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NEW COMMENTARIES

ON

THE LAWS OF ENGLAND.

BOOK II.

OF RIGHTS OF PROPERTY-(continued).

PART II.

OF THINGS PERSONAL,

CHAPTER I.

OF THINGS PERSONAL IN GENERAL, AND OF PROPERTY THEREIN, IN GENERAL.

"THINGS personal" fall under the older and more general denomination of chattels, or goods and chattels (a), the term "chattel" being also applicable to chattels real (b), which, although they are "personal property," are really interests in real estate, and have consequently been considered in the First Part of the present Book. The (b) Co. Litt. ubi sup.

(a) Co. Litt. 118 b.

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chattels to which our attention will now be directed include only moveables, and the rights connected with moveables which, to distinguish them from chattels real, are known as chattels personal (c).

Things personal, then, comprise in the first place all sorts of things moveable, that is, such as may attend a man's person wherever he goes; and, being consequently for the most part of a perishable quality, were not esteemed of so high a nature, nor paid so much regard to by the early law, as things that are in their nature immoveable and more permanent, such as land and houses and the profits issuing thereout. [In fact, during the feudal ages, the amount of personal estate was comparatively very trifling, e.g., 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 forfeitures were occasionally inflicted by the common law of all a man's goods and chattels, for misbehaviours and inadvertencies that at present hardly seem to have deserved so severe a punishment. But in modern times, through the extension of trade and commerce, and the progress of the arts and sciences, personal property has greatly augmented both in amount and in quality; and our courts now attach to it an importance equal to that which they attach to real property.

Moveables consist, in the first place, of inanimate things, such as goods, plate, money, and the like; or vegetable productions, such 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 under the name of moveables, we have also to include 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 are also certain rights in respect of moveables, which are deemed chattels personal,

(c) Co. Litt. 118 b.

[such as patent rights, copyright, the right to a trade-mark or trade-name, the right to a design, and the right to a debt; all of which will, in due course, be considered.

But directing our attention, for the present, to animals,— these, when regarded as the subjects of ownership, are distinguished into such as are domite nature and such as are fera natura, some being of a tame, and others of a wild, disposition. In the case of animals domitæ naturæ, i.e., such animals as are of a nature tame and domestic, such as horses, kine, sheep, poultry, and the like, a man may have as absolute a property in them as in inanimate things; because they 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 in them. But with animals fere nature, the case is different. These are, generally speaking, not the subjects of absolute property, at least while living (d). But under certain circumstances a man may be invested with a qualified or special property in them, and this either per industriam, or propter impotentiam, or propter privilegium,

1. Such a property may arise in them per industriam; that is to say, either by reclaiming and making them tame by art, industry, and education, or else by so confining them that they cannot escape and use their natural liberty. Some writers have ranked all the domestic animals we have mentioned under the head of animals feræ naturæ, apprehending none to be originally and naturally tame, but only made so by art and custom; inasmuch as horses, swine, and other cattle, 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

(d) Hannam v. Mockett (1824), 2 B. & C. 934; Reg. v. Read (1878), 3 Q. B. D. 131.

[be founded, abstractedly considered, our law apprehends the most obvious distinction to be between such animals as we generally see tame, and seldom, if ever, find wandering at large, which it calls animals domitæ naturæ, 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. Instances of these are deer in a park, hares or rabbits in an inclosed warren, doves in a dove-house, pheasants or partridges in a mew, hawks that are fed and commanded by their owner, fish in a private pond, bees when hived, and the like. And with regard to bees, in particular, it has been said, that, 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 therein; 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 has also been said, that with us the only ownership in bees is ratione soli; and the Carta de Forestâ, which allowed 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 (e).

With respect to all animals fera nature, they are no longer the property of a man than while they continue in his keeping or actual possession. If at any time they regain their natural liberty, his property in them instantly ceases, unless indeed they have the animum revertendi which is only to be known by their usual custom of returning (ƒ)—or unless instantly pursued by the owner,

(ed.

(e) Carta de Forestâ Stubbs), c. 13; Hannam v. Moc. kett (1824), 2 B. & C. 944.

(f) Bract. 1. ii. ch. 1; Inst. ii. 1, 15.

[for during such pursuit his property remains.] On the other hand, a property of this description is protected, while it lasts, by law, so that an action for damages will lie against any one who detains animals feræ naturæ from the owner for the time being, or who unlawfully destroys them (). And it is penal to steal those animals feræ nature, which, being fit for food or for the service of man, are either tame and known by the thief to be so, or are so confined that the owner can take them whenever he pleases (h). And although, as regards animals kept only. for pleasure, curiosity, or whim, amongst which the common law classed dogs and singing birds (), no protection was at one time afforded by the law, still, by modern legislation, efficient protection is now given to property in all species of confined animals (k). And it appears, that hawks were peculiarly protected even by the common law (1).

Incidentally here, attention may be called to a statute recently passed relating to the treatment of wild animals, i.e., the Wild Animals in Captivity Protection Act,

1900.

2. [A qualified property in animals feræ naturæ may arise also propter impotentiam, that is to say, on account of their own inability. Thus, when hawks, herons, or other birds build in my trees, or coneys or other creatures fera nature 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 (m). For, in these cases, the law vests a property in the owner of the land in respect of the young, in the same manner as it does of the parents if reclaimed and confined; for these cannot, through weak

(g) Bro. Abr. Trespass, 407.

(h) 1 Hale, P. C. 512; 2 Bl. Com. 390; Hawk. b. i. ch. 33, s. 26.

(i) Lamb. Eiren. 275.

(k) Vide post, bk. VI. ch. VII. () 1 Hale, P. C. 512; 1 Hawk. P. C. 38.

(m) 7 Rep. 17 b.

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