No. 470.

Book 2, part 2, tit. 2, chap. 1, sec. 1, § 1.

No. 472.

of larceny; such as dogs, (a) cats, bears, foxes, monkeys, or ferrets.(b)

The law recognizes no property whatever in rooks.(c) 470.-2. Inanimate tangible property, either actually movable, or capable of being removed or separated without great injury to the realty, is generally known by the appropriate and technical name of goods and chattels. This term includes, for some purposes, money, valuable securities, and all other personal property, and even choses in action.(d)

471.-3. Growing vegetables or emblements are deemed personal property. By emblement is understoood the crops growing upon the land; but the word crops, as here used, signifies the products of the earth, which grow yearly and are raised by annual expense and labor, or "great manurance and industry," such as grain; but not fruits which grow on trees, which are not planted yearly, grass and the like, though they are annual.(e)

472.-4. Fixtures are sometimes considered as personal chattels, and, at other times, as part of the realty. Fixtures, technically speaking, are personal chattels annexed to land, and which may afterward be severed and removed by the party who has annexed them, or his personal representatives, with or without the will of the owner of the freehold.

To make a thing a fixture, it must be annexed to the freehold, either actually or by construction. The annexation must be made by joining the chattel to the freehold.(ƒ) Once annexed, in general it becomes a part of the realty. But to this rule there are various

(a) 4 Bl. Com. 236; Findlay v. Bear, 8 S. & R. 571; 12 H. 8, 3; 18 H. 8, 2; Com. Dig. Biens F.; Bac. Ab. Trover, (D.) (b) 1 Chit. Pr. 88.

(c) 2 Bar. & C. 934; 4 D. & R. 518.

(d) 12 Co. 1; Bac. Ab. Legacies, (B.) Bouv. ed.

(e) Co Litt. 55; Com. Dig. Biens, G.; 10 B. & C. 720; 1 Chit. Pr. 92, 93; 1 Greenl. Ev. § 271; Warwick v. Bruce, 2 M. & S. 205; Evans v. Roberts, 5 B. & C. 829; Cutler v. Pope, 1 Shep. R. 337.

(f) Bull. N. P. 34; 3 East, 38; Poth. Des Choses, § 1.

No. 473.

Book 2, part 2. tit. 2, chap. 1, sec. 1, § 1.

No. 473.

exceptions: first, when there is a manifest intention to use the fixtures in some employment distinct from that of the occupier of the real estate; and, secondly, when it has been annexed for the purpose of carrying on trade. (a) But this distinction between fixtures for trade and those for agriculture, does not seem to have been admitted to prevail generally in the United States.(b) To entitle the tenant to remove them, he must do so within his lease. (c)

473. The right to remove fixtures depends on the situation of the parties who claim them. Persons standing in certain situations can claim them, when they would not be allowed to others. These classes of persons will be separately considered.

1st. When the question, as to the right of removing fixtures, arises between the executor and the heir, the ancient rule that they belong to the real estate, is strict; unless the ancestor has manifested an intention that they should be considered as personal property.(d)

2d. As between the vendor and vendee, the rule is as strict as between the executor and the heir; such fixtures pass to the vendee of the land. (e)

3d. Between the mortgagor and mortgagee, the rule seems to be the same as between the vendor and vendee.(ƒ)

4th. Between the devisee and executor, the former will be considered as a purchaser, and entitled to the fixtures.(g)

5th. Between landlord and the tenant for years, the ancient rule is relaxed, and the right of the tenant to

(a) 3 East, 88; Lemar v. Miles, 4 Watts, 330; Vanness v. Pacard, 2 Pet. 137; Swift v. Thompson, 9 Conn. 63; Gale v. Ward, 14 Mass. 352. (b) 2 Pet. 137; Whiting v. Brastow, 4 Pick. 310; Holmes v. Tremper, 20 John. 29.

(c) White v. Arndt, 1 Whart. 91.

(d) Bac. Ab. Executors, &c. (H.)

(e) Miller v. Plum, 6 Cowen, 665; Holmes v. Tremper, 20 John. 29; Phillipson v. Mallanphy, 1 Miss. 508.

(f) Amos & F. on Fixt. 188; 15 Mass. 159.

(g) See Merrington v. Becket, 2 Barn. & Cr. 80.

No. 474.

Book 2, part 2, tit. 2, chap. 1, sec. 1, § 2.

No. 476.

remove fixtures is the most extensive. (a) But this right of removal will depend rather upon the question whether the estate will be left in the same condition in which he took it.(b)

6th. In cases between tenants for life and their executors and the remainder-men or reversioners, the right to sever fixtures seems to be the same as that of tenant for years.(c)

7th. In a case between the landlord and the tenant at will, there seems no reason why the same privilege of removing fixtures should not be allowed. (d)

474.-5. Stocks in corporations are in general considered as personal property.(e)

§ 2.-Of qualified property.

475. By qualified property is understood that property which is not perfect in the hands of the possessor, but his right to it is qualified, or limited, or special. (f)

476. A man may have a qualified property in animals fera natura on two accounts; first, because he has used his industry in reclaiming them, per industriam; and secondly, because such animals are so weak that they cannot go away, propter impotentiam.

When animals of a wild nature have been captured by a man, and are confined within his power, he has a qualified property in them: (g) while so confined they are his own; but as soon as they regain their natural liberty, he loses his right to them.(h) But the rule is different with wild animals which have been tamed;

(a) Elwes v. Maw, 3 East, 38.

(b) Whiting v. Brastow, 4 Pick. 311. (c) 4 Pick. 311.

(d) 4 Pick. 310.

(e) 4 Dane's Ab. 670; 1 Chit. Pr. 96.

(f) Story on Bailm. § 93, g, h, i: 2 Bl. Com. 391; 2 Greenl. Ev. § 637. (g) But they must be completely within his power, otherwise they may be captured by another. Young v. Hichens, 1 Dav. & Meriv. 592; S. C. 6 Ad. & Ell. Ñ. S. 606; Pierson v. Post, 3 Caines, 175; Bac. Ab. Game; Buster v. Newkirk, 20 John. 75; Puff. lib. 4, c. 6; Poth. De Propriéte, prém. partie, c. 5, s. 1, n. 26.

(h) Dig. 41, 1, 3 et 5.

No. 477.

Book 2, part 2, tit. 2, chap. 1, sec. 2.

No. 478.

if they are in the habit of going and returning, the owner retains his property as long as this habit continues: (a) but if they have gone away a sufficient length of time to raise a presumption that they have lost the habit of returning, the animum revertendi, the owner loses his property in them, and they become the property of the first occupant. (b) Bees, for example, are fera natura; but when hived and reclaimed, a man may have a qualified property in them when he hives them, (c) for till that is done he has no more property in bees upon his trees, than he has in the birds which happen to alight there.(d)

A qualified property may also be had in animals fera natura on account of their weakness, ratione impotentia, as the young of birds before they can fly, and the whelps of other animals before they have the ability to go away.(e)

477. But property may also be of a qualified or special nature, on account of the peculiar circumstances of the owner, when the thing is capable of absolute ownership. A variety of examples of this might be given a bailee has a qualified property in the thing bailed, and so has the bailor; the pledgor and the pledgee have also such property in the things which are the object of the bailment.

SECTION 2.-OF PROPERTY NOT TANGIBLE.

478. In considering personal chattels in possession, we have examined those which were tangible, in which could be had an absolute or qualified property; it will now be proper to take a view of those chattels in possession which are not tangible. These though in possession as respects the right, and consequently not

(a) Amory v. Flyn, 10 John. 102.

(b) Dig. 41, 1, 6.

(c) Puff. 1. 4, c. 6, § 5; Inst. 2, 1, 14; 3 Toull. n. 374; 1 Bl. Com. 392. (d) Wallis v. Mease, 3 Binn. 546; Sm. & M. 333; Inst. 2, 1, 14; Dig. 41, 1, 5, 2; Sed vide Goff v. Kitts, 15 Wend. 550; 1 Cowen, 243.

(e) See 3 Inst. 109; 1 Russ. on Cr. 153; 2 Bl. Com. 394.

No. 479.

Book 2, part 2, tit. 2, chap. 2.

No. 481.

strictly choses in action, yet differ from goods, because they are neither tangible nor visible, though the thing produced from the right be perfectly so. In this class may be mentioned copy rights and patent rights, either in books, music, busts, sculpture, engravings, prints, machines, etc. In these cases the subject matter of the right is not the book, the music, etc., produced, but the exclusive privilege of continually, for a certain time, printing or making or vending the article.

CHAPTER II.-OF CHOSES IN ACTION.

479. A chose in action is the right to receive or recover a debt, or money, or damages, for breach of contract, or for a tort connected with a contract, which cannot be enforced without action, and therefore termed a chose or thing in action. (a)

480. A distinction must be made between the security or the evidence of the debt and the thing due: a deed, a bill of exchange, a promissory note, may be all in possession of the owner, but the money or damages due on them are no less choses in action.

481. There are some differences between personal tangible property in possession, and choses in action; the principal of which are, first, when money or goods are in possession, or the defendant is entitled to immediate possession, they may be taken in execution; but, in general, a chose in action, at common law, cannot be so taken. In some of the states of the Union the mo

ney due on them may be seized by a judgment creditor by a peculiar process authorized by a special statute.(b) Secondly: The transfer of a chose in action differs from that of a personal chattel in possession, both in form and effect; for though, in general, the beneficial interest of a chose in action may be transferred by parol, and without writing, yet the legal interest does not pass so as to entitle the assignee to sue in his own

(a) Com. Dig. Binns; 1 Ch. Pr. 99, 140.

(6) In Pennsylvania, the plaintiff may issue an attachment execution, and seize such property as under a writ of foreign attachment.