108 * ARGUMENT OF THE UNITED STATES. 



APPENDIX TO PART THIRD, DIVISION I (MR. CARTER'S 



ARGUMENT). 



AUTHORITIES UPON THF. SUBJECT OF PROPERTY IN ANIMALS 



FERiE NATURE. 



[From Studies in Roman Law, by Lord Mackenzie (6th edition), Edinburgh and 

 London, 1886, chapter in, page 174.] 



Wild animals. — All wild animals, whether beasts, birds or fish, fall 

 under this rule, so that even when they are caught by a trespasser on 

 another man's land they belong to the taker, unless they are expressly 

 declared to be forfeited by some penal law, (Inst., 2, 1, 12; Gaius, 2, 

 66-69; Dig., 41, 1,3, pr. 55). Deer in a forest, rabbits in a warren, fish 

 in a pond, or other wild animals in the keeping or possession of the 

 first holder can not be appropriated by another unless they regain their 

 liberty, in which case they are free to be again acquired by occupancy. 

 Tame or domesticated creatures, such as horses, sheep, poultry, and 

 the like, remain the property of their owners, though strayed or not 

 confined. The same rule prevails in regard to such wild animals 

 already appropriated as are in the habit of returning to their owners, 

 such as pigeons, hawks in pursuit of game, or bees swarming while 

 pursued by their owners (Inst., 2, 1, 14, 15). 



[From Gaius's Elements of Roman Law, translated by Edward Poste, (2d ed.), 



Oxford. 1875. ] 



Sec. 68. In those wild animals, however, which are habituated to go 

 away and return, as pigeons, and bees, and deer, which habitually visit 

 the forests and return, the rule has been handed down that only the 

 cessation of the instinct of returning is the termination of ownership, 

 and then the property in them is acquired by the next occupant; the 

 instinct of returning is held to be lost when the habit of returning is 

 discontinued. 



[From Von Savigny on Possession in the Civil Law, compiled by Kelleber.] 



With respect to the possession of animals these rules are to be ap- 

 plied thus: 



First. Tame animals are possessed like all other movables, i. e., the 

 possession of them ceases when they can not be found. Second. Wild 

 animals are only possessed so long as some special disposition (custodia) 

 exists which enables us actually to get them into our power. It is not 

 every custodia, therefore, which is sufficient; whoever, for instance, keeps 

 wild animals in a park, or fish in a lake, has undoubtedly done some- 

 thing to secure them, but it does not depend on his mere will, but on a 

 variety of accidents whether he can actually catch them when he 

 wishes, consequently, possession is not here retained; quite otherwise 

 with fish kept in a stew, or animals in a yard, because then theymaybe 

 caught at any moment (lib. I>, sees. 14, 15, de poss). Third. Wild beasts, 



