"Prop

erty is created: Blades v. Higgs, 11 H. L. Cas. 621. erty ratione soli," said the lord chancellor in said case, "is the common-law right which every owner of land has to kill and take all such animals feræ naturæ as may from time to time be found on his land, and as soon as this right is exercised, the animal so killed or caught becomes the absolute property of the owner of the soil." It was further held in the same case that such animals when found killed, and taken by a mere trespasser, became also the property of the owner of the land, the same as if taken by him or his servants: See Sutton v. Moody, Ld. Raym. 250; Earl of Lonsdale v. Rigg, 11 Ex. 654; Rigg v. Earl of Lonsdale, 1 Hurl. & N. 923.

We understand that the law in this country with regard to property in animals feræ naturæ is substantially in accord with that of England, excepting, of course, all game laws and statutory regulations, which are now very numerous upon this subject: See Idol v. Jones, 2 Dev. 162.

In support of the plaintiff's position in the case at bar, he cites the following authorities, namely: 1 Swift's Digest, 169; 2 Bla. Com. *393; 3 Kent's Com. *350; 2 Inst. 1, 14, 15; Merrils v. Goodwin, 1 Root, 209; Gillett v. Mason, 7 Johns. 16; and Goff v. Kilts, 15 Wend. 550. All of these authorities, in so far as they are pertinent, omitting, of course, the citations from the civil law, which is not in force here, tend in our judgment to support the defendant's position rather than that of the plaintiff.

The case of Merrils v. Goodwin, 1 Root, 209, cited by the plaintiff, decides that a man's finding bees in a tree standing upon another man's land gives him no right either to the tree or the bees; and that a swarm of bees going from a hive, if they can be followed and identified, are not lost to the owner, but may be reclaimed. That is to say, a man may pursue his property of this sort even upon the land of another, and retake it; and this, although the owner might be liable for a trespass in so doing.

Gillett v. Mason, 7 Johns. 16, cited by the plaintiff, also recognizes the doctrine of a qualified ownership in bees, ratione soli; and while it decides that hiving or inclosing them gives property therein, and that he who first incloses them in a hive becomes their proprietor, yet it is clear from the general tenor of the case, as from the note which follows it, that it "must be understood with the restriction that a person could not come

AM. ST. REP., VOL. II.-55

upon the land of another without his consent for the purpose of taking bees, although unreclaimed."

The case of Goff v. Kilts, 15 Wend. 550, is clearly against the position taken by the plaintiff. It was trespass for taking and destroying a swarm of bees which was the property of the plaintiff, but which left the hive and flew off into a tree on land of another. The owner, however, kept the bees in sight, followed them, and marked the tree into which they entered. The court held that the plaintiff's qualified property in the bees continued so long as he could keep them in sight, and possessed the power to pursue them; and that, even though he might be liable for trespass in following and retaking them upon the land of another, yet that the qualified property remained in him, and that no one else would be entitled to take them. With regard to obtaining the ownership in bees, the court say: "According to the law of nature, where prior occupancy alone gave right, the individual who first hived the swarm would be entitled to the property in it; but since the institution of civil society, and the regulation of the right of property by its positive laws, the forest, as well as the cultivated field, belong exclusively to the owner, who has acquired a title to it under those laws. . . . . The natural right to the enjoyment of the sport of hunting and fowling, wherever animals feræ naturæ could be found, has given way in the progress of society to the establishment of rights of property better defined and of a more durable character. Hence no one has a right to invade the inclosure of another for that purpose. He would be a trespasser, and as such liable for the game taken." See also Ferguson v. Miller, 1 Cow. 243; 13 Am. Dec. 519; Adams v. Burton, 43 Vt. 36, 38; and Bennett on Farm Law, 64.

In the case at bar, the plaintiff was a trespasser upon the land of Green from the beginning. He had no right to place the box or hive in the tree; and by placing it there he acquired no title to the bees which subsequently occupied it, or to the honey which they produced. Neither is it material to the issue for us to inquire whether the defendant, by taking the bees and honey away without previous permission from the owner of the land, was also a trespasser; for even admitting that he was does not in any way aid the plaintiff in this suit. The fact that A commits a trespass upon land of B, and carries away some of his personal property, would hardly be considered a cause of action in favor of C.

As to the point raised by defendant's counsel, that no ex

ception can be taken to the judgment where the court below finds both as to the law and the facts, we have to say that we do not so construe the statute. It provides that "if such party be aggrieved by any opinion, direction, ruling, or judgment of the court of common pleas on any matter of law raised by the pleadings, or by an agreed statement of facts, or apparent upon or brought upon the record by a bill of exceptions, shall be entitled to have such matter of law heard and decided by the supreme court," etc.: Pub. Stats. R. I., c. 220, sec. 10. The ruling complained of in this case was made upon a certain state of facts, first found by the court below, which facts are brought upon the record by a bill of exceptions. With regard to the finding of those facts we have nothing to do; but with regard to the law applicable to that state of facts we have to do upon proceedings of this sort: See Providence Co. Savings Bank v. Phalan, 12 R. I. 495; Providence Gas Burner Co. v. Barney, 14 Id. 18; Kenney v. Sweeney, 14 Id. 581. Exceptions overruled.

BEES ARE FERÆ Naturæ, and UNTIL HIVED AND RECLAIMED, NO PROPERTY CAN BE ACQUIRED IN THEM: See note to Wheatley v. Harris, 70 Am. Dec. 260, where this subject is discussed.

HAMMOND V. HAMMOND.

[15 RHODE ISLAND, 40.]

DIVORCE WILL NOT BE GRANTED FOR HUSBAND'S FAILURE TO PROVIDE necessaries for his wife, when he was unable to do so, though such inability resulted from his imprisonment as a punishment for crime by him committed.

PETITION for divorce. The opinion states the case.

Charles F. Baldwin, for the petitioner.

A. and A. D. Payne, for the respondent.

By Court, DURFEE, C. J. Two causes for divorce are assigned in the petition, namely, extreme cruelty, and neglect or refusal to provide necessaries, the respondent being of sufficient ability. Extreme cruelty has not been proved. The only proof of neglect to provide is, that, about a year and a half before the preferring of the petition, the respondent was arrested in Albany, New York, for burglary in the third degree, so called, convicted, and imprisoned in New York for two years. He was destitute of property of any sort, and of

course could not, while in prison, have the fruit of his labor. Clearly, therefore, he did not have sufficient ability to provide necessaries for his wife, and we do not see how it can be said that the statutory cause has been proved. It is urged that the lack of ability ought not to avail the respondent, because he lost the ability by his own fault. We do not think any estoppel can be applied against a respondent in a divorce case. The question of divorce is not a matter which is merely personal to the parties. The state has an interest in it, and has clearly specified the causes; one or more of which must be shown to exist to the satisfaction of the court before the divorce can be granted. We cannot hold that the respondent had sufficient ability, when it is clear that he did not have it, merely because he lost it by his own fault. The fact that the fault was also a crime makes no difference, in a legal point of view; for it is not the crime which the statute makes a cause for divorce, but neglect or refusal to provide, being of sufficient ability. If the divorce were grantable in this case, notwithstanding the husband's lack of ability, we do not see why it would not be grantable for a like reason if the husband had simply disabled himself by breaking an arm or a leg by assuming an unnecessary risk, or by falling sick from a reckless exposure to contagious disease.

Petition dismissed.

NEGLECT TO PROVIDE WIFE WITH NECESSARIES is not a sufficient cause for divorce, when it was not in the husband's power so to provide: Washburn v. Washburn, 9 Cal. 475; nor when such necessaries were supplied by her out of her own earnings, they being sufficient for that purpose: Rycraft v. Rycraft, 42 Id. 444.

TOWN OF PAWTUCKET v. BALLOU.

[15 RHODE ISLAND, 58.]

IN RHODE ISLAND, WITNESSES TO WILL MUST SUBSCRIBE THEIR NAMES IN PRESENCE of the testator, and the acknowledgment in his presence of their signatures, affixed without his presence, is not sufficient.

APPEAL. The opinion states the case.

Thomas P. Barnefield, for the town of Pawtucket.

Benjamin M. Bosworth, for the appellee.

By Court, DURFEE, C. J. The question is whether, under the agreed statement of facts, the paper offered for probate is

- entitled to probate as the wil of Guis J. Ballou. We think not. Our statute provides that an instrument intended to be a devise of real estate "shall be attested and subscribed in the presence of the devisor by two or more witnesses, or else shall be utterly void and of no effect," and that personal property may be disposed of by will in the same manner as real estate: Pub. Stats. R. I., c. 182, secs. 4, 8. The paper was not subscribed by the witnesses in the presence of Otis J. Ballou. It was subscribed by them while he was absent, where he could not see them subscribe it. The execution is therefore clearly invalid, unless the acknowledgment of subscription by the witnesses was equivalent in law to an actual subscription in the presence of Otis J. Ballou. We do not think it was. Our statutes prescribe the manner in which property, real and personal, shall descend or be distributed, when not disposed of by will. A will may-this paper, if admitted to probate, would make an entirely different disposition. An instrument purporting to be a will, therefore, ought not to be allowed to have effect as a will, unless it fully answers the requirements of the statute. The declaration of our statute that such an instrument shall be attested and subscribed in the presence of the testator, "or else shall be utterly void and of no effect," is very significant, and demonstrates an intention on the part of the general assembly to make subscription by the witnesses in the presence of the testator of the very essence of the execution. We are unwilling to speculate upon the possibilities of human action, and to take the responsibility of holding that an acknowledgment of subscription by the witnesses in the presence of the testator answers all the purposes of actual subscription in his presence, and that it therefore shall have the same effect. Acknowledgment of subscription is not the same in fact as actual subscription, and, in view of the statute, we do not think we have any right to decide that it is the same in law.

The only case in which acknowledgment of subscription has been held to be equivalent to subscription itself in the presence of the testator is Sturdivant v. Birchett, 10 Gratt. 67, which was decided by the court of appeals of Virginia by a divided. court. On the other hand, the cases which more or less strongly support the view which we have expressed are numerous. Most of them are cited and reviewed by Judge Gray in an elaborate opinion in Chase v. Kittredge, 11 Allen, 49; 87 Am. Dec. 687. In that case one of the witnesses subscribed