150 ORAL ARGUMENT OF JAMMER C. CARTER, ESQ. 



position they become the property of wlioinsoever secures tbein. And they must be 

 hebl to have lost the auimnn reverteitdl as soon as they have lost the habit of return- 

 ing. Such aie the doctrines of the Roman law, which are conformable to the English 

 law, with the (lualitication of Grotius, which is applicable to the case of all animals 

 /er«; natiira; that is to say, that a murk or collar prevents the rights of the proprietor 

 of a wild animal being extinguished by its escape from his sight and pursuit. 



I call the attention of the Tribunal to a decision by the Supreme 

 Court of the State of New York, one of the courts enjoyino- the lii,uhest 

 authority in the United States, and especially enjoying the highest 

 authority at the time this decision wjks made. It is the case of Amory 

 vs. Flyn and is reported in 10th Johnson's Eeports 102. It is contained 

 on page 110 of our i)rinted Argument. 



In that case one Amory brought an action of trailer, as it is called iu 

 the English law, against Flyn before a justice of the peace for two 

 geese. That is to say he brought an action for damages for a trespass 

 done to him in taking geese which he alleged to be his property. 



This was a case where geese wild by nature had been reclaimed by 

 man to such an extent that they were wonted to a particular spot, and 

 yet were in the habit of straying away from it; and having strayed off 

 ■uX)on a certain occasion another man took them and handed them over 

 to still ant>ther and that other refused to give them up ou demand. The 

 question was whether the i)laintiff had a property in them. 



It api)ears to have been held in the court below that he had no prop- 

 erty; but the Supreme Couit reversed this judgment, saying: 



The geese ought to have been considered as reclaimed so as to be the subject of 

 property. Their identity was ascertained, they were tame and gentle, and had lost 

 the power or disposition to tly away. They h;id been frightened and chased by the 

 defendant's son, with the knowledge that they belonged to the plaintiff and the case 

 aflbrds no color for the inference that the geese had regained their natural liberty as 

 wild fowl, and that the property iu them had ceased. The defendant did not con- 

 sider them in that light, lor he held them in consequence of the lien which he 

 supposed he had acquired by the pledge. This claim was not well founded, for he 

 showed no right iu the persons who pawned them for the liquor so to pawn them, 

 and he took them at his peril. Here was clearly an invasion of private right. 



I call attention to a later decision by the same Supreme Court of IS'ew 

 York which is reported in 15 VVendell's Reports. So much as we have 

 printed of it is on i)age 117 of the printed Argument. The propositions 

 which are i)retixed to the report in the case as being those which are 

 decided'by it are these: 



The owner of lees which haA^e been reclaimed, may bring an action of trespass 

 agiiinst a ])crson who cuts down a tree into which the bees have entered on the soil of 

 anotlier, destroys the bees and talces the honey. 



Where bees take up their abode in a tree, they belong to the owner of the soil, if 

 they are nr.r eel aimed; but if they have been reelaiviecl, and their owner is able to 

 identify his property, they do not belong to the owner of the soil, but to him who 

 had the former ])OSsession, altiiough he can not enter upon the lands of the other to 

 retake them without subjecting himself to an action of trespass. 



The facts of that case appear to be these: One Kilts had brought an 

 action against Goft' in a justice's court, an action in the nature of an 

 action of trespass, for taking and destroying a swarm of bees and the 

 honey made by them. 



The plaintiff in bis suit before the justice recovered a judgment and 

 that was aftirmed on appeal by the court of Common Pleas of the county 

 where the suit was brought. The deCendant then carried the case by 

 what is called a writ of error, to the i>riucipal court of the State of New 

 York at that time — not the highest appellate court, but yet a high appel- 

 late court. Mr. Justice Nelson, very celebrated in the United States 

 as one of the most distinguished judges of his time, delivered the opin- 

 ion of the court. He says : 



