equal in the eye of the law to the lowest estate of freehold, a lease for another's life: their tenants were considered upon feodal principles as merely bailiffs or farmers; and the tenant of the freehold might at any time have destroyed their interest, till the reign of Henry VIII.(g) A freehold, which alone is a real estate, and seems (as has been said) to answer to the fief in Normandy, is conveyed by corporal investiture and *livery of seisin; [387 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 autre vie(5), and the determinable freehold mentioned in a former chapter. (h) 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 guardianship 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 movable: 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. (6) 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. (7) 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 estate; that kind of property being of a mongrel [*388 amphibious nature, (8) 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.

(g) See page 142.

(5) [For another's life.]

(h) Page 120.

(6) Sneed v. Ewing, 5 Ky. 460-480 (1831). Schouler's Pers. Pr. vol. 1, sec. 9, p. 9 (2 ed. 1884). State v. Bartlett, 55 Maine, 211 (1867). Welles v. Cowles, 2 Day (Conn.) 567574 (1818). A title deed is a personal chattel. Wilson v. Rybolt, 17 Ind. 391. (7) Goodeve's Mod. Law of Real Prop. (3 ed.) 14.

(8) Schouler's Pers. Pr. vol. I, sec. 20, p. 22 (2 ed. 1884). B. 2-388. In statute and legal writings the words "goods and chattels" are usually found combined. Both are liable to be varied in extent of meaning by the subject and context. In their largest sense, each, and especially chattels, includes all property except real estate. But in criminal law, as for example in statutes against larceny, they seldom have so large a meaning. Here, in general, neither comprehends choses in action as bank-notes, mortgage deeds, and the like-not being the subject of larceny at common law. Nor, in statutory larceny, would the term include a dog, whereof larceny could not be committed at common law. By a part of differing judicial opinions, or opinions founded on differing statutes, these words do not include money coin. By others they do. See Bishop on Statutory Cruises, 310, 344 (2 ed. 1883). C. & A. R. R. Co. v. Pompson, 19 Ill. 585 (1858). A bequest of all movable property has been held not to include a judgment debt due the testator. Strong v. White, 19 Conn. 245 (1848).

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 XXV.

OF PROPERTY IN THINGS PERSONAL.

PROPERTY in chattels personal may be either in possession; 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. (1) And of these the former, or property in possession, is divided into two sorts, an absolute and a qualified property. (2) 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 movable chattels; so that they cannot be transferred from him, or cease to be his, without his own act or default. (3) 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;(4) 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 *390] 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 domita (5) and such as are feræ naturæ:(6) 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)(7) in which our law agrees with the law 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

(a) 2 Mod. 319.

(b) Vin. in Inst. l. 2, tit. 1, 2 15.

(1) Schouler's Domestic Relations, ? 80, p. 122 (1882). I Schouler's Personal Property, 11, p. 11, 56, p. 63 (1884).

(2) I Barbour's Rights of Persons and Property, 91.

ed.). Fowler's Hist. of the Law of Real Prop. 109. (3) Story on Bailments, 93, p. 104 (9 ed. 1878).

I Hilliard's Law of Torts, 491 (3

(4) Owens v. Lewis, 46 Ind. 488, 502 (1874). í Schouler's Personal Property, & 53, p.

60, 100, p. 110 (2 ed. 1884).

(5) [Of a tame nature.]

(6) [In their natural state.]

(7) Brantley's Personal Property, ? 74, p. 121 (1891). I Schouler's Personal Property, 48, p. 53 (2 ed. 1884).

of man, or else for the uses of husbandry. (c) But in animals feræ naturæ (8) a man can have no absolute property.

Of all tame and domestic animals, the brood belongs to the owner of the dam or mother; (9) the English law agreeing with the civil, that “partus sequitur ventrem"(10) in the brute creation, though for the most part in the human species it disallows that maxim. And therefore in the laws of England, (d) as well as Rome, (e) “si equam meam equus tuus prægnantem fecerit, non est tuum sed meum quod natum est."(11) And for this Puffendorf(ƒ) 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. (g) But here the reasons of the general rule cease, and "cessante *ratione cessat et ipsa lex:"(12) 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.

[*391

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. (13) In discussing which subject, I shall in the first place show 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 under particular circumstances.

First, then, a man may be invested with a qualified, but not an absolute, property in all creatures that are feræ naturæ, either per industriam, propter impotentiam, or propter privilegium. (14)

1. A qualified property may subsist in animals feræ naturæ per industriam hominis:(15) 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. (16) And under this head.

(c) 1 Hal. P. C. 511, 512.

(d) Bro. Abr. tit. propertie, 29.

(c) Ff. 6, 1, 5.

(f) L. of N. 1, 4, c. 7.
(g) 7 Rep. 17.

(8) [Of a wild nature.] Aldrich v. Wright, 53 N. H. 398, 411 (1873). Ulery v. Jones, 81 Ill. 403, 405, (1876).

(9) Schouler's Pers. Pr. vol. 1, sec. 51, p. 59 (2 ed. 1884). Brantley's Pers. Prop. & 85, p. 142 (1891). But if the dam of an unborn foal be sold, and the foal be expressly reserved, the foal remains the property of the vendor, and after its birth may be recovered by replevin from the vendee or from a third party, to whom the vendee may have sold it, without notice of the reservation. Andrews v. Cox, 42 Ark. 477 (1883). If the mare be sold on credit-the purchaser giving a chattel mortgage of her for the entire priceand she afterward prove to be with foal, which is weaned before the credit expires; if default be made in payment the mortgagor is not entitled to keep the colt. Kellogg v. Lovely, 46 Mich. 131-133 (1881).

10) ["The offspring follows the condition of the mother."]

11) ["If my mare be with foal by your horse, the offspring is not yours but mine."] (12) [" The reason ceasing, the law itself ceases."]

(13) Story on Bailments, 93, p. 104 (9 ed. 1878).

(14) [Of a wild nature either by industry, on account of inability (of the animal) or by reason of privilege.]

(15) [Of a wild nature by industry of man. an.] See, in general, the observations of Mr. Justice Bayley in Hannam v. Mockett, 2 B. & C. 937 to 944. Com. Dig. Biens, F. and Action sur Trover, C. I Saund. 84. Trover lies for a parrot or monkey, because they are merchandise, and valuable, (Cro. Jac. 262;) but indictment does not lie for stealing a tamed ferret. Russ. & R. C. C. 350. —CHITTY.

(16) 1 Schouler's Personal Property, 49, p. 55 (2 ed. 1884).

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. (17) 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 naturæ:(18) and such creatures as are usually found at liberty, which are therefore supposed to be more emphati*392] cally feræ naturæ, (19) 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 enclosed warren, doves in a dove-house, 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 possession: but if at any time they regain their natural liberty, his property instantly ceases; unless they have animum revertendi, (20) which is only to be known by their usual custom of returning. (h) (21) A maxim which is borrowed from the civil law; (i) revertendi animum videntur desinere habere tunc, cum revertendi consuetudinem deseruerint." (22) The law therefore extends this possession further 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. (23) 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 forester; (24) all which remain still in my possession, and I still preserve my

(h) Bract. l. 2, c. 1. 7 Rep. 17.

(17) [Tame, as accustomed to the hand.]

(i) Inst. 2, 1, 15.

(18) [Of a tame nature.] I Schouler's Pers. Prop. 49, p. 55 (2 ed. 1884). Brantley's Pers. Prop. 74, p. 121 (1891).

(19) [Of a wild nature.] The common law wisely avoiding theoretical discussions, refers the question whether an animal be wild or tame, in each case, to our knowledge of its habits and those common in the same species. Schouler's Pers. Prop. vol. 1, p. 55, 249 (1884). (20) [The intention of returning.]

(21) As to pigeons, see I Chitty's Game Laws, 135 to 143. The killing or taking a dove house pigeon, anywhere, subjects the party to a twenty-shillings penalty. 2 Geo. III c. 29.-CHITTY.

(22) [They seem no longer to have the intention of returning when they forsake the custom."]

(23) I Schouler's Pers. Prop. 49, p. 56 (2 ed. 1884). When the subject of an action of trover or trespass is a wild animal the burden is upon the plaintiff to prove ownership, and that he must do by showing a capture and confinement to a reasonable extent, and either that the animal accidentally escaped and was instantly pursued, or had the animus revertendi [Intention of returning]. Bailey's Onus Probandi 12, (1886).

It is not doubted that oysters are feræ naturæ [Of a wild nature]. A person who plants oysters in navigable waters opposite the land of another person, without asserting any other right of ownership or establishing any other evidence of actual possession, cannot thereby acquire such possession as will enable him to maintain trespass against the owner of the adjacent land for taking them away. Brinckerhoff v. Starkins, 11 Barb. (N. Y.) 249, 252 (1851). But oysters, though usually included in animals feræ naturæ [Of a wild nature], do not come within the reason or operation of the rule. They have neither the power nor inclination to escape. If planted in waters where they do not grow naturally, and stakes driven to designate the situation so that they may be readily found and identified as private property, the person who planted them has the same absolute property in them as in inanimate things or domestic animals. The State v. Taylor, 3 Dutcher (N. J.) 117-119 (1858).

(24) 2 Russell on Crimes, 279 p. 278 (9 ed. 1877). Story on Bailments, ? 211, p. 197 (9 ed. 1878).

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)(25) 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 neighborhood. Bees also are feræ naturæ;(26) 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 [*393 the same purpose, not to say in the same words, with the civil law, speaks Bracton: (n) occupation, that is, hiving or including them, gives the property in bees; for though a swarm 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 nests thereon, and therefore if another hives them, he shall be their proprietor: but a swarm which fly from and out of my hive, are mine so long as I can keep them in sight, and have power to pursue them; and in these circumstances no one else is entitled to take them. (27) But it hath been also said, (o) that with us the only ownership in bees is ratione soli; (28) and the charter of the forest,(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 consideration of the property of the soil whereon they are found. (29)

(k) Finch. L. 177.

(1) Crompt. of Courts, 167. 7 Rep. 16.

(m) Puff. l. 4, c. 6, 5. Inst. 2, 1, 14.

(n) L. 2, c. 1, 23.

(0) Bro. Abr. tit. propertie, 37, cites 45 Edw. III. 24. (p) 9 Hen. III. c. 13.

(25) Schouler's Pers. Prop., ?? 48, 49, pp. 54, 56 (2 ed. 1884). Brantley's Pers. Prop., 75, p. 124 (1891).

(26) State v. Murphy, 8 Ind. 499 (1847).

(27) 1 Schouler's Pers. Prop., 50, p. 58 (2 ed. 1884).

(28) [On account of the soil.]

(29) Brantley's Pers. Prop. 74, p. 121 (1891). Story on Bailments, 215, p. 198 (9 ed. 1878). Story on Sales, 336, & 387, p. 475 (4 ed. 1871).

Han

With respect to rooks, it has been recently determined that no action is sustainable against a person for maliciously causing loaded guns to be discharged near a neighbor's close and trees, and thereby disturbing and driving away the rooks which used to resort to and have young in the same, inasmuch as rooks are a species of birds feræ naturæ, destructive in their habits, not properly an article of food, and not protected by any act of parliament, and that the plaintiff therefore could not have any property in them. nam v. Mockett, 2 Bar. & C. 934. 4 Dowl. & R. 518, S. C. But an action on the case lies for discharging guns near the decoy-pond of another, with design to damnify the owner by frightening away the wild fowl resorting thereto, by which the wild fowl are frightened away and the owner damnified; for wild fowl are protected by the 25 Hen. VIII. c. II, and they constitute a known article of food; and a person keeping up a decoy expends money and employs skill in taking that which is of use to the public. It is a profitable mode of employing his land, and was considered by lord Holt as a description of trade. Keeble v. Hickeringill, 11 East, 574. 2 B. & C. 943. Other animals are specially protected by acts of parliament, as hawks, falcons, swans, partridges, pheasants, pigeons, wild ducks, mallards, teal, widgeons, wild geese, black game, red game, bustards, and herons, and consequently, in the eye of the law, are fit to be preserved. Bees are property, and the subject of larceny. Per Bayley, J., 2 B. & C. 944. Sir T. Raym. 33.— CHITTY.

Almost all the writers on general jurisprudence agree that the animal must have been brought within the power of the pursuer before the property in it vests. Actual taking may not in all cases be requisite; but all agree that mere pursuit, without bringing the animal within the power of the party, is not sufficient. The possession must be so far established, by the aid of nets, snares, or other means, that it cannot escape. It was accordingly held in Pierson v. Post, 3 Caine's Rep. 175, that an action would not lie against a person for killing and taking a fox which had been pursued by another, and was then actually in the view of the person who had originally found, started, and chased it. The mere pursuit and being within view of the animal did not create a property,