sal of the judgment, properly be said to have been "in jeopardy" within the meaning of the maxim under consideration.' So where, on a trial for misdemeanor, the jury are improperly, and against the will of the defendant, discharged from giving a verdict after the trial has begun, this is not equivalent to an acquittal.2 The general rule, which obtains as well in purely civil as in criminal cases, being that "a man shall not be twice vexed in respect of the same matter," is subject to exceptions. For instance, man may at common law be compelled to make reparation in damages to the injured party, and be liable also to punishment for a breach of the public peace in consequence of the same act, and may thus be said in common parlance to be twice punished for the same offence. So, it has been held *that a conviction for [*350] an assault by justices at petty sessions, at the instance of the person assaulted, and imprisonment consequent thereon, do not bar an indictment for manslaughter against the defendant, should the person assaulted afterwards die from the effects of the assault, for "the form and the intention of the common law pleas of autrefois convict and autrefois acquit show that they apply only where there has been a former judicial decision on the same accusation in substance, and where the question in dispute has been already decided." If there be a continuing breach by a workman of a contract to serve his master, the servant may, under the stat. 4 Geo. 4, 1 Per Coleridge, J., Reg. v. Drury, supra; Reg. v. Green, Dearsl. & B. 113. See also Lord Denman's judgment, O'Connell v. Reg., by Mr. Leahy, pp. 19 et seq., and p. 44; Reg. v. Gompertz, 9 Q. B. 824, 839 (58 E. C. L. R.). Reg. v. Charlesworth, 1 B. & S. 160 (101 E. C. L. R.); et vide per Cockburn, C. J., Id. 507, as to the maxim supra. 3 See stat. 25 & 26 Vict. c. 88, ss. 11, 22. Per Grier, J., 14 Howard (U. S.) R. 20. See stat. 24 & 25 Vict. c. 100, ss. 44, 45 (as to which see Hartley v. Hindmarsh, L. R. 1 C. P. 553; Reg. v. Elrington, 1 B. & S. 688 (101 E. C. L. R.); Hancock v. Somes, 1 E. & E. 795 (102 E. C. L. R); Costar v. Hetherington, Id. 802); Justice v. Gosling, 12 C. B. 39 (74 E. C. L. R.) ; R. v. Mahon, 4 A. & E. 575 (31 E. C. L. R.); Anon., Id. 576, n. In Scott v. Lord Seymour, 1 H. & C. 219, an action was held maintainable here by a British subject against another British subject for an assault committed at Naples, although proceedings for the same assault were pending in a Neapolitan court. See Cox v. Mitchell, 7 C. B. N. S. 55 (97 E. C. L. R.); Phillips v. Eyre, L. R. 4 Q. B. 225. 5 Reg. v. Morris, L. R. 1 C. C. 90, 94. c. 34, s. 3, be convicted more than once of the offence thereby constituted. In construing, however, a statute which gives a penalty to a common informer, the Court will take care not to impose a heavier burthen than the legislature contemplated. A party attached for contempt in not performing an award, and sentenced to imprisonment, on undergoing such imprisonment is not thereby exonerated from performance of the award.3 Although the general rule is, that a landlord cannot distrain twice for the same rent, he may under special circumstances be justified in doing so. A court of law will not stay an action on the ground that a suit in equity is pending in which the same *demand comes in question, unless the court of equity has stayed the action by injunction.5 [*351] In conclusion, we may further mention one remarkable exception which formerly existed to the principle above stated and illustrated. This occurred in the proceedings in case of appeal of death, which might be instituted against a supposed offender after trial and acquittal, and by which punishment for some heinous crime was demanded, on account of the particular injury suffered by an individual, rather than for the offence against the public;" but this method of prosecution having attracted the attention of the legislature in the celebrated case of Ashford v. Thornton, was abolished by stat. 59 Geo. 3, c. 46. 1 Unwin v. Clarke, L. R. 1 Q. B. 417. See also Allen v. Worthy, L. R. 5 Q. B. 163; Ex parte Short, Id. 174. * Per Byles, J., Garrett v. Messenger, L. R. 2 C. P. 585. 3 4 Reg. v. Hemsworth, 3 C. B. 745 (54 E. C. L. R.). Bagge v. Mawby, 8 Exch. 641, 649; Wollaston v. Stafford, 15 C. B. 278 (80 E. C. L. R.). See Lee v. Cooke, cited, ante, p. 280. 26; Pearse v. Robins, 26 L. J. Ex. 183. See 15 & 16 Vict. c. 76, s. 226 Simpson v. Sadd, 16 C. B. 26 (81 E. C. L. R.); Phelps v. Prothero, Id. 370. See also, as bearing on the subject touched upon supra, Ward v. Broomhead, 7 Exch. 726; Lievesley v. Gilmore, L. R. 1 C. P. 570; Hookpayton v. Bussell, 9 Exch. 279; Giles v. Hutt, 3 Exch. 18; Great Northern R. C. v. Kennedy, 4 Exch. 417; as to a second arrest pro eâdem causâ, see Masters v. John son, 8 Exch. 63; Hamilton v. Pitt, 7 Bing. 230 (20 E. C. L. R.); et vide Mellin v. Evans, 1 Cr. & J. 82, and Talbot v. Bulkeley, 16 M. & W. 196, where the maxim commented on in the text is cited and applied. 4 Com. by Broom & Hadley 420 n. (g); 1 Chit. Crim. Law 452. 71 B. & Ald. 405. ACQUISITION, ENJOYMENT AND TRANSFER OF PROPERTY. IN the present chapter are contained three sections, which treat respectively of the acquisition, enjoyment, and transfer of property. In connection with the first-mentioned of these subjects, one maxim only has been considered, which sets forth the general principle, that title is acquired by priority of occupation; a prniciple so extensively applicable, and embracing so wide a field of inquiry, that the following pages will be found to present to the reader little more than a mere outline of a course of investigation, which, if pursued in detail, would prove alike interesting and instructive. It is, indeed, only proper to observe in limine-since, from the titles which have been selected with a view to showing clearly the mode of treatment adopted, much more might reasonably be expected in the ensuing pages than has been attempted—that a succinct statement of the more important only of the rights, liabilities, and incidents annexed to property has here been offered; so that a perusal of the contents of this chapter may prove serviceable in recalling the attention of the practitioner to the application and illustration of principles with which he must necessarily have been previously familiar; and may, without wearying his attention, direct the student to sources of information whence may be derived more copious and accurate supplies of knowledge. [*353] *§ I. THE MODE OF ACQUIRING PROPERTY. QUI PRIOR EST TEMPORE, POTIOR EST JURE. He has the better title who was first in point of time. The title of the finder to unappropriated land or chattels must evidently depend either upon the law of nature, upon international law, or upon the laws of that particular community to which he belongs. According to the law of nature, there can be no doubt that priority of occupancy alone constitutes a valid title, quod nullius est id ratione naturali occupanti conceditur ;1 but this rule has been so much restricted by the advance of civilization, by international laws, and by the civil and exclusive ordinances of each separate state, that it has comparatively little practical application at the present day. It is, indeed, true, that an unappropriated tract of land, or a desert island, may legitimately be seized and reduced into possession by the first occupant, and, consequently, that the title to colonial possessions may, and in some cases does, in fact, depend upon priority of occupation. But within the limits. of this country, and between subjects, it is apprehended that the maxim which we here propose to consider, has no longer any direct application as regards the acquisition of title to reality by entry and occupation. It was, indeed, formerly held, that where a tenant pur autre vie died, living the cestui que *vie, the party who first entered upon the land thus left untenanted became [*354] entitled to the residue of the estate therein; but the law upon this subject has been much modified by successive enactments, and such estate, if not devised, would, under the circumstances supposed, now vest in the personal representatives of the deceased. It is, moreover, a general rule, that whenever the owner or person actually seised of land dies intestate and without heir, the law vests the ownership of such land either in the Crown, or in the subordinate lord of the fee by escheat; and this is in accordance with the spirit of the ancient feudal doctrine expressed in the maxim, Quod nullius est, est domini regis." 3 On the maxim, Prior tempore, potior jure, may depend, however, the right of property in treasure trove, in wreck, derelicts, waifs, 1 D. 41. 1. 3; I. 2.. 1. 12. 2 See 2 Com. by Broom & Hadley 268-272. 3 So, " "there is no doubt that, by the law of the land the Crown is entitled to the undisposed of personal estate of any person who happens to die without next of kin :" 14 Sim. 18; Robson v. A.-G., 10 Cl. & Fin. 497; Dyke v. Walford, 5 Moore P. C. C. 434. 2 Com. by Broom & Hadley 397. 5 Fleta, lib. 3; Bac. Abr., "Prerogative" (B.). Goods are "derelict' which have been voluntarily abandoned and given up as worthless, the mind of the owner being alive to the circumstances at the time:" per Tindal, C. J., Legge v. Boyd, 1 C. B. 112 (50 E. C. L. R.). Such and estrays, which, being bona vacantia, belong by the law of nature to the first occupant or finder, but which have, in some cases, been annexed to the supreme power by the positive laws of "There are," moreover, "some few things which, notwithstanding the general introduction and continuance of property, must still unavoidably remain in common; being such that nothing but an usufructuary *property is capable of being had in [*355] them; and therefore they still belong to the first occupant during the time he holds possession of them, and no longer. (among others) are the elements of light, air, and water, which a man may occupy by means of his windows, his gardens, his mills, and other conveniences. Such, also, are the generality of those animals which are said to be feræ naturæ, or of a wild and untameable disposition: which any man may seize upon, and keep for his own use or pleasure. All these things, so long as they remain in possession, every man has a right to enjoy without disturbance; but, if once they escape from his custody, or he voluntarily abandons the use of them, they return to the common stock, and any man else has an equal right to seize and enjoy them afterwards." So, the finder of a chattel lying apparently without an owner may, by virtue of the maxim under notice, acquire a special property therein.1 1 The reader is referred for information on these subjects to 2 Com. by Broom & Hadley, Chap. VIII. See Rigg v. Earl of Lonsdale, 1 II. & N. 923; s. c., 11 Exch. 654; followed in Blades v. Higgs, 12 C. B. N. S. 501 (104 E. C. L. R.); Morgan v. Earl of Abergavenny, 8 C. B. 768 (65 E. C. L. R.); Ford v. Tynte, 31 L. J. Chanc. 177; Hannam 2. Mockett, 2 B. & C. 934 (9 E. C. L. R.); Ibottson r. Peat, 3 H. & C. 644. 32 Com. by Broom & Hadley 12; Wood Civ. L.. 3d ed., 82; Holden v. Smallbrooke, Vaugh. 187. See Acton v. Blundell, 12 M. & W. 324, 333; Judgm., Embrey v. Owen, 6 Exch. 369, 372; Chasemore v. Richards, 2 H. & N. 168; s. c., 7 H. L. Cas. 349. 4 Armory v. Delamirie, 1 Stra. 504 (cited White v. Mullett, 6 Exch. 7; and distinguished in Buckley v. Gross, 3 B. & S. 564 (113 E. C. L. R.)); Bridges v. Hawkesworth, 21 L. J. Q. B. 75. See also Wallar v. Drakeford, 1 E. & B. 749 (72 E. C. L. R.); Mortimer v. Cradock (C. P.) 7 Jur. 45; Merry v. Green, 7 M. & W. 623. "There is no authority," however, "nor sound reason for saying that the goods of several persons, which are accidentally mixed together thereby absolutely cease to be the property of their several owners, and become bona |