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equal to his realty, and have adopted a more enlarged mode of considering it, frequently drawn from the rules established by the Roman law.
Chattels. Things personal, by our law, do not only include things movable, but also something more, the whole of which is comprehended by the general name of chattels, a French word, signifying goods. It is, however, derived from the technical Latin word, catalla, which primarily signified cattle, but in its secondary sense, was applied to all movables. The Normans accounted all things not feuds, as chattels. And in this extended, negative sense, our law adopts it; the idea of goods or movables only, being not sufficiently comprehensive. Two requisites were required to constitute a fief or heritage, duration as to time, and immobility with regard to place; whatever wants either of these qualities, according to the Normans, was not a heritage or fief, hence it must be a personal estate or chattel.
Divisions. Chattels are distributed by the law into two kinds: Chattels real and chattels personal.
1. Chattels Real. Chattels real, says Coke, are such as concern or savor of the realty, as terms for years of land, the next presentation to a church, estates by statute merchant, staple, elegit or the like. All these are interests issuing out of or annexed to real estate, of which they have one quality, immobility, which denominates them real, but want the other, indeterminate duration, and this want makes them chattels. The utmost period for which they can last is fixed and determinate, either for a space of time certain, or till a particular sum of money be raised out of such a particular income, so that they are not equal in law to the lowest estate of freehold, a lease for another's life.
Distinct from a Freehold. Then tenants were considered, on feudal principles, as merely bailiffs or farmers, and the tenants of the freehold might at any time, till the reign of Henry VIII, have destroyed their interest. A freehold is conveyed by livery of seisin, and corporal investiture, which gives the tenant so strong a hold of the land, that it never can be wrested from him during his life, but by his own act of transfer or forfeiture, or by the happening of some future contingency, as in estates pur autre vie. A chattel interest is conveyed by no seisin or corporal investiture, but by the mere entry of the tenant, and it will certainly expire at a fixed time, if not sooner.
2. Chattels Personal. Properly speaking, these are things movable, which may be annexed to or attendant on the person of the owner, and conveyed by him from one place to another. Such are animals, furniture, money, jewels, grain, garments, and the like. We will consider the nature of such property or dominion, to what it is liable, and then the title to it, or how it may be lost or acquired.
CHAPTER XXV.PROPERTY IN THINGS PERSONAL.
In Possession and Action. Property in chattels personal may either be in possession, which is where a man has not only the right to enjoy, but has the actual enjoyment of the thing; or in action, where a man has only a bare right, without any occupation or enjoyment. Property in possession is divided into two sorts: an absolute and a qualified property.
1. Property in Possession Absolute. This is where a man has solely and exclusively the right and also the occupation of any movable chattels, so that they cannot cease to be his, without his own act or default. Such may be all inanimate things as goods or money, also all vegetable products, as fruit, when served from the stalk or tree, or the whole plant itself, when severed from the ground.
Animals. But with regard to animals, who have a power of motion, and, unless confined, can change their location, there is a great difference with respect to their several classes, in the law of nature and in the law of all civilized nations. Animals are either domitiae or tame, or ferae naturae, of a wild disposition. In tame or domestic animals, as horses or poultry, a man may have absolute property, because they continue perpetually in his occupation, and will not stray, except by accident or enticement, by which the owner does not lose his property. The stealing of such animals is felony, for these are things of intrinsic value. But in animals ferae naturae, a man can have no absolute property.
The Offspring of Animals. Of all domestic or tame animals, the brood belongs to the owner of the dam or mother, partus sequitur ventrem, not only because the male is frequently unknown, but also because the dam, during her pregnancy, is almost useless to the owner, and yet has to be maintained and cared for by him. An exception to the rule is the case of young cygnets, which are to be divided equally between the owners of the cock and the hen, for the male swan is well known from his constant association with the hen, and here the reasons of the general rule cease, cessante ratione, cessat et ipsa lex.
II. Qualified Property. Other animals, not tame and domestic, are either not the objects of property, or else are qualified, limited or special property, which is not in its nature permanent, but may sometimes exist. This species of property may exist in such animals as are ferae naturae, of a wild nature, as well as in other things under particular circumstances.
Animals Ferae Naturae. A man may be invested with a qualified property in all creatures ferae naturae, per industriam propter impotentiam or propter privilegium.
1. Per Industriam Hominis. A qualified property in animals may exist, by a man's reclaiming and taming them, by industry and education, or by so confining them, within his immediate power, that they cannot escape, and use their natural liberty. Such are deer in a park, fish in a private pond and the like. 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, which is known by their usual custom of returning, as is che case with pigeons. But if they stray and do not return in the usual manner, a stranger may take them. If a deer reclaimed has a collar or other mark upon him, and goes and returns at his pleasure, remaining not long absent, the owner's property in him still continues.
Ownership of Bees. Though a swarm of reclaimed bees light upon my tree, I have no property in them, till I have hived them, but they are the owner's, as long as he keep them in sight, and has power to pursue them. But it has also been said, that the only ownership in bees is ratione soli, and a qualified property therein exists in the owner of the woods, in which the bees have swarmed.
Distinction in the Value of Animals. In all reclaimed creatures, the property is not absolute, but defeasible, and may be destroyed, if they return to their wildness, and are found at large. While however they continue qualified property, an action will lie against any one, who detains them or unlawfully destroys them. By common law, it is as much a felony to steal them, if fit for food, as to steal tame animals, but not so, if they are only kept for pleasure, curiosity or whim, such as dogs, cats, parrots and singing birds, because their value depends upon the caprice of the owner, though it may amount to a civil injury, to be redressed by a civil action. Among the ancient Britons, cats were looked upon as of intrinsic value, and the killing or stealing of a cat was deemed a grievous crime, punishable by fine.
2. Propter Impotentiam. A qualified property may exist in animals ferae naturae, on account of their own inability. As when birds build in my trees, and have their young in nests, I have a qualified property in the young, till they are able to fly away, and it is trespass and sometimes felony, for a stranger to remove them.
3. Propter Privilegium. That is, a man has a qualified property of hunting, taking and killing wild animals, in exclusion of other persons. He has a transient property in game within his own domains, but when they leave such locality, the qualified property ceases.
Qualified Property in Other Things. It may subsist in the
very elements of fire or light, of air and of water. A man can have no permanent property in these, as he may in land, since they are of a fugitive nature, and can admit only of a precarious and qualified ownership, which lasts while they are in actual use and occupation, but no longer.
Ancient Lights and Water-courses. If a man disturbs another, and deprives him of the lawful enjoyment of these; if one obstructs another's ancient windows; corrupts the air of his house or garden; fouls his water, or lets it out, or diverts an ancient watercourse, that used to run to the other's millor meadow, the law will protect the party injured in his possession. But the property in them ceases the instant they are out of possession, for when no man is actually occupying them, they become again common.
Bailments. Property may also be of a qualified or special nature, on account of the peculiar circumstances of the owner, when the thing itself is capable of absolute ownership. As in the case of bailment, or delivery of goods to another person for a particular use, as to a carrier or innkeeper, for conveyance or safekeeping. Here there is no absolute property in either the bailor or bailee, for the former has the right, but not the immediate possession, while the bailee has the possession, and only a temporary right. But it is a qualified property in them both, and each is entitled to an action, if the goods be damaged or taken away. So also in the case of goods pawned or pledged, either to repay money, or otherwise. The same may be said of goods distrained for rent or other cause of distress, which are in the nature of a pledge, and may be redeemed or forfeited. But a servant, who has the care of his master's goods, has neither any property nor possession, either absolute or qualified, but only a mere charge.
1 By statute of Victoria, dog stealing is deemed a misdemeanor.
Choses in Action. This is where a man has not the occupation, but merely a bare right to occupy the thing in question ; the possession of which may be recovered by a suit at law. Hence it is called a thing or chose in action. Such is money due on a bond, for a property in the debt vests at the time of forfeiture mentioned in the obligation, but there is no possession until recovered by course of law. If a man promises to do any act, and fails in it, whereby damage ensues to another, the recompense for this damage is a chose in action. In the case of a bond, the property or right of action depends upon an express obligation or contract to pay a stated sum, and in the case of the mere promise, it depends upon an implied contract, that if the covenantor fails to perform his promise, he will pay the damages sustained by the breach.
Right of Action. On all contracts or promises, express or implied, the law gives an action of some sort to the party injured by the non-performance; either to compel the wrong-doer to do justice to the other party or to render a satisfaction, equivalent to the damage sustained. But while the thing remains in suspense, and the injured party has only the right, but not the occupation, it is called a chose in action, being a thing rather in potentia than in esse, though the owner may have as absolute a property therein, as to things in possession.
Time of Enjoyment. By ancient common law, there could be no future property, to take place in expectancy, created in personal goods and chattels; because being things transitory,