might be guilty of theft in taking the goods from the special owner, in the same way as if he had taken the goods of a stranger. This rule has been stated in the paradoxical form, that "he steals his own goods." This, however, is not a correct statement, for what he takes is the interest that another has in his goods.1 SECTION II. Equitable and legal Ownership. The meaning of this distinction is, that ownership is in some cases recognized in a court of law, while in other cases it is solely considered in a court of equity. The more ordinary form of ownership is legal; on the other hand, a trust may exist. In the case of a technical trust, the title to the property is exclusively vested in the trustee. If, for example, he hold a fund, he alone will collect the interest and perform what acts are necessary for the protection of it. He will be owner as to third persons. As between him and the beneficiary, called the cestui que trust (or, if more than one, cestuis que trustent), the latter is owner in the view of a court of equity. The ownership is thus divided into formal and substantial, or, in technical phrase, legal and equitable. There are other fiduciary relations sometimes called trusts, which are not true trusts,such as, for example, a bailment. The bailee does not ordinarily have the legal title, but at most a special property. If he had the formal title in any instance, as, for example, he does frequently have in the case of bank and other stocks standing on the books of the corporation in his name, - he will be a technical trustee. The same remark may be applied to cases where agency is the leading reason for delivering goods of the principal. If the goods are simply delivered to the agent, a simple fiduciary relation will be created; if the title is conferred, e. g., by a bill of lading, a technical trust may exist. There are frequently trusts in which there is no active duty to be performed, and accordingly called passive trusts, or "dry" trusts. A trust may also be implied from the relation of the parties or the circumstances of the case. Trusts emphatically rest upon confidence. The relation created by an express trust is in a high degree confidential. One of the leading risks run by the beneficiary is, that the trustee may in violation of his duty transfer the estate to one who pays him full value without notice of the trust; such a person, holding the legal title, is discharged in law from the performance of the trust towards the beneficiary. Still, if the property can be traced, a trust may be fastened upon the proceeds; if not, the whole trans 1 Adams v. State, 45 N. J. Law, 448, and many other cases. The proposition is elementary. action may resolve itself into a claim for damages against the defaulting trustee. But, where no such special element involving the rights of purchasers enters into the case, the trust will, as a rule, attach itself to the property, or, in case of change of form, to its proceeds, so long as these can be traced. When this can no longer be done, the whole transaction may resolve itself substantially into a debt, and the beneficiary may only have a claim for money against the defaulting trustee, as far as his creditors are concerned.1 Thus, in an accounting against a defaulting trustee in bankruptcy or insolvency, a trust creditor is not entitled to preference over the general creditors of the insolvent merely on the ground of the nature of his claim. There must be some equitable principle entitling the cestui que trust to preferential payment, such as that the estate of the insolvent includes proceeds of the trust estate, and then only to the extent of such proceeds.2 (a) As between the beneficiary and the trustee mingling trust funds with his own, the former may insist upon a return to him of the funds themselves or their proceeds,3 or if such return is impracticable, as, for example, by the failure of a bank in which a deposit of them is made, may cast the loss upon the trustee. The general rules governing trusts will be found in books upon equity jurisprudence, or more specifically, in treatises on the law of trusts.1 1 Hart v. Ten Eyck, 2 Johns. Ch. 62. The trust funds might be separated even as against a creditor if he knew or had reasonable means of knowing that the agent or trustee was mingling them with his own funds. National Bank v. Insurance Co., 104 U. S. 54, where the subject is elaborately considered. 2 Matter of Cavin v. Gleason, 105 N. Y. 256. The case of People v. City Bank of Rochester, 96 N. Y. 32, supposed by some to hold a contrary view, is explained in Cavin v. Gleason; Philadelphia Nat. Bank v. Dowd, 38 Fed. R. 172 (1889); Cir (a) Frank v. Bingham, 58 Hun, 580; Atkinson v. Rochester Printing Co., 114 N. Y. 168; Merchants' & Farmers' Bank v. Austin, 48 Fed. R. 25; Phillips v. Overfield, 100 Mo. 466; Bank v. Weems, 69 Tex. 489; In re Ulster Building Co., 25 L. R. Ir. 24. Cf. Holmes v. Gilman, 138 N. Y. 369. According to some recent authorities it is not necessary to trace the trust property directly into the fund sought to be charged. It is by these authorities sufficient to prove cuit Court E. Dist. of N. C. This is an elaborate and well-considered case, and many American and English authorities are collated. Compare Knatchbull v. Hallett, L. R. 13 Ch. D. 696, and Taylor v. Plumer, 3 M. & S. 562, 573, - opinion by Lord ELLENBORough. 8 Van Alen v. Am. Nat. Bank, 52 N. Y. 1; Cragie v. Hadley, 99 N. Y. 131; Cook v. Tullis, 18 Wall. 332. Story's Equity Jurisprudence, Pomeroy on the same subject, Lewin on Trusts, Perry on Trusts, and Hill on Trustees. that the estate of the insolvent was increased or benefited by the amount claimed. This done, a lien is given upon the whole estate for the full amount of the property received in trust, irrespective of the actual amount of such property or its proceeds on hand at the time of the failure. McLeod v. Evans, 66 Wis. 401; The Ind. Dist. of Boyer v. King, 80 Ia. 497; First Nat'l Bank v. Hummel, 14 Col. 259; Carley v. Graves, 85 Mich. 483; Smith v. Combs, 49 N. J. Eq. 420. SECTION III. Separate and Co-ownership. — Any subject-matter susceptible of ownership may be owned by one person separately and exclusively, or by two or more. This co-ownership is either joint tenancy or tenancy in common. Partnership will be treated separately. (1) Joint tenancy. By joint tenancy is meant an ownership of a complex kind, in which two or more persons are supposed each to own the whole chattel. It is not an ownership in undivided shares, but of the whole. One of the results of this theory is survivorship. As the owners from time to time die, the chattel belongs to the survivors until the last survivor becomes complete owner, free from the rights of his former associates. This subject also prevails in the law of real property. It is commonly said that there are four unities in this case: title, time, interest, and possession. In creating a joint interest, it is a rule of construction that a grant of a chattel to two or more makes them joint tenants, rather than tenants in common. This rule is modified by the principles of equity jurisprudence, where each of the parties advances a part of the consideration to purchase the chattel. In this case, there is a tenancy in common. It is a rule of commercial law that survivorship does not prevail among merchants (jus accrescendi inter mercatores locum non habet). When, however, a chattel is acquired by gift or by will by two or more, equity does not interfere, as there is no consideration on which to base the theory of a trust, and survivorship takes effect. An example is a legacy of one hundred dollars to A. and B. In tenancy in common, there is no theory that each owns the whole. Each owns an undivided share. There is only one unity, that of possession. This is much more usual than joint tenancy. On the death of one, his share belongs to his executors or administrators. In the law of contracts, a combination of the two principles prevails. Joint tenancy can be readily destroyed by either of the owners so far, at least, as his own share is concerned. He can sell to a stranger his interest, in which case his share is in theory severed from that of the others. Thus if there were ten joint tenants, any one of them could convey; and while the remaining nine would be joint tenants as between themselves, the purchaser would be a tenant in common with the others instead of a joint tenant. He would be a tenant in common rather than a joint tenant, since the four necessary unities do not exist; he would be a tenant in common rather than an owner by himself, since his share is still undivided. Moreover, the joint tenants can by agreement divide the property so that each shall own separate interests, or if the chattel be indivisible, can unite in a sale and divide the proceeds. The subject matter owned may also be divided by a legal proceeding. As this remark is also applicable to interests held in common, the consideration of the topic will be deferred. (2) Tenancy in common. In this form of ownership there is no theory that each owner owns the whole. It is simply a case of separate interests, though undivided. Each owns his own share. He may freely sell or dispose of it, and on his death, if still owner, it passes not to the survivor, but to his own representatives, who occupy his position and become in like manner tenants in common. Instead of there being four unities, as in joint tenancy, there is but one, unity of possession. This form of ownership is far more usual in modern life than joint tenancy. It is implied in one highly important instance. This is where one of several partners sells his interest in the stock in trade to a purchaser, or it is sold by a creditor on an execution. The purchaser does not in such a case become a partner, but a tenant in common, subject, it may be, to have the property diverted from his use to the payment of partnership debts. There is an important aspect of this case in the law of contracts. Let a contract be made with two or more persons, in which they have rights to be enforced in court. The formal right is of an indivisible nature, and must be presented for enforcement in the names of both. Should one die, this right of enforcement would vest exclusively in the survivor. Should he receive payment, the beneficial interest would not belong to him exclusively, but he would be deemed to be a trustee for the representatives of the deceased to the extent of their share. In brief, the right to sue vests in the survivor, but not the beneficial interest. A parallel principle is adopted in enforcing a joint liability, though this, of course, is not a case of joint ownership. It may properly enough be stated here for the sake of giving a general view of the whole subject. Thus, if two or more incur a joint liability on contract, and one die, the duty to discharge it is imposed upon the survivor, who, in doing so, exacts from the representatives of the deceased their proper share, called contribution. In other words, as between the creditor and the survivor, the latter must pay the whole; as, between the survivor and the representatives of the deceased, there is a duty to equalize the burden of the liability. A liability may by express words of promise be created by two or more persons in such a way as to be enforced against all collectively or each separately. This is termed "joint and several." In this case, the creditor will have an option to sue one or all. In whichever way he proceeds, the duty to contribute will attach as in the case of joint liability. By partition is meant the right of one or more of several joint owners, whether in joint tenancy or in tenancy in common, to proceed in law to have his or their interest ascertained and set apart. This is declared to be a right inherent in ownership. The right to the partition of real estate is very ancient, both in the courts of common law by writ, and in a court of equity. Writs of partition at common law are given in full in Bracton,1 to meet a variety of cases as between co-heirs. While some things were not the subject of partition (such as a castle for the defence of the realm 2), yet most joint interests were, and provisions are found for producing equality between the heirs, and for equalizing division when some of the items were in their nature indivisible. Courts of equity had their attention attracted to this subject at a very early day, on account of the fact that in many cases there was no adequate or complete remedy at common law.3 Personal property falls plainly within the jurisdiction of equity, since the common-law courts could grant no relief in this class of cases. All the needed power was at hand in the courts of equity, since they could take an accounting, ascertain all the facts, have a reference to a master, provide for an equality of division, protect the rights of infants and married women, order a sale if necessary for division, and direct the parties to make all requisite assignments and transfers.1 However, the interests of owners of property may be so controlled by a trustee that the right to sell and divide may be vested in him, and partition be not available to them, except by unanimous consent on the part of the cestuis que trustent, being of full age.5 SECTION IV. "Future Estates" in Personal Property. The doctrine of "estates in land" is of far-reaching importance in real property. In fact, real estate law is based upon it. One is not supposed strictly to own land, but an estate in land. These estates are classified according to archaic rules derived from the 1 Bracton, Twiss' translation, vol. 1, Stebbins, 28 Id. 290; Wetmore v. Zab |