347 The civil law was much more natural, and much less complicated in the discrimination of things, than the common law. It divided them into the obvious and universal distinction of things moveable and immoveable or things tangible and intangible. The moveable goods of the civil law were, strictly speaking, the chattels personal of the common law. Whatever was fixed to the freehold perpetui usus causa was justly deemed a part of the res immobiles of the civil law.a

II. Property in chattels personal is either absolute or qualified.

Absolute property denotes a full and complete title and dominion over it; but qualified property in chattels is an exception to the general right, and means a temporary or special interest, liable to be totally divested on the happening of some particular event.

A qualified property in chattels may subsist by reason of the nature of the thing or chattel possessed. The elements of air, light and water, are the subjects of qualified property by occupancy; and Justinian, in his Insti

made by him on the farm, provided he takes it away before he removes Smithwick v. Ellison, 2 Iredell's Rep. 326.

In the case of Walker v. Sherman, 20 Wendell, 636, Mr. Justice Cowen gave an elaborate examination of the English and American authorities on the subject of fixtures, and the decision in the case was, that machinery in a woollen factory, being moveable, and not in any manner affixed or fastened to the building or land, and yet material to the performance of the factory in certain departments of its work, was personal property, as between tenants in common, and owners of the fee. The question was decided on the same principle as if it had arisen between grantor and gran. tee. The learned judge considered that the ancient distinction between actual annexation and total disconnexion, was the most certain and practical, and he collected from the cases, as far as their subtlety and inconsistency would admit of any general conclusion, that nothing of a nature personal in itself, would pass as a fixture, unless it be in some way habitually or permanently attached or fixed to the freehold. There are likewise constructive fixtures which, in ordinary understanding, make part and parcel of the land or building. Such are rails on a fence, stones in a wall fence, and Venetian blinds, and locks and keys to a house, &c.

tutes, a says, they are common by the law of nature. *348 He who first places *himself in the advantageous enjoyment of a competent portion of either of them, cannot lawfully be deprived of that enjoyment; and whoever attempts to do it, creates a nuisance for which he is responsible.b Animals feræ naturæ, so long as they are reclaimed by the art and power of man, are also the subject of a qualified property; but when they are abandoned, or escape, and return to their natural liberty and ferocity, without the animus revertendi, the property in them ceases. While this qualified property continues, it is as much under the protection of law as any other property, and every invasion of it is redressed in the same manner.c The difficulty in ascertaining with precision the application of the law, arises from the want of some certain determinate standard or rule, by which to determine when an animal is feræ vel domitæ naturæ. If an animal belongs to the class of tame animals, as, for instance, to the class of horses, sheep, or cattle, he is then clearly a subject of absolute property; but if he belongs to the class of animals which are wild by nature, and owe all their temporary docility to the discipline of man, such as deer, fish, and several kind of fowl,d then the animal is a subject of qualified property, and which continues so long only as the tameness and dominion remain. It is a theory of some naturalists, that all animals were originally wild, and that such as are domestic, owe all their docility, and all their degeneracy to the hand of man. This seems to have been the opinion of Count Buffon; and he says that the dog, the sheep and the camel, have degenerated from the strength, spirit and beauty of their natural state, and that one principal cause of their degeneracy was the perni

a Inst. 2. 1. 1.

Aldred's case, 9. Co. 58. b.

< 7 Co. 16-18. Finch's Law, 176.

a Doves are held to be animals feræ naturæ. Commonwealth v. Chace, 9 Pick. Rep. 15.

*349

cious influence of human power.a Grotius, on the other hand, has suggested, that savage animals owe all their untamed ferocity, not to their own natures, but to the violence *of man. But the common law has wisely avoided all perplexing questions and refinements of this kind, and has adopted the test laid down by Puffendorf, by referring the question, whether the animal be wild or tame, to our knowledge of his habits, derived from fact and experience. It was held by the supreme court of New-York, in Pierson v. Post,d that pursuit alone gave no property in animals feræ naturæ. Almost all the jurists on general jurisprudence agree, that the animal must have been brought within the power of the pursuer, before the property in the animal vests. Actual taking may not in all cases be requisite ; but all agree, that mere pursuit, without bringing the animal within the power of the party, is not sufficient. The pos session must be so far established, by the aid of nets, snares, or other means, that the animal cannot escape. It was accordingly held, in the case just mentioned, that an action would not lie against a person for killing and taking a fox which had been pursued by another, and was then actually in the view of the person who had originally found, started and chased it. The mere pursuit, and being within view of the animal, did not create a property, because no possession had been acquired; and the same doctrine was afterwards declared in the case of Buster v. Newkirk.e

Buffon's Natural History, vol. vii. Smellie's ed.

b Grotius, Hist. de Belg. lib. 5, cited in Puff. Droit de la Nat. 1. 4. ch. 6. sec. 5.

c Liv. 4. ch. 6. sec. 5.

a 3 Caines' Rep. 175.

• 20 Johns. Rep. 75. The legislature of New York have enlarged the right of acquisition of game by pursuit, in the case of deer in the countie of Suffolk and Queens, by declaring, that any person who starts and pur sues such game, shall be deemed in possession of the same, so long as he

The civil law contained the same principle as that which the supreme court adopted. It was a question in the Roman law, whether a wild beast belonged to him who had wounded it so that it might easily be taken. The civilians differed on the question; but Justinian adopted the opinion, that the property in the wounded wild beast did not attach until the beast was actually taken. So, if a swarm of bees had flown from the hive of A., they were reputed his so long as the swarm *350 remained in sight, and might easily be *pursued ; otherwise they became the property of the first occupant. Merely finding a tree on the land of another, containing a swarm of bees, and marking it, does not vest the property of the bees in the finder. Bees which swarm upon a tree do not become private property until actually hived.d

A qualified property in chattels may also subsist, when goods are bailed, or pledged, or distrained. In those cases, the right of property and the possession are separated; and the owner has only a property of a temporary or qualified nature, which is to continue until the trust be performed, or the goods redeemed; and he is entitled to protect this property, while it continues, by action, in like manner as if he was absolute owner.e

III. Personal property may be held by two or more persons in joint tenancy, or in common; and, in the former case, the same principle of survivorship applies

continues in fresh pursuit thereof. Laws of N. Y. April 1. 18414, ch. 109. N. Y. R. S. 3d edit. vol. 1. 883.

Inst. 2. 1. 13. Dig. 41. 1. 5. 2.

b Inst. 2. 1. 14.

• Gillet v. Mason, 7 Johns. Rep. 16.

a Inst. 2. 1. 14. Wallis v. Mease, 3 Binney's Rep. 546. Bees which take up their abode in a tree, belong to the owner of the soil, if unreclaimed, but if reclaimed and identified, they belong to their former possessor. Goff v. Kilts, 15 Wendell, 550.

* Vide infra, p. 568. 585.

which exists in the case of a joint tenancy in lands.a But by reason of this very effect of survivorship, joint tenancy in chattels is very much restricted. It does not apply to stock used in any joint undertaking, either in trade or agriculture; for the forbidding doctrine of survivorship would tend to damp the spirit and enterprise requisite to conduct the business with success. When one joint partner in trade or in agriculture dies, his interest or share in the concern does not survive, but goes to his personal representatives.b Subject to these exceptions, a gift, or grant of a chattel interest, to two or more persons, creates a joint tenancy; and a joint tenant, it is said may lawfully dispose of the whole property. In legacies of "chattels, the courts, at one *351

a Co. Litt. 182. a.

b Co. Litt. 182. a. Nay's Rep. 55. Jeffereys v. Small, 1 Vern. Rep. 217. Elliott v. Brown, cited in Rathby's note to 1 Vern. Rep. 217.

Best, J., in Barton v. Williams, 5 Barnw. & Ald. 395. If this dictum be not confined to joint tenancy in merchandize, where it undoubtedly applies, it must, at least, be restricted to chattel interests. A sale in market overt of a chattel by one joint tenant, changes the property at once as against the other joint tenant. A joint tenant of an estate can only convey his part; and if he should levy a fine of the whole estate, or convey it by bargain and sale, it would only reach his interest, and amount to a severance of the joint tenancy. Co. Litt. 186. a. Com. Dig. tit. Estates, K. 6. Ford v. Lord Grey, 6 Mod. Rep. 44. 1 Salk. Rep. 286. 2 Ohio Rep. 112. See also, infra, vol. iv. p. 359, 360, note. If one tenant in common of a chattel, sells the share of his co-tenant, as well as his own, he is answerable in trover. Wilson v. Reed, 3 Johns. Rep. 175. Hyde v. Stone, 7 Wendell, 354. White v. Osborn, 21 Ibid. 72. It is a conversion as to the share of the other. Parke B. 1 M. & Welsby, 685. But one tenant in common of a chattel, cannot bring trover against his co-tenant for dispossessing him, for each has an equal right to the possession ; though for the loss or destruction, or sale of the whole chattel, by one of the co-tenants, an action of trover will lie against him by the other. Litt. sec. 323. Co. Litt. 200. a. Wilson v. Reed, ub sup. Fennings v. Grenville, 1 Taunton, 241. Barton v. Williams, 5 Barnw. & Ald. 395. Farr v. Smith, 9 Wendell, 338. Lucas v. Wasson, 3 Dev. Rep. 398. Cole v. Ferry, 2 Dev. & Battle, 252. Herrin v. Eaton, 13 Maine Rep. 192. Mersereau v. Norton, 15 Johns. Rep. 179. In Waddell v. Cook, 2 Hill's Rep. 47, it was held, that trover (but not trespass) would lie by one co-tenant