146 ORAL ARGUMENT OF JAMES C. CARTER, ESQ. 



time to time selections were made from the number for slangliter and 

 the victims were sold in the market for venison. All that was proved. 

 Tliere was a verdict in that case for the plaintiff which was based upon 

 the charge of the judge to the jury that they might take this evidence 

 into consideration in deterinining" the question whether the deer were 

 personal pro])erty or not; and that verdict for the plaintiff established 

 that they were the property of the executor; tb.at they went to the 

 executor instead of to tlie heir, and were therefore peisonal property. 

 On a review by the whole court of that verdict it was decided that this 

 evidence was all proper and relevant to the question; that it was all 

 api)j opriate, and relevant to the point whether the animals were prop- 

 erty or not; and that it did satisfactorily determine, or was a sufficient 

 groun<l upon which the jury might find, tliat the animals were personal 

 property. 



These authorities to which I have thus alluded are quite sufficient 

 to establish the only point for which I at present cite them, namely, 

 that in order to determine whether an animal commonly designated as 

 "wild" is the subject of property or not we must institute an inquiry 

 into the nature and habits of the animal — that the general terms 

 "wild" and "tame" are not sufficiently signiticant for the purpose; 

 that a close inquiry into its nature and habits with the view of seeing 

 whether such nature and habits and the uses to which the animal is 

 put are the same as in the case of ordinai'y domestic animals. If so, 

 they are property the same as domestic animals are. 



Now, then, what is the case with the fur-seal? So far as respects 

 municii^al law — for I am now examining the question wholly as it is 

 affected by the doctrines of municipal law — it nuist be admitted that 

 the case of the fnr seal is a new one. It has nowhere been specitically 

 decided ; but cases as to whether animals more or less resembling the seal 

 may or may not be the subject of property have arisen and been decided 

 in municipal law. There have been a great many cases decided in 

 respect to animals as to which it was doubtful whether they belong to 

 the category of wild or tame — that is if you treat the terms "wild" 

 and "tame" as a juridical classification — or whether their nature and 

 habits were such as to make them properly the subjects of property. 

 'J'ake the case of wild hces, for instance. There is an animal which lies 

 quite near the boundary line which separates wild from tame animals; 

 and the inquiry was made at an early i)eriod in nninici]»al law — a period 

 so early that tradition does not intinm us of the first instance when 

 the case arose — whether that animal was the subject of proi)erty or not. 

 The same questicm has arisen in reference to irild f/eese^ and swans. 

 Those animals belong to the classes commonly designated as "wild"; 

 but they lie near the boundary. They may sometimes be reclaimed, as 

 it is called. The question has arisen and been determined whether, 

 when reclaimed, they are, notwithstanding the wildness of their nature, 

 the subject of property. The same question has also arisen in reference 

 to deer and pigeons and other animals. 



Now, therefore, we are to examine those instances in which the munic- 

 ipal law has dealt with the cases of animals commoidy designated as 

 "wild," but which still have, in their nature and habits, some charac- 

 teristics which assimilate them to tame ones, and see what conclusions 

 municipal law arrives at. In general these conclusions are all exceed- 

 ingly well stated by the most familiar of authorities in the English law 

 and one of the most elegant and precise, I mean Blackstone. 1 refer 

 to his treatment of th.c question.. 1 read from what is quoted from him 

 on page 15 of my printed aigiiment: 



