waste.

waste (sine impetitione vasti), timber cut down by him out impeachin a husband-like manner will become his own property ment of when actually severed (2), but not before (a); for the words" without impeachment of waste" imply a release of all demands in respect of any waste which may be committed (b). If, however, the words should be merely without being impleaded for waste, the property in the trees when cut would still remain in the landlord, and the action only would be discharged, which he might otherwise have maintained against the tenant for the waste committed by the act of felling the timber (c).

Animals feræ naturæ, or wild animals, including game, Animals feræ are exceptions from the rules which relate to other move- naturæ. ables, on the ground that until they are caught there is no property in them (d). If therefore the owner of land in fee simple should die, the game on his land, or the fish in any river or pond upon the land, will not belong to his executor or administrator (e). And if a man should have a park or warren, he has no true property in the deer, conies, pheasants, or partridges; but they belong to him only "ratione privilegii for his game and pleasure so long as they remain in the privileged place" (f). But a property in wild animals may be obtained by reclaiming or catching them (propter industriam), or by reason of their being unable to get away (propter impotentiam) (g). Thus deer, even though in a legal park, may be so tame and re

(e) Co. Litt. 8 a; The case of Swans, 7 Rep. 17 b.

(f) 7 Rep. 17 b; Year-Book, 3 Hen. VI. 55 b, 56 a; F. N. B. 87 n. (a); R. v. Townley, L. R. 1 C. C. R. 315.

(g) 2 Black. Comm. 391, 394; Williams on Executors, p. 2, bk. 2, ch. 2, sect. 1, p. 618, 9th ed.

Hawks and hounds.

Right to kill and take game.

The Ground Game Act, 1880.

claimed as to pass to the executors of the owner of the park on his decease (h); so rabbits in a hutch, fish in a box, and young pigeons in a dove-house, unable to fly, will belong to the executor or administrator of the owner, and not to his heir. It appears to have been formerly thought that hawks and hounds were not subjects of personal property, but would descend with the lands to the heir; but this opinion is not now law. "For," observes the author of the Office of an Executor (i), "although they be for the most part but things of pleasure, that hindereth not but they may be valuable as well as instruments of music, both tending to delight and exhilarate the spirits; a cry of hounds hath to my sense more spirit and vivacity than any other music."

The occupier of land for the time has now the sole right of killing and taking the game upon the land, unless such right be reserved to the landlord or any other person (k). And under the Ground Game Act, 1880 (7), every occupier of land has, as incident to and inseparable from his occupation of the land, the right to kill and take hares and rabbits thereon, concurrently with any other person who may be entitled to kill and take such animals on the same land; but the right so conferred on the occupier is subject to the limitations specified in the Act (m). Where the landlord has

(h) Morgan v. The Earl of Abergavenny, 8 C. B. 768.

(i) Wentworth's Office of an Executor, 143, 14th ed. The author of this work is supposed to have been Mr. Justice Doddridge.

(k) Stat. 1 & 2 Will. IV. c. 32, see ss. 6-8. Game for the purposes of this Act includes hares, pheasants, partridges, grouse, heath or moor game, black game and bustards; s. 2. See as to poaching, stat. 25 & 26 Vict. c. 114; and as to wild birds, stats. 43 & 44 Vict. c. 35; 44 & 45

Vict. c. 51.

(7) Stat. 43 & 44 Vict. c. 47, s. 1.

(m) Where at the date of the passing of the Act the right to kill and take ground game on any land was vested by lease, contract of tenancy, or other contract bona fide made for valuable consideration, in some person other than the occupier, the occupier would not be entitled under the Act, until the determination of that contract, to kill and take ground game on such land; see s. 5.

manor.

reserved to himself the right of killing game, he may authorize any person or persons, who shall have obtained licences to kill game (n), to enter upon the land for the purpose of pursuing and killing game thereon (o). And Lord of a the lord of any manor or reputed manor has the right to pursue and kill the game upon the wastes or commons within the manor, and to authorize any other person or persons who shall have obtained licences to kill game to enter upon such wastes or commons for the same purpose (p).

When game or other wild animals were killed on any Property in land by any other person than the rightful owner (q), game. the law, with respect to the property in the game, was formerly as follows: If a man started any game within his own grounds and followed it into another's, and killed it there, the property remained in himself. And so if a stranger started game in one man's chase or free warren, and hunted it into another liberty, the property continued in the owner of the chase or warren; this property arising from privilege, and not being changed by the act of a mere stranger. Or if a man started game on another's private grounds, and killed it there, the property belonged to him on whose ground it was killed. Whereas, if after being started there, it was killed in the grounds of a third person, the property belonged not to the owner of the first ground, because the property was local; nor yet to the owner of the second, because it was not started in his soil; but it vested in the person who started and killed it, though guilty of a trespass against both the owners (?). And this appears to be still the law with respect to wild

(n) Stat. 23 & 24 Vict. c. 90. (0) Stat. 1 & 2 Will. IV. c. 32, s. 11.

(p) Sect. 10.

(9) See ante, p. 46.

(r) 2 Bl. Com. 419; Church

ward v. Studdy, 14 East, 249.
The last proposition is, however,
doubted by Lord Chelmsford in
Blades v. Higgs, 11 H. of L. Cas.
639.

auimals which are not game (s). But with respect to game (t) an alteration appears to have been made by the Game Act (u), which seems to vest the property in game killed on any land by strangers, in the person having the right to kill and take the game upon the land (x).

(s) See Blades v. Higgs, 12 C. B. N. S. 501; 13 C. B. N. S. 844; 11 Jur. N. S. 701; affirmed 11 H. of L. Cas. 621; The Queen v. Read, 3 Q. B. D. 131; 26 W. R.

283.

(t) See ante, p. 134, n. (k). (u) Stat. 1 & 2 Will. IV. c. 32. (x) Sect. 36; Rigg v. Earl of Lonsdale, 1 H. & N. 923.

PART II.

OF CHOSES IN ACTION.

CHAPTER I.

OF ACTIONS EX DELICTO.

IT has been observed (a) that things personal are said to be in possession or in action; and that the term choses in action was applied to things, to recover or realise which, if wrongfully withheld, an action must have been brought. Personal things in action are of course recoverable by personal actions; and these, as we have seen (b), were brought to enforce an obligation imposed on the defendant personally to make satisfaction to the plaintiff for a wrong or for a breach of contract. Now, by the common law of England, the satisfaction which a man is bound to make for such a violation of right is the payment of money as damages (c). Thus the right to bring a personal action Damages. is a thing valuable in money; and in this aspect it may be included in what is called property, using the term property in the wide sense of all the rights a man has, which are valuable in money (d). It is, however, worthy of remark that the benefit of an obligation, Obligation. being the right to some act or forbearance on the part of a particular person (e), is a right of a very different nature to the right of property or ownership, strictly so called, which is a right to some thing availing

(a) Ante, p. 27.

(b) Ante, p. 4.

(c) Co. Litt. 257 a; Com. Dig. tit. Damages; Bac. Abr. tit. Damages. See ante, pp. 4, 18.

ed.

(d) See Williams, R. P. 4, 17th

(e) Bract. fo. 99, 102 a; Britt. liv. i. ch. 29, § 2.