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mongrel amphibious nature, originally endowed with one only of the characteriftics of each fpecies of things; the immobility of things real, and the precarious duration of things perfonal.

CHATTE, interests being thus diftinguished and distri., buted, 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 it's order.

CHAPTER THE TWENTY FIFTH.

OF PROPERTY IN THINGS

PERSONAL.

DROPERTY, in chattels personal, may be either in 1 polesion; 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 polellion, is divided into two forts, an absolute and a qualified property.

I. FIRST then of property in poression absolute; 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 fevered 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

another,

A a 3

another, there is a great difference made with respect to their several claffes, 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 intrinfic value, serving for the food of man, or else for the uses of husbandry. But in animals ferae naturae 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 fequitur 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 Rome , “ si equam meam equus tuus praegnantem fecerit, non eft tuum sed meum quod natum eft.And, for this, Puffendorff 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 of young cygnets; which belong equally to the owner of the cock and hen, and shall be divided between them 8. But here the reasons of the general rule cease,

a 2 Mod. 319,
b Virn, in Inf. l. 2. tit. 1. $. 15.
C i Hal. P. C. 511, 512.

Bro. libr. tit. Propertie. 29.

| © Ff. 6. 1. 5 ,

f L. of N. 1. 4. c. 7.
8 7 Rep. 17.

and

and “ cessante ratione ceffat et ipfa 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 noti subsist. In discussing which subject, I shall in the first place shew, how this species of property may subfist in such animals as are ferae naturae, or of a wild nature; and then, how it may subfift in any other things, when under particular cir- : cumstances.

First then, a man may be invested with a qualified, but not an absolutę, property in all creatures that are ferae naturae, either per industriam, propter impotentiam, or propter privile

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1. A QUALIFIED property may subsist in animals, ferae naturae, 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, quafi manui asueta. But however well this notion may be founded, abstractedly considered, our law apprehends the most obvious diftin&ion to be, between such animals as we generally see tame, and are therefore {eldom, if ever, found wandering at large, which it calls domitae naАа 4

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turas; and such creatures as are ufually found at liberty, which are therefore suppofed to be more emphatically ferae naturae, though it may happen that the latter shall be fometimes tamed and confined by the art and industry of man. Such as are deer in a park, hares or rabbets in an inclosed 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 poffeffion: 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". A maxim which is borrowed from the civil lawi; “ revertendi animum videntur definere habere tunc, cum revertendi consuetudinem deseruerint.The law therefore extends this possession farther than the mere manual occupation; for my tame bawk 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 Aying 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 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': 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 lawm. And to the fame pur.

Bracton. I. 2. 6. 1. 7 Rep. 17. i Inf. 2. 1. 15. k Fineh. L. 177.

Crompt. of courts. 167. 7 Rep. 16. m Puff, 1.4.5.6. $. 5. Inf. 2. I. 14.

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