Right to kill opinion is not now law. "For," observes the author of the Office of an Executor (t), "although they be for the most part but things of pleasure, that hindereth not but they may be valuable as well as instruments of music, both tending to delight and exhilarate the spirits; a cry of hounds hath to my sense more spirit and vivacity than any other music." The occupier of land for the time has now the sole and take game. right of killing and taking the game upon the land, unless such right be reserved to the landlord or any other person (u). Where the landlord has reserved to himself the right of killing game, he may authorize any person or persons, who shall have obtained certificates, to enter upon the land for the purpose of pursuing and killing game thereon (x). And a recent enactment provides, that where the landlord or lessor of any land has reserved to himself, by any deed or writing, the exclusive right to the game on such land, then such landlord or lessor, for the purpose of prosecuting all persons for trespassing in pursuit of game on such land without his consent, shall be deemed the legal occupier of the said land; and any person who shall enter or be upon the said land in search of or in pursuit of game, without the consent of such landlord or lessor, shall be deemed a trespasser (y). And the lord of any manor or reputed manor has the right to pursue and kill the game upon the wastes or commons within the manor, and to authorize any other person or persons, who shall have obtained certificates, to enter upon such wastes or commons for the same purpose (z). (t) Wentworth's Office of an Executor, 143, 14th ed. The author of this work is supposed to have been Mr. Justice Doddridge. (u) Stat. 1 & 2 Will. IV. c. 32. See as to hares, stat. 11 & 12 Vict. c. 29. (x) Stat. 1 & 2 Will. IV. c. 32, s. 11. (y) Stat. 27 & 28 Vict. c. 67. s. 10. When game or other wild animals were killed on any Property in land by any other person than the rightful owner, the game. law, with respect to the property in the game, was formerly as follows: If a man started any game within his own grounds and followed it into another's, and killed it there, the property remained in himself. And so if a stranger started game in one man's chase or free warren, and hunted it into another liberty, the property continued in the owner of the chase or warren; this property arising from privilege, and not being changed by the act of a mere stranger. Or if a man started game on another's private grounds, and killed it there, the property belonged to him on whose ground it was killed. Whereas, if, after being started there, it was killed in the grounds of a third person, the property belonged not to the owner of the first ground, because the property was local; nor yet to the owner of the second, because it was not started in his soil; but it vested in the person who started and killed it, though guilty of a trespass against both the owners (a). And this appears to be still the law with respect to wild animals which are not game (b). But with respect to game, an alteration appears to have been made by the last Game Act (c), which seems to vest the property in game killed on any land by strangers, in the person having the right to kill and take the game upon the land (d). (a) 2 Bl. Com. 419; Churchward v. Studdy, 14 East, 249. (b) See Blades v. Higgs, 12 C. B. N. S. 501; 13 C. B. N. S. 844; 11 Jur. N. S. 701. (c) Stat. 1 & 2 Will. IV. c. 32. (d) Sect. 36. Rigg v. Earl of Lonsdale, 1 H. & N. 923. Property in goods. CHAPTER II. OF TROVER, BAILMENT AND LIEN. HAVING now considered those moveable articles of property which form exceptions to the rules by which chattels personal are in general governed, let us proceed to notice some circumstances in which chattels personal may be placed, so as to form not real but apparent exceptions to the primary rule already noticed (a), that personal property is essentially the subject of absolute ownership, and cannot be held for any estate. The property in goods can only belong to, or be vested in, one person at one time: in this respect it resembles the scisin of feudal possession of lands (b). Lands however may be so conveyed that several persons may possess in them, at the same time, several distinct vested estates of freehold, one of them being in possession, and the others in remainder, or the last perhaps being in reversion (c). But the law knows no such thing as a remainder or reversion of a chattel. It recognizes only the simple property in goods, coupled or not with the right of immediate possession. This simple principle of law, if carefully borne in mind, will serve to explain many points which would otherwise appear difficult or even contradictory. It must be remembered, however, that it does not strictly apply to the moveable articles noticed in our first chapter, which, from their connection with the land, are often governed by the principles of real, rather than those of personal property. (a) Ante, p. 7. (b) See Principles of the Law of Real Property, 111, 2nd ed.; 116, 3rd & 4th eds. ; 121, 122, 5th ed.; 127, 128, 6th ed.; 130, 131, 7th ed. (c) Ibid. p. 198, 2nd ed.; 206, 4th ed.; 215, 5th ed.; 225, 6th ed.; 234, 7th ed. cle is lost. 1. When the property in goods is coupled with the possession of them, the ownership is of course complete. This is the common and usual case of the ownership of chattels personal: the owner knows that the goods are his own, and in his own possession, and that is sufficient for him. Circumstances may, however, arise to change this state of things. An article may be lost. In this Where an articase the owner still retains his property in the thing, but he has lost the possession of it. The property, however, which still remains in him, entitles him to the possession of the article, whenever he can meet with it; or, in legal phraseology, the property draws with it the right of possession (d). If therefore another person should find the article lost, he will have no right to convert it to his own. use, if he has any means of knowing to whom it belonged, but must on demand deliver it up to the rightful owner, in whom the property is already vested. If he should refuse to do so, such refusal will argue that he claims it as his own, and will accordingly be evidence of a conversion of the thing to his own use (e). For the Action of wrong or trespass thus committed, a specific remedy has version. been provided by the law, in the shape of an action of trover and conversion, or more shortly an action of trover, which is one of those actions comprised within the technical class of trespass on the case. The word trover is from the French trouver, to find; and the word conversion is added, from the conversion of the goods to the use of the defendant being the gist of the action thus brought against him. That the defendant should have found the article lost is not his fault, but his conversion of it to his own use is a trespass, and renders him liable to the action we are now considering. This action accordingly is now constantly brought to recover damages for withholding the possession of goods whenever they (d) 2 Wms. Saunders, 47 a. Hob. 187; Bac. Abr. tit. Trover trover and con If the finder should be de prived, he may maintain trover. have been wrongfully converted by the defendant to his own use without regard to the means, whether by finding or otherwise, by which the defendant may have become possessed (f). This action can be maintained only when the plaintiff has been in possession of the goods (g), or has such a property in them as draws to it the right to the possession. If the goods have been wrongfully converted by the defendant to his own use, the plaintiff will succeed, if he should prove either way his own right to the immediate possession of the goods (h); if he should not prove such right, he will fail (i). The property in the goods is that which most usually draws to it the right of possession; and the right to maintain an action of trover is therefore often said to depend on the plaintiff's property in the goods; the right of immediate possession is also sometimes called itself a special kind of property (k); but these expressions should not mislead the student. The action of trover tries only the right to the immediate possession, which, as we shall now see, may exist apart from the property in the goods. For let us suppose that the finder of the article lost, whilst ignorant of the true owner, should have been wrongfully deprived of it by a third person. In this case, the owner being absent, the finder is evidently entitled to the possession of the thing; and he will ac (f) 3 Black. Com. 153; stat. 15 & 16 Vict. c. 76, s. 49, sched. (B) 28. (g) Addison v. Round, 4 Ad. & Ell. 799; S. C. 6 Nev. & Man. 422; Brooke v. Mitchell, 6 N. C. 349; S. C. 8 Scott, 739. (h) Wilbraham v. Snow, 2 Saund. 47; Armory v. Delamirie, 1 Str. 505; Roberts v. Wyatt, 2 Taunt. 268; Legg v. Evans, 6 Mee. & W. 36; Stephen on Pleading, 354, 5th ed. (i) Gordon v. Harper, 7 T. Rep. 9; Ferguson v. Cristall, 5 Bing. 305; Leake v. Loveday, 4 Man. & Gr. 972; Bradley v. Copley, 1 C. B. 685. (k) Rogers v. Kennay, 9 Q. B. 592. |