a man starts any game within his own grounds, and follows it into another's, and kills it there, the property remains in himself. And this is grounded on reason and natural justiced: 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, 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 killed, because it was also started there f; the 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

game upon that estate, for the use of himself, and particular friends, authorized by his license, and to exclude all gentlemen, legally quali fied, from following that amusement over his waste and other grounds, not specially protected by any particular statute? The printed cases of the appellant and respondent contain much curious learning upon the Scotch gamee-laws: but no idea was suggested that the game in Scotland belonged to the king. For the appellant, who insisted that he had a right to enter as a sportsman upon the respondent's estate, the authority of president Balfour in his Practics, was chiefly relied upon; viz. "It is leisome and permitted to all men to chaise hares, foxes, "and all other beistis, be and without forrestis, warrenis, parkis, "or wardis." But the judgment of the lords being for the respond. ent, this permission of course must be confined to a man's own estate. Livingstone, esq. appellant, v. lord Breadalbane, respondent. This is precisely the same as the law of England; for neither a lord of a manor, nor his gamekeeper, can go into any part of the manor, which is not the lord's own estate or waste, without being a trespasser like any other person.

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, though guilty of a trespass against both the owners (11).

III. I PROCEED now to a third method, whereby a [420] title to goods and chattels may be acquired and lost, viz. by forfeiture; as a punishment for some crime or misdemesnor in the 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 chapterh. It remains therefore in this place only to mention by what means, or for what offences, goods and chattels become liable to forfeiture.

In the variety of penal laws with which the subject is at 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

g Farr. 18. Lord Raym, 251.

h See page 207.

(11) 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 I have heard recognised by Lord Kenyon, who, in an action of trover, directed a verdict for the plaintiff'; the defendant having carried away a hare, killed by the plaintiff's greyhounds upon the defendant's ground, but which had not been started there.

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 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 felony by con[421] cealing his effects, accrues entirely to his creditors, I have therefore made it a distinct head of transfer

ring property.

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 homicide1; 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 court; by praemunire; 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.

i Co. Litt. 391. 2 Iust. 316, 3 Inst, 320.

AND this forfeiture commences from the time of conviction, not the time of committing the fact, as in forfeitures of real property. 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.

CHAPTER THE TWENTY-EIGHTH.

OF TITLE BY CUSTOM.

A FOURTH method of acquiring property in things personal, or chattels, is by custom: 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.

1. HERIOTS, which were slightly touched upon in a former chaptera, are usually divided into two sorts, heriot-service, and heriot-custom. The former are such as are due upon a special reservation in a grant or lease of lands, and therefore amount to little more than a mere rent: the latter arise upon no special reservation whatsoever, but depend merely upon immemorial usage and custom. Of these therefore we are here principally to speak: and they are defined to be at customary tribute of goods and chattels, payable to the lord of the fee on the decease of the owner of the land.

a pag. 97.

b Saund, 166.

e Ca. Cop. sec. 24.