Page images
PDF
EPUB

CHAPTER 1.

OF THINGS PERSONAL IN GENERAL, AND OF

PROPERTY THEREIN.

“Things personal” fall under the larger and more general denomination of chattels, or goods and chattels (a), terms equally applicable to those interests in land which do not amount to freehold (b), and which we have had already occasion to examine in former chapters, under the appellation of chattels real (c). With these last, however, we have not at present any direct concern. For these are not properly the subjects of property, but rather modifications of property, or species of estates in a certain kind of subjects, viz. in things real. When considered, indeed, in reference to the distinction between real and personal estate, they are held to fall under the latter denomination, their incidents being in general the same with those of property in moveables (d); but as regards the distinction between things real and things personal, they appertain to the division of things real, and have consequently been allotted to the First Part of the present Book. Things personal, therefore, to which our present attention is invited, include only moveables, and the rights connected with them (e); which, as put in contradistinction to chattels real, sometimes receive the appellation of chattels personal (f).

Things personal then (so understood) comprise in the

(a) Co. Litt. 118b; Ryal v. Rolle, 1 Atk. 183.

(6) Co. Litt. ubi sup.; Com. Dig. Biens, D. 2.

(c) Vide sup. vol. 1. pp. 168, 280.
(d) Vide sup. vol. 1. p. 280.
(e) Ibid. p. 168.
(f) Co. Litt. ubi sup.

first place [all sorts of things moveable, which may attend a man's person wherever he goes; and, therefore, being only the objects of the law while they remain within the limits of its jurisdiction, and being also of a perishable quality, are not esteemed of so high a nature, nor paid so much regard to by the law, as things that are in their nature more permanent and immoveable,-as lands and houses, and the profits issuing thereout. These being constantly within the reach and under the protection of the law, were the principal favourites of our first legislators, who took all imaginable care in ascertaining the right, and directing the disposition of such property as they imagined to be lasting, and which would answer to posterity the trouble and pains that their ancestors employed about them; but at the same time entertained a very low and contemptuous opinion of all personal estate,] which then consisted principally of mere moveables, and was consequently [regarded as only a transient commodity. The amount of it indeed was comparatively very triling during the scarcity of money, and the ignorance of luxurious refinements, which prevailed in the feudal ages. Hence it was that a tax of the fifteenth, tenth, or sometimes a much larger proportion of all the moveables of the subject, was frequently laid without scruple, and is mentioned with much unconcern by our antient historians, though now it would justly alarm our opulent merchants and stockholders. And hence likewise may be derived the frequent forfeitures inflicted by the common law of all a man's goods and chattels, for misbehaviour and inadvertences that at present hardly seem to deserve so severe a punishment. Our antient law books, which are founded on the feudal provisions, do not therefore often condescend to regulate this species of property. There is not a chapter in Britton or the Mirror that can fairly be referred to this head, and the little that is to be found in Glanvil, Bracton and Fleta, seems principally borrowed from the civilians. But of late years, since the introduction and extension of trade and commerce, which [are entirely occupied in this species of property, have greatly augmented its quality and value, we have learned to conceive different ideas of it. Our courts now regard a man's personalty in a light nearly if not quite equal to his realty, and have adopted a more enlarged and less technical mode of considering the one than the other, frequently drawn from the rules which they found already established by the Roman law, wherever those rules appeared to be well grounded, and apposite to the case in question ; but principally from reason and convenience adapted to the circumstances of the times.]

Moveables consist (first of inanimate things, as goods, plate, money, jewels, implements of war, garments and the like, or 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.] And these require, for the present, no particular remark. But under the same division of moveables we have also to arrange [animalswhich have in themselves a principle and power of motion, and (unless particularly confined) can convey themselves from one part of the world to another.] And as to these, [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 domitæ and such as are feræ naturæ, 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.) But with animals fere nature the case is different. These are, generally speaking, not the subjects of property (g), at least while living. Yet, under certain circumstances, a .. (8) Hannam v. Mockett, 2 B. & C. 934; 4 D. & R. 518,

man may be invested with a qualified or special property in them ; and this (either per industriam, propter impotentiam, or propter privilegium. · 1. A qualified property may subsist in animals feræ naturæ, 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 (h). 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 see generally tame, and are therefore seldom, if ever, found wandering at large, which it calls domitæ nature, and such creatures as are usually found at liberty, which are therefore supposed to be more emphatically feræ naturæ; 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 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.] And here we may remark, that [bees also are feræ naturæ, 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 (i); and to the same purpose, not to say in the same words with the civil law, speaks Bracton (k). Occupation, that is, hiving or including them,

(1) Vide post, p. 19.

(i) Puff. I. iv. c. 6, s. 5; Inst. ii. 1, 14.

(k) L. ii. c. 1, s. 3; et vide Hannam v. Mockett, 2 Barn. & Cress. 944.

[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. But it hath been also said (l), that with us the only ownership in bees is ratione soli ; and the charter of the forest (m), 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.]

To what has been said, it may be useful to add the observation, that though animals fere naturæ may become the subject of a qualified property, either by being simply kept in confinement on a man's estate, as in the case of deer in a park, fish in a pond, doves in a dove-house, and the like,-or by being actually reclaimed and domesticated, as in the case of a tame hawk or pigeon,-yet in the former case they do not fall properly under the description of things or chattels personal, but are accessary to and partake of the nature of the realty ; and therefore if the owner die seised of an estate of inheritance in the land, they descend with the inheritance to the heir, instead of belonging to the executor(n). Moreover it is material to remark, with respect to all animals feræ nature, that [they are no longer the property of a man than while they continue in his keeping or actual possession : for 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

(1) Bro. Ab. tit. Propertie, 37, Exors. 192. It has been held as to cites 43 Edw. 3, c. 24.

deer, in particular, that they are ca(m) 9 Hen. 3, c. 13; vide sup. pable of being so tamed and revol. 1. p. 665.

claimed as to pass to the executors, (n) Co. Litt. 8; Case of Swans, 7 as personal property; Morgan v. Rep. 17 b; 2 Bl. Com. 428; Toll. Abergavenny, 8 C. B. 768.

« EelmineJätka »