APPENDIX TO PART THIRD DIVISION I. 119 



interested in the soil; the other between two persons, each claiming 

 as the first finder. The plaintiff* in the last case, though the first 

 finder, had not acquired a qualified property in the swarm, according 

 to the law of prior occupancy. The defendant had. Besides, the 

 swarm being unreclaimed from their natural liberty while in the tree, 

 belonged to the owner of the soil ratione soli. For these reasons I am 

 of opinion that the judgment of the court below should be affirmed. 

 Judgment affirmed. 



[The opinion of Baron Wilde in Blades v. Higgs (12 0. B. N. S., 512). J 



T wish to add a few words, as I think the doctrine of animals ferae 

 naturae has in modern times been sometimes pushed too far. It has 

 been urged in tin's ease that an animal ferae naturae could not be the 

 subject of individual property. But this is not so; for the common 

 law affirmed a right of property in animals even though they were ferae 

 naturae\ if they were restrained either by habit or inelosure within 

 the lands of the owner. We have the authority of Lord Coke's lie- 

 ports for this right in respect of wild animals, such as hawks, deer, and 

 game, if reclaimed, or swans or fish, if kept in a private moat or pond, 

 or doves in a dove cote. But the right of property is not absolute; 

 for, if such deer, game, etc., attain their wild condition again, the 

 property in them is said to be lost. 



The principle of the common law seems, therefore, to be a very rea- 

 sonable one, for in cases where either their own induced habits or the 

 confinement imposed by man have brought about in the existence of 

 wild animals the character of fixed abode in a particular locality, the 

 law does not refuse to recognize in the owner of the land which sus- 

 tained them a property coextensive with that state of things. When 

 these principles were applied to a country of few inclosures, as in old 

 times, the eases of property in game would be few; but the inclosures 

 and habits of modern times have worked a great change in the char- 

 acter of game in respect to its wildness and wandering nature; and 

 there is a vast quantity of game in this country which never stirs from 

 the inclosed property of the proprietor by whose care it is raised and 

 on whose laud it is maintained. 



It is, I think, now too late for the courts of law to meet this change 

 of circumstances by declaring a property in live game; but if the leg- 

 islature should interfere, as was suggested in argument, by giving to 

 the owner of lands a property in game, either absolute or qualified, so 

 long as it remained on his land, it would only be acting in the spirit 

 and policy of the common law. 



Mellor, J., concurred. Judgment affirmed. 



[Morgan and anothei', Executors of John, Earl of Abergavenny, deceased, v. William, 

 Earl of Abergavenny (8 C. B., 768).] 



This was an action of trover. * * * The defendant pleaded, first, 

 not guilty, except as to the said causes of action as to twelve bucks, 

 one stag, eight does, and four fawns, parcel of the said bucks, stags, 

 does, and fawns, respectively, in the declaration mentioned; secondly, 

 that, except as aforesaid, the said John, Earl of Abergavenny, in his 

 lifetime was not possessed, neither were the plaintiff's, as executors as 

 aforesaid, after the death of the said John, Earl of Abergavenny, pos- 

 sessed, of the said deer or other animals in the declaration mentioned, 

 or any of them, as of his or their own property, respectively; thirdly, 

 that, except as aforesaid, the said deer and other animals in the declara- 

 tion mentioned were not, nor was any of them, captured and reclaimed 



