The animal must be deprived of its natural liberty in order to brcome property. Must be brought within the power and control of the pourenar.

BUSTER v. NEWKIRK.

SUPREME COURT OF NEW YORK. 1822.

[Reported 20 Johns. 75.]

IN ERROR, on certiorari to a justice's court.

Plif wounded dur but it raw away. Dift. finally killed. Did feif

Newkirk brought an action of trover against Buster for a deer sin. pildit

It appeared that N. was hunting deer on the 31st of December, 1819, and had wounded one, about six miles from B.'s house, which he pur

sued with his dogs. He followed the track of the deer, occasionally have proper discovering blood, until night; and on the next morning resumed the pursuit, until he came to B.'s house, where the deer had been killed? the evening before. The deer had been fired at by another person, Steed not. just before he was killed by B., and fell, but rose again, and ran on, the dogs being in pursuit, and the plaintiff's dog laid hold of the deer about the same time, when B. cut the deer's throat. N. demanded the venison and skin of B., who gave him the venison, but refused to let him have the skin. The jury found a verdict for the plaintiff for seventy-five cents, on which the justice gave judgment.

PER CURIAM: The principles decided in the case of Pierson v. Post (3 Caines' Rep. 175) are applicable here. The authorities cited in that case establish the position that property can be acquired in animals feræ naturæ by occupancy only, and that in order to constitute such an occupancy it is sufficient if the animal is deprived of his natural liberty, by wounding or otherwise, so that he is brought within the power and control of the pursuer. In the present case the deer, though wounded, ran six miles; and the defendant in error had abandoned the pursuit that day, and the deer was not deprived of his natural liberty, so as to be in the power or under the control of N. He therefore cannot be said to have had a property in the animal so as to maintain the action. The judgment must be reversed.

Judgment reversed.

The rule of law is not ande in favor of a

The won Wolds the whole

SWIFT v. GIFFORD.

UNITED STATES DISTRICT COURT FOR MASSACHUSETTS. 1872.

[Reported 2 Lowell, 110.]

LIBEL by the owners of the ship Hercules against the agent and managing owner of the Rainbow, both whale-ships of New Bedford, for the value of a whale killed in the Ochotsk Sea by the boats of the Hercules, and claimed by the master of the Rainbow, and taken and

26

Soft, ship had

SWIFT v. GIFFORD.

harfooned appropriated by him, because one of his harpoons, with a line attached a whale to it, was found fastened in the animal when he was killed. The eviwhich how dence tended to show that the boats of the respondents raised and made fast to the whale, but he escaped, dragging the iron and line, and ever broke

boost. he so far outran his pursuers that the boats' crews of the Hercules did not

know that any one had attacked or was pursuing the whale when they, fout being to windward, met and captured him; that the master of the quile

a dish Rainbow was, in fact, pursuing, and came up before the whale had ingat Plif boat

captured the

a distance rolled over, and said that one of his irons would be found in it, which proved to be true; and he thereupon took the prize. The parties filed a written stipulation that witnesses of competent experience would testify that, during the whole time of memory of the oldest masters of whale just whaling-ships, the usage had been uniform in the whale-fishery of Nanas other boat tucket and New Bedford that a whale belonged to the vessel whose came up. iron first remained in it, provided claim was made before cutting in. Dift. claimed There were witnesses on the stand who confirmed the existence of the whale as it usage, and who extended it to all whalemen in these seas; and there was nothing offered to oppose this testimony. The only disputed had his iron question of fact or opinion was concerning the reasonable probability init& fef that the whale would have been captured by the Rainbow if the boats flif of the Hercules had not come up. The value of the whale was said to be about $3,000.

Jave

it ut.

Jaccording to J. C. Dodge and C. T. Bonney, for the libellants.

usag whaters.

G. Marston and W. W. Crapo, for the respondent.

LOWELL, J.: The rule of the common law, borrowed probably from steld the the Roman law, is that the property in a wild animal is not acquired canby wounding him, but that nothing short of actual and complete posflif session will avail. This is recognized in all the cases concerning helover. whales cited at the Bar, as well as in the authorities given under the The shilawa first point. Whether the modern civil law has introduced the modifiwould seem cation that a fresh pursuit with reasonable prospect of success shall is be his on give title to the pursuer, does not seem to be wholly free from doubt, side the though the ancient commentators rejected such a distinction, for the allows the satisfactory reason that it would only introduce uncertainty and confuuniversal sion into a rule that ought to be clear and unmistakable. See Pancustome is dects, by Pothier, vol. xvi. p. 550; lib. 41, tit. 1; Gaius, by Tompkins & Lemon, p. 270. I do not follow up this inquiry, because it would be impossible for me to say that the crew represented by the respondent, though continuing the chase, had more than a possibility of

prevail.

success.

The decision, therefore, must turn on the validity of the usage, without regard to the chances of success which the respondent's crew had when the others came up. It is not disputed that the whalemen of this State, who have for many years past formed, I suppose, a very large proportion of all those who follow this dangerous trade in the Arctic seas, and perhaps all other Americans, have for a very long time recognized a custom by which the iron holds the whale, as they express it.

The converse of the proposition is that a whale which is found adrift, though with an iron in it, belongs to the finder, if it can be cut in before demand made. The usage of the English and Scotch whalemen in the Northern fishery, as shown by the cases, is, that the iron holds the whale only while the line remains fast to the boat; and the result is, that every loose whale, dead or alive, belongs to the finder or taker, if there be but one such.

The validity of the usage is denied by the libellants, as overturning a plain and well-settled rule of property. The cases cited in the argument prove a growing disposition on the part of the courts to reject local usages when they tend to control or vary an explicit contract or a fixed rule of law. Thus Story, J., in The Reeside, 2 Sumner, 569, says, "I own myself no friend to the almost indiscriminate habit of late years of setting up particular usages or customs in almost all kinds of business and trade, to control, vary, or annul the general liabilities of parties under the common law, as well as the commercial law. It has long appeared to me that there is no small danger in admitting such loose and inconclusive usages and customs, often unknown to particular parties, and liable to great misunderstandings and misinterpretations and abuses, to outweigh the well-known and well-settled principles of law." Many similar remarks of eminent judges might be cited. But in the application of these general views it will be found difficult to ascertain what is considered a principle of law that cannot be interfered with. Principles of law differ in their importance as well as in their origin; and while some of them represent great rules of policy, and are beyond the reach of convention, others may be changed by parties who choose to contract upon a different footing; and some of them may be varied by usage, which, if general and long established, is equivalent to a contract. Thus in Wigglesworth v. Dallison, Doug. 201, which Mr. Smith has selected as a leading case, the law gave the crops of an outgoing tenant to his landlord ; but the custom which made them the property of the tenant was held to be valid.

The rule of law invoked in this case is one of very limited application. The whale-fishery is the only branch of industry of any importance in which it is likely to be much used; and if a usage is found to prevail generally in that business, it will not be open to the objection that it is likely to disturb the general understanding of mankind by the interposition of an arbitrary exception. Then the application of the rule of law itself is very difficult, and the necessity for greater precision is apparent. Suppose two or three boats from different ships make fast to a whale, how is it to be decided which was the first to kill it? Every judge who has dealt with this subject has felt the importance of upholding all reasonable usages of the fishermen, in order to prevent dangerous quarrels in the division of their spoils. In Fennings v. Grenville, 1 Taunt. 241, evidence was offered of a custom in the Southern fishery for the contending ships to divide the whale equally between

them. This custom, which differed entirely from that prevailing in the North Atlantic, was yet thought to be not unreasonable. Chambre, J., said, "I remember the first case on the usage which was had before Lord Mansfield, who was clear that every person was bound by it, and who said that were it not for such a custom there would be a sort of warfare perpetually subsisting between the adventurers." The case went off upon a question of pleading, and the custom was not passed upon; but it is clear that it was thought to be valid. In the other cases cited, the usage first above mentioned was found to be valid. In the case of Bartlett v. Budd, 1 Lowell, 223, the respondents claimed title to a whale by reason of having found it, though it had been not only killed, but carefully anchored, by the libellants. I there intimated a doubt of the reasonableness of a usage in favor of the larceny of a whale under such circumstances, and I still think that some parts of the asserted usage could hardly be maintained. If it were proved that one vessel had become fully possessed of a whale, and had afterwards lost or left it, with a reasonable hope of recovery, it would seem unreasonable that the finder should acquire the title merely because he is able to cut in the animal before it is reclaimed. And, on the other hand, it would be difficult to admit that the mere presence of an iron should be full evidence of property, no matter when or under what circumstances it may have been affixed. But the usage being divisible in its nature, it seems to me that, so far as it relates to the conduct of the men of different vessels in actual pursuit of a whale, and prescribes that he who first strikes it so effectually that the iron remains fast should have the better right, the pursuit still continuing, it is reasonable, though merely conventional, and ought to be upheld. In Bourne v. Ashley, determined in June, 1863, but not printed, Judge Sprague, whose experience in this class of cases was very great, found the custom to be established, and decided the cause in favor of the libellants, because they owned the first iron, though the whale was killed by the crew of the other vessel, or by those of both together. Mr. Stetson, of counsel in that case, has kindly furnished me with a note of the opinion taken down by him at the time, and I have carefully compared it with the pleadings and depositions on file, and am satisfied that the precise point was in judgment. The learned judge is reported to have said that the usage for the first iron, whether attached to the boat or not, to hold the whale, was fully established, and that one witness carried it back to the year 1800. He added, that although local usages of a particular port ought not to be allowed to set aside the general maritime law, this objection did not apply to a custom which embraced an entire business, and had been concurred in for a long time by every one engaged in that trade.

In this case the parties all understood the custom, and the libellants' master yielded the whale in conformity to it. If the pursuit of the Rainbow had been clearly understood in the beginning, no doubt the other vessel would not have taken the trouble to join in it, and