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First, then, a man may be invested with a qualified, but not an absolute property in all creatures that are feræ naturæ, 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. Such are deer in a park, hares or rabbits in an enclosed 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. 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 only to be known by their usual custom of returning.

In all these creatures, reclaimed from the wildness of their nature, the property is not absolute, but defeasible: a property that may be destroyed if they resume their ancient wildness, and are found at large. For if the pheasants escape from the mew, or the fishes from the trunk, and are seen wandering at large in their proper element, they become feræ naturæ again; and are free and open to the first occupant that has ability to seize them. But while they thus continue my qualified or defeasible property, they are as much under the protection of the law, as if they were absolutely and indefeasibly mine.

2. A qualified property may also subsist with relation to animals feræ naturæ, ratione impotentiæ, on account of their own inability. As when hawks, herons, or other birds build in my trees, or rabbits or other creatures make their 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: but, till then, it is in some cases trespass, and in others a misdemeanor for a stranger to take them away.

3. A man may, lastly, have a qualified property in animals ferœ naturæ, propter privilegium: that is, he may have the privilege of hunting, taking, and killing game, in exclusion of other persons. The manner in which this privilege is acquired will be shown in a subsequent chapter.

The qualified property which we have hitherto considered, extends only to animals feræ naturæ, when either reclaimed, impotent, or privileged. Many other things may also be the objects of qualified property. It may subsist in the very elements, of fire or light, of air, and of water. A man can obviously have no absolute perma

nent property in these, as he may in the earth and land. Yet 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 if he diverts an ancient water-course that used to run to the other's mill; the law will protect the party. injured in his possession. But the property in them ceases the instant they are out of possession: for then they become again common, and every man has an equal right to appropriate them to his own use.

These kinds of qualification in property depend upon the peculiar circumstances of the subject-matter, which is not capable of being under the absolute dominion of any proprietor. But property may also be of a qualified or special nature, on account of the peculiar circumstances of the owner, when the thing itself is very capable of absolute ownership. As in 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 has only the right, and not the immediate possession; the bailee has 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, in case the goods be damaged or taken away: the bailee on account of his immediate possession; the bailor, because the possession of the bailee is, mediately, his possession also. And so in other cases, as of goods pawned or distrained or taken in execution. But a servant, who has the care of his master's goods or chattels, as a butler of plate, a shepherd of sheep, and the like, has not any property or possession, either absolute or qualified, but only a mere charge or oversight.

Having thus considered the several divisions of property in possession, which subsists there only, where a man has both the right and also the occupation of the thing; I proceed to take a short view of the nature of property in action, or such where a man has not the occupation, but merely a bare right to occupy the thing in question; the possession whereof may however be recovered by an 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 debt vests at the time of forfeiture mentioned in the obligation, but there is no possession till recovered by course of law. 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 the 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 execution. In the former of these cases, the student will observe that the property, or right of action, depends upon an express contract or obligation to pay a stated sum: and in the latter it depends upon an implied contract, that, if the covenantor does not perform the act he engaged to do, he shall pay me the damages I sustain by this breach of covenant.

Besides actions thus arising upon contracts express or implied, there is also another kind, those, namely, which arise from some wrong or injury done by one man to another, and which are therefore said to arise ex delicto. For any such injury the law awards a compensation to the party aggrieved. Thus for an assault on, or wrongful imprisonment of, the person, or for an injury by libel or slander to the reputation of another, the law awards such compensation as a jury shall estimate to be the damage sustained. So for a trespass on the lands, or for carrying away the goods of another, the wrongdoer must compensate the party injured, if he demand it in an action. And to such compensation the party injured is entitled the instant he receives the injury; he has at once an inchoate or incomplete right, but still a right; and such damages therefore constitute a thing to be recovered by suit, in other words a chose in action. The right to sue for this compensation arises, not from any previous contract by the wrongdoer that he shall refrain from committing the injury complained of; but, in the cases above supposed, from an infringement by the wrongdoer of one of the inherent rights of every member of society, the right of personal liberty or the right of property. And the suit when brought is therefore said to be an action of tort.

There are thus two distinct sources of property in action, namely, injuries arising from the non-fulfilment of contracts expressed or implied, that is, ex contractu or quasi ex contractu; and injuries to one's person or property arising solely from an infringement of the natural or relative rights of the individual wronged, that is, ex delicto or quasi ex delicto. Of the nature of the former, we shall discourse at large in a subsequent chapter. The latter will form the subject of our consideration in the third book of these Commentaries.

At present we have only to remark, that upon all contracts or promises, either express or implied, and the infinite variety of cases into which they are and may be spun out, the law gives an action of some sort or other to the party injured, in case of non-performance, to compel the wrongdoer to do justice to the party with whom he has contracted; and, on failure of performing the identical thing he engaged to do, to render a satisfaction equivalent to the damage sustained. But while the thing, or its equivalent, remains in

suspense, and the injured party has only the right and not the occupation, it is called a chose in action; being a thing rather in potentiâ than in esse: though the owner may have as absolute a property in, and be as well entitled to, such things in action, as to things in possession. Just as for all infringements of the natural or relative rights of another, the law gives redress by action against the wrongdoer by an action to recover the damage sustained; this redress, to which the party injured, as we have said, has an undoubted right the instant the injury is sustained, until recovered by verdict, constituting a chose in action, precisely as do the damages sustained by a breach of contract.

Finally, things personal may belong to their owners, not only in severalty, but also in joint-tenancy, and in common, as well as real estates. They cannot indeed be vested in co-parcenary; because they do not descend from the ancestor to the heir, which is necessary to constitute co-parceners. But if a horse, or other personal chattel, be given to two or more, absolutely, they are joint-tenants thereof; and, unless the jointure be severed, the same doctrine of survivorship shall take place as in estates of lands and tenements. And, in like manner, if the jointure be severed, as, by either of them selling his share, the vendee and the remaining part owner shall be tenants in common, without any jus accrescendi or survivorship. So, also, if 1007. be given by will to two or more, equally to be divided between them, this makes them tenants in common; as we have formerly seen, the same words would have done in regard to real

estates.

But the stock on a farm, though occupied jointly, and also the stock used in a joint undertaking, by way of partnership in trade, shall always be considered as common and not as joint property, and there shall be no survivorship therein. For here, “the wares

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or merchandises which they have as joint-tenants or partners, "shall not survive, but shall go to the executors of him that deceaseth, and this per legem mercatoriam, which is part of the laws "of this realm for the advancement and continuance of commerce "and trade." Choses in action are not, however, within the exception, and must therefore be sued for in the name of the survivor only; but equity considers the surviving partner a trustee of the share of the deceased partner, to whose executors and administrators he must account for it.

CHAPTER XXIII.

OF TITLE TO THINGS PERSONAL BY OCCUPANCY.

Captures from enemy-Goods abandoned-Elements-Animals feræ naturæ—

Emblements-Accession-Confusion-Copyright-Patents-Ships.

We are next to consider the title to things personal, or the various means of acquiring, and of losing, such property as may be had therein. And these methods of acquisition or loss are principally twelve: 1. By occupancy. 2. By prerogative. 3. By forfeiture. 4. By custom. 5. By succession. 6. By marriage. 7. By judgment. 8. By gift or grant. 9. By contract. 10. By bankruptcy. 11. By testament. 12. By administration.

And, first, a property in chattels may be acquired by occupancy: the original and only primitive method of acquiring any property at all, but which has since been restrained and abridged, by the positive laws of society, in order to maintain peace and harmony among mankind. For this purpose, gifts, and contracts, testaments, legacies, and administrations, have been introduced, in order to transfer and continue that property and possession in things personal, which has once been acquired by the owner. And, where such things are found without any other owner, they for the most part belong to the sovereign by virtue of his prerogative; except in some few instances, wherein the original right of occupancy is still permitted to subsist.

1. Thus, in the first place, it has been said, that anybody may seize to his own use such goods as belong to an alien enemy. But this must, in reason and justice, be restrained to such captors as are authorized by the public authority of the state, and to such goods as are brought into this country by an alien enemy, after a declaration of war, without a safe-conduct or passport. For where a foreigner is resident in England, and afterwards a war breaks out between his country and ours, his goods are not liable to be seized. If an enemy take the goods of an Englishman, which are afterwards retaken by another subject of this kingdom, the former owner was considered to lose his property therein, and it was indefeasibly vested in the second taker, unless they were retaken the same day, and the owner before sunset put in his claim of property; which was agreeable to the law of nations, as understood in the time of Grotius, even with

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