Appendix to the Memorial. 141 



that mere pursuit gave Post no legal right to the fox, but 

 that he became the property of Pierson, w'ho intercepted and 

 killed him. 



It therefore only remains to inquire whether there are any 

 contrary principles, or authorities, to be found in other books, 

 which ought to induce a different decision. Most of the cases 

 whic'h have occurred in England, relating to property in wild 

 animals, have either been discussed and decided upon the prin- 

 ciples of their positive statute regulations, or have arisen be- 

 tween the 'huntsman and the owner of the land upon which 

 beasts fcrcc naturcc have been apprehended, the former claim- 

 ing them by title of occupancy, and the latter ratione soli. 

 Little satisfactory aid can, therefore, be derived from the Eng- 

 lish reporters. 



Barbeyrac. in his notes on Puffendorf, does not accede 

 to the definition of occupancy by the latter, but, on the con- 

 trary, affirms that actual bodily seizure is not, in all cases, 

 necessarv to constitute possession of wild animals. He does 

 not, however, describe the acts which, according to his ideas, 

 will amount to an appropriation of such animals to private 

 use. so as to exclude the claims of all other persons, by title 

 of occupancy, to the same animals ; and he is far from aver- 

 ring that pursuit alone is sufficient for that purpose. To a 

 certain extent, and as far as Barbeyrac appears to me to go, 

 his objections to Puffendorf's definition of occupancy are rea- 

 sonable and correct. That is to say, that actual bodily seizure 

 is not indispensable to acquire right to, or possession of. wild 

 beasts: but that, on the contrary, the mortal wounding of suc'h 

 beasts, by one not abandoning his pursuit, may. with the 

 utmost propriety, be deemed possession of him since, thereby, 

 the pursuer manifests an unequivocal intention of appro- 

 priating the animal to his individual use, has deprived him 

 of his natural liberty, and brought him within his certain con- 

 trol. So also, encompassin;^- and securing such animals with 

 nets and toils, or otherwise intercepting them in such a manner 

 as to deprive them of their natural liberty, and render escape 

 impossible, may justly be deemed to give possession of them 

 to those persons who, by their industry and labor, have used 

 such means of appretiending them. Barbeyrac seems to have 

 adopted, and had in view in his notes, the more accurate opin- 

 ion of Grotius^' with respect to occupancy. That celebrated 

 author^, speaking of occupancy, proceeds thus: "Requiritur 



'T.his is a mistake. Puffendorf reproduces in this respect the opinion of 



Grotins. 



2Lib. 2, c. 8, s. 3, p. 309. 



