employed upon real estates: that kind of property being of a mongrel amphibious nature, originally endowed with one only of the characteristics of each fpecies of things; the immobility of things real, and the precarious duration of things perfonal.

CHATTEL interefts being thus diftinguished and diftri buted, it will be proper to confider, first, the nature of that property, or dominion, to which they are liable; which muft be principally, nay folely, referred to perfonal chattels : and, fecondly, the title to that property, or how it may be loft and acquired. Of each of these in it's order.

ROPERTY, 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 a qualified property.

I. FIRST then of property in paffion abfolute; which is where a man hath, folely and exclufively, the right, and also 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 of a plant, when fevered from the body of it; or the whole plant itself, 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 leaf 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 themselves from one part of the world to

another,

T

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 are domitae, and fuch as are ferae naturae: some being of a tame and others of a 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; because these continue perpetually in his occupation, and will not stray from his house or person, unlefs by accident or fraudulent enticement, in either of which cafes the owner does not lose his property: in which our law agrees with the laws of France and Holland". The stealing, or forcible abduction, of such property as this, is alfo felony; for thefe are things of intrinfic value, ferving 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 domeftic 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 fpecies it difallows that maxim. And therefore in the laws of England", as well as Rome", "fi equam meam equus tuus praeg"nantem fecerit, non eft tuum fed meum quod natum eft.” And, for this Puffendorff gives a fenfible reafon : 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 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 shall be divided between them. But here the reafons of the general rule cease

and "ceffante ratione ceffat et ipfa lex :" for the male is well known, by his conftant affociation with the female; and for the fame reason the owner of the one doth not fuffer nore 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 divifion, namely, that of qualified, limited, or special 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 subject, I shall in the first place fhew, how this fpecies of property may subsist in such animals as are ferae naturae, or of a wild nature; and then, how it may fubfift in any other things, when under particular cir

cumftances.

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

1. A QUALIFIED property may fubfift in animals ferae naturae, per induftriam hominis: by a man's reclaiming and making them tame by art, industry, and education; or by fo confining them within his own immediate power, that they cannot escape and use their natural liberty. And under this head fome writers have ranked all the former species 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 themselves, would have chofen to rove up and down, feeking their food at large, and are only made domeftic by use and familiarity; and are therefore, fay they, called manfueta, quafi manui affueta. But however well this notion may be founded, abstractedly confidered, our law apprehends the most obvious distinction 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 creatures 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 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 dovehoufe, 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 poffeflion: but if at any time they regain their natural liberty, his property inftantly ceases; unless they have animum revertendi, which is only to be known by their ufual cuftom of returning". A maxim which is borrowed from the civil law; "revertendi animum videntur definere "habere tunc, cum revertendi confuetudinem deferuerint." The law therefore extends this poffeffion farther than the mere manual occupation; for my tame hawk that is pursuing his quarry in my prefence, 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 diftance from their home, (efpecially of the carrier kind) and likewise the deer that is chafed out of my park or foreft, and is inftantly pursued by the keeper or forefter all which remain still in my poffession, and I still preserve my qualified property in them. But if they ftray without my knowlege, and do not return in the usual manner, it is then lawful for any stranger to take them. 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': 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