246 ORAL ARGUMENT OF SIR CHARLES RUSSELL, Q. C. M. P. 



Sir CnABLES Eussell. — Quite so. The appositeness is clear enougli, 

 becnnse tlie Tribunal will see, wliatever else has been saifl about pelag^ic 

 sealers, there is one thing that has not been said, and could not be said, 

 and that is this: that these i)elagic sealers, largely American and 

 largely Canadian, were pursuing pelagic sealing maliciously intending 

 to injure anybody. They were pursuing what they considered to be a 

 right, and they were pursuing this mode of capture or industry in order 

 to earn the profit which accrued to them from its pursuit. 



Now I turn to the case of Amory v. Flyn. But, why these cases have 

 been cited, I do not know. It sometimes has come into my mind that 

 my learned friend, with the multiplicity of affairs which no doubt 

 occ'^pied him, turned some intelligent student into a library to copy 

 wholesale passages and images which have some remote bearing on the 

 case. 



Lord Hannen. — But some of them have a considerable bearing, and 

 may have been put in out of fairness as being authorities against them. 



Sir Charles Eussell. — Well, my Lord, I withdraw what I said. 

 My learned friends have been good enough to supply us with them, 

 and I withdraw what I said, and I ought not properly to have said it. 



What is this case? It is a case in which one Amory brought an 

 action of trover against Flyn before the Justice for two geese: It is an 

 American case and is reported in 10 Johnson's Eeports. 



The plaintiff proved a cleraancl of the geese aud a refusal by the defendant unless 

 the plaintiff would first pay 25 cents for liqnor fnrnished to two men who had caught 

 the geese and i)ledged tlieni to the defendant for it. 



The geese were of the wild kind, but were so tame as to eat out of the hand. 

 They had strayed away twice before, and did not rettirn until brought back. The 

 plaintiff proved property in them, and tliat after the geese had left his premises, the 

 son of the defendant was seen pursuing them with dogs and was informed tliat they 

 belonged to the plaintiff. 



1015 In other words, they were tame geese, and that is what the 

 Court said. 



Per curiam. The geese ought to have been considered as reclaimed so as to be the 

 subject of property. Their identity was ascertained; they were tame and gentle, 

 and had lost the power or disposition to fly away. They had been frightened and 

 chased by the defendaut's son, with the knowledge that they belonged to the plain- 

 tiff", and the case affords no colour for the inference tliat the geese had regained 

 their natural liberty as wild fowl and that the i)roperty in them had ceased. 



Again, on page 117 is the case of Goff v. Kilts; that is also an 

 American authority, reported iu 15th Wendell's Eeports. 



The owner of bees which have been reclaimed 



mark the word '■'■ reclaimed^^ — 



may bring an action of trespass against a person who cuts down a tree into which 

 the bees have entered on the soil of another, destroys the bees and takes the honey. 



Where bees take up their abode in a tree, they belong to the owner of the soil, if 

 they are unreclaimed, but if they have been reclaimed, and their owner is able to 

 identify his property, they do nt>t belong to the owner of the soil, but to him who 

 had the former possession, although he cannot enter upon the lands of the other to 

 retake them without subjecting himself to an action of trespass. 



The only point on that which I should have thought was a little 

 doubtful, but which I think is not material here, is where he says it 

 belonged to the owner of the tree. I do not think myself that that 

 would be quite so. It merely means, 1 think, they belonged to him 

 in the sense that he would have the right to take them. 



Mr. Carter. — The case does not decide it. 



Sir Charles Eussell. — No. I am much obliged to my learned 

 friend; it is really a mistake. It is the headnote by the reiwrter of the 



