of res incorporales. No man of clerical education or of training in the civil and canon law could have been otherwise in the middle ages. Moreover, the word "chose" is of itself a sufficient proof that tangible things were not the only ones then regarded. The identification of this word with causa (Lat.) is philologically certain, however different the meaning of the two afterward became; and neither causa nor res could ever have been used by an educated man for tangible things only. The chose in possession itself was not necessarily then a tangible object. Beside incorporeal hereditaments, the law was full of terms denoting mere abstractions which might be possessed, sued for, transferred. The very expressions do ut facias, etc., which Blackstone has copied from Bracton, are sufficient to show that something to be done (i. e., a mere act or prestation in civilian language), was a chose as well as something that could be given. The actions of debt and detinue, originally one, differentiated themselves as the object was a corporeal or incorporeal thing: though in both alike this object was a chose in action to the plaintiff, a chose in possession to the defendant. Whether freehold or chattel, corporeal or incorporeal, when "they are things whereof a man is not possessed, but for recovery of them is driven to his action, they are called things in action." (Termes de la Ley, sub voce.)

It is not inconsistent with this that in the great majority of actual cases, the familiar actions by which most men's notions of law are formed, the thing in possession was a tangible chattel, the thing in action a mero abstraction; but an abstraction, be it remembered, of that chattel, not of the right to it. It is probable, too, that as the middle ages with their realism gave place to later modes of thought, there was a tendency to limit the term "possession " to tangible objects, and to disregard abstractions generally. "Things”

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 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.

CHAPTER THE TWENTY-FIFTH.

OF PROPERTY IN THINGS PERSONAL.

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 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 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 [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:a 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.*

b

†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

*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.

I 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.