1. RIGHTS ΤΟ CHAP. III. the case of maliciously setting fire to or damaging a ship, whether the same be complete or in an unfinished state. (ƒ) In criPERSONALTY. minal proceedings more strictness is required in the description of the chattel. It is said that if an animal be dead, it must be so described in the indictment. (g) But if the animal have the same appellation, whether it be alive or dead, and it make no difference as to the charge or in the punishment, whether it were alive or dead, it may be called when dead by the appellation applicable to it when alive. (h) But if the charge or punishment would be varied, then, if dead, the animal should be so described; and describing it generally would mean that it was alive. (¿) If a defendant were indicted for stealing a sheep, and it should appear in evidence to have been a lamb, the prisoner must be acquitted; so if a cow were described as a heifer; (k) and mixed corn must be described accordingly, and not as one bushel of one and one of another. (1) 1. Tangible Per in possession. There cannot be strictly an appendant or appurtenant to a personal chattel, whether in possession or action, for it is only fixed and permanent property that can have such an incident ;(m) but nevertheless there are instances in which certain things, besides those particularly enumerated in a deed or writing, and even in pleading, will pass and be included under that term; as in the case of the sale of a ship certain things besides masts and rigging, which, though moveables, are yet usually affixed, but also even boats, and a new rudder, and cordage, purchased for the ship, though not affixed, will pass. (n) But "farming utensils" will not pass as appurtenances in a bequest of a leasehold farm. (0) 1. Tangible personalty in possession includes not only things sonal Property actually separated and moveable, whether animate or inanimate, but also some things which, though annexed to or proceeding out of real property, are considered by law, for some purposes and under some circumstances, removeable, and consequently to be treated as personalty; such are what are termed tenant's fixtures, removeable during his term, and growing trees, when sold, though not actually severed, and emblements, whether (f) 7 & 8 Geo. 4, c. 30, s. 9 & 10. (h) Rex v. Puckering, R. & M. C. C. 242. (i) R. & R. C. C. 497; R. & M. C. C. 110; 1 Car. & P. 128; 2 East's P. C. 607,777. (k) 4 Bla. C. 240, in notes; 2 Hale, 182; R. & M. C. C. 160; 4 Car. & P. 216; 2 East's P. C. 616; but see 3 M. & S. 552. (1) 3 Chit. Crim. L. 947, a. MS.; Rex v. Kettle, per Bayley, J. at Chelmsford, 11th March, 1819. (m) 1 Co. Lit. by Thomas, 207. (n) 5 Bar.& Ald. 918; Morgan's Prec. Trover for a Ship. (0) 11 Ves. 657. I. RIGHTS ΤΟ growing corn, roots, or cultivated grass, and growing vegeta- CHAP. II. bles; such as the executor of a tenant for life or pur auter vie, or at will, or holding under any other tenure, uncertain in dura- PERSONALTY. tion, may be entitled to remove after the expiration of his in terest. (p) Birds, and Fish. 1. With respect to animals, they are distinguished into such 1. Animals, as are domita, and such as are feræ naturæ. It is laid down that 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 thing, 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; (q) and that the stealing or forcible abduction of such property as this is also felony, for these are things of intrinsic value, serving either for the food of man, or else for the uses of husbandry. (r) But in animals feræ naturæ, a man can have no absolute property. (s) In order however to obtain a more precise knowledge how the law regards the property in animals and birds, it will be found frequently necessary to refer to the criminal law, and in particular to the laws against larceny and malicious injuries to property, (t) which in general contain regulations relating to animals, when the law recognizes them to be of any value, or that they are the subject of property, from the highest and most valuable, viz. horses, mares, geldings, colts, filleys, bulls, cows, oxen, heifers and calves, rams, ewes, sheep and lambs, (u) down to the most inferior animals and birds, provided the latter be usually kept in a state of confinement. With respect to the latter of these animals, unless when taken out of the actual possession, no valuable interest whatever is by law allowed to exist. To steal the former is a capital offence, and at common law it was also larceny to steal not only them, but also their produce, as milk, or wool. It is also larceny at common law to steal an ass, a mule, swine, goats; or any kind of poultry, whether fowls, ducks, geese, turkeys, peacocks, guinea-fowls and their chickens, and eggs, and young pigeons in the house and unable to fly, and all dead eatable animals, and fish when in a trunk or net, or pheasants or other game in a mew, and a swarm of bees whilst in the hive, or upon the tree or land of a particular individual, and not quickly pursued by the party from (p) 1 Co. Lit. by Thomas, 207. (q) 2 Bla. Com. 390, cites 2 Mod. 319. (t) 7 & 8 Geo. 4, c. 29, 30; and Burn's J.Larceny," and "Malicious Injuries," " Cattle," "Horses." (u) 7 & 8 Geo. 4, c. 29, s. 25. CHAP. III. ΤΟ whose hive they had proceeded. And it may be taken as a general rule, with respect to such description of personal proPERSONALTY. perty, that a civil action might be supported for taking the same out of, or injuring the same whilst in the actual possession of the qualified owner. But with regard to wild animals or fish when alive in a state of nature, or at large either on land or in water, and not recently escaped from the usual place of confinement, there is not at common law any such property as would enable any supposed owner to indict a party for larceny in taking the same; and an indictment for stealing a pheasant value 40s. of the goods and chattels of R. S. was held insufficient, for in cases of larceny of animals feræ naturæ, the indictment must show that they were either dead, tamed, or confined, for otherwise it will be presumed they were alive and in their original wild state of nature, and that it is not sufficient to add, of the goods and chattels of such a one, (x) though an action of trespass might be supported for taking game when dead, or when upon the land or out of the actual possession of a particular person, when he is considered the qualified owner; and modern acts expressly provide pecuniary penalties for taking game or fish under such circumstances. (y) Trespass in general lies for taking any animal or bird whatever out of the actual possession of a person who has secured the same; but no action lies for enticing from the premises of the owner and afterwards killing or injuring a cat, which is not considered of any value in law, or any naturally wild animal. And no indictment lies for stealing a dog, cat, bear, fox, monkey, or ferret, although taken out of the possession of the owner; (2) though whilst in actual possession, even a ferret and other animals, however inferior, would pass as part of the personal estate to the executors. (a) As this absence of criminal punishment in many cases of animals (the possession of which, for purposes of sport or pleasure, become in a degree valuable to mankind,) was found to encou (a) Rex v. Rough, 2 East's P. C. 607. c. 32. (z) 2 East's P. C. 614; Rex v. Searing, Russ. & Ry. C. C. 350; Burn's J. Larceny. Indictment for stealing "five live tume ferrets, confined in a certain hutch," of the price of 15s. the property of Daniel Flower. The jury found the prisoner guilty, but on the authority of 2 East's P. C. 614, where it is said that ferrets, amongst other things, are considered of so base a nature, that no larceny can be committed of them, the learned judge respited the judgment until the opinion of the judges could be taken thereon. In E. T. 1818, the judges met and considered the case: they were of opinion that ferrets, though tame and saleable, could not be the subject of larceny, and that judgment ought to be arrested. A summary jurisdiction is now given to justices of the peace by 7 & 8 G. 4, c. 29, sect. 31. And tamed or confined ferrets would also pass to an executor as part of the personal estate of the owner. Toller, Executors, 2 ed. 148. (a) Toller, Executors, 2 ed. 148; Off. Exc. 58; 3 Bac. Ab. 57; 2 Bla. Com. 393. I. RIGHTS ΤΟ rage small injuries in the nature of larceny, it has been recently CHAP. III. provided, that to steal any dog, or any beast or bird ordinarily kept in a state of confinement, and not constituting the offence PERSONALTY. of larceny at common law, may be punished by summary proceeding before a magistrate with a conviction in 207. penalty, and the punishment is to be increased on repetition of such an offence. (b) And the killing or taking away pigeons or housedores when at large and under circumstances not amounting to a felonious taking at common law, subjects the offender to the penalty of two pounds; (c) and the taking fish is by the same act especially prohibited under certain penalties. (d) The taking deer, (e) and hares and conies in warrens or places used for breeding or keeping the same, (f) also is prohibited and punishable under the same act. With respect to game in general, full provisions are enacted by a still more recent act. (g) Decoys (being a preserve for wild fowl) are merely protected at common law; and if they, by long permission of, or without interruption from the owners of adjacent property, become established, such owners may so far become restrained in the free enjoyment of their own adjacent land, that they could not legally, at least after twenty years' quiescent enjoyment, fire off a gun so near the same as to frighten away the fowl, and would be liable to an action for so doing; (h) but the recent acts against larceny and malicious injuries, and for the protection of game, do not contain any enactments for the protection of decoys or wild fowl, though there are enactments relating to snipes and the eggs of wild fowl. The law recognizes no property whatever in rooks, and therefore no action lies for maliciously firing off guns so near to a rookery as to frighten the birds and deter them from breeding in the plaintiff's trees. (2) 2. With respect to inanimate tangible property, either actually 2. Inanimate moveable or capable of being removed or separated without moveable personal property; great injury to the realty, they are generally known by the and what are appropriate technical terms "goods and chattels," and which "goods and include for some purposes, money, valuable securities, and other mere personal effects. (k) But there are other expres and Willes's Rep. (f) 7 & 8 Geo. 4, c. 29, s. 50; and see (h) 11 East, 574; 2 Bar. & C. 934. chattels." I. RIGHTS ΤΟ CHAP. III. sions which have from time to time been used, especially in wills and in acts of parliament, which have received particular PERSONALTY. Construction. The term "goods and chattels" include not only personal property in possession, but also choses in action, presently enumerated. (7) The term "chattel" is more comprehensive than that of "goods," and will include all animate as well as inanimate property, and will also include a chattel real, as a lease for years of house or land, which, though issuing out of land, is not, as we have seen, considered to be real property, and does not descend to the heir, but passes like other personalty to the executor of the owner, (m) and as personalty, not real property, under the insolvent acts. (n) So trees sold or reserved upon a sale,(o) and emblements, (p) pass under the term "chattel." The term "goods" will not, in a deed or contract, in general, include "fixtures," but the word "effects" would embrace them, (q) and even invalid Exchequer bills are effects within the meaning of 15 Geo. 2, c. 13;(r) and the words "effects both real and personal," in a will, would even pass freehold estates, and all chattels whether real or personal. (s) The term "property" has received various constructions; it has been held, that a bequest of "all the testator's property" in a particular house, will not pass a bill of exchange, mortgage bond and banker's receipt, though cash and bank notes would have passed, they being quasi cash, because bills and bonds are considered as mere evidence of title to things then out of the house, and not actual things or property in it; (t) nor can a bank note or bill of exchange, or deed, or security, or other chose in action, be taken in execution or as a distress for rent, though in general all visible goods and chattels may be taken. (u) However, bills of exchange are "goods and chattels" within the Bankrupt Act, so that the fraudulent delivery of them in preference to a particular creditor has been holden to constitute an act of bankruptcy.(x) With respect to the meaning and effect of the words "goods and chattels" and other expressions in a will, it has been held, that the word "goods," and equally the word "chattels," used simply and without qualification, will pass the whole personal estate, including even stock in the funds; but whether stock will or will not pass under the word "monies," or under the (1) 12 Coke, 1; 1 Atk. 182. (m) Co. Lit. 118. (n) 3 Russ. R. 376. Leaseholds, however, as relating to land, will be considered in the next chapter. (0) Toller, Ex. 2d ed. 194, 195; Hob. 173; 11 Coke, 50; Com. Dig. Biens. H.; 2 Saund. Index. Trees. (p) Com. Dig. Biens, A. 2. post 90, 2. (q) 7 Taunt. 188; 4 J. B. Moore, 73; 4 B. & Ald. 206. (r) 1 New Rep. 1. (s) 3 Bro. P. C. 388. (t) 1 Sch. & Lef. 318; 11 Ves. 662. |