[their usual custom of returning (o));] or unless instantly pursued by the owner, for during such pursuit his property remains (p). On the other hand, however, a property of this description is protected while it lasts, by law, so that an action will lie against any man who detains animals feræ naturæ from the owner for the time being, or unlawfully destroys them. It is also felony, and that by the common law, to steal such animals feræ naturæ as are fit for the food or service of man, and are either tame and known by the thief to be so, or are so confined that the owner can take them whenever he pleases (q); but the case is different, at the common law, with respect to those which [are only kept for pleasure, curiosity or whim, as dogs, bears, cats, apes, parrots, and singing birds (r), because their value is not intrinsic, but depending only on the caprice of the owner (s); though it is such an invasion of property as may amount to a civil injury, and be redressed by a civil action (t). Yet to steal a reclaimed hawk is felony, both by common law and statute (u); which seems to be a relic of the tyranny of our antient sportsmen. And among our elder ancestors the antient Britons, another species of reclaimed animals, viz. cats, were looked upon as creatures of intrinsic value, and the killing or stealing one was a grievous crime, and subjected the offender to a fine, especially if it belonged to the king's household, and was the custos horrei regii, for which there was a peculiar forfeiture (x).] By modern

(0) Bract. 1. ii. c. 1; Case of Swans, 7 Rep. 17. This doctrine of the animus revertendi is borrowed, as Blackstone remarks, from the civil law. See Inst. ii. 1, 15.

(p) 2 Bl. Com. 392.

(q) 1 Hale, P. C. 511, 512; 2 BI. Com. 390; Hawk. b. i. c. 33, s. 26. A stock of bees it seems, may, be the subject of larceny at the common law; Tibbs v. Smith, T. Raym. 33. (r) Lamb. Eiren. 275.

(s) Case of Swans, 7 Rep. 18; 3

Inst. 109. So, too, it has been decided that ferrets, though tame, are of too base a nature to be the subject of larceny ; East, P. C. 614; R. v. Searing, Russ. & Ry. C. C. 350; 1 Chit. Pract. of Law, p. 18, n. (z).

(t) Bro. Abr. Trespass, 407. (u) 1 Hale. P. C. 512; 1 Hawk, P. C. 33.

(x) "Si quis felem, horrei regii cus"todem, occiderit vel furto abstulerit, "felis, summa cauda, suspendatur,

legislation, too, protection is given to the property in tame or confined animals, even where of a kind which, by the common law, could not be the subject of felony. For by 7 & 8 Geo. IV. c. 29, s. 31, it is provided generally, that if any person shall steal any beast or bird ordinarily kept in a state of confinement, not being the subject of larceny at common law, such offender, being convicted before a justice of peace, shall, for the first offence, forfeit, over and above the value of the animal, such sum of money, not exceeding 207., as to the said justice shall seem meet; and, for a subsequent offence, be committed to the common gaol and be kept to hard labour, or, if committed before two justices of the peace, may be ordered (if a male) to be whipped (y). And as to dogs, in particular, it is enacted by 8 & 9 Vict. c. 47 (z), that any person stealing one, shall be guilty of a misdemeanor, and being convicted before two or more justices of the peace, may be imprisoned for not more than six months, with hard labour; or he may be fined, above the value of the dog, such sum of money, not exceeding 207., as to the justices shall seem fit: and, upon the second offence, such misdemeanor is made indictable.

2. [A qualified property may also subsist with relation to animals feræ naturæ, propter impotentiam, on account of their own inability, as where hawks, herons, or other birds build in my trees, or coneys or other creatures make their nests or burrows in my land, and have young ones there, I have a qualified property in those young ones till such time as they can fly or run away, and then my property expires (a); but till then, it is in some cases trespass, and

"6 grana tritici effundantur, usquedum "summitas caudæ tritico coöperiatur, &c."-Wotton, LL. Wall. 1. 3, c. 5, 8. 5. An amercement similar to which, Sir Edward Coke tells us (7 Rep. 18), there antiently was for stealing swans; only suspending them by the beak instead of the tail.

(y) Et vide 7 & 8 Geo. 4, c. 29,

ss. 26, 30, 33, 34, 35; 9 Geo. 4, c. 69; 1 & 2 Will. 4, c. 32.

(z) By this statute a previous provision as to stealing dogs, contained in 7 & 8 Geo. 4, c. 29, s. 81, is repealed.

(a) Charta de Foresta, 9 Hen. 3,

c. 13.

[in others felony, for a stranger to take them away (b). For here, as the owner of the land has it in his power to do what he pleases with them, the law therefore vests a property in him of the young ones, in the same manner as it does of the old ones, if reclaimed and confined; for these cannot, through weakness, any more than the others through restraint, use their natural liberty and forsake them.

3. A man, lastly, may have a qualified property in animals fera naturæ, propter privilegium; that is, he may have the privilege of hunting, taking, and killing them in exclusion of other persons. Here he has a transient property in these animals (usually called game), so long as they continue within his liberty (c); and may restrain any stranger from taking them therein; but the instant they depart into another liberty, this qualified property ceases.] The nature of this privilege has been more fully explained in a former chapter (d).

Things personal, however, are not confined to moveables; for as things real comprise not only the land itself, but such incorporeal rights also as issue out of or are connected with it (e), so things personal include not only those tangible subjects of property which are capable of locomotion, but also the incorporeal rights or interests which may grow out of or be incident to them. This class (to which, without impropriety, may be assigned the term of incorporeal chattels) comprehends, among other species, patent right, or the exclusive privilege of selling and publishing particular contrivances of art, and copyright, or the exclusive privilege of selling and publishing particular works of literature,—— subjects to which we shall advert with more particularity hereafter (ƒ).

(b) Case of Swans, 7 Rep. 17; Lamb. Eiren. 274.

(d) Sup. vol. 1. p. 665, et vide post,

p. 20.

(c) Child v. Greenhill, Cro. Car. 554; Mar. 48; Sutton v. Moody, 5 Mod. 376; 12 Mod. 144.

(e) Vide sup. vol. 1. pp. 168, 646. (f) Vide post, bk. 11. pt. II. c. III.

[Things (or chattels) personal being thus distinguished and distributed, it may be proper to consider, first, the nature of that property, or dominion to which they are liable; and, secondly, the title to that property, or how it may be lost and acquired.] To the first of these subjects we propose, therefore, to devote the remainder of the present chapter.

[Property in chattels personal may be either in possession, or else in action.] Property in possession is where a man has the enjoyment, either actual or constructive, of the thing or chattel, and [is divided into two sorts, an absolute and a qualified property:] the former is where a man is fully and completely the proprietor of the thing, the latter is where his ownership is of a special or limited kind, and that either in reference to [the peculiar circumstances of the subject-matter, which is not capable of being under the absolute dominion of any proprietor,] (as in the case of animals feræ naturæ above explained,) or [on account of the peculiar circumstances of the owner, when the thing itself is very capable of absolute ownership.] Of qualified or special property in the former sense of the term, we have already spoken. In the latter sense, it may be illustrated by the case of [bailment, or delivery of goods to another person for a particular use, as to a carrier to convey to London, to an innkeeper to secure in his inn, or the like;here there is no absolute property in either the bailor or the bailee, the person delivering, or him to whom it is delivered; - for the bailor hath only the right, and not the immediate possession-the bailee hath the possession and only a temporary right; but it is a qualified property in them both, and each of them is entitled to an action] against any stranger by whom the goods are wrongfully damaged or taken away, the bailee on account of his immediate possession, the bailor on account of his general ownership (g). The same may be said of the case where goods are acquired by finding. The finder has a special property, defeasible, it

(g) 2 Saund. 47 b.

is true, upon discovery of the right owner, but in the meantime valid against the rest of the world (h). Upon the same principle, too, if the goods of a judgment debtor are taken in execution to satisfy the judgment, the sheriff who executes the legal process has a special property in them during the interval between seizure and actual sale (i). [But a servant who hath the care of his master's goods and chattels, as a butler of plate, a shepherd of sheep, and the like, hath not any property or possession either absolute or qualified, but only a mere charge or oversight (k),] and his master's property remains absolute. And when goods are distrained for rent, no property is acquired in them by the party distraining or seizing (1); but they remain in custodia legis until sold, or otherwise lawfully disposed of, and in the meantime the property of the original owner remains in him unaltered.

Having thus considered the divisions of property in possession, we will proceed next to take a short view of the nature of property in action, which is where a man has not the enjoyment (actual or constructive) of the thing in question, but merely a right to recover it by a suit or action. at law; from whence the thing so recoverable is called a thing or chose in action. Thus money due on a bond is a chose in action, for a property in the money vests whenever it becomes payable; but there is no possession, till recovered by course of law, unless payment be first voluntarily made. And so [if a man promises or covenants with me to do any act, and fails in it, whereby I suffer damage, the recompense for this damage is a chose in action; for though a right to some recompense vests in me at the time of damage done, yet what and how large such recompense shall be, can only be ascertained by verdict, and the possession can only be given me by legal judgment and exe

(h) Armoury v. Delamirie, Str. 505. (i) Wilbraham v. Snow, 2 Saund.

47; Giles v. Grover, 9 Bing. 128.

(k)

Inst. 108.

(1) 2 Saund. by Wms. and Pat. 47, n. (c).