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BOOK II.

CHAPTER THE TWENTY FIFTH.

OF PROPERTY IN THINGS PERSONAL.

PROPERTY, in chattels perfonal, may be either in poffeffion; which is where a man hath not only the right to enjoy, but hath the actual enjoyment of, the thing: or elfe it is in action; where a man hath only a bare right, without any occupation or enjoyment. And of thefe the former, or property in poffeffion, is divided into two forts, an abfolute and qualified property.

I. FIRST then of property in poffeffion abfolute; which is where a man hath, folely and exclufively, the right, and alfo the occupation, of any moveable chattels; fo that they cannot be transferred from him, or ceafe 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: fuch alfo may be all vegetable productions, as the fruit or other parts, when fevered from the plant, or the whole plant itfelf, when fevered from the ground; none of which can be moved out of the owner's poffeffion without his own act or confent, or at leaft without doing him an injury, which it is the bufinefs of the law to prevent or remedy. Of thefe therefore there remains little to be faid.

BUT with regard to animals, which have in themfelves a principle and power of motion, and (unlefs particularly confined) can convey themfelves from one part of the world to another,
there
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there is a great difference made with refpect to their feveral claffes, not only in our law, but in the law of nature and of all civilized nations. They are diftinguifhed into fuch as are domitae, and fuch as wild difpofition. In fuch as are of a nature tame and domeftic, (as horfes, kine, fheep, poultry, and the like) a man may have as abfolute a property as in any inanimate beings; becaufe thefe continue perpetually in his occupation, and will not ftray from his houfe or perfon, unlefs by accident or fraudulent enticement, in either of which cafes the owner does not lofe him property ^a: in which our law agrees with the laws of France and Holland ^b. The ftealing, or forcible abduction, of fuch property as this, is alfo felony; for thefe are things of intrinfic value, ferving for the food of man, or elfe for the ufes of hufbandry ^c. But in animals ferae naturae a man can have no abfolute property.

OF all tame and domeftic animals, the brood belongs to the owner of the dam or mother; the Englifh law agreeing with the civil, that “partus fequitur ventrem” in the brute creation, though for the moft part in the human fpecies it difallows thatthat maxim. and therefore in the laws of England ^d, as well as Rome ^e, “fi “equam meam equus tuus praegnantem fecerit, non eft tuum fed “meum quod natum eft.” And, for this, Puffendorf ^f gives a fenfible reafon: not only becaufe the male is frequently unknown; but alfo becaufe the dam, during the time of her pregnancy, is almoft ufelefs to the proprietor, and muft be maintained with greater expence and care: wherefore as her owner is the lofer by her pregnancy, he ought to be the gainer by her brood. An exception to this rule is in the cafe of young cygnets; which belong equally to the owner of the cock and hen, and fhall be divided between them ^g. But here the reafons of the general rule

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^a 2 Mod. 319.
^b Vinn. In Inft. l. 2. tit. 1. §. 15.
^c 1 Hal. P. C. 511, 512.
^d Bro. Abr. tit. Propertie. 29.
^e Ff. 6. 1. 5.
^f L. of N. l. 4. c. 7.
^g 7 Rep. 17.
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ceafe,
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ceafe, and “ceffante ratione ceffat et ipfa lex:” for the male is well known, by his conftant affociation with the female; and for the fame reafon the owner of the one doth not fuffer more difadvantage, during the time of pregnancy and nurture, than the owner of the other.

II. OTHER animals, that are not of a tame and domeftic nature, are either not the objects of property at all, or elfe fall under our other divifion, namely, that of qualified, limited, or fpecial property: which is fuch as is not in it's nature permanent, but may fometimes fubfift, and at other times not fubfift. In difcuffing which fubject, Ifhall in the firft place fhew, how this fpecies of property may fubfift in fuch animals, as are ferae naturae, or of a wild nature; and then, how it may fubfift in any other things, when under particular circumftances.

FIRST then, a man may be invefted with a qualified, but not an abfolute, property in all creatures that are ferae naturae, either per induftriam, propter impotentiam, or propter privilegium.

1. A QUALIFIED property may fubfift in animals ferae naturae, per induftriam hominis: by a man's reclaiming and making them tame by art, induftry, and education; or by fo confining them within his own immediate power, that they cannot efcape and ufe their natural liberty. And under this head fome writers have ranked all the former fpecies of animals we have mentioned, apprehending none to be originally and naturally tame, but only made fo by art and cuftom: as, horfes, fwine, and other cattle; which, if originally left to themfelves, would have chofen to rove up and down, feeking their food at large, and are only made domeftic by ufe and familiarity, and are therefore, fay they, called manfueta, quafi manui affueta. But however well this notion may be founded, abftractedly confidered, our law apprehends the moft obvious diftinction to be, between fuch animals as we generally fee tame, and are therefore feldom, if ever, found wandering at large, which it calls domitae naturae; and fuch crea-

tures
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Ch. 25.
tures as are ufually found at liberty, which are therefore fuppofed to be more emphatically ferae naturae, though it may happen that the latter fhall be fometimes tames and confined by the art and induftry of man. Such as are deer in a park, hares or rabbets in an enclofed warren, doves in a dovehoufe, pheafants or partridges in a mew, hawks that are fed and commanded by their owner, and fifh in a private pond or in trunks. Thefe are no longer the property of a man, than while they continue in his keeping or actual poffeffion: but, if at any time they regain their natural liberty, his property inftantly ceafes; unlefs they have animum revertendi, which is only to be known by their ufual cuftom of returning ^h. A maxim which is borrowed from the civil law ^I; “revertendi animum videntur definere habere tune, cum revertendi “confuetudinem deferuerint.” The law therefore extends this poffeffion farther than the mere manual occupation; for my tame hawk that is purfuing his quarry in my prefence, though he is at liberty to go where he pleafes, is neverthelefs my property; for he hath animum revertendi. So are my pigeons, that are flying at a diftance from their home (efpecially thofe of the carrier kind) and likewife the deer that is chafed out of my park or foreft, and is inftantly purfued by the keeper or forefter: all which remain ftill in my poffeffion, and I ftill preferve my qualified property in them. But if they ftray without my knowlege, and do not return in the ufual manne, it is then lawful for any ftranger 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 pleafure; or if a wild fwan is taken, and marked and turned loofe in the river, the owner's property in him ftill continues, and it is not lawful for any one elfe to take him ^l: but otherwife, if the deer has been long abfent without returning, or the fwan leaves the neighbourhood. Bees alfo 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 fame purpofe, not to fay in the fame

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^h Bracton. l. 2. c. 1. 7 Rep. 17.
i Inft. 2. 1. 15.
^k Finch. L. 177.
^l Crompt. of courts. 167. 7 Rep. 16.
^m Puff. l. 4. c. 6. §. 5. Inft. 2. 1. 14.
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words,
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Ch. 25.
words, with the civil law, fpeaks Bracton ⁿ: occupation, that is, hiving or including them, gives the property in bees; for, though a fwarm 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 nefts thereon; and therefore if another hives them, he fhall be their proprietor: but a fwarm, which flie from and out of my hive, are mine fo long as I can keep them in fight, and have power to purfue them; and in thefe circumftances no one elfe is intitled to take them. But it hath been alfo faid ^o, that with us the only ownerfhip in bees is ratione foli; and the charter of the foreft ^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 confideration of the property of the foil whereon they are found.

IN all thefe creatures, reclaimed from the wildnefs of their nature, the property is not abfolute, but defeafible: a property, that may be deftroyed if they refume their antient wildnefs, and are found at large. For if the pheafants efcape from the mew, or the fifhes from the trunk, and are feen wandering at large in their proper element, they become ferae naturae again; and are free and open to the firft occupant that has ability to feife them. But while they thus continue my qualified or defeafible property, they are as much under the protection of the law, as if they were abfolutely and indefeafibly mine: and an action will lie againft any man that detains them from me, or unlawfully deftroys them. It is alfoas much felony by common law to fteal fuch of them as are fit for food, as it is to fteal tame animals ^q: but not fo, if they are only kept for pleafure, curiofity, or whim, as dogs, bears, cats, apes, parrots and finging birds ^r; becaufe their value is not intrinfic, but depending only on the caprice of the owner ^s: though it is fuch an invafion of property as may

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ⁿ l. 2. c. 1. §. 3.
^o Bro. Abr. tit. Propertie. 37. cites 43 Edw. III. 24.
^p 9 Hen. III. c. 13.
^q 1 Hal. P. C. 512.
^r Lamb. Eiren. 275.
^s 7 Rep. 18. 3 Inft. 109.
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VOL. II.

B b b

amount

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amount to a civil injury, and be redreffed by a civil action ^t. Yet to fteal a reclaimed hawk is felony both by common law and ftatute ^u; which feems to be a relick of the tyranny of our antient fportfmen. And, among our elder anceftors the antient Britons, another fpecies of reclaimed animals, viz. cats, were looked upon as creatures of intrinfic value; and the killing or a fine; efpecially if it belonged to the king's houfhold, and were the cuftos horrei regii, for which there was a very peculiar forfeiture ^w. And thus much of qualified property in wild animals, reclaimed per induftriam.

2. A QUALIFIED property may alfo fubfift 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 nefts or burrows in my land, and have young ones there; I have a qualified property in thofe young ones, till fuch time as they can fly, or run away, and then my property expires ^x: but, till then, it is in fome cafes trefpafs, and in others felony, for a ftranger to take them away ^y. For here, as the owner of the land has it in his power to do what he pleafes with them, the law therefore vefts a property in him of the young ones, in the fame manner as it does of the old ones if reclaimed and confined: for thefe cannot through weaknefs, any more than the others through reftraint, ufe their natural liberty and forfake him.

3. A MAN may, laftly, have a qualified property in animals ferae naturae, propter privilegium: that is, he may have the privilege of hunting, taking, and killing them, in exclufion of other

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^t Bro. Abr. tit. Trefpafs. 407.
^u 1 Hal. P. C. 512. 1 Hawk. P. C. c. 33.
^w “Si quqis felem, horrei regii cuftodem, ecciderit vel furto abflulerit, felis fumma cauda fufpendatur, capite aream attingente, et in “cam grana tritici effundantur, ufquedum fummitas caudae tritico co-operiatur.” Wotton. LL. Wall. l. 3. c. 5. §. 5. An amercement fimilar to which, fir Edward Coke tells us (7 Rep. 18.) there antiently was for ftealing fwans; only fufpending them by the beak, inftead of the tail.
^x Carta de foreft. 9. Hen. III. c. 13.
^y 7 Rep. 17. Lamb. Eiren. 274.
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perfons,
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Ch. 25.
Perfons. Here he has a tranfient property in thefe animals, ufually called game, fo long as they continue within his liberty ^z; and may reftrain any ftranger from taking them therein: but the inftant they depart into another liberty, this qualified property ceafes. The manner, in which this privilege is acquired, will be fhewn in a fubfequent chapter.

THE qualified property which we have hitherto confidered, extends only to animals ferae naturae, when either reclaimed, impotent, or privileged. Many other things may alfo be the objects of qualified property. It may fubfift in the very elements, of fire or light, of air, and of water. A man can have no abfolute permanent property in thefe, as he may in the earth or land; fince thefe are of a vague and fugitive nature, and therefore can admit only of a precatious and qualified ownerfhip, which lafts fo long as they are in actual ufe and occupation, but no longer. If a man difturbs another, and deprives him of the lawful enjoyment of thefe; if one obftructs another's antient windows ^a, corrupts the air of his houfe or gardens ^b, fouls his water ^c, or unpins and lets it out, or if he diverts an antient watercourfe that ufed 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 poffeffion. But the property in them ceafes the inftant they are out of poffeffion: 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 ufe.

THESE kinds of qualification in property depend upon the peculiar circumftances of the fubject matter, which is not capable of being under the abfolute dominion of any proprietor. But property may alfo be of a qualified or fpecial nature, on account of the peculiar circumftances of the owner, when the thing itfelf is very capable of abfolute ownerfhip. As in cafe of bail-

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^z Cro. Car. 554. Mar. 48. 5 Mod. 376. 12 Mod. 144.
^a 9 Rep. 58.
^b Ibid. 59. Lutw. 92.
^c 9 Rep. 59.
^d 1 Leon. 273. Skinn. 389.
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B b b 2
ment,
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Ch. 25.
ment, or delivery, of goods to another perfon for a particular ufe; as to a carrier to convey to London, to an innkeeper to fecure in his inn, or the like. Here there is no abfolute propertyin either the bailor or the bailee, the perfon delivering, or him to whom it is delivered: for the bailor hath only the right, and not the immediate poffeffion; the bailee hath the poffeffion, and only a temporary right. But it is a qualified property in them both; and each of them is entitled to an action, in cafe the goods be damaged or taken away: the bailee on account of his immediate poffeffion; the bailor, becaufe the poffeffion of the bailee is, mediately, his poffeffion alfo ^e. So alfo in cafe of goods pledged or pawned upon condition, either to repay money or otherwife; both the pledgor and pledgee have a qualified, but neither of them an abfolute, property therein: the pledgor's property is conditional, and depends upon the performance of the condition of re-payment, &c; and fo too is that of the pledgee, which depends upon it's non-performance ^f. The fame may be faid of goods diftreined for rent, or other caufe of diftrefs: which are in the nature of a pledge, and are not, at the firft taking, the abfolute property of either the diftreinor, or party diftreined; but may be redeemed, or elfe forfeited, by the fubfequent conduct of the latter. But a fervant, who hath the care of his mafter's goods or chattels, as a butler of plate, a fhepherd of fheep, and the like, hath not any property or poffeffion either abfolute or qualified, nut only a mere charge or overfight ^g.

HAVING thus confidered the feveral divifions of property in poffeffion, which fubfifts there only, where a man hath both the right and alfo the occupation of the thing; we will proceed next to take a fhort view of the nature of property in action, or fuch where a man hath not the occupation, but merely a bare right to occupy the thing in queftion; the poffeffion whereof may however be recovered by a fuit or action at law: from whence

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^e 1 Roll. Abr. 607.
^f Cro. Jac. 245.
^g 3 Inft. 108.
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the
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Ch. 25.
the thing fo recoverable is called a thing or chofe, in action ^h. Thus money due on a bond is a chofe in action; for a property in the debt vefts at the time of forfeiture mentioned in the obligation, but there is no poffeffion till recovered by courfe of law. If a man promifes, or covenants with me, to do any act, and fails in it, whereby I fuffer damage; the recompenfe for this damage is a chofe in action: for though a right to fome recompenfe vefts in me, at the time of the damage done, yet what and how large fuch recompenfe fhall be, can only be afcertained by verdict; and the poffeffion can only be given me by legal judgment and execution. In the former of thefe cafes the ftudent will obferve, that the property, or right of action, depends upon an exprefs contract or obligation to pay a ftated fum: and in the latter it depends upon an implied contract, that if the covenantor does not perform the act he engaged to do, he fhall pay me the damages I fuftain by his breach of covenant. And hence it may be collected, that all property in action depends entirely upon contracts, either exprefs or implied; which are the only regular means of acquiring a chofe in action, and of the nature of which we fhall difcourfe at large in a fubfequent chapter.

AT prefent we have only to remark, that upon all contracts or promifes, either exprefs or implied, and the infinite variety of cafes into which they are and may be fpun out, the law gives an action of fome fort or other to the party injured in cafe of non-performance; to compel the wrongdoer to do juftice to the party with whom he has contracted, and, on failure of performing the indentical thing he engaged to do, to render a fatisfaction equivalent to the damage fuftained. But while the thing, or it's equivalent, remains in fufpenfe, and the injured party has only the right and not the occupation, it is called a chofe in action; being a thing rather in potentia than in effe: though the owner may

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^h The fame idea, and the fame denomination, of property prevailed in the civil law. “Rem in bonis noferis habere intelligimur, “quotiens ad reciperandam eam actionem habeamus.” (Ff. 41. 1. 52.) And again; “aeque bonis adnumerabitur etiam, fi quid eft in “actionibus, petitionibus, perfecutionibus. Nam “et baecin bonis effevidentur.” (Ff. 50. 16. 49.)
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have
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Ch. 25.
have as abfolute a property of fuch things is action, as of things in poffeffion.

AND, having thus diftinguifhed the different degree or quantity of dominion or property to which things perfonal are fubject, we may add a word or two concerning the time of their enjoyment, and the number of their owners; in conformity to the method before obferved in treating of the property of things real.

FIRST, as to the time of enjoyment. By the rules of the antient common law, there could be no future property, to take place in expectancy, created in perfonal goods and chattels; becaufe, being things tranfitory,and by many accidents fubject to be loft, deftroyed, or otherwife impaired, and the exigencies of trade requiring alfo a frequent circulation thereof, it would occafion perpetual fuits and quarrels, and put a ftop to the freedom of commerce, if fuch limitations in remainder were generally tolerated and allowed. But yet in laft wills and teftaments fuch limitations of perfonal goods and chattels, in remainder after a bequeft for life, were permitted ^I: though originally that indulgence was only fhewn, when merely the ufe of the goods, and not the goods themfelves, was given to the firft legatee ^k; the property being fuppofed to continue all the time in the executor of the devifor. But now that diftinction is difregarded: and therefore if a man either by deed or will limits his books or furniture to A for life, with remainder over to B, this remainder is good. But, where an eftate-tail in things perfonal is given to the firft or any fubfequent poffeffor, it vefts in him the total property, and no remainder over fhall be permitted on fuch a limitation ^m. For this, if allowed, would tend to a perpetuity, as the devifee or grantee in tail of a chattel has no method of barring the entail; and therefore the law vefts in him at once the entire dominion of the goods, being analogous to the fee—fimple which a tenant in tail may acquire in a real eftate.

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^I 1 Equ. Caf. abr. 360.
^k Mar. 106.
^l 2 Freem. 206.
^m 1 P. w^ms. 290.
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NEXT, as to the number of owners. Thins perfonal may belong to their owners, not only in feveralty, but alfo in joint-tenancy, and in common, as well as real eftates. They cannon indeed be vefted in coparcenary; becaufe they do not defcent from the anceftor to the heir, which is neceffary to conftitute coparceners. But if a horfe, or other perfonal chattel, be given to two or more, abfolutely, they are joint-tenants hereof; and, unlefs the jointure be fevered, the fame doctrine of furvivorfhip fhall take place as in eftates of lands and tenements ⁿ. And, in like manner, if the jointure be fevered, as by either of them felling his fhare, the vendee and the remaining part-owner fhall be tenants in common, without any jus accrefcendi or furvivorfhip ^o. So alfo if 100 l. be given by will to two or more, equally to be divided between them, this makes them tenants in common ^p; as, we have formerly feen q, the fame words would have done, in regard to real eftates. But, for the encouragement of hufbandry and trade, it is held that a ftock on a farm, though occupied jointly, and alfo a ftock ufed in a joint undertaking, by way of partnerfhip in trade, fhall always be confidered as common and not as joint property; and there fhall be no furvivorfhip therein ^r.

.{FS}
ⁿ Litt. §. 282. 1 Vern. 482.
^o Litt. §. 321.
^p 1 Equ. Caf. abr. 292.
^q pag. 193.
^r 1 Vern. 217. Co. Litt. 182.
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