152 ORAL ARGUMENT OF JAMES C. CARTER, ESQ. 



Then the learned judso goes onto say: 



First. To sn2)i)ort the livst objoctiou, and whicli was principally relied on by tlie 

 counsel for the plaintilt", they cited Finch 176; Bro. Abr., tit. " rroperty," pi. 20; 

 Keilway, 30 b. Co. Lit. 47 a; 1 R.ol. Abr. 666; and several other old books, wherein it 

 is laid down as a rule that deer ari; not distrainable; and the case of Matlocke v. 

 Eastley, 3 Lev. 227, where it was holden that trespess will not lie for deer unless it 

 a])pears that they are tame and reclaimed. They likewise cited 3 Inst. 109, 110, and 1 

 liawk. P. C. 'J4 to prove that it is not felony to take away deer, conies, etc., unless 

 tame and reclaimed. 



I do admit that it is generally laid down as a rule in the old books that deer, 

 conies, etc., are /era; naiuro', and that they are not distrainable; and a man can only 

 have ai property in them rutionc loci. And therefore in the case of swans, (7 Co. 15, 

 16, 17, 18) and in several other books there cited it is laid down as a rule that where 

 a man brings an action for chasing and takiTig away deer, hares, rabbits, etc., he shall 

 not say siio-s, because he has them only for his game and pleasure raiione privilegii 

 ■whilst they are in his park, warren, etc. But there are writs in the register (fol. 

 102), a book of the greatest authority, and several other jilaces in that book which 

 show that this rule is not always adhered to. The writ in folio 192 is " quare clausum 

 ijjsius A. freijit et intraril, tS' ctmiculos suos cepif." 



The reason given for this opinion in the books why they are not distrinable is 

 that a man can have no valuable property in them. But the rule is plainly too general, 

 for the rule in Co. Lit. is extended to dogs, yet it is clear now that a man may have 

 a valuable property in a dog. Trover has been several times brought for a dog, and 

 great damages have been recovered. Besides the nature of things is now very much 

 altered, and the reason which is given for the rule fails. Deer were formerly kept 

 only in forests or chases, or such parks as were parks either by grant or prescrip- 

 tion, and were considered rather as things of pleasure than of profit; but now they 

 are frequently kept in inclosed grounds whi<'h are not properly parks, and are kept 

 principally for the sake of profit, and therefore must be considered as other cattle. 



On page 129 I read again: 



Fourth. The last argument, drawn ah inusitato, though generally a very good one, 

 does not hold in the present case. When the nature of things changes, the rules of 

 law must change too. When it was holden that deer were not distrainable, it was 

 because they were kept principally for pleasure and not for profit, and were not sold 

 and turned into money as they are now. But now they are become as much a sort of 

 husbandry as horses, cows, sheep, or any other cattle. Whenever they are so and it 

 is universally known, it would be ridiculous to say that when they are kept merely 

 for profit they are not distrainable as other cattle, though it has been holden that 

 they were not so when they were kept only for pleasure. The rules concerning per- 

 sonal estates, which were laid down when personal estates were but small in pro- 

 portion to lands, are quite varied both in courts of law and equity, now that personal 

 estates are so much increased and become so considerable a part of the property of 

 this kingdom 



From all tliose authorities drawn from the mnnicipal law of different 

 nations, and coulirmed by the ancient Eoman law, these propositions 

 are exceedingly clear: That, in respect to wild animals, if by the art, 

 and industry of man they may Ire made to return to a particular place 

 to such an extent that the possessor of that i)lace has a power and con- 

 trol over them wliich enables him to deal with them as if they were 

 domestic animals, they are in the law likened to domestic animals and 

 are made property just as much as if they were domestic animals; and 

 that property continues, not oidy while tliey are in the actual custody 

 of the owner of tliat particular place, but wlien they are away from his 

 custody, and no matter how far away, so long as they have an intention 

 of returning to it. The property in them ceases only when this inten- 

 tion ceases; and the cessation of that intention is to be Inferred, and 

 can only be infeiTcd, from tlie cessation of the habit of returning. When 

 they have abandoned that habit and liave returned to their ancient wild- 

 ness, they cease to be property and may be taken by any person with- 

 out an invasion of property right. I may state another proposition fully 

 substantiated by these authorities. It is scarcely another proposition 

 indeed. It is almost the same; but the language is somewhat different, 



