504 THE ADVOCATE
VOL. 79 PART 4 JULY 2021
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 accomplished till the hunting or fishing is
Sir Timothy Lloyd held that once the fish had been put in the lake, they
became property of the landowner:
56 The fish in the Borwick lakes, from which they cannot escape, were
and are the subject of a general and exclusive right of the landowner to
catch them, and then either to kill them or to do whatever else he pleases
with them. …
57 … From that moment on after another person takes the fish the
former owner no longer has possession of the animals in any sense, and
his former rights acquired per industriam no longer exist.
Lady Justice Rose and Lord Justice Peter Jackson provided separate reasons
but agreed with Sir Timothy Lloyd.
In addition to raising interesting issues about proprietary ownership in
wild animals and fish, this decision is a recent example of how Roman law
and Bracton continue to find application in the common law courts.15
1. The full text is available on the Harvard Law School
Library’s website: <amesfoundation.law.harvard.
edu/Bracton/>. Bracton has been described as “the
crown and flower of English medieval jurisprudence”:
Frederick Bernays Wiener, “Did Bracton
Write Bracton?” (1978) 64:1 ABA J 72 at 72.
2. Thomas J McSweeny, Priests of the Law: Roman Law
and the Making of the Common Law’s First Professionals
(Oxford: Oxford University Press, 2019) at 1.
3. Binnie J referred to Bracton in British Columbia v
Canadian Forest Products Ltd, 2004 SCC 38 at
paras 75–76. See also R v JLM, 2017 BCCA 258 at
para 35; Fairchild (suing on her own behalf) v Glenhaven
Funeral Services Ltd, 2002 UKHL 22 at
paras 157–60, Lord Rodger (considering writings on
Roman law and other comparative law jurisdictions).
4. 2020 EWCA Civ 578.
5. Bracton, vol 2, at 42.
6. Ibid, vol 2, at 166–67.
7. Gaius is a praenomen (a personal name). The full
name of the author of The Institutes of Roman Law is
unknown. See Dennis Paling, “Gaius, the Institutes
and the Provincial Edict” (2003) 35 Bracton LJ 45.
8. The Digest of Justinian, at 41.1.1, 41.3.2. See also
Rudolf Sohm, The Institutes of Roman Law, 3rd ed
(Oxford: Clarendon Press, 1907) at 304 (“Occupatio
is the most primitive of all mode of acquisition. It
consists in the taking possession of a thing which
belongs to nobody, with the intention of becoming
owner of it. Res nullius occupati credit. The following
may be objects of occupatio: wild animals …”).
9. Bracton, De Legibus et Consuetudinibus Angliae,
edited by George E Woodbine, translated by Samuel
E Thorne (London: Selden Society, 1968–77) l 2, c 1,
fol 9 De Adquirendo Rerum Dominio, vol 2, 42.
See also Peter Birks, “The Roman Law Concept of
Dominium and the Idea of Absolute Ownership”
(1985) Acta Juridica 1 at 8.
10. The Case of Swans (1592), 7 Co Rep 15b.
11. Ibid, 16a–16b.
12. (1897), 27 SCR 271 Frederick Gerring Jr.
13. 6 QB 106. Strong CJ and Gwynne J found that
Young v Hichens had no bearing on the case.
14. Frederick Gerring Jr, supra note 12 at 305.
15. For further reading on the reception of Roman law in
the common law courts, see the excellent article by
James Lee, “Confusio: Reference to Roman Law in the
House of Lords and the Development of English Private
Law” (2009) 5:1 Roman Legal Tradition 24.