d

interest. For since, as the commentator on the coustumier observes, there are two requisites to make a fief or heritage, duration as to time, and immobility with regard to place; whatever wants either of these qualities is not, according to the Normans, an heritage or fief; or according to us, is not a real estate: the consequence of which in both laws is, that it must be a personal estate, or chattel.

CHATTELS therefore are distributed by the law into two kinds; chattels real, and chattels personale.

1. CHATTELS real, saith sir Edward Coke', are such as concern, or savour of, the realty; as terms for years of land, wardships in chivalry, (while the military tenures subsisted,) the next presentation to a church, estates by a statute-merchant, statute-staple, elegit, or the like; of all which we have already spoken. And these are called real chattels, as being interests issuing out of, or annexed to, real estates; of which they have one quality, viz. immobility, which denominates them real; but want the other, viz. a sufficient, legal, indeterminate duration; and this want it is, that constitutes them chattels. The utmost period for which they can last is fixed and determinate, either for such a space of time certain, or till such a particular sum of money be raised out of such a particular income; so that they are not equal in the eye of the law to the lowest estate of freehold, a lease for another's life their tenants were considered upon feodal principles, as merely bailiffs or farmers; and the tenant of the freehold might at any time have destroyed their interest, till the reign of Henry VIII. * A freehold, which alone is a real estate, and seems (as has been said) to answer to the fief in Normandy, is conveyed by corporal investiture and livery of [387] seisin; which gives the tenant so strong a hold of the land, that it never after can be wrested from him during his life,

:

Il conviendroit qu'il fust non mouvable et de duree a tousiours, fol. 107.a.

So too in the Norman law, Cateux sont meubles et immeubles; si comme vrais meubles sont qui transporter se peuvent, et ensuivir le corps; immeubles sont choses

qui ne peuvent ensuivir le corps, ni estre transportees, et tout ce qui n'est point en heritage. LL. Will. Nothi, c. 4. apud Dufresne, II. 409.

f 1 Inst. 118.

See page 142.

but by his own act, of voluntary transfer or of forfeiture; or
else by the happening of some future contingency as in estates
pur auter vie, and the determinable freeholds mentioned in a
former chapter. And even these, being of an uncertain du-
ration, may by possibility last for the owner's life; for the law
will not presuppose the contingency to happen before it
actually does, and till then the estate is to all intents and
purposes a life-estate, and therefore a freehold interest. On
the other hand, a chattel interest in lands, which the Normans
put in opposition to fief, and we to freehold, is conveyed by
no seisin or corporal investiture, but the possession is gained
by the mere entry of the tenant himself; and it will certainly
expire at a time prefixed and determined, if not sooner. Thus
a lease for years must necessarily fail at the end and completion
of the term; the next presentation to a church is satisfied
and gone the instant it comes into possession, that is, by the
first avoidance and presentation to the living; the conditional
estates by statutes and elegit are determined as soon as the
debt is paid; and so guardianships in chivalry expired of
course the moment that the heir came of age. And if there
be
any other chattel real, it will be found to correspond with
the rest in this essential quality, that it's duration is limited to
a time certain, beyond which it cannot subsist.

2. CHATTELS personal are, properly and strictly speaking, things moveable; which may be annexed to or attendant on the person of the owner, and carried about with him from one part of the world to another. Such are animals, household stuff, money, jewels, corn, garments, and every thing else that can properly be put in motion, and transferred from place to place. And of this kind of chattels it is, that we are principally to speak in the remainder of this book; having been unavoidably led to consider the nature of chattels real, and their incidents, in the former chapters, which were employed upon real estates: that kind of property being of [ 388] a mongrel amphibious nature, originally endowed with one only of the characteristics of each species of things: the immobility of things real, and the precarious duration of things personal.

n Page 120.

CHATTEL interests being thus distinguished and distributed, it will be proper to consider, first, the nature of that property, or dominion, to which they are liable; which must be principally, nay solely, referred to personal chattels: and, secondly, the title to that property, or how it may be lost and acquired. Of each of these in it's order.

CHAPTER THE TWENTY-FIFTH.

OF PROPERTY IN THINGS PERSONAL.

PROPERTY in chattels personal may be either in pos

:

session which is where a man hath not only the right to enjoy, but hath the actual enjoyment of, the thing or else it is in action; where a man hath only a bare right, without any occupation or enjoyment. And of these the former, or property in possession, is divided into sorts, an absolute and a qualified property.

I. FIRST, then, of property in possession absolute; which is where a man hath, solely and exclusively, the right, and also the occupation, of any moveable chattels; so that they cannot be transferred from him, or cease to be his, without his own act or default. Such may be all inanimate things, as goods, plate, money, jewels, implements of war, garments, and the like such also may be all 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; none of which can be moved out of the owner'spossession without his own act or consent, or at least without doing him an injury, which it is the business of the law to prevent or remedy. Of these therefore there remains little to be said.

BUT with regard to 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 [390 ] another, 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 domitae, and such as are ferae naturae: 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 a: in which our law agrees with the laws of France and Holland". The stealing, or forcible abduction, of such property as this, is also felony; for these are things of intrinsic value, serving for the food of man; or else for the uses of husbandry ©. But in animals ferae naturae a man can have no absolute property.

Of all tame and domestic animals, the brood belongs to the owner of the dam or mother; the English law agreeing with the civil, that "partus sequitur ventrem" in the brute creation, though for the most part in the human species it disallows that maxim. And therefore in the laws of England d, as well as Rome e, "si equam meam equus tuus praegnantem fecerit, ❝ non est tuum sed meum quod natum est." And, for this Puffendorf' gives a sensible reason: not only because the male is frequently unknown; but also because the dam, during the time of her pregnancy, is almost useless to the proprietor, and must be maintained with greater expence and care: wherefore as her owner is the loser by her pregnancy, he ought to be the gainer by her brood. An exception to this rule is in the case of young cygnets; which belong equally to the owner of the cock and hen, and shall be divided between them. But [391] here the reasons of the general rule cease, and “cessante "ratione cessat et ipsa lex:" for the male is well-known, by his constant association with the female; and for the same reason the owner of the one doth not suffer more disadvantage, during the time of pregnancy and nurture, than the owner of the other.

2 Mod. 319.

Vin. in. Inst. 1.2. tit. 1. § 15.

1 Hal. P. C. 511, 512.

Bro. Abr. tit. propertie, 29.

Ff. 6. I. 5.
fde. j. n.& g. 1. 4. c. 7.

7 Rep. 17.