Chap. I. Game. Free Warren. ways, by industry, or ratione impotentiæ et loci; (1) by industry, as by taking them, or by making them mansueta, i.e., manui assueta, or domestica, i.e., domui assueta; but in those which are feræ naturæ, and by industry are made tame, a man hath but a qualified property in them, scil. so long as they remain tame, for if they do attain to their natural liberty, and have not animum revertendi, the property is lost; (2) ratione impotentia et loci: as if a man has young shovelers or goshawks, or the like, which are fera nature, and they build in my land, I have possessory property in them, for if one takes them when they cannot fly, the owner of the soil shall have an action of trespass, Quare boscum suum fregit, et tres pullos espervor' suor', or ardear' suar pretii tantum, nuper in eod' bosco nidificant', cepit, et asportav'; and therewith agreeth the Regist. and F. N. B. 86, L., and 89, K.; 10 Ed. 4, 14 ; 18 Ed. 4, 8; 14 H. 8, 1 b. ; Stamf. 25 b. &c.; vide 12 H. 8, 4, and 18 H. 8, 12." "But when a man hath savage beasts ratione privilegii, as by reason of a park, warren, &c., he hath not any property in the deer, or conies, or pheasants, or partridges, and therefore in an action, Quare parcum, warrennum, &c., fregit et intrav' et 3 damas, lepores, cuniculos, phasianos, perdices, cepit et asportavit, he shall not say suos, for he hath no property in them, but they do belong to him ratione privil', for his game and pleasure, so long as they remain in the privileged place." The word "Property," when applied to animals feræ naturæ, including game, while they continue in their wild state, means no more than the exclusive right to catch, kill, and appropriate such animals; and this right is said to exist either ratione soli or ratione privilegii. "Property ratione soli is the common law right, which every owner of land has, to kill and take all such animals feræ naturæ as may from time to time be found in his land; and, as soon as this right is exercised, the animal so killed or caught becomes the absolute property of the owner of the soil. Property ratione privilegii is the right which, by a peculiar franchise antiently granted by the Crown by virtue of its prerogative, one man may have of killing and taking animals feræ naturæ in the land of another; and, in like manner, the game when killed or Higgs, 11 H. L. C. 631. See also Han- The allusion appears to be to what was always limited to a right in respect of the demesne lands of the grantee himself and did not extend to the lands of other persons; A.-G. v. Parsons, 2 Cr. & J. 279, 302. But a man may alien the land and retain the privilege of warren (Sutton v. Moody, 1 Ld. Raym. 251), or he may alien the warren and retain the land, and thus one may have free warren in the land of another. See 2 Bl. 28; Dacre v. Tebb, 2 W. Bl. 1151; Carnarvon v. Villebois, 13 M. & W. 313; Com. Dig. Chase (D.); taken by virtue of this privilege, becomes the absolute property of the owner of the franchise.” The notion that the Lord of a Manor, as such, has any right of sporting over lands other than his own, is exploded. If a man starts game on his own land and pursues it into the lands of another, and there kills it, the property remains in himself.3 When game is taken or killed by a person without authority from the person entitled to do so, the rules at common law are the following:-4 (1.) If A. starts game on the lands of B., and takes and kills it there, it belongs to B. (2.) If A. starts game on the lands of B., and takes and kills it on the lands of C., it belongs to A. (although he is a wrongdoer). (3.) If A. starts game in a forest or warren belonging to B., and kills it on the lands of C., it belongs to B. Of these rules, (1) and (2) appear to apply to all animals fere nature at the present day. Mr. J. Williams doubts whether the second rule has not been altered by 1 & 2 Will. 4, c. 32, s. 36. At the present day, the occupier of land has, subject to any rights reserved by contract, and to the rights of the owner of a forest or warren, the right to take and kill game. By the Ground Game Act, 1880,7 the right to take and kill ground game (i.e., hares and rabbits) is vested in the occupier of the land, as incident to and inseparable from his occupation, concurrently with any other person entitled so to do. Y. B. 3 Hen. 6, 13 B., pl. 15; Wil- Chap. I. Game killed without authority. Chap. I. Movables and immovables, Succession to movables on death. By the Wild Birds Protection Acts, 1880 to 1902,1 a close time is provided, during which it is unlawful to kill or take any wild bird. Property can also be divided into immovable and movable things; immovable things consist of real property and chattels real; movable things consist of personal property exclusive of chattels real, and include choses in action.2 The succession to movable property (i.e., to personal property excluding leaseholds for years) on the death of the owner is, in general, regulated by the law of the country in which he is domiciled at the date of his death, not by the law of the country in which the property is situated; this is expressed by the maxim— "mobilia sequuntur personam."4 3 For instance, if a man dies domiciled in France, leaving movable property situated in England, the rights of the persons who become entitled to it on his death are determined by the law of France, not by that of England. It must not, however, be supposed that the law of France is of any authority in England; all that we mean is that it is part of the law of England that in this case the rights of the parties shall be determined by the rules of French law.5 Leaseholds for years are, as a matter of fact, immovable, and the maxim mobilia sequuntur personam does not apply to them. If they are situated in England, English law is applicable to them, and, on the death of the owner, the rights of all parties are determined by that law, not by the law of his domicil." The student may have some difficulty in seeing how it is that the devolution of a chose in action on the death of its owner is 143 & 44 Vict. c. 35; 44 & 45 Vict. 2 See this discussed M. L. R. P. 6. 4 Whicker v. Hume, 7 H. L. C. 124 ; as situated in the country where its owner is domiciled, and therefore subject to the laws of such country;" Dicey, Domicil, 167. But the effect of an individual assignment of movables is mainly governed by the law of the country where the thing is situated (lex situs); ibid. 157, 255; or where the transfer is made; Alcock v. Smith, [1892] 1 Ch. 238. See this discussed in an Article by Professor Dicey, 6 Law Quarterly, 1. 6 Freke v. Carbery, 16 Eq. 461; Duncan v. Lawson, 41 Ch. D. 394; Pepin v. Bruyere, [1902] 1 Ch. 24. See M. L. R. P. 17. determined by the law of his domicil. He may object that it can only be recovered by an action against the debtor, and that therefore the law of the place where that action has to be brought, presumably the place where the debtor is domiciled, ought to prevail. No doubt that is the law which regulates the remedy for recovery of the chose in action; but the question how the thing is to be recovered is different from the question what is to be done with it when recovered; and it is the latter question which has to be determined by the law of the domicil of the deceased creditor. Chap. I. in chattels Personal property, i.e., movable property and chattels real, upon the death of the owner domiciled in England, in the absence of testamentary or other disposition, devolves upon an administrator appointed by the Court, and, after providing for the payment of the debts of the deceased, is distributed among his next of kin according to the Statute of Distributions.1 Movable property, that is, personal property (excluding chattels No "estate" real), is not the subject of tenure, but of absolute ownership, and, therefore, cannot be held for an "estate." Although, in assigning an absolute interest in personal property, it is usual to assign it to A., "his executors, administrators, and assigns" (as an estate in land in fee simple is limited to a man, "his heirs and assigns"), a conveyance to A. simply, without adding "his executors, administrators and assigns," is equally effectual. If it is desired Settlements of personal to give only a limited interest, or to create interests in succession in personal property, the interposition of trustees is necessary, and the whole legal interest is vested in them, the beneficial interests being defined by a declaration of the trusts upon which they are to hold the property. For instance, supposing a man about to marry desires to settle a sum of stock for the benefit of his wife and the issue of the marriage, he transfers it into the names of trustees, and by the settlement declares that it shall be held by them on certain trusts, as for example, on trust to pay the income to his wife during the joint lives of himself and his wife, then to the survivor for life, and after the death of the survivor, on trust for the issue of the marriage on attaining majority, equally, or as the parents may appoint, with powers of maintenance, education, 122 & 23 Car. 2, c. 10. See post, Chap. XX. 2 See M. L. R. P. 30. The phrase personal "estate" is sometimes used to property. Chap. I. Executory bequests Perpetuity. and advancement in the meantime. But, in the case of disposition by will, the gift may be made directly to the successive takers, who, therefore, seem to take interests analogous to successive estates in land; but there can be no remainder in a chattel, real or personal; and in such cases the legal view is that the whole property vests in the first taker and shifts on the determination of his interest to the person next entitled. Such dispositions are often called executory bequests; and the Court will interpose for the protection of the successive interests, and thus preserve the property during the subsistence of the limited interests for the benefit of the person entitled to the absolute interest.1 The nature of the property may prevent the possibility of the creation of future interests; thus, under a specific gift of articles quæ ipso usu consumuntur, they vest absolutely in the tenant for life or first taker, unless personal use by the tenant for life is not contemplated, or unless they form part of a stock in trade; and even then the interest will be held to be absolute if the taker is not to be liable to account for any diminution or depreciation in the stock. A limited interest of the nature of an estate tail cannot be created in personalty; an attempt to do so gives the absolute interest to that person who, if the subject-matter were realty, would be the first tenant in tail. "For," says Blackstone, "this, if allowed, would tend to a perpetuity, as the devisee or grantee in tail of a chattel has no method of barring the entail; and therefore the law vests in him at once the entire dominion of the goods." Probably the true reason is that personal property is not a tenement within the meaning of the Statute De Donis.5 The rule against perpetuities, that is, against deferring the vesting of an absolute interest in property beyond a limited period, applies equally to real and to personal property; and therefore personal property may not, any more than real property, be so disposed of as to render the corpus inalienable for a longer period than a life, or a number of lives, in being at the time of the disposition, and twenty-one years afterwards, with a further period of gestation where gestation in fact exists. As in the 1 Jarman on Wills, i. 838. 2 Ib.; and Theobald on Wills Ch. 34, s. 1. 3 Breton v. Mockett 9 Ch. D. 95. 4 2 Bl. 398. 5 See M. L. R. P. 65. 6 See M. L. R. P. 102, 286. Bowles, [1902] 2 Ch. 650. Re |