140 The Frederick G erring, Jr. 



For the purposes of this case, it may be asserted that all the 

 authorities agree in holding that a wild animal caught in a net 

 or trap is not in the full possession or the absolute property of its 

 owner unless finally seized. This feat, therefore, cannot be accom- 

 plished till the hunting or fishing is successfully completed. 



These principles were recognized in two American cases 

 quoted with approbation by Chancellor Kent. In Picrson v. Post^ 

 the Supreme Court of the State of New York held in 1805 that: 



Pursuit alone gives no right of property in animals feres 

 natiircc; therefore an action will not lie against a man for 

 killing and taking one pursued by, and in view of, the person 

 who originally found, started, chased it, and was on the point 

 of seizing it. Occupancy in wild animals can be acquired only 

 by possession, but such possession does not signify manu- 

 caption, though it must be of such a kind as by nets, snares 

 or other means, to so circumvent the creature that he cannot 

 escape. 



Tompkins, J., delivering the opinion of the court, said : 



If we have recourse to the ancient writers upon gerjeral 

 principles of law, the judgment below is obviously erroneous. 

 Justinian's Institutes^ and Fleta' adopt the principle, that pur- 

 suit alone vests no property or right in the huntsman ; and 

 that even pursuit, accompanied with wounding, is equally in- 

 effectual for that purpose, unless the animal be actually taken. 

 The same principle is recognized by Bracton.^ 



Puffendorf* defines occupancy of beasts ferce naturco, to 

 be the actual corporal possession of them, and Bynkershock 

 is cited as coinciding in this definition. It is indeed with 

 hesitation that Puflfendorf affirms that a wild beast mortally 

 wounded, or greatly maimed, cannot be fairly intercepted by 

 another, whilst the pursuit of the person inflicting the wound 

 continues. The foregoing authorities are decisive to show 



«3 Caine 175. 



iLib. 2, tit. 1, s. 13. 



2Lib. 3, c. 2, p. 175. 



»Lib. 2, c. 1, p. 8. 



*Lib. 4, c. 6, ss. 2 and 10. 



