ORAL ARGUMENT OF JAMES C. CARTER, ESQ. 151 



Animals /era' natiira', wlien reclaiineclby the art aud power of man, are thesuliject 

 of a qualitied property ; if they return to their natural liberty and wildness, without 

 the animus rerertendi, it ceases. During the existence of the qualified property, it is 

 under the protection of the law the same as any other propertj', and every invasion 

 of it is redressed in the same miiiiner. Bees are ferw naturce, but when hived and 

 reclaimed, a person may have a (pialified property in them by the law of nature, as 

 well as the civil law. Occupation, that is hiving or inclosing them, gives pioperty 

 in them. They are now a common species of pro})erty, and an article of trade, and 

 the wildness of their nature, by experience and practice, has become essentially sub- 

 jected to the art and power of man . An unreclaimed swarm, like all other wild ani- 

 mals, belongs to the first occupant — in other words, to the person who first hives 

 them ; but if the swarm fiy from the liive of another, his qualified property continues 

 so long as he can kee}! them in sight, andpossesses the power to pursue them. Under 

 these circumstances, no one else is entitled to take them. (2 Black. Comm., 393; 2 

 Kent's Comm., 394.) 



A case decided by the Court of Common Bench in Great Britain, and 

 to which I have aheady referred, that of Morgan and another against 

 the earl of Abergavenny is printed ahnost in exfenso, beginning on page 

 119 of our printed argument. It is too long to be read ; but the whole of 

 it has been printed in order that the Tribunal may observe the circum- 

 stances under which that case arose, and thus ascertain the precise 

 point which was decided. But I will call the attention of the Arbi- 

 trators to the paragraph near the bottom of page 125. I have said that 

 in that case, the question being whether deer were property or not, 

 evidence was given tending to show their nature and habits and the 

 purposes to which they were applied. The court says : 



In considering whether the evidence warranted the verdict upon the issue whether 

 the deer were tamed and reclaimed, the observations made by Lord Chief Justice 

 Willes in the case of Davies i\ Powell, are deserving of attentiim. The difference in 

 regard to the mode and object of keeping deer in modern times from that which 

 anciently prevailed, as pointed out by Lord Chief .Justice Willes, can not be over- 

 looked. It is truly stated that ornament and profit are the sole objects for which 

 deer are now ordinarily kept, whether in ancient legal parks or in modern inclosures 

 so called ; the instances being very rare in which deer in such places are kept and used 

 for sport; indeed, their whole management differing very little, if at all, from that of 

 sheep, or of any other animals kept for profit. And, in this case, the evidence before 

 adverted to was that the deer were regularly fed in the winter; the does with young 

 were watched; the fawns taken as soon as dropped, and marked; selections from 

 the herd made from time to time, fattened in places prepared for them, and after- 

 wards sold or consumt-d, with no difierence of circumstance than what attached, as 

 before stated, to animals kejit for profit and food. 



As to some being wild, and some tame, as it is said, individual animals, no doubt, 

 differed, as individuals in almost every race of animals are found, under any circum- 

 stances to differ, in the degree of tameness that belongs to them. Of deer kept in 

 stalls, some would be found tame and gentle, and others quite irreclaimable, in the 

 sense of temper and quietness. 



Upon a question whether deer are tamed and reclaimed, each case must depend 

 upon the particular facts of it; and in this case, the court think that the facts were 

 such as were proper to be submitted to the jury; and, as it was a. question of fact 

 for the jury, the court cannot perceive any sitfdcient grounds to warrant it in saying 

 that the jurj' have come to a wrong conclusion upon the evidence, and do not feel 

 authorized to disturb the verdict. 



The decision therein referred to with approval was made by Lord 

 Chief Justice Willes in the case of Davies vs. Powell, a report of which 

 is printed on page 126 of the printed argument. 



The point in controversy is stated on page 127: 



And the single question that was submitted to the judgment of the court is 

 whether these deer under these circumstances, as they are set forth in the pleadings, 

 were distrainable or not. It was insisted for the plaintiff that they were not; 



(1) Because they we\& fenc naturce, and no one can have absolute ])roperfcy in them. 



(2) Because they are not chattels, but are to be considered as hereditaments and 

 incident to the park. 



(3) Because, if not hereditaments, they were at least part of the thing demised. 



(4) Their last argument was drawn ab inusUato, because there is no instance in 

 "which deer have been adjudged to be distrainable. 



