acquire title thereto if he produces a new article, either by changing the same into another species, or so increasing it in value that the original materials may be considered but mere accessories. But where one wilfully and wrongfully adds materials of his own to those of another, or performs labor upon the chattels of another, he acquires no property right in the other's chattels, no matter what proportion of the materials he may furnish, or no matter how greatly he may increase the chattels in value, or no matter though he changes them into another species; and in addition he forfeits all right to his own labor and to his own materials. W, relying upon a permission which he supposes proceeds from parties having the lawful right to give it but who do not, innocently trespasses upon the land of G, and cuts some standing timber thereon worth twenty-five dollars standing. This timber W makes up into hoops worth seven-hundred dollars. After the hoops are made G discovers that they are the product of timber cut on his land, and claims that he has a right to take the same away from W in a suit of replevin, while W claims, that, conceding that he did not purchase the timber, yet that he has acquired title to the hoops by accession (specification), because of the fact that he was an innocent trespasser at the time of the cutting, and because of the great increase in value which he has given to the timber, and that he is liable to pay only for the value of the timber standing. W's contention is the right one. But, if W had knowingly and wilfully trespassed upon G's land and cut the above timber, G could replevin the hoops without having to account to W for the enhanced value given the same."

Confusion of goods, or such a mixture of the goods of two or more persons that they cannot be distinguished, is a way of acquiring property as respects chattels which is analogous to accession. Where the mixture is by consent of the parties, or is occasioned by accident or by innocent

5 Wetherbee v. Green, 22 Mich. 311.

• Silsbury v. McCoon, 3 N. Y. 379; Wetherbee v. Green, 22 Mich. 311; I. R. Min. Co. v. Hertin, 37 Mich. 332.

mistake, the respective owners become tenants in common, and still retain their rights to proportionate parts of the mixture. But where a person fraudulently, wilfully, or wrongfully, intermingles his own with another's goods, he loses title to his own goods and the innocent party acquires title to the whole mass, unless the goods are such as to be readily distinguishable, or are of equal grade, when the foundation for the principle of acquiring property by confusion being wanting it is not applied.

§ 40. Intellectual Labor. Another manner of acquiring personal property is by intellectual labor. This is the way to acquire title as respects trade-marks, inventions, and literary compositions. The rights created are in rem but they relate to incorporeal chattels. The right of property in a trade-mark existed at common law independently of statutory provisions. It is acquired by the occupancy, or appropriation, of his name or other mark by some one to designate his particular articles manufactured or sold and no definite period is necessary in order to make the right good. Congress has passed laws authorizing the registration of trade-marks and providing regulations for the transfer thereof, etc., but such laws apply, and can apply only to trade-marks used in connection with commerce with foreign nations, with the Indian tribes, and among the several States. Some of the States have passed laws either supplementing or superseding the common law upon the subject of trade-marks."

A right to unpublished lectures, letters, and pictures is acquired in the same manner as a trade-mark right, by occupancy; but the methods of acquiring property in published literary works and in inventions are purely statutory, and there is no way of acquiring any right as respects the same except by proceeding according to the requirements of statutes enacted by Congress. The right to print and publish literary or artistic productions is called a copyright. The instrument securing to inventors the exclusive Mfg. Co. v. Trainor, 101 U. S. 51.

7 Bole v. Olmstead, 36 Ill. 150. 8 Beach v. Schmultz, 20 Ill. 186.

right to their own inventions for a limited time is called a patent.

§ 41. Contract and Operation of Law. Lastly, personal property by original acquisition may be acquired by contract and by implication of law in quasi-contracts and in remedial rights. Executed contracts, if they transfer property rights, are forms of secondary acquisition; but executory contracts, quasi-contracts, and remedial obligations are means of creating personal property by original acquisition, for thereby one acquires a legal right with respect to something that never had an owner before, the right to the payment of a sum of money or to the performance of some other obligation. Leaseholds and most incorporeal chattels are created in this way. These methods of acquiring property are treated elsewhere in this work, being too comprehensive for treatment in an article of this scope.

§ 42. Secondary Acquisition by Some Act of Law. One method of secondary acquisition, where property which one person already owns is transferred to another, is by act of law, which embraces title by confiscation, succession, intestacy, marriage, judgment, insolvency, and adverse possession. By confiscation the State takes the goods of an alien enemy found within its borders in time of war. By succession the members of a corporation aggregate acquire the rights of another set of members which preceded them. By intestacy the rights of property of one dying without disposing of his property by will are transferred to specified parties by law. By marriage each spouse acquires certain rights by law in the property owned and that which is subsequently acquired by the other. At common law it was especially true of the husband who at once became the owner of all the wife's corporeal chattels, and could make himself the owner of her incorporeal chattels by reducing them to possession. By a judgment which is satisfied, a person acquires the personal property in chattels which were formerly owned by another, and after he has satisfied the judgment the title of the person thus paying it dates back by relation to the time of his own wrongful act. By

insolvency proceedings creditors acquire by law property rights formerly owned by their debtor. By adverse possession under a claim of right, hostilely, openly, exclusively, and continuously, for the period of the statute of limitations, one acquires by law the title to chattels formerly owned by another.10

§ 43. Secondary Acquisition by Some Act of the Parties. The most common method of transferring personal property is by a transfer of rights already owned by some act of the parties. Contract is the great medium for such transfer. If the right transferred is the right to the incorporeal thing of a contract itself, as a debt or note, the transfer is accomplished by an assignment, or indorsement etc., of such contract. If the right transferred is a right to a corporeal thing the transfer is accomplished by a sale. But there are other methods of transferring personal property by secondary acquisition by some act of the parties, such as gifts, wills, and bailments. Absolute property may always be transferred by the parties, for the right to transfer is an incident, or element of the property, and qualified property may be transferred, if the property is not qualified in the particular respect of lacking the right to dispose thereof.

§ 44. Gifts. A gift is a voluntary and immediate transfer of property without consideration by the owner to some other person. In order to make a valid gift of personal property, the act designated must take place between living persons, the donee must be enriched by what the donor loses, the donor must intend such enrichment, the donee must accept the same, and there must be an actual or constructive transfer of the object to which the gift relates. A promise to give is invalid as it creates no obligation; a gift is valid as it transfers the property because of the importance that the law attaches to possession. If acceptance would be to the advantage of a donee, there is a presumption of acceptance by law. Constructive possession

10 Mrs. Alexander's Cotton, 2 Wall. U. S. 404; Smith v. Smith, 51 N. H. 571; Campbell v. Holt, 115 U. S. 620.

is such as occurs where a key to a repository in which chattels are kept, is delivered. A gift has the one element of agreement in common with contract, but in one case the agreement is directed to the creation of an obligation, and in the other it is not. Delivery is perhaps the chief requisite of a gift.

There are two kinds of gifts: gifts inter vivos (among the living) and gifts causa mortis (because of approaching death. The first class includes the ordinary gifts made by one person to another, not made in anticipation of impending death. The second class includes gifts in expectation of death then imminent. The distinction between the two classes of gifts lies in the fact that gifts inter vivos must be unconditional, while gifts causa mortis are conditional. The personal property acquired by a gift causa mortis is defeasible upon the happening of any one of four conditions subsequent implied by the law (or they may be expressed): (1) Actual revocation by the donor before death; (2) the donor's recovery from the illness with which he is threatened; (3) the donee's death before that of the donor; (4) a deficiency of assets to pay the donor's debts. Otherwise the two kinds of gifts are alike and must have the same requisites. Both must be made between living persons, in spite of the fact that the term "inter vivos" has been appropriated to specially designate one class: in both the donee must be enriched by what the donor loses; in both the donor must intend such enrichment; in both the donee must accept the gift; and in both there must be an actual or constructive delivery of the possession of the object to which the gift relates; and in both the transfer of property must be gratuitous, voluntary and immediate.11

A father gives a piano to his daughter, who is a minor and living with him, and makes such delivery as is possible under the circumstances. Later he gives a mortgage on the same piano to a third person, and such mortgagee contends that the giving of the subsequent mortgage revokes the gift to the daughter. The gift to the daughter is irrev11 For fuller treatment of Gifts Causa Mortis, see Article on Wills.