ORAL ARGUMENT OF JAMES C. CARTER, ESQ. 145 



the law arises from the want of some cm'taUi determinate standard or rule by which to 

 determine when an animal is/erce, vel domitw naturw. If an animal belongs to the 

 class of tame animals, as, for instance, to the class of horses, sheep, or cattle, he is 

 then a subject clearly of absolute property; but if he belongs to tlie class of animals, 

 which are wild by nature, and owe all tlieir temporary docility to the discipline of 

 man, such as deer, lish, and several kinds of fowl, tlien the animal is a subject of 

 qualified property, and which continues so long only as the tameness and dominion 

 remain. It is a theory of some Jiaturalists that all animals were originally wild, and 

 that such as are domestic owe all their docility and all their degeneracy to the hand 

 of man. This seems to have been the opinion of Count Buffon, and he says tliat the 

 dog, the sheep, and the camel have degenerated from the strength, spirit, and beauty 

 of their natural state, and that one principal cause of their degeneracy was the per- 

 nicious inHuence of human power. Grotius, on the other hand, says that savage 

 animals owe ail tlieir untamed ferocity not to their own natures, l3ut to the violence 

 of man ; but the common law has wisely avoided all perplexing questions and refine- 

 ments of this kind, and has adopted tlie test laid down by Pufleudorf, ))y referring 

 the question whether the animal be wild or tame to our knoivlcdije of his habits derived 

 from fact and experience. 



lu addition to that I Avill refer the Tribunal to two other authorities; 

 and those are decisions of British tribunals. The first is the case of 

 Davies vs. Powell, reported in Willes Reports, page 46. 



In that case the question was whether deer caught in an enclosure 

 and having certain characteristics and used for certain pui-poses were 

 dutrainahle for rent. I may say to those not familiar with the special 

 doctrines of the common law^ of England that there was a process by 

 which a landlord might recover his rent by going uj^on the premises of 

 his tenant and taking pioperty on the premises; but it was conlined to 

 l)ersonal property. So the question whether deer were distraiuable for 

 rent or not involved the question whether tliey were personal property 

 in that particular instance. The court in that case took notice of the 

 proofs which were offered in respect to the nature of those particular 

 deer, their habits, and tlie purposes for which they were kept; and, 

 finding that they were kept, not for pleasure, but for profit, that they 

 were carefully i)reserved, and reared for the beneficial purpose of taking 

 venison from them and furnishing a su^jply of it to the market, deter- 

 mined that they were personal property and therefore distraiuable for 

 rent. The ground was that although deer belong to the class of what 

 are commonly designated "wild" animals, nevertheless when they are 

 taken and kept by man for the purjioses for which it was proved in that 

 case they were kept, when they were treated by man in the way in which 

 they were proved to have been treated in that case, although wild ani- 

 mals, yet, being used for the same intents and purposes as domestic 

 animals are used, they should be classed as personal property just as 

 domestic anin^als are so classed. 



Substantially the saiue decision was made in reference to the same 

 animals in the case of Morgan vs. the Earl of Ahernavenny, which is 

 reported in the 8th Common Bench Reports. There the question was, 

 upon the death of the owner of a park, whether deer contained in the 

 park went to the heir of the owner, or to his executor; in other words, 

 it was the question whether they were attached to the soil, and formed a 

 part of the realty, and therefore were not distinctly personal property, 

 or whether they went to the executor, as l)eing distinctly persontil prop- 

 erty. In that case a great deal of evidence was gone into upon the trial 

 for the purpose of showing the habits of those particular deer, and how 

 they were kept, treated and used in that park. The whole question of 

 property in live animals was very much gone into and discussed. It 

 was shown by evidence that there was a large number of deer there; 

 that they were cared for; that at times they were fed; that they were 

 in the habit of resorting to particular places in the park; and that from 

 U S, PT XII 10 



