Page:Halsbury Laws of England v1 1907.pdf/588

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Animals.

366 Sect.

loci, (2) ratione soli and ratione privilegii, or (3) per industriam, which may be more properly described as an exclusive right to reduce them into possession (h).

impotentice et

1.

Civil Rights,

A qualified property in living animals feo^ce naturce obtained industriam, arises by taking, taming or reclaiming them (^). P^'^^ Animals ferce naturce become the property of any person who takes, tames or reclaims them, until they regain their natural liberty (k). Animals such as deer, swans, peacocks and doves are the subjects of this qualified property, which is lost if they attain their natural liberty, and have not the animus revertendi (l). Thus trespass or trover will lie for taking a captive thrush, singing bird, muskrat, parrot or ape, because, although they are ferce naturce, they have been held to be merchandise and valuable when in a state of captivity (m). Also for taking doves out of a dovehouse (n), hares, pheasants or partridges in a warren or inclosure (o), deer in a park (p), a hawk if tame (q), fish in a stew pond (7*), rabbits in a warren (s), swans marked or in private waters (t), or bees from a hive. Bees are fercB naturce, and there is no property in them except by Thus, if a swarm settle on a man's tree, no property reclamation. when hived, they become the passes until the bees are hived property of the hiver and if a swarm leaves the hive this property continues in the hiver so long as they can be seen and followed 799.

(1) Qualified

Im^^Jam!'

Bees.

Deer,

Deer.

though

strictly

speaking Jerce

natures (x),

if

reclaimed

See Case of Swans (1592), 7 Co. Eep. 17 b; Blades y. Higgs (1865), 11

(h)

Lord Westbury, L.C., at p. 631, and Lord CHELMsroRD, at compare JEwart v. Graham (1859), 7 H. L. Cas. 331, per Lord Campbell, L.C., at p. 344; KebJe v. Hichringill (1706), 11 Mod. Eep. 74, 76. Case of Sicans, supra ; Blades v. Higgs, supra, per Lord Chelmseord, at ('/)

H. L. p.

Cas. 621, per

638

p. 638. {h) Bracton, lib, il)

ii.

cap.

i.

Case of Swans, supra; Bracton, supra.

{m) Brooke's Abridgment,

tit.

"Trespas," 407; Orymes

v. ShacTc (1611), Cro.

(Jac.) 262.

A

Fitzberbert, Nat. Brev. 88 1. 1 Com. Dig. "Trespass," Fitzberbert, Nat. Brev. 86 M, 87 A. Ip) Mallocke y. Easily (1685), 3 Lev. 227. {q) Fines v. Spencer (1571), 3 Dyer, 306 b. (r) Pollexfen v. Crispin (1671), 1 Ventr. 122. (s) Fitzberbert, Nat. Brev. 86 M, 87 A. Case of Swans, supra. Tbere is mucb learning in tbis case relating to (f) swans. Tbe wbite swan, not marked, in open and common rivers is a royal subject may, bowever, bave property fowl, and belongs to tbe King. in wbite swans, not marked, in bis manor or private waters, and if tbey escape be may bring tbem back again, but if tbey gain tbeir natural It is said, too, tbat by tbe liberty tbe King's officers may seize tbem. custom of tbe realm, wbicb is common law in sucb case, tbe cygnets belong equally between tbe owner of tbe cock and tbe owner of tbe ben swan, for tbe cock swan boldetb bimself to one female and is tbe emblem of an affectionate and true busband to bis wife above all otber fowls. Tbe swans on tbe Tbames now belong to tbe King, tbe Dyers' Company, and tbe Yintuers' Company, and are all marked tbe cygnets are appropriated in tbe proportion of tbree to tbe owner of tbe cock to two to tbe owner of tbe ben. {u) Bracton, lib. ii. cap. 1; 2 Bl. Com. 392; compare HannamY. Mockett (1824), (n)

(0)

A

.

2 B. (ce)

&

See also p. 375, post. C. 934, at p. 944. Blades v. Higgs, supra, per Lord Westbtjry at

p. 631.