And it must also be remembered, that such persons as may thus lawfully hunt, fish, or fowl, ratione privilegii, have (as to the extent of the jurisdiction and powers conferred by the royal grant. (p. 38, ante.) But beyond the boundaries of these privileged places, neither the king nor any of his grantees claimed a property in the game; for, according to the law of King Canute, quilibet homo dignus venatione sua, in sylva, et in agris sibi propriis, et in dominio suo; which law Manwood declares was confirmed by many succeeding kings. (Tit. For. pl. 3.) By the carta de foresta all the new-made forests were disafforested and thrown open again; but besides the creation of new forests by the Norman kings, they had also made great additions and encroachments to the ancient Saxon forests: these encroachments were called purlieus, and as these were the same grievance to the owners of the land as the new forests, they also were disafforested, but with this distinction, that, as the grievance extended only to the land-owner, he was allowed to enjoy his lands in as full a manner as he had done before the encroachment; but they still continued, with respect to the rest of the world, under the forest-law jurisdiction. Hence it followed as a consequence, that the owner of a purlieu might hunt and kill game within the limits of the purlieu, as any other man might have done in his own grounds and the authorities of Lord Coke and Manwood concur, if deer come out of the forest into the purlieu, the purlieu-man may hunt and kill them, provided he does it fairly and without forestalling. And this distinction is made: if a stag can recover the filum forestæ, the border of the forest, before the purlieu-man's dogs fasten upon him, he then belongs to the king or to the owner of the forest, and the purlieu-man must call his dogs back; but if they fasten upon VOL. II. him before he gains the forest, and he drags them into it, he belongs to the owner of the purlieu, who may enter the forest and carry him away. (4 Inst. 303; Manw. Purlieu.) This alone is decisive, but there are various authorities to the same effect. In the year-book, 12 Hen. VIII. fo. 10, it is held, if a man drive a stag out of a forest and kill him, he shall gain no property in him, because he shall derive no advantage from his own wrongful act; yet if the stag comes of himself beyond the limits of the forest, then any one (if qualified) may kill and take him, for they are animals feræ naturæ, et nullius in bonis; and the maxim is capiat qui capere potest, i. e. catch that catch can. "That the king has no property in deer or other game, when they are out of a forest, was determined also in a case reported by Keilway, 30, and copied by Manwood, 202. In that case an action of trespass was brought for entering the plaintiff's close; the defendant pleaded, that the place in which the trespass was supposed to be committed was adjoining to the king's forest, and that the plaintiff was bound to impale the said forest, and that, for want of paling, four deer escaped out of the forest into the plaintiff's land, and that he the defendant entered by the command of the forester to drive them back to the forest. The court held that this plea was not good; 'for though the plaintiff was in fault 'for not paling, yet it was not lawful for the forester or any person to 'drive the deer out of the ground, or to take them; and the reason was, 'because the king had no property in them; and this was different from 'the case of tame cattle, where the 'property still remains in the owner though they are out of his ground, 'for which reason he may retake them S S has been said) only a qualified property in these animals'; it not being absolute or permanent, but lasting only so long as the creatures remain within the limits of such respective franchise or liberty, and ceasing the instant they voluntarily pass out of it. It is held, indeed, that, if a man starts any game within his own grounds, and follows it into another's, and kills it there, the property remains in himself (c). And this is grounded on reason and natural justice (d): for the property consists in the possession; which possession commences by the finding it in his own liberty, and is continued by the immediate pursuit. And so, if a stranger starts game in one man's chase or free-warren, and hunts it into another liberty, the property continues in the owner of the chase or warren; this property arising from privilege (e), and not being changed by the act of a mere stranger. Or if a man starts game on another's private grounds, and kills it there, the property belongs to him in whose ground it was (d) Puff. L. N. 1. 4, c. 6. (e) Lord Raym. 251. (c) 11 Mod. 75. 'wherever he finds them; but it is 'not so when the beasts are wild.' "The learned judge frequently intimates that no person is exempt from the original penalties; but I am inclined to think that no authority whatever can be found that any penalties were ever inflicted for killing game out of privileged grounds, except those which have been introduced by modern game-laws, or the qualification acts. Lord Coke reports, that the court held, in the case of monopolies, (11 Co. 87,) that it is true 'that none can make a park, chase, 6 or warren, without the king's li cense, for that is quodam modo to appropriate those creatures which are feræ naturæ et nullius in bonis, to himself, and to restrain them of 'their natural liberty, which he can'not do without the king's license; 'but for hunting, hawking, &c., which are matters of pastime, pleasure, and recreation, there needs no libut every one may, in his own 'land, use them at his pleasure, cense, without any restraint to be made, unless by Parliament, as appears by 'the statutes of 11 Hen. VII. c. 17, 23 Eliz. c. 10, and 3 Jac. I. c. 13.' "These authorities are also recognised and confirmed in Bro. Abr. tit. Propertie, and in Hale's Commentary to F. N. B. 197. "The following may serve as a specimen of the authorities collected by Brooke: quant beastes savages le roye aler hors del forrest, le property est hors del roy; and again, silz sount hors del parke capienti conceditur.” [Whether the facts stated by Mr. Christian be historically correct or not, the principle for which he contends has been virtually recognised by the legislature in the statute of 1 & 2 Gul. IV. c. 32. No landed qualification is now indispensibly necessary to authorise a man to kill game, though he must not, for that or any other purpose, enter upon lands without the consent of the occupier. -ED.] killed, because it was also started there (f); this property arising ratione soli. Whereas, if, after being started there, it is killed in the grounds of a third person, the property belongs not to the owner of the first ground, because the property is local; nor yet to the owner of the second, because it was not started in his soil; but it vests in the person who started and killed it (g), though guilty of a trespass against both the owners (19). ture. *III. I proceed now to a third method whereby a title to III. By forfeigoods and chattels may be acquired and lost, viz. by forfei ture; as a punishment for some crime or misdemesnor in the [420] party forfeiting, and as a compensation for the offence and injury committed against him to whom they are forfeited. Of forfeitures, considered as the means whereby real property might be lost and acquired, we treated in a former ehapter (h). It remains, therefore, in this place only to mention by what means, or for what offences, goods and chattels become liable to forfeiture. statute. In the variety of penal laws with which the subject is at of penalties by present encumbered, it were a tedious and impracticable. task to reckon up the various forfeitures inflicted by special statutes, for particular crimes and misdemesnors: some of which are mala in se, or offences against the divine law, either natural or revealed; but by far the greatest part are mala prohibita, or such as derive their guilt merely from their prohibition by the laws of the land: such as is the forfeiture of 40s. per month by the statute 5 Eliz. c. 4, for exercising a trade without having served seven years as an apprentice thereto; and the forfeiture of 107. by 9 Ann. c. 23, for printing an almanack without a stamp. I shall, therefore, confine myself to those offences only, by which all the goods and chattels of the offender are forfeited: referring the student for such, where pecuniary mulcts of different (f) Lord Raym. 251. (g) Farr. 18; Lord Raym. 251. (h) See page 267. (19) Mr. Christian observes, that "these distinctions never could have existed, if the doctrine had been true, that all the game was the property of the king; for in that case the maxim, In æquali jure potior est conditio possidentis, must have prevailed. "These distinctions," Mr. Chris tian says, quantities are inflicted, to their several proper heads, under which very many of them have been or will be mentioned; or else to the collections of Hawkins, and Burn, and other laborious compilers. Indeed, as most of these forfeitures belong to the crown, they may seem as if they ought to have been referred to the preceding method of acquiring personal property, namely, by prerogative. But, as, in the instance of partial forfeitures, a moiety often goes to the informer, the poor, or sometimes to other persons; and as one total forfeiture, namely, that by a bankrupt who is guilty of [* 421 ] felony by *concealing his effects, accrues entirely to his creditors, I have therefore made it a distinct head of transferring property. Of the crimes which induce a total forfeiture of goods and chattels. The forfeiture to commence conviction. Goods and chattels then are totally forfeited by conviction of high treason or misprision of treason; of petit treason; of felony in general, and particularly of felony de se, and of manslaughter; nay even by conviction of excusable homicide (i); by outlawry for treason or felony; by conviction of petit larceny; by flight in treason or felony, even though the party be acquitted of the fact; by standing mute, when arraigned of felony; by drawing a weapon on a judge, or striking any one in the presence of the king's courts; by præmunire; by pretended prophecies, upon a second conviction; by owling; by the residing abroad of artificers; and by challenging to fight on account of money won at gaming. All these offences, as will more fully appear in the fourth book of these Commentaries, induce a total forfeiture of goods and chattels. And this forfeiture commences from the time of convicfrom the time of tion, not the time of committing the fact, as in forfeitures of real property (20). For chattels are of so vague and fluctuating a nature, that to affect them by any relation back, would be attended with more inconvenience than in the case of landed estates: and part, if not the whole of them, must be expended in maintaining the delinquent, between the time of committing the fact and his conviction. Yet a fraudulent conveyance of them, to defeat the interest of the crown, is made void by statute 13 Eliz. c. 5. (i) Co. Litt. 391; 2 Inst. 316; 3 Inst. 320. (20) See ante, the note to p. 72, and the note to Vol. I. p. 299. CHAPTER XXVIII. OF TITLE BY CUSTOM. A FOURTH method of acquiring property in things personal, IV. By custom. or chattels, is by custom (1): whereby a right vests in some particular persons, either by the local usage of some particular place, or by the almost general and universal usage of the kingdom. It were endless, should I attempt to enumerate all the several kinds of special customs which may entitle a man to a chattel interest in different parts of the kingdom: I shall therefore content myself with making some observations on three sorts of customary interests, which obtain pretty generally throughout most parts of the nation, and are therefore of more universal concern; viz. heriots, mortuaries, and heir-looms. which are of heriot-service, custom. 1. Heriots, which were slightly touched upon in a former 1. Heriots, chapter (a), are usually divided into two sorts: heriot-ser- two sortsvice, and heriot-custom. The former are such as are due and heriotupon a special reservation in a grant or lease of lands, and therefore amount to little more than a mere rent (b): the latter arise upon no special reservation whatsoever, but depend merely upon immemorial usage and custom (c). Of these therefore we are here principally to speak and they are defined to be a customary tribute of goods and chattels, payable to the lord of the fee on the decease of the owner of the land. *The first establishment, if not introduction, of compul- [ * 423 ] (b) 2 Saund. 166. (a) Pag. 97. Heriots were (c) Co. Cop. s. 24. (1) As to the legal distinction be- see ante, p. 263, and the note thereto. tween "custom" and "prescription," |