A philologicall commentary, or, An illustration of the most obvious and useful words in the lavv with their distinctions and divers acceptations, as they are found as well in reports antient and modern as in records and memorials never printed : usefull for all young students of the law / by Edward Leigh ...

PROPERTY.

Property, if Plate be stollen, and sold openly in a Scriveners Shop, on the Market day, as every day is Market day in London, saving Sunday, this sale shall not change the property, but the party shall have restitution: for a Scriveners Shop is not a Market overt for Plate, for none will search there for such a thing, but if the sale had been o∣penly in a Gold-smiths Shop in London, so that every one which passed by the Shop might have seen it, this would have altered the property; But if the sale be in a Gold-smiths Shop, either be∣hind a hanging or cupboard, so that one passing by* 1.1 the Shop cannot see it, this shall not change the property, so if the sale be not in the Shop, but in a Warehouse, or other place of the House, this shall not change the property, for it is not in a Market overt, and none will search there for his Goods.

There can be no property of Birds, Fowls, Wild Beasts, in any person, unless they be* 1.2 tame, nevertheless, the Hawks, or Herons that build

in the ground of any person, be adjudged to be∣long to him that oweth the Ground.

Some things there are, the property whereof the Law cannot vest in any, and therefore it leaveth them to the occupant, that is, to him that can seise them as things which are by nature ferae naturae, as Beasts, Birds, or Fishes, being in their own liberty, and such things are no longer any mans, then when they are in his possession or custody, for when they have escaped and recovered their natu∣rall liberty, then they cease to be his. The nature of Bees is wild, and therefore when a swarme of* 1.3 them lighteth upon thy tree, they are no more thine before they be covered with thy Hive, then Hawks which have made their nests in some of thy trees, or Doves in thy Dove-house, for though the young birds be thine, whereof thou maist bring an Action of trespass, quare vi & armis pullas esperuiorum suorum in bosco nidificantium, or Columbas Colum∣baris sui caepit. Here he shall not use this word suos in his Writ, for that implyeth a contradicti∣on. The nature of Doves is wild, neither is it materiall that by custom they are wont avolare & revolare, to fly from home, and return home, and in such things which are tame, and by custom are wont to depart, and yet to return, this rule is al∣lowed, that so long they may be said to be thine, as they have animum revertendi.

Felony cannot be committed in taking of Beasts that be savage, and untamed at the time of taking, nor for taking of Doves being at large in the River, for such taking is not contr••ctatio rei alienae, sed quae est nullius in bonis. But when such things are made tame by any labour, and cost, the property of them is changed, and the nature altered, and then if a man take them out of my possession, a man may have an Action. It is felony to take young

Pigeons, or young Hawks out of their Nests be∣fore that they can fly, so to take Fishes kept in a Trunk. To take tame Deer is selony, i•• the taker* 1.4 know it to be tame. But the nature of Hennes and Geese is not savage, and therefore if they shall fly away, though they be past thine eye-sight, not∣withstanding in what place soever they be, they cease not to be thine, and whosoever detaineth them, is punishable by way of action.

There be three manner of rights of property.

• 1. Absolute, this property a man cannot have in any thing which is ferae naturae, but only in such things as are domitae naturae.
• 2. Qualified.
• 3. Possessory, these properties a man may have in things ferae naturae, and he may attain to them.

• 1. By industry, either by taking them only, and yet such things are his no longer, then they be in his possession or custedy, or by making them mansueta, id est, manui assueta, or domestica, id est, domui as∣sueta: But in these past, a man hath but a qualified property, so long as they remain tame, and so long felony may be committed by taking them away, but if they attain to their naturall liberty, and have not animum revertendi, then the property of them is lost.
• 2. Ratione imp••tentiae & loci, as where a man hath young Goshawks, Herons, or the like, which are ferae naturae, and do breed (or ayre) in his ground, he hath a Possessory property in them, so as if one take them when they cannot sly, the owner of the soyl may have an action of trespas, and to take these away is selony. But when a man hath Beasts, or Fowles that be savage, and in their wildness ratione privilegii Scil. by reason of a Parke, or Warrein, (as Deer, Hares,

• Conies,) Phesants, or Partridges, he hath no pro∣perty in them, therefore in an Action quare par∣cum,* 1.5 or Warrenam, regit & intravit & tresodamas, lepores, cuniculos, phasianos, perdices, &c. ib idem in∣venit, cepit, & asportavit, he shall not say suos, for that he hath no property in them, but they be∣long unto him, ratione privilegii, (for his gain and pleasure, so long as they remain in the place priviledged. And if the owner of the Park die, his Heir shall have them, and not his Execu∣tor, or Administrators, for that without them the Parke (which is an Inheritance) is not compleat, neither can Felony be committed by taking them.

If a man find an Hawk that was lost, and he do not sorthwith bring it to the Sheriff to be proclaimed, but do steal and carry it away, this is felony.

If a man make Cony-burrows in his own land, which increase to so great number, that they de∣stroy the Land of his neighbour next adjoyn∣ing, his neighbour cannot have an Action upon the Case against him, which makes the said Co∣ny-borrows, for now as the Conies come upon his Neighbours Land, he may kill them, for they are ferae naturae, and he which makes the Cony∣burrows hath no property in them, and he shall not be punished for the dammages which the Conies made, in which he hath no property, and which another may lawfully kill, and it was re∣solved in this case that none may erect a Dove∣coat,* 1.6 but the Lord of the Mannor, and if any do, that he may be punished in the Leet, but no Acti∣on of the Case lyeth by any particular man, for the infiniteness of the Actions which may be brought.

Notes

• * 1.1

  Cooks 5th Rep. case. of Market overt.
• * 1.2

  Dr. & Stu▪ c. 5.
• * 1.3

  Iustinian l. 1. Inst••t.
• * 1.4

  Stams. l. 1. c. 16.
• * 1.5

  Cook 7th Rep. case of Swans.
• * 1.6

  Cooks 9th R••p. P••ul. stons case.