fief in Normandy, is conveyed by corporal investiture and livery of seisin; which gives the tenant so strong a hold of the land, that it never after can be wrested from him during his life, but by his own act, of voluntary transfer or of forfeiture; or else by the happening of some future contingency, as in estates pur auter vie, and the determinable freeholds mentioned in a former chapter. And even these, being of an uncertain duration, may by possibility last for the owner's life; for the law will not presuppose the contingency to happen before it actually does, and till then the estate is to all intents and purposes a life-estate, and therefore a freehold interest. On the other hand, a chattel interest in lands, which the Normans put in opposition to fief, and we to freehold,. is conveyed by no seisin or corporal investiture, but the possession is gained by the mere entry of the tenant himself; and it will certainly expire at a time prefixed and determined, if not sooner. Thus a lease for years must necessarily fail at the end and completion of the term; the next presentation to a church is satisfied and 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 debt 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. 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. 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 [388] which were employed upon real estates: that kind of property 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.

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 THE TWENTY-FIFTH.

OF PROPERTY IN THINGS PERSONAL.

PROPERTY, in chattels personal, may be either in posses

sion; 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 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 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 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 propertya: 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 uses of husbandry c. 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 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 Rome, si equam meam equus tuus praeg"nantem fecerit, non est tuum sed meum quod natum est.” 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 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. But here the reasons of the general rule cease, and cessante ratione cessat et ipsa lex:" for the male is well

a 2 Mod. 319.

b Vinn, in Inst. 1. 2. tit. 1. sec. 15.

1 Hal. P. C. 511, 512.

d Bro, Abr. tit. propertic. 29.

e Ff. 6. 1. 5.

f L. of N. l. 4. c. 7.

g 7 Rep. 17.

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 subjest, 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.

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, 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,

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