SPHERE OF STATE GOVERNMENT 73 



while property in wild animals, temporarily confined, is lost 

 when they escape from confinement. 67 



The Romans considered animals by nature divided into 

 two classes, those naturally wild and those naturally tame. 68 

 Whether an animal fell into one class or another was deter- 

 mined by an arbitrary classification. In England 69 and the 

 United States with the development of the theory that all 

 animals had once been wild, the determination of when an 

 animal ceased to be wild and could be classed as domesti- 

 cated came to be considered a question of fact for the jury. 

 Thus in the case of Morgan v. Earl of Abergavenny in- 

 volving a herd of deer which had been enclosed for a long 

 term of years, fed by game keepers and when fat sold for 

 food, an English court said, 



Upon the question whether deer are tamed and reclaimed, each 

 case must depend upon the particular facts of it; and in this 

 case, the Court thinks the facts were such as were proper to be 

 submitted to the jury . . . 



The jury held them to be tame deer. The same conclu- 

 sion regarding a herd of deer raised under similar con- 

 ditions was reached by an American court in Dieterich v. 

 Fargo. 71 



Even in the case of wild animals which have escaped 

 from confinement, property continues in them provided it 



67 James v. Wood, 82 Maine 173, 19 Atl. 160 (1889). 



68 Institutes of Justinian, Bk. II, tit. I, s. 15, 16. 



69 It is possible that there was a time when the only animals in which 

 property was recognized were those which were useful for draught or 

 food. As late as 1521 it was argued that no property could exist in 

 tamed animals, such as dogs, cats, or song birds, the only use of which 

 was to give pleasure to their owners. Case of the Dogs, Y. B. 12 Hy. 

 VII, Trin. pi. 3. 



708 C. B. 768, 137 Eng. R. 710 (1849). 

 71 194 N. Y. 359, 87 N. E. 518 (1909). 



