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became less definitely the objects of rights, until Blackstone at last treated them as the objects of property rights only, "unconnected with the person." (See note 3 to book 1, page 332, and introduction to Sandar's Justinian, pp. 1. lvi.) Thus the chose in action came to mean the object of any action for the recovery of money or property, of any right to have money or property not already in plaintiff's possession, as it appears in the text.



Property, in chattels personal, may be either in possession; which is where a man hath not only the right to enjoy, but hath the actual enjoyment of, the thing: or else it is in action; where a man hath only a bare right, without any occupation or enjoyment.* And of these the former, or property in possession, is divided into two sorts, an absolute and a qualified property.

I. First then of property in possession absolute; which is where a man hath, solely and exclusively, the right, and also the occupation, of any movable chattels; so that they cannot be transferred from him, or cease to be his, without his own act or default. Such may be all inanimate things, as goods, plate, money, jewels, implements of war, garments, and the like: such also may be all vegetable productions, as the ruit or other parts of a plant, when severed from the body of it; or the whole plant itself when severed from the ground; none of which can be moved out of the owner's possession without his own act or consent, or at least without doing him an injury, which it is the business of the law to prevent or remedy. Of these therefore there remains little to be said.†

But with regard to animals, which have in themseives a prínciple and power of motion, and (unless particularly confined) can convey themselves from one part of the world to [390] another, there is a great difference made with respect to their several classes, not only in our law, but in the law of nature and of all civilized nations. They are distinguished into such as 4 Previously, "when severed from the plant."

*Cited, 7 Cal. 203; 1 Ohio St. 426; 14 S. C. 578; 37 Am. Rep. 740.

+ Cited as to growing trees, 46 Ind. 502; 15 Am. Rep. 306.

are domitæ, and such as are feræ naturæ: some being of a tame and others of a wild disposition. In such as are of a nature tame and domestic (as horses, kine, sheep, poultry, and the like), a man may have as absolute a property as in any inanimate beings; because these continue perpetually in his occupation, and will not stray from his house or person, unless by accident or fraudulent enticement, in either of which cases the owner does not lose his property: in which our law agrees with the laws of France and Holland. The stealing, or forcible abduction, of such property as this, is also felony; for these are things of intrinsic value, serving for the food of man, or else for the use of husbandry. But in animals feræ naturæ a man can have no absolute property.*

†Of all tame and domestic animals, the brood belongs to the owner of the dam or mother; ‡ the English law agreeing with the civil, that "partus sequitur ventrem" in the brute creation, though for the most part in the human species it disallows that maxim.? And therefore in the laws of England, as well as Ronie, "si equam meam equus tuus prægnantem fecerit, non est tuum sed meum quod natum est." And, for this, Puffendorf gives a sensible reason: not only because the male is frequently unknown; but also because the dam, during the time of her pregnancy, is almost useless to the proprietor, and must be maintained with greater expence and care: wherefore as her owner is the loser by her pregnancy, he ought to be the gainer by her brood. An exception to this rule is in the case d Bro. Abr. tit. Propertie. 29.

a 2 Mod. 319.

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*Cited, 53 N. H. 411; 16 Am. Rep. 356; 2 Hayw. (N. C.) *147 (Mart. & Hayw. t. p. 321); 2 Brev. 314; 13 Mass. 551; that one may have absolute property in oysters, 27 N. J. L. 119; 72 Am. Dec. 348. See, also, 14 Wend. 46.

- Quoted, 46 Mich. 133.

+- Quoted, 55 Me. 114.

| Cited, 42 Ark. 477; 48 Am. Rep. 70 (sale of dam, reserving foal).

2 BLACKST.-51.

of young cygnets; which belong equally to the owner of the cock and hen, and shall be divided between them. But here the reasons of the general rule cease, [391] and "cessante ratione cessat et ipsa lex:" for the male is well known, by his constant association with the female; and for the same reason the owner of the one doth not suffer more disadvantage, during the time of pregnancy and nurture, than the owner of the other. II. Other animals, that are not of a tame and domestic nature, are either not the objects of property at all, or else fall under our other division, namely, that of qualified, limited, or special property: which is such as is not in it's nature permanent, but may sometimes subsist, and at other times not subsist. In discussing which subject, I shall in the first place shew, how this species of property may subsist in such animals as are feræ naturæ, or of a wild nature; and then, how it may subsist in any other things, when under particular circumstances.

First then, a man may be invested with a qualified, but not an absolute, property, in all creatures that are feræ naturæ, either per industriam, propter impotentiam, or propter privilegium.

1. A qualified property may subsist in animals feræ naturæ, per industriam hominis: by a man's reclaiming and making them tame by art, industry, and education; or by so confining them within his own immediate power, that they cannot escape and use their natural liberty. And under this head some writers have ranked all the former species of animals we have mentioned, apprehending none to be originally and naturally tame, but only made so by art and custom: as horses, swine, and other cattle; which if originally left to themselves, would have chosen to rove up and down, seeking their food at large, and are only made domestic by use and familiarity; and are therefore, say they, called mansueta, g 7 Rep. 17.

quasi manui assueta. But however well this notion may be founded, abstractedly considered, our law apprehends the most obvious distinction to be, between such animals as we generally see tame, and are therefore seldom, if ever, found wandering at large, which it calls domitæ naturæ; [392] and such creatures as are usually found at liberty, which are therefore supposed to be more emphatically feræ naturæ, though it may happen that the latter shall be sometimes tamed and confined by the art and industry of man. Such as are deer in a park, hares or rabbits in an enclosed warren, doves in a dovehouse, pheasants or partridges in a mew, hawks that are fed and commanded by their owner, and fish in a private pond or in trunks. These are no longer the property of a man, than while they continue in his keeping or actual possession: but if at any time they regain their natural liberty, his property instantly ceases; unless they have animum revertendi, which is only to be known by their usual custom of returning.1 A maxim which is borrowed from the civil law; ". revertendi animum videntur desinere habere tunc,' cum revertendi consuetudinem deseruerint." * The law therefore extends this possession farther than the mere manual occupation; for my tame hawk that is pursuing his quarry in my presence, though he is at liberty to go where he pleases, is nevertheless my property; for he hath animum revertendi. So are my pigeons, that are flying at a distance from their home (especially of the carrier kind) and likewise the deer that is chased out of my park or forest, and is instantly pursued by the keeper or forester: all which remain still in my possession, and I still preserve my qualified property in them. But if they stray without my knowlege, and do not return in the usual manner, it is then lawful for

h Bracton. 7. 2. c. 1. 7 Rep. 17.

i Inst. 2. 1. 15.

*Cited as to domesticated buffalo, 81 Ill. 405.

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