grounded on labor and invention. An author has the right to his original literary composition, so that no other person, without his permission, shall publish it. The identity of such composition consists entirely in the sentiment and the language, and no other man has the right to exhibit it, especially for profit, without the other's consent. This consent may perhaps be tacitly given to all mankind, when an author suffers it to be published by another's hand, without any claim or reserve of right, and without stamping it by marks of ownership.
Author's Rights. But in case the author sells a single book, or totally grants the copyright, it is urged on the one hand, that the buyer has no more right to multiply copies of such book for sale, than he has to imitate a ticket for a concert; and that the copyright grant, with its exclusive rights, is perpetually transferred to the grantee. On the otherhand, it is claimed, that though the exclusive property of the manuscript undoubtedly belongs to the author, before it is printed or published, yet on its publication, such exclusive right vanishes.
Roman Law. The Roman law adjudged, that if a man wrote anything on the parchment or paper of another, the writing should belong to the owner of the blank materials, the scribe to receive a satisfaction; but in works of genius and invention, as in painting on another man's canvas, the law gave the canvas to the painter.
Copyright. The statute of Anne, amended by that of George III, declares, that the author and his assigns shall have the sole liberty of printing his works for fourteen years, and if at the end of that term, the author himself be living, then for fourteen additional years. The inventors of prints and engrayings are entitled to a copyright for a term of twenty-eight years.
Patents. By statute of James I, a royal patent of privilege was granted for fourteen years to any inventor of a new manufacture, for the sole making or working of the same, by virtue whereof a temporary property becomes vested in the king's patentee.?
CHAPTER XXVII. — TITLE BY PREROGATIVE AND
TITLE BY PREROGATIVE.
Defined. This is whereby a right accrues either to the crown itself, or to such as claim under the title of the crown, as by the king's grant, or by prescription, which supposes an ancient grant.
Things Acquired. Such are all tributes, taxes and customs, in which the king acquires, and the subject loses a property, the instant they become due; if paid, they are a chose in possession; if unpaid, a chose in action. Hither may also be referred all forfeitures, fines and amercements due the king, by virtue of his ancient prerogative, or by modern statutes.
King's Right to Joint Property. The king cannot have a joint property with any person in one entire chattel, or in one not capable of division, but where the titles of a king and a subject concur, the king shall have the whole. This is also true of à chattel real. If a bond be given to a king and a subject, the king shall have the whole penalty. For as it is beneath the dignity of the king to be partner with a subject, so neither does the
1 By later statute of George III, the author of a book, printed or published, shall be entitled to a copyright for twenty-eight years, and if he be living at the end of that time, then for the residue of his natural life. By statute of Victoria, the time was extended to forty-two years, or the period of the author's life, and seven years thereafter.
2 By statute it may be renewed for fourteen additional years.