gone the instant it comes into possession, that is, by the first avoidance and presentation to the living; the conditional estates by statutes and elegit are determined as soon as the debts is paid; and so guardianships in chivalry expired of course the moment that the heir came of age. And if there be any other chattel real, it will be found to correspond with the rest in this essential quality, that its duration is limited to a time certain, beyond which it cannot subsist (2).

Such

2. Chattels personal are, properly and strictly speaking, things moveable; which may be annexed to or attendant on the person of the owner, and carried about with him from one part of the world to another. are animals, household stuff, money, jewels, corn, garment, and every thing else that can properly be put in motion, and transferred from place to place. And of this kind of chattels it is, that we are principally to speak in the remainder of this book; having been unavoidably led to consider the nature of chattels real, and their incidents, in the former chapters, which were *employed upon real estates: that kind of pro- [*388] perty being of a mongrel amphibious nature, originally endowed with one only of the characteristics of each species of things; the im mobility of things real, and the precarious duration of things personal.

Chattel interests being thus distinguished and distributed, it will be proper to consider, first, the nature of that property, or dominion, to which they are liable; which must be principally, nay solely, referred to personal chattels and, secondly, the title to that property, or how it may be lost and acquired. Of each of these in its order.

CHAPTER XXV.

OF PROPERTY IN THINGS PERSONAL (1).

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 posesssion, is divided into two sorts, an absolute and a qualified property.

I. First, then, of property in possession absolute (2), which is where a man hath, solely and exclusively, the right, and also the occupation, of any moveable 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 fruit 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

(2) So in New-York, and in many other states in the U. S., a mortgage, though in form a conditional fee, is considered a mere chattel interest. 15 Johns. 320. In England the mortgagee, on the contrary, is considered the owner of the legal estate. VOL. I.

95

(1) See in general, Com. Dig. Biens; Vin. Ab. Property.

(2) It is a rule of law, that the absolute or general property of personal chattels, draws to it the supposed possession. 2 Saund. 47. a.

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 themselves a principle and power of motion, and (unless particularly confined) can convey themselves

from one part of the world to another, there is a great difference [*390] 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 are domitae, and such as are ferae naturae : 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 (a): in which our law agrees with the laws of France and Holland (b). 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 uses of husbandry (c). But in animals ferae naturae a man can have no absolute property (3).

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 (d), as well as Rome (e), “ si equam meam equus tuus praegnantem fecerit, non est tuum sed meum quod natum est." And, for this Puffendorf (f) gives a sensible reason: not only because the male is frequently unknown; but also because the dam, during the time of her pregnancy, in almost useless to the proprietor, and must be maintained with great expense 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 of young cygnets; which belong equally to the owner of the cock and

hen, and shall be divided between them (g). But here the reasons [*391] of the general rule cease, 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 its 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 ferae naturae, 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 ferae naturae, either per industriam, propter impotentiam, or propter privilegium.

(a) 2 Mod. 319.

(b) Vin. in Inst. l. 2, tit. 1, § 15.

(c) 1 Ial. P. C. 511, 512.

(d) Bro. Abr. tit. propertie, 29.

(e) Ff. 6. 1. 5.

(f) L. of N. 1. 4, c. 7.
(g) 7 Rep. 17.

(3) Com. Dig. Biens, F.

1. A qualified property may subsist in animals ferae naturae per industriam hominis (4): 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, 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 domitae naturae: and such creatures as are usually found at liberty, which are therefore supposed to be more emphatically ferae naturae, though it may happen that the [*392] 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 dove-house, pheasants or patridges 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 (1⁄2) (5). A maxim which is borrowed from the civil law (i); "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 knowledge, and do not return in the usual manner, it is then lawful for any stranger to take them (k). But if a deer, or any wild animal reclaimed, hath a collar or other mark put upon him, and goes and returns at his pleasure; or if a wild swan is taken, and marked and turned loose in the river, the owner's property in him still continues, and it is not lawful for any one else to take him (1): but otherwise, if the deer has been long absent without returning, or the swan leaves the neighbourhood. Bees also are ferae naturae; but, when hived and reclaimed, a man may have a qualified property in them, by the law of nature, as well as by the civil law (m).

And to the same purpose, not [*393]

(4) See in general the observations of Mr. Justice Bayley in Hannam v. Mockett, 2 B. & C. 937 to 944; Com. Dig. Biens, F. and Action sur Trover, C.; 1 Saund. 84. Trover lies for a parrot or monkey, because they are merchandise, and valuable, Cro. J. 262; but indictment does not lie for stealing a tamed

(7) Crompt. of courts, 167. 7 Rep. 16.
(m) Puff. 1. 4, c. 6, § 5. Inst. 2. 1. 14.

ferret. Russ. & R. C. C. 350.

(5) As to pigeons, see 1 Chitty's Game Laws, 135 to 143. The killing or taking a dove-house pigeon, any where, subjects the party to a twenty shillings penalty. 2 Geo. I. c. 29.

to say in the same words, with the civil law, speaks Bracton (n): occupation, that is, hiving or including them, gives the property in bees; for though a swarm lights upon my tree, I have no more property in them till I have hived them, than I have in the birds which make their nests thereon and therefore if another hives them, he shall be their proprietor: but a swarm, which fly from and out of my hive, are mine so long as I can keep them in sight, and have power to pursue them; and in these circumstances no one else is entitled to take them. But it hath been also said (0), that with us the only ownership in bees is ratione soli; and the charter of the forest (p), which allows every freeman to be entitled to the honey found within his own woods, affords great countenance to this doctrine, that a qualified property may be had in bees, in consideration of the property of the soil whereon they are found (6).

In all these creatures, reclaimed from the wildness of their nature, the property is not absolute, but defeasible: a property, that may be destroyed if they resume their ancient wildness and are found at large. For if the pheasants escape from the mew, or the fishes from the trunk, and are seen wandering at large in their proper element, they become ferae naturae again; and are free and open to the first occupant that hath ability to seize them. But while they thus continue my qualified or defeasible property, they are as much under the protection of the law, as if they were absolutely and indefeasibly mine; and an action will lie against any man that detains them from me, or unlawfully destroys them (7). It is also as much felony by common law to steal such of them as are fit for food (8), as it is to steal tame animals (9): but not so, if they are only kept for pleasure, curiosity, or whim, as dogs, bears, cats, apes, parrots, and singingbirds (r); because their value is not intrinsic, but depending only on the

caprice of the owner (s): though it is such an invasion of pro[*394] perty as may "amount to a civil injury, and be redressed by a civil action (). Yet to steal a reclaimed hawk is felony both by common law and statute (u); which seems to be a relic of the

(6) With respect to rooks, it has been recently determined, that no action is sustainable against a person for maliciously causing loaded guns to be discharged near a neighbour's close and trees, and thereby disturbing and driving away the rooks which used to resort to and have young in the same, inasmuch as rooks are a species of birds feræ naturæ, destructive in their habits, not properly an article of food, and not protected by any act of parliament, and that the plaintiff therefore could not have any property in them. Hannam v. Mocket, 2 Bar. & C. 934. 4 Dowl. & R. 518. S. C. But an action on the case lies for discharging guns near the decoy-pond of another, with design to damnify the owner, by frightening away the wild fowl resorting thereto, by which the wild fowl are frightened away, and the owner damnified; for wild fowl are protected by the 25 Hen. VIII. c. 11. and they constitute a known article of food; and a person keeping up a decoy expends money and employs skill in taking that which is of use to the public. It is a pro

(r) Lamb. Eiren. 275.

(s) 7 Rep. 18. 3 Inst. 109.
(t) Bro. Abr. tit. trespass, 407.

(u) 1 Hal. P. C. 512. 1 Hawk. P. C. c. 33.

fitable mode of employing his land, and was considered by lord Holt as a description of trade. Keeble v. Hickeringill, 11 East, 574. 2 B. & C. 943. Other animals are specially protected by acts of parliament, as hawks, falcons, swans, partridges, pheasants, pigeons, wild ducks, mallards, teal, widgeons, wild geese, black game, red game, bustards, and herons, and consequently, in the eye of the law, are fit to be preserved. Bees are property, and the subject of larceny. Per Bayley, J. 2 B. & C. 944. Sir T. Raym. 33.

(7) Ante 391, note (4).

(8) But it is not a felony to steal such animals of a wild nature, unless they are either so confined that the owner can take them whenever he pleases; or are reduced to tameness, and known by the thief to be so. And his knowledge of this fact may be made out before the jury by circumstantial evidence, arising out of his own conduct, and the condition and situation of the animal stolen. East's P. C. c. 16. s. 41. Hawk. b. 1. c. 33. s. 26.

tyranny of our ancient sportsmen. And, among our elder ancestors the ancient Britons, another species of reclaimed animals, viz. cats, were looked upon as creatures of intrinsic value; and the killing or stealing one was a grievous crime, and subjected the offender to a fine; especially if it belonged to the king's household, and was the custos horrei regii, for which there was a very peculiar forfeiture (w). And thus much of qualified property in wild animals, reclaimed per industriam.

2. A QUALIFIED property may also subsist with relation to animals ferae naturae, ratione impotentiae, on account of their own inability. As when hawks, herons, or other birds build in my trees, or coneys or other creatures make their nests or burrows in my land, and have young ones there; I have a qualified property in those young ones till such time as they can fly or run away, and then my property expires (x): but, till then, it is in some cases trespass, and in others felony, for a stranger to take them away (y). For here, as the owner of the land has it in his power to do what he pleases with them, the law therefore vests a property in him of the young ones, in the same manner as it does of the old ones if reclaimed and confined; for these cannot through weakness, any more than the others through restraint, use their natural liberty and forsake him.

3. A man may, lastly, have a qualified property in animals ferae naturae, propter privilegium: that is, he may have the privilege of hunting, taking, and killing them, in "exclusion of other persons. Here [*395] he has a transient property in these animals, usually called game,

so long as they continue within his liberty (2); and may restrain any stranger from taking them therein: but the instant they depart into another liberty, this qualified property ceases. The manner, in which this privilege is acquired, will be shewn in a subsequent chapter (9).

A man

The qualified property which we have hitherto considered extends only to animals ferae naturae, when either reclaimed, impotent, or privileged. Many other things may also be the objects of qualified property. It may subsist in the very elements, of fire or light, of air, and of water. can have no absolute permanent property in these, as he may in the earth and land; since these are of a vague and fugitive nature, and therefore can admit only of a precarious and qualified ownership, which lasts so long as they are in actual use and occupation, but no longer. If a man disturbs another, and deprives him of the lawful enjoyment of these; if one obstructs another's ancient windows (a), corrupts the air of his house or gardens (b), fouls his water (c), or unpens and lets it out, or if he diverts an ancient watercourse that used to run to the other's mill or meadow (d); the law will animadvert hereon as an injury, and protect the party injured in his possession. But the property in them ceases the instant they are out of possession; for, when no man is engaged in their actual occupation, they become again common, and every man has an equal right to appropriate them to his own use.

(w) "Si quis felem, horrei regii custodem, occiderit vel furto abstulerit, felis summa cauda suspendatur, capite aream attingente, et in eam grana tritici effundantur, usquedum summitas caudae tritico co-operiatur." Wotton. LL. Wall. l. 3, c. 5, § 5. An amercement similar to which, sir Edward Coke tells us, (7 Rep. 18.) there anciently was for stealing swans; only suspending them by the beak, instead of the tail.

(z) Cartadi de forest. 9 Hen. III. c. 13.

(y) 7 Rep. 17. Lamb. Eiren. 274.

(z) Cro. Car. 554. Mar. 48. 5 Mod. 376. 12 Mod

144.

(a) 9 Rep. 58.

(b) 9 Rep. 59. Lut. 92.

(c) 9 Rep. 59.

(d) 1 Leon. 273. Skin. 389.

(3) In New-York, and generally in the U. S., there are no such privileges.
(48) See Hov. n. (48) at the and of the Vol. B. II.