such dispositions of property are to be made. As a matter of fact few governments ever have given unlimited sway to this natural right. The restrictions and regulations laid upon this right are in general, the subject of statutory enactments. The nature and extent of the limitations will largely depend upon the character of the government by which they are imposed. So that every citizen being-as at least in theory he is-familiar with the fundamental terms of his contract with the State, can readily learn how far the Legislature may interfere with his power of testamentary disposition. In this State the contract between the citizen on the one side and the Supreme power of governing on the other is express and is briefly embodied in a written Constitution; and any restriction not within the purview of this constitutional compact is an unlawful abrogation of the natural rights of the subject. This constitutional agreement was drawn up after the colonists had shaken off allegiance to British rule. It declared that so much "of the common law of England and of the statute law of England and Great Britain sistent with republican principles was thereafter to form part of the law of this State. Const. of 1777, § 35. Hence we must, if we would thoroughly grasp the spirit of this constitutional compact, go back to England and into the centuries that immediately precede the revolution.

as was con

In England under the fendal system land was held by what was known as tenure. Tenure was the right to use lands upon condition of taking oath of fealty to some superior lord, and of rendering certain services. The character of these services determined the kind of tenure by which the land was to be held. By this system of land-holding all ecclesiastical corporations took lands by tenure in frankalmoigne, or free alms, under which, the services being spiritual no oath of fealty was required. The services however had to be performed, and in this case, were such as singing mass or praying for the souls of the donor and his heirs. Restrictions were gradually put upon the power of these corporations to take lands. the reason given being that as it was an essential feature of the body corporate that it could not die, lands held by these religious corporations were forever locked up in mortua manu, or in a dead hand. The first restriction was contained in Magna Charta, chapter 36, by which it was made unlawful for any one to give lands "to any religious house and to take the same lands to hold again of the same house. This was swiftly followed by the statute of "De religiosis" (7 Edw. 1) which forbade, under pain of forfeiture, all persons toĝin any way permit or cause lands "to come into mortmain." The effect of such laws was to prohibit any gift or conveyance to a corporation. In order to evade the oppressive designs of these acts the ecclesiastics invented

uses.

A use was a conveyance to one person with the understanding however that not he but another was to receive the benefits of the grant. Thus where land was given to A. for the use of B. the legal ownership was held to be in A., and at law therefore B., if A. failed of carrying out the donor's intent, had no redress. Chancery however being what was called a "court of conscience," here stepped in to prevent a breach of the confidence that had been reposed in A. and compelled him to give the rents and profits of the land to B. Exactly when uses were introduced into England, legal writers are not agreed, nor is it of great moment; yet we may with certainty set it down as being some time between Edward the First and Richard the Second. During the reign of this latter king then was passed an act (15 Rich. II, ch. 2) which provided that all they who held lands by feoffment or otherwise to the use of religious persons should amortise them by license of the king, or sell, or alien

them to some other use, or else they were to be forfeit to the king. To amortise lands was to alien them in mortmain or in other words to alien them to a corporation, and this could only be done by the king's license. Another statute (27 Hen. VIII, better known as the Statute of Uses) having been passed to declare that in every conveyance to use, the legal as well as equitable title was to be in the person for whose use the land was given, and corporations being unable to take the legal title to land, a grant to the use of a corporation was of course void. But by a refinement of the law a grant to A. to the use of B. to the use of C. was said to vest the legal and equitable title in B., but to be void as to C. Here again equity interfered and maintained the use to C. as a trust and thus obliged B. to account to C. as trustee. So that corporations were now in exactly the same position they had occupied before the Statute of Uses.

When Henry the Eighth came to the throne there had for some time been festering in the hearts of men in England as on the continent, a spirit of revolt to religious authority which found its most virulent outburst in the dogmatic utterances of Luther. Already there was a disposition on the part of Parliament to break down the influence of the church within the realm. As it was the custom of devout Catholics of means to give part of their property to the church that after death prayers might be offered up for their souls, any act by which such gifts were made unlawful necessarily took away from the church a great source of revenue. After Henry the Eighth had sought, with no avail, the papal sanction to his proposed divorce from Katharine, he determined to revenge himself upon the nearest representatives of that prelate who had refused to license even a monarch's passions. Wherefore this proud and unscrupulous prince caused Parliament to declare him the spiritual as well as the temporal ruler, and to enact (28 Hen. VIII, ch. 10), that save leases for twenty years, all uses of land to have perpetual service of a priest or the like should thereafter be void. Following this came the statute of Edward VI (1 Edw. VI, ch. 12, 14), wherein it was declared that superstition and error in the Christian religion had been brought into men's minds by devising and phantasing vain opinions of purgatory and masses satisfactory to be done for them which be departed; and it was therefore provided that all lands, etc., given by will or otherwise to any priest were to be adjudged in the actual possession of the crown. Afterward in Elizabeth's day it was ordained (1 Eliz., ch. 24, §§ 7, 8), that if any one had since the death of Edward VI, by will or otherwise given any lands, etc., or assured any profit or salary to be paid any priest to sing masses or the like, then the queen was to have to these lands or profits the same title that the priest but for this act would have had. These statutes were avowedly aimed at the Catholic custom of saying mass for the dead; that custom being greatly condemned by the so-termed Reformation. 12 Abb. N. C. 419; Brightley, N. P. 378; Redfield on Wills, 2, $71. Thus all the way down to the American revolution it was the policy of Reformation and of Protestant Parliaments in aid of the Reformation to destroy whatever in the least interfered with the progress of that religious movement.

The colonists then having before them the evils of such legislation, endeavored to frame a Constitution and to compile a code of laws such as would limit the natural right of the citizen to dispose of his property, by no greater restraints than for the common welfare would be absolutely necessary. Let us therefore now consider what was the effect of the laws thus established upon the right of a Catholic to direct by his will that masses be offered for his soul.

1. As to real property.

and also the case of Kehoe v. Kehoe reported in a note at 427 same volume. See finally Schouler v. Williams in 16 Rep. 79, a Massachusetts case.

If theu a Catholic desire to make provision by will for the saying of masses for his soul there is not the shadow of a doubt but that every court in the State, if not in the Union, would uphold the bequest if the mode of making it were agreeable to the law. Therefore since by State and Federal Constitution absolute religious freedom and equality is guaranteed to all men, and since members of one faith have no greater latitude than those of another, it cannot consistently be claimed by Catholics that the government is a bigoted one because they in common with all other citizens are restricted in the disposition of property. Let no one therefore who hears of such a bequest being set aside by a court of justice hastily conclude that the court was prejudiced or the bequest illegal, but rather assume that there was some irregularity or defect in the manner of gift.

September, 1885.

F. A. MCCLOSKEY.

ANIMALS-BEES-NO TITLE BY TRESPASS.

RHODE ISLAND SUPREME COURT, MAY 28, 1885.

ROXROTH V. COON.

In obtaining possession of an animal feræ naturæ no title is gained by one who, when so obtaining, is a trespasser. A., without B.'s permission, put upon a tree on B.'s land an empty box for bees to hive in. The box remained there more than two years, when C. took the box down, took out a swarm of bees and replaced the box. A., after demand upon C., brought trover against C. for the value of the bees, honey and honey-comb. Held, that A. could not maintain his action against C.

EXCEP

XCEPTIONS to the Court of Common Pleas. The opinion states the facts.

TILLINGHAST, J. This is an action of the case in trover for the recovery of damages for the wrongful conversion of a hive of bees, together with the honey and honey-comb, belonging, as is alleged, to the plaintiff. The case was originally brought and tried in the Justice Court of the town of Westerly, from whence it was carried by appeal to the Court of Common Pleas. In the Court of Common Pleas jury trial was waived, and it was tried to the court upon the law and the facts. It comes here by bill of exceptions, the only exception taken being the ruling of the court that upon the facts which appeared in evidence, the plaintiff was not entitled to recover. Said facts are incorporated in the bill of exceptions, and are a part of the record of the proceedings. They are substantially as follows, namely: In May, 1881, the plaintiff placed a small pine box called a bee-hive in the crotch of a tree in the woods, on land of Samuel Green, in the town of Hopkinton. It remained in this position until about the 1st of September, 1883, when the defendant went upon the premises and took and carried away the hive, together with a swarm of bees that was in it; also the honey and honey-comb, and appropriated the same to his own use. The plaintiff had visited the hive about twice a year while it remained in its position, for the purpose of ascertaining whether any bees were in it or had been. He had found none. The plaintiff never had any express permission or license from the owner of the land to place or keep his hive in said tree.

The defendant never had any express permission or license from the owner of the land to come upon it and take and carry away said property. Said hive was at some distance from any house, and no person

knew where said bees came from into said hive, although a number of people kept bees in said town. There was evidence that for several years signs had been posted up by said Green on his premises forbidding all persons from trespassing thereon, and that one of said signs was within twenty rods of said line; but the plaintiff testified that he never saw any of them, and that he never had any notice to keep off said premises. The defendant split open said hive, took out its contents, and then nailed it together again, and replaced it in said tree in as good condition as it was before he took it away. The defendant testified that he knew the owner of said laud had forbidden all persons from trespassing thereon, but that said owner had told him that he did not put up said notice to keep off his neighbors, and had given him permission to go upou said land. Demand was made upon defendant in due form before the commencement of suit. After the suit was commenced the defendant turned over to said Green what then remained in his hands of said bees and honey-comb. The value of the property taken was variously estimated at from $2.50 to $10. Upon said facts the court ruled that the plaintiff was not entitled to recover, and rendered judgment for the defendant for his costs, to which ruling the plaintiff duly excepted.

The only question therefore is whether said ruling was correct.

The plaintiff claims that he hived the bees, and that he thereby acquired at least a qualified property in them, notwithstanding they were upon the land of another, which was sufficient to enable him to maintain this action. We do not think the claim can be substantiated. The action is trover, and in order to recover the plaintiff must prove title, some title, in himself, coupled with possession, or the right of immediate possession. We do not think he has proved either.

Bees are fera naturæ, and the only ownership in them until reclaimed and hived is ratione soli. This qualified ownership however, although exceedingly precarious and of uncertain tenure, cannot be changed or terminated by the act of a mere trespasser. That is to say, the act of reducing a thing ferce naturæ into possession, where title is thereby created, must not be wrongful. And if such an act is effected by one who is at the moment a trespasser, no title to the property is created. Blades v. Higgs, 11 H. of L. 621. "Property ratione soli," said the lord chancellor in said case, "is the common-law right which every owner of land has to kill aud take all such animals feræ naturæ as may from time to time be found on his land, and as soon as this right is exercised the animal so killed or caught becomes the absolute property of the owner of the soil." It was further held in the same case that such animals, when found, killed and taken by a mere trespasser, became also the property of the owner of the land, the same as if taken by him or his servants. See Sutton v. Moody, Ld. Raym. 250; Earl of Lonsdale v. Rigg, 11 Exch. 654; Rigg v. Earl of Lonsdale, 1 H. & N. 923.

We understand that the law in this country with regard to property in animals feræ naturæ is substantially in accord with that of England, excepting, of course, all game laws and statutory regulations, which are now very numerous, upon this subject. See Idol v. Jones, 2 Dev. 162.

In support of the plaintiff's position in the case at bar he cites the following authorities, viz.: 1 Swift Dig. 169; 2 Bl. Com. *393; 2 Kent Com. *350; 2 Inst. 1, 14,15; Merrils v. Goodwin, 1 Root, 209; Gillet v. Mason, 7 Johns. 16, and Goff v. Kilts, 15 Wend. 550.

All of these authorities in so far as they are pertinent, omitting of course the citations from the civil law, which is not in force here, tend, in our judgment,

to support the defendant's position rather than that of the plaintiff.

The case of Merrils v. Goodwin, cited by the plaintiff, that a man's finding bees in a tree standing upon another man's land gives him no right either to the tree or the bees; and that a swarm of bees going from a hive, if they can be followed and identified, are not lost to the owner, but may be reclaimed. That is to say, a man may pursue his property of this sort even upon the land of another, and retake it; and this, although the owner might be liable for a trespass in so doing.

Gillet v. Mason, Johns. 16, cited by the plaintiff, also recognizes the doctrine of a qualified ownership in bees, ratione soli; and while it decides that hiving or inclosing them gives property therein, and that he who first incloses them in a hive becomes their proprietor, yet it is clear from the general tenor of the case as from the note which follows it, that it "must be understood with the restriction that a person could not come upon the land of another without his consent, for the purpose of taking bees, although unreclaimed."

The case of Goff v. Kilts, 15 Wend. 550, is clearly against the position taken by the plaintiff. It was trespass for taking and destroying a swarm of bees which was the property of the plaintiff, but which left the hive and flew off into a tree on land of another. The owner however kept the bees in sight, followed them, and marked the tree in which they entered. The court held that the plaintiff's qualified property in the bees continued so long as he could keep them in sight, and possessed the power to pursue them, and that even though he might be liable for trespass in following and retaking them upon the land of another, yet that the qualified property remained in him, and that no one else would be entitled to take them. With regard to obtaining the ownership in bees the court say: "According to the law of nature, where prior occupancy alone gave right, the individual who first hived the swarm would be entitled to the property in it; but since the institution of civil society, and the regulation of the right of property by its positive laws, the forest, as well as the cultivated field, belongs exclusively to the owner, who has acquired a title to it under those laws." "The natural right to the enjoyment of the sport of hunting and fowling wherever animals feræ naturæ could be found has given way in the progress of society to the establishment of rights of property better defined and of a more durable character. Hence no one has a right to invade the inclosure of another for that purpose. He would be a trespasser, and as such liable for the game taken." See also Ferguson v. Miller, 1 Cow. 243; Adams v. Burton, 43 Vt. 36, 38, and Bennett Farm Law, 64.

In the case at bar the plaintiff was a trespasser upon the land of Green from the beginning. He had no right to place the box or hive in the tree; and by placing it there he acquired no title to the bees which subsequently occupied it or to the honey which they produced. Neither is it material to the issue for us to inquire whether the defendant, by taking the bees and honey away without previous permission from the owner of the land, was also a trespasser; for even admitting that he was does not in any way aid the plaintiff in this suit. The fact that A. commits a trespass upon land of B., and carries away some of his personal property, would hardly be considered a cause of action in favor of C.

As to the point raised by defendant's counsel that no exception can be taken to the judgment where the court below finds both as to the law and the facts, we have to say that we do not so construe the statute. It * * provides that "if such * party be aggrieved by any opinion, direction, ruling or judgment of the Court of Common Pleas on any matter of law raised

by the pleadings or by an agreed statement of facts or apparent upon or brought upon the record by a bill of exceptions, shall be entitled to have such matter of law heard and decided by the Supreme Court," etc. Pub. Stat. R. I., ch. 220, § 10. The ruling complained of in this case was made upon a certain state of facts, first found by the court below, which facts are brought upon the record by a bill of exceptions. With regard to the finding of those facts we have nothing to do; but with regard to the law applicable to that state of facts we have to do upon proceedings of this sort. See Providence Co. Sav. Bank v. Phalen, 12 R. I. 495; Providence Gas Burner Co. v. Barney, 14 id. 18: Kenney v. Sweeney, id. 581. Exceptions overruled.

CREDITOR'S BILL-EXECUTION RETURNED NULLA BONA-TRUST-LIMITATION-LACHES.

MAINE SUPREME JUDICIAL COURT. AUGUST 16, 1885

BAXTER V. MOSES.

When an attempt is made by a process in equity to reach equitable interests, choses in action or the avails of property fraudulently conveyed for the payment of a debt, the bill should allege that execution had been taken out on a judgment for such debt against the debtor, and nulla bona returned thereon.

The officer's return on the execution is the only sufficient evidence that the debt cannot be collected by process at law.

No equlty jurisdiction, however enlarged, takes upon itself the collection of legal debts before legal remedies are exhausted.

The property of a corporation is a trust fund for the payment of debts, and the directors hold the same under an implied or constructive trust for that purpose.

One who is not an actual trustee, but upon whom that charter is forced by a court of equity for the purpose of a remedy, may avail himself of the statute of limitations. R. P. Tapley, for plaintiff.

Frye, Cotton & White and William L. Putnam, for defendants.

PETERS, C. J. This is a creditor's bill to collect certain debts, principally judgments, which are due from the Androscoggin Railroad Company, and is before us on demurrer.

It is not claimed that the bill is maintainable under part 10, section 6 of chapter 77 of the Revised Statutes. That provides a remedy for a single creditor, by an attachment in equity of some specific property without asking for a discovery under the bill. Chapman v. Publishing Co., 128 Mass. 478; Insurance Co. v. Abbott, 127 id. 558; Donnell v. Railroad, 73 Me. 567.

This is a materially different bill, but one common to the practice of the courts of chancery.

It is not an answer to this mode of remedy that another remedy exists by the means of the process of foreign attachment either of legal or equitable assets. Those remedies are partial and limited, while this is much more adequate and complete. Besides, the present form of proceeding, although always existing in modern equity procedure, is expressly allowed by the statutes of our State. Rev. Stat., ch. 46, § 52. Either remedy does not exclude the other.

The first objection urged by the respondents against the bill is a want of jurisdiction in the court to act, because the bill contains no allegation that an execution was taken out upon any judgment and nulla bona returned thereon. This defense must prevail, and for the reason stated by Shepley, J., in Webster v.