| Chap. 156. |
Theft.
another man may prescribe to have them within a certain precinct
or place; for it may be intended to have a lawful beginning by the Kings
Grant. Co. lib. 7. f. 16. a. b. & 18 a.
b. |
371 |
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Also young Swans or Cygnets, they do belong to both
the Owners in
common equality, sc. to the Owner of the old Cock, and to the Owner
of
the old Hen, and the Cygnets or young Swans shall be divided between
them, Co. 7.17. And to steal such Cygnets is Felony;
for they shall be f
the same nature with the old Cock or Hen. |
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10 E. 4. 15.
Stamf. 350. |
Also it is Felony to take a tame Deer which is marked
and domestical,
especially if the Taker knows it to be tame and domestical, or that it
weareth
a Bell. |
§. 4. |
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If a Hart, Buck, or other Beast which hath been
wild by nature, and made
tame, and hath at his neck a little Collar of Leather, or any other notorious
sign, and doth go abroad, and returneth again to the house (of his
Master or Owner) at his pleasure, if he be taken by a stranger and killed
by night, or in other secret manner, this is Felony by the Common Law.
Crompt. Author des Courts 167. |
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But by the Common Law, Larceny cannot be committed
by taking of
savage or wild Beasts, Fowls or Fish, found in their Wilderness and abroad,
or at large; as Deer, Conies, Hawks, Doves, Pheasants, Partridges, Herons,
Swans unmarked, or Fish that are at liberty, &c. for no persons can
claim property in them, Fitz. 87. a. Fi. 45. |
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' By the Stat. de Foresta c. 10. Nullus
de cætero amittat vitam vel membrum
' pro Venatione nostra, (sc. pur tuer Deere le Roy:)
which branch is but an
' affirmance of the Common Law, Cromp. Author des Courts 166. |
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P. Felon
24.
Lamb. 271. |
Howbeit by Stat. it is now made Felony to hunt Deer or Conies (after
some sort) in a Forrest, Park or Warren; or to take a tame Beast or other
thing in a Park, by manner of Robbery. See the Stat. made 3 Ed.
1. 20.
& 1 H. 7. c. 7. Vide postea Felony by Stat.
tit. Hunting. |
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P. Felon.
20. |
Also by Statute it is Felony to steal, take away,
or conceal a Hawk.
Ibid. |
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Co. 17. b.
Fl. 4. |
But for the better understanding what the Law is
in things that be feræ
naturæ, observe these differences. |
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In some things that be feræ naturæ,
a man hath right and property, and
in some of them a right of priviledge. |
§. 5.
Property. |
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There be three manners of rights of property:
sc. |
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1. Absolute. This property a man cannot
have in any thing which is
feræ naturæ, but only in such things as are domitæ
naturæ. |
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2. Qualified.
These properties a man may have in things feræ naturæ;
and to such properties a man may attain by two
3. Possessory. means: sc. |
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1. By industry: and this may be either
by taking them only, (and yet
such things be his no longer than they be and remain in his possession
or
custody;) or by making them tame, (sc. mansueta, id est, manui assueta,
or
domestica, id est, domni assueta.) But in these last a man
also hath but a qualified
property, sc. so long as they remain in his possession, and so long
Felony may be committed by taking of them away; but if they attain to
their natural liberty, and have not animum revertendi, then the
property
of them is lost. |
§. 6.
Property
how gotten. |
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2. Ratione impotentiæ & loci:
As where a man hath young Goshawks,
or Herons, or the like, which are feræ naturæ, and do
breed (or air) in his
Ground, he hath a possessory property in them; so as if one takes them
when they cannot flie, the Owner of the soil may have an Action of Trespass,
Quare boscum suum fregit, & tres pullos Espervorum suorum, or
Ardearum |
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