degeneracy was the pernicious influence of human power. (d) Grotius, on the other hand, has suggested that savage animals owe all their untamed ferocity, not to their own natures, but to the violence * of man. (a) But the common law has * 349 wisely avoided all perplexing questions and refinements of this kind, and has adopted the test laid down by Puffendorf, (b) by referring the question, whether the animal be wild or tame, to our knowledge of his habits, derived from fact and experience. It was held, by the Supreme Court of New York, in Pierson v. Post, (c) that pursuit alone gave no property in animals feræ naturæ. Almost all the jurists on general jurisprudence agree that the animal must have been brought within the power of the pursuer before the property in the animal vests. Actual taking may not in all cases be requisite; but all agree that mere pursuit, without bringing the animal within the power of the party, is not sufficient. The possession must be so far established, by the aid of nets, snares, or other means, that the animal cannot escape. It was accordingly held in the case just mentioned, that an action would not lie against a person for killing and taking a fox which had been pursued by another, and was then actually in the view of the person who had originally found, started, and chased it. The mere pursuit, and being in view of the animal, did not create a property, because no possession had been acquired; and the same doctrine was afterwards declared in the case of Buster v. Newkirk. (d)

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. (e)

(d) Buffon's Natural History, vol. ii. Smellie's ed.

(a) Grotius, Hist. de Belg. lib. 5, cited in Puff. Droit de la Nat. 1, 4, ch. 6, sec. 5. (b) Liv. 4, ch. 6, sec. 5.

(c) 3 Caines, 175.

(d) 20 Johns. 75. The legislature of New York have enlarged the right of acquisition of game by pursuit, in the case of deer, in the counties of Suffolk and Queens, by declaring, that any person who starts and pursues such game, shall be deemed in possession of the same, so long as he continues in fresh pursuit thereof. Laws of N. Y. April 1, 1844, ch. 109. N. Y. R. S. 3d edit. vol. i. 883.

(e) Inst. 2, 1, 13. Dig. 41, 1, 5, 2.

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 *350 might easily be pursued; otherwise they became the

property of the first occupant. (a) 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. (b) Bees which swarm upon a tree do not become private property until actually hived. (c)

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 owner has only a property of a temporary or qualified 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. (d)

III. Personal property may be held by two or more persons in joint tenancy or in common; and in the former case, the same principal of survivorship applies which exists in the case of a joint tenancy in lands. (e) 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. (ƒ) 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. (g) In legacies

(a) Inst. 2, 1, 14.

(b) Gillett v. Mason, 7 Johns. 16.

(c) Inst. 2, 1, 14. Wallis v. Mease, 3 Binney, 546. Bees which take up their abode in a tree, belong to the owner of the soil, if unreclaimed, but if reclaimed and identified, they belong to their former possessor. Goff v. Kilts, 15 Wendell, 550.

(d) Vide infra, pp. 568, 585.

(e) Co. Litt. 182 a.

(f) Co. Litt. 182 a. Noy, 55. Jeffreys v. Small, 1 Vern. 217. Elliott v. Brown, cited in Raithby's note to 1 Vern. 217.

(g) Best J., in Barton v. Williams, Barn. & Ald. 395. If this dictum be not confined to joint tenancy in merchandise, where it undoubtedly applies, it must, at least,

of chattels the courts at one time leaned against any construction tending to support a joint tenancy in them, and

* 351

be restricted to chattel interests. A sale in market overt of a chattel by one joint tenant changes the property at once as against the other joint tenant. A joint tenant of an estate 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 amount to a severance of the joint tenancy. Co. Litt. 186 a. Com. Dig. tit. Estates, K. 6. Ford v. Lord Grey, 6 Mod. 44. Salk. 286. 2 Ohio, 112. See, also, infra, vol. iv. pp. 359, 360, note. If one tenant in common of a chattel sells the share of his co-tenant, as well as his own, he is answerable in trover. Wilson v. Reed, 3 Johns. 175. Hyde v. Stone, 7 Wendell, 354. White v. Osborn, 21 Ibid. 72. It is a conversion as to the share of the other. Parke B., 1 Mees. & W. 685.1 But one tenant in common of a chattel cannot bring trover against his co-tenant for dispossessing him, for each has an equal right to the possession; though for the loss or destruction, or sale of the whole chattel by one of the co-tenants, an action of trover will lie against him by the other. Litt. sec. 323. Co. Litt. 200 a. Wilson v. Reed, ub sup. Fennings v. Grenville, 1 Taunt. 241. Barton v. Williams, 5 Barn. & Ald. 395. Farr v. Smith, 9 Wendell, 338. Lucas v. Wasson, 3 Dev. 398. Cole v. Terry, 2 Dev. & Battle, 252. Herrin v. Eaton, 13 Maine, 192. Mersereau v. Norton, 15 Johns. 179.2 In Waddell v. Cook, 2 Hill, 47, it was held that trover (but not trespass) would lie by one co-tenant of goods against another who sells the whole interest in the chattels. One tenant in common of personal property can sell his own share only. Bradley v. Boynton, 22 Maine, 287. If he sells the whole interest in the common property, the vendee of the original co-tenant cannot be sued while in possession. The person in possession under such a sale is a cotenant with the rightful owner. The remedy is in trover against the co-tenant, whoever he may be, who sells the whole subject as for a conversion of the share of the other

1 So if one joint owner misuses the joint property, or delivers it wrongfully to a stranger for improper purposes, and such stranger denies the right of the other joint owner, trover lies. Agnew v. Johnson, 17 Penn. 373.

* Lowe v. Miller, 3 Gratt. 205. Tyler v. Taylor 8 Barb. (N. Y.) 585. Smyth v. Tankersley, 20 Ala. 212. And in Illinois, by statute, one tenant in common may maintain trover against another, who assumes exclusive control over the property. Benjamin v. Stremple, 13 Ill. 466. In Vermont, it is held to be settled that a sale by one of two tenants in common is not a conversion. Barton v. Burton, 1 Wms. 93. So in North Carolina, trover does not lie by one tenant in common against the other, unless there be a destruction of the property; and a sale of a slave within the state is not such a destruction. Pitt v. Petway, 12 Ired. Law (N. C.) 69. Trespass cannot be maintained by one tenant in common of goods against a vendee of the goods to whom an officer had delivered them as the sole property of the other; nor, it seems, can trover be maintained. Fiero v. Betts, 2 Barb. (N. Y.) 633. But see White v. Morton 22 Vermont, 15. Blevins v. Baker, 11 Ired. 291. Crocker v. Carson, 33 Maine, 436. An injunction will not lie by one tenant in common of a patent against a license granted by the other. Clum v. Brewer, 2 Curtis C. C. 506. Where personal property, severable in its nature, in common bulk and of the same quality, is owned by several as tenants in common, each tenant may sever and appropriate his share, if it can be determined by measurement or weight, without the consent of the others, and sell or destroy it, without being liable to his co-tenants in an action for conversion. Fobes v. Shattuck, 22 Barb. (N. Y.) 568. The secret removal of entire chattels by one tenant in common, without the consent or knowledge of the other, and for the purpose of selling them and applying the proceeds to his own use, does not amount to a conversion. Jones v. Brown, 38 Eng. L. & Eq. 304.

testators were presumed to have intended to confer legacies in the most advantageous manner. (a) But in Campbell v. Campbell, (b) 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. (c)1

IV. 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 breach of covenant, for the detention of chattels or for torts, are included under this general head or title of 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.

* 352

* V. Chattels may be limited over by way of remainder,

owner. Dain v. Cowing, Ibid. 347. A joint owner of a chattel is bound to bestow upon its preservation that care which a prudent man ordinarily bestows upon his property. Guillot v. Dossat, 4 Martin (Louis.) 2.

(a) Perkins v. Baynton, 1 Bro. C. C. 118.

(b) 4 Bro. 15.

(c) Morley v. Bird, 3 Ves. 629. Crooke v. De Vandes, 9 Ibid. 197. Jackson v. Jackson, Ibid. 591.

1 Money in the funds, in the name of two persons, belongs to them as joint tenants, whatever trusts may exist. Crossfield v. Such, 22 Eng. L. & Eq. 555.

The terms" chose in action," and "thing in action," embrace demands arising out of a tort, as well as causes of action originating in a breach of contract. Gillet v. Fairchild, 4 Denio, 80. In Hall v. Robinson, 2 Comst. 293, it was held, that though a right of action for a tort is not assignable, yet after the conversion of a chattel, the owner may sell it, so as to give the purchaser a right to claim it from the wrong-doer.

The assignee of a chose in action stands exactly as the assignor as to equities arising on it. As a general rule, the creator of the security is not bound, on receiving notice of the assignment, to volunteer information. But if the notice disclose that the assignee has been deceived, the creator of the security is bound to inform the assignee of the real circumstances, or he may be debarred from the advantage of the equities. Mangles v. Dixon, 18 Eng. L. & Eq. 82.

after a life in them is created, though not after a gift of the absolute property. 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 also be equally by deed, (b) to A. for life, with the remainder over to B., and the limitation over, after the life-interest in the chattel has expired, is good. At common law there could be no limitation over of a chattel, but a gift for life carried the absolute interest. Then a distinction 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. (c) 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. (d) This limitation over in remainder is good as to every species of chattels of a durable nature; and there is no difference in that respect between money and any other chattel interest.

(a) Manning's case, 8 Co. 95. Lampet's case, 10 Co. 46. Child v. Baylie, Cro. J.

459.

(b) 2 Blacks. Com. 398. Langworthy r. Chadwick, 13 Conn. 42. The cases are generally upon wills; but in Child v. Baylie, Cro. J. 459, the court speaks of such a remainder as being created equally by grant or devise. In Powell v. Brown, S. C. Law Journal, No. 3, 442, it was held, that a limitation over of a personal chattel by deed, was good, though it was not by way of executory trust or a conveyance to uses. See, also, Powell v. Brown, 1 Bailey (S. C.) 100. But if the limitation in remainder, after a lifeestate in personalty, be not by executory devise, it can only be by conveyance in trust. Betty v. Moore, 1 Dana (Ken.) 237. So, in Morrow v. Williams, 3 Dev. (N. C.) 263, it was said to be a settled rule in North Carolina, that a remainder in chattels, after a lifeestate, could not be created by deed. In Rathbone v. Dyckman, 3 Paige, 1, it was held, that a limitation over of personal estate to A. in case of the death of B. without lawful issue, was valid; for the N. Y. Rev. Stats. vol. 1, 724, sec. 22; p. 773, sec. 2, have declared, that the words dying without issue, mean issue living at the death of the first taker. See infra, vol. iv. p. 283. In the English chancery, in bequests of chattel interests, the words living at the time of the testator's death, are often supplied by intendment, to avoid uncertainty. Thus, in reference to a bequest to the children of A., or a legacy to A. for life, and then to the children of B., the law, in the case of real estates, restricts the bounty to the children living at the death of A. or B., as the case may be. Equity will not presume that a party who is not in esse is intended, unless such intention be manifest. Bartleman v. Murchison, 2 Russ. & My. 136.

(c) 37 Hen. VI., abridged in Bro. tit. Devise, pl. 13. Hastings v. Douglass, Cro. C.

343.

(d) Hyde v. Parrat, 1 P. Wms. 1. It has been frequently held, Mr. J. Buller observed, in Doe v. Perryn, 3 Term Rep. 484, that the words dying without issue, mean without issue at the time of the death of the party, in cases of personal property, though it be not so in the limitation of freehold estates.