148 



have made a nest in my tree, and therefore if another person shall shut 

 them up, he will have the dominion over them. A swarm, also, wliich 

 has flown away out of my hive, is so long understood to be mine as 

 long as it is in my sight, and the overtaking of it is not impossible, 

 otherwise they belong to the first taker; but if a jierson shall 

 cjiptme them, he does not make them his own if he shall know 

 that they are another's, but he coinniits a theft unless he has the 

 intention to restore them. And tliese things are true, unless some- 

 times from custom in some parts the practice is otherwise. What 

 has been said above applies to animals which have remained at all 

 times wild; and if wild animals have been tamed, and they hy habit 

 go out and return, jiy aicay, and fly haclc, such as deer, sican, sea 

 foivls, and dovej, and such Wee, another rule has been approved, that 

 they are so long considered as ours as long as they have the disposition 

 to return; for if they have no disposition to return they cease to be 

 ours. But they seem to cease to have the <lisposition to return 

 when they have abaridoued the habit of returning; and the same is 

 said of fowls and geese which have become wild after being tamed." 

 Br acton, bic. 2, eh. 1. 



Comyn observes that although in things ferce natura', no one can 

 have an absolute i)roperty, as in deer and conies, in hawks, doves, 

 herons, pheasants, i)artridges or other fowls at large and not 

 reclaimed, or in fish at large in the water, yet a man may have "a 

 qualified or j)Ossessory proj^erty in them," as in deer, pheasants, par- 

 tridges, or hawks, tamed or reclaimed, or doves in a dovecot, or young- 

 herons in their nest, or fish in a tank. " But," he says, " if deer, fowls^ 

 etc., tame or reclaimed, attain their natural liberty, and have no incli- 

 nation to return, the property shall be lost," implying that the right 

 of property is not lost, so long as the animal or fowl reclaimed or 

 tamed, has, when leaving the i)remises of the owner, the inclination to 

 return. Digest, Tit. Biens, F. Vol. 2, p. 135. 



In Bacon's Abridgment it is said: "-The wild animals, such as deer, 

 hares, foxes, et(;., are understood to be those which by reason of tlieir 

 swiftness or fierceness fly the dominion of man, and in these no x>e]son 

 can have property, unless they be tamed or reclaimed by him; and as 

 proi^erty is the power that a man hath over any other thing for his otvn 

 use, and the ability that he has to apply it to the sustentation of his being, 

 when the power ceases his property is lost; and by consequence an 

 animal of this kind, which, after any seizure, escapes into the wild 

 common of nature and asserts its own liberty by its swiftness, is no 



