Sivut kuvina
PDF
ePub

sonal.

rest in this essential quality, that its duration is limited to a time certain, beyond which it cannot subsist.

2. Chattels personal are, properly and strictly speaking, 2. Chattels per. 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. Such are animals, household stuff, money, jewels, corn, garments, 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 property [ *388 ) being of a mongrel amphibious nature, originally endowed with one only of the characteristics of each species of things; the immobility of things real, and the precarious duration of things personal (3).

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.

a

(3) See ante, p. 16, and note (2) annexed thereto.

389

CHAPTER XXV.

OF PROPERTY IN THINGS PERSONAL.

ed into two sorts :

to inanimate

Property in PROPERTY, in chattels personal, may be either in possession; chattels person- which is where a man hath not only the right to enjoy, but al may be either

possession, or hath the actual enjoyment of, the thing: or else it is in acin action: the former is divid- tion; where a man hath only a bare right, without any oc

cupation or enjoyment. And of these the former, or property in possession, is divided into two sorts, an absolute

and a qualified property. I. An absolute I. First then, of property in possession absolute; which property, which is where a man hath, solely and exclusively, the right, and

also the occupation, of any moveable chattels; so that they moveable chattels, and to all

cannot be transferred from him, or cease to be his, without vegetable pro- his own act or default. Such may be all inanimate things, ductions, when severed from as goods, plate, money, jewels, implements of war, garments, the ground; and the like: such also may be all vegetable productions,

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. And also to ani- But with regard to animals, which have in themselves a mals in their

principle and power of motion, and (unless particularly condomestic; but fined) can convey themselves from one part of the world to

another, there is a great difference made with respect to mals.

as

nature tame or

not to wild ani

a

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 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 (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 feræ nature a man can have no absolute property.

Of all tame and domestic animals, the brood belongs to the brood of the owner of the dam or mother; the English law agreeing belongs to the with the civil, that "partus sequitur ventrem" in the brute owner of the

; creation, though for the most part in the human species it dam; disallows that maxim. And therefore, in the laws of England (d), as well as Rome (e), "si equam meam equus tuus

pregnantem 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, is almost useless to the proprietor, and must be maintained with greater 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 exceptcygnets; which belong equally to the owner of the cock and ed. hen, and shall be divided between them (g). But here the reasons of the general rule cease, and “ cessante ra

.

(a) 2 Mod. 319.
(6) Vinn. in Inst. 1. 2, tit. 1, s. 15.
(c) 1 Hal. P. C. 511, 512.
(1) Bro. Abr. tit. Propertie, 29.

(e) Ff. 6. 1. 5.
(1) L. of N. I. 4, c. 7.
(8) 7 Rep. 17.

animals.

tione 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. A qualified II. Other animals, that are not of a tame and domestic or special property.

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 feræ naturæ, or of a wild nature; and then, how it may subsist in any other things, when un

der particular circumstances. As to the means First, then, a man may be invested with a qualified, but of acquiring a qualified pro

not an absolute, property in all creatures that are fere naperty in wild

turæ, either per industriam, propter impotentiam, or propter

privilegium. 1. By reclaim- 1. A qualified property may subsist in animals feræ naing, or making turæ, per industriam hominis: by a man's reclaiming and by confining making them tame by art, industry, and education; or by them.

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 domitæ na[ * 392 ] *turæ: and such creatures as are usually found at liberty,

a

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 inclosed warren, doves in a dovehouse, 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 (h). A maxim which is borrowed from the civil law (i); revertendi animum vi

" dentur desinere habere tunc, cum revertendi consuetudi

nem 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 forrester; 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 feræ naturæ; but, when hived and reclaimed, a man may have a qualified property in them, by the law of nature,

a

(h) Bracton, I. 2, c. 1. 7 Rep. 17. (i) Inst. 2. 1. 15.

(k) Finch, L. 177.
(1) Crompt. of Courts, 167. 7 Rep. 16.

« EdellinenJatka »