MUSIC: Gilbert & Sullivan
PIRATES OF PENZANCE (1879)
Welsh National Opera
Charles Mackerras, Conductor
Recording: 1993
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OXYGEN DQ46: Applying Manning ‘s
Factors to Facts of Mullett
Taming (or Other Investment in Animal)
Marking (or F Likely Aware of OO)
Emotional Bond
Short Time/Distance from Escape
OXYGEN DQ46: Applying Manning ‘s
Factors to Facts of Mullett
• Taming (or Other Investment in Animal)
• No Evidence of Taming/Training
• Probably Significant $$$ Investment;
• Might be Important under Manning
• See Reference to Menagerie Animals
• No Evidence of Emotional Bond
OXYGEN DQ46: Applying Manning ‘s
Factors to Facts of Mullett
• Marking = “Blemishes”
• As I.D., Probably Better Than Crest
• More Permanent
• Others Unlikely to Have Same
• As Notice to Finder, Probably Weaker
• Could Occur Naturally in Wild
• Unless Scarring Pattern “Unnatural” (E.g., Imprint
of Collar or Net
OXYGEN DQ46: Applying Manning ‘s
Factors to Facts of Mullett
• Short Time/Distance from Escape
1. Escape “a few days” after OO regained it
• Cf. Manning: Owned for 2 Years
• Not Helpful to OO of Sea Lion
– Little Additional Investment
– No Emotional Bonding
OXYGEN DQ46: Applying Manning ‘s
Factors to Facts of Mullett
• Short Time/Distance from Escape
2. Captured ~2 Weeks/70 Miles from
“Home”
• Cf. Manning: 5 days/Nearby in Same Town
Significance?
OXYGEN DQ46: Applying Manning ‘s
Factors to Facts of Mullett
• Short Time/Distance from Escape
2. Captured ~2 Weeks/70 Miles from “Home” (v.
5 days/Nearby in Same Town)
• Longer Time & Distance Might Mean:
– Less Training or Likelihood of Return
– OO Less Likely to Recover
– Animal More Likely to Have Returned to Wild
• BUT: 70 Miles for Sea Lion Probably Much
Less Than for Canary
OXYGEN DQ46: Applying Manning ‘s
Factors to Facts of Mullett
• Short Time/Distance from Escape
3. Claimed by OO 1 Year After Found
•
Cf. Manning: 1 Day After Found
Significance?
OXYGEN DQ46: Applying Manning ‘s
Factors to Facts of Mullett
• Short Time/Distance from Escape
3. Claimed by OO 1 Year After Found (v. 1 Day)
Could Mean
•
•
Insufficient Pursuit by OO
Significant Investment by F
OXYGEN DQ45: Applying Manning ‘s
Factors to Facts of Mullett
• Short Time/Distance from Escape
• Evidence Here
• Escape “a few days” after OO regained animal
• Captured ~2 Weeks/70 Miles from “Home”
• OO discovers animal about 1 year later
• Factor Help OO Under Manning?
• All Worse than Facts in Manning, year to
discover may suggest weak pursuit
• Maybe 70 miles not far for sea lion?
OXYGEN DQ45: Applying Manning ‘s
Factors to Facts of Mullett
• Factors Together
• Taming: No Evidence (But Lot of $$$)
• Marking: Good I.D.; Not Strong re Notice
• Emotional Bond: No Evidence of
• Short Time/Distance from Escape: Worse
than Manning, Especially Year to Discover
OXYGEN DQ45: Applying Manning ‘s
Factors to Facts of Mullett
• Factors Together
•
•
•
•
Taming: No Evidence of (though $$$)
Marking: Good I.D.; Not Strong re Notice
Emotional Bond: No Evidence of
Short Time/Distance: Worse than Manning, Esp. Year
Pretty weak case for OO under
Manning unless court considers $$$
investment very important.
OXYGEN DQ45: Articulating Manning Holding:
Nature of the Exercise
• Lots of Ways to Articulate Manning Holding
– Can Include or Exclude Particular Facts
– Can Describe Facts More Specifically or More Generally
• Squirrel Hypo in DQ 45 designed to get you to
– Play with the holding in the way that litigators do
– Find one plausible version helpful to client’s position.
• Requested Work-Product is Simply a Version of
Manning Holding (Helpful to Assigned Client)
OXYGEN DQ45: Articulating Manning Holding:
Nature of the Exercise
• Squirrel Hypo in DQ 45 designed to get you to
– Play with the holding in the way that litigators do
– Find one plausible version helpful to client’s position.
• Good Way to Start
– Apply Manning Factors to Hypo
– Determine strengths & weaknesses under Manning of
your client’s position.
OXYGEN DQ45: Articulating Manning Holding:
Apply Manning Factors
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Taming (or Other Investment in Animal)
Marking (or F Likely Aware of OO)
Emotional Bond
Short Time/Distance from Escape
OXYGEN DQ45: Articulating Manning Holding:
Apply Manning Factors
• Taming (or Other Investment in Animal)
• Emotional Bond
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•
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•
Responded to Name (Trained)
Comfort with Humans
OO Owned for Three Months
No Prior Escape & Return
More Helpful to Amy (OO) or Brandon (F)?
OXYGEN DQ45: Articulating Manning Holding:
Apply Manning Factors
Emotional Bond (Going Forward):
• Rest of “escape” cases arise in commercial contexts (fur fox
farming; whaling) where emotional bond is not going on
• I’m not going to include emotional bond in applications of
Manning in these contexts
• “Menagerie Animals” suggests not necessary for Manning
• You can bring it back for other problems we do to the extent
you think it’s relevant.
OXYGEN DQ45: Articulating Manning Holding:
Apply Manning Factors
• Marking (or F Likely Aware of OO)
• Recognizable from “Markings”
• Comfort with Humans
More Helpful to Amy (OO) or Brandon (F)?
OXYGEN DQ45: Articulating Manning Holding:
Apply Manning Factors
Short Time/Distance from Escape
• Time: Escape to Find: Unclear
• Distance: Escape to Find: Across Town
• Time: Find to OO Claim: 2 Months
More Helpful to Amy (OO) or Brandon (F)?
OXYGEN DQ45: Articulating Manning Holding:
Relevance of Facts
•
•
•
•
Helpful to A
Owned for 3 Months
Responds to Name
Comfortable w
Humans*
Identifying Markings
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•
•
•
Helpful to B
Squirrel Travels “Across
Town”*
No Prior Return
2 Months Before Found*
Markings Not Man-Made
(apparently)*
OXYGEN DQ45: Articulating Manning Holding:
Nature of the Exercise
• Squirrel Hypo in DQ 45 designed to get you to
– Play with the holding in the way that litigators do
– Find a plausible version helpful to client’s position.
• Apply Manning Factors to Hypo; Determine
Strengths & Weaknesses of Client’s Position.
• Try to craft holding that emphasizes strengths and
minimizes weaknesses.
OXYGEN DQ45: Articulating Manning Holding
Sample for Amy (narrow version; includes almost all
helpful facts):
OO retains property rights in an escaped animal f.n.
• that was previously under the owner’s control,
• that responded to its name when called,
• that had distinctive markings,
• that had been missing for a short period of time
and was located by the owner soon after
[arguable].
OXYGEN DQ45: Articulating Manning Holding
Samples for Amy (broader versions; focuses on a few
key facts):
OO retains property rights in an escaped animal f.n. that is…
(1) tamed to the extent that it knows its name and
remembers its name after a significant period of time
(2) tamed, trained to answer by name, and marked in such
a way as to make identification straightforward –
OXYGEN DQ45: Articulating Manning Holding
Sample for Amy (a little too broad):
OO retains property rights in an escaped animal f.n.
if it accidentally escapes from their immediate
possession and comes under the control of
another person.
Good idea to use language from case BUT:
• No limit on time and distance
• No reference to taming or marking
• Looks like OO always wins; case doesn’t say that.
OXYGEN DQ45: Articulating Manning Holding
Sample for Brandon (narrow version; includes almost
all helpful facts):
OO retains property rights in an escaped animal f.n.:
• that was previously owned for two years,
• that had escaped and returned before,
• that had been missing for only a few days, and
• that owner located day after it was found.
OXYGEN DQ45: Articulating Manning Holding
Sample for Brandon: (Focusing on Time as Key
Element):
OO retains property rights in an escaped animal f.n. that had
been possessed by the OO prior to escape for an amount
of time substantially greater than the amount of time the
animal was at large and substantially greater than the
amount of time that the animal was possessed by the
finder.
OXYGEN DQ45: Articulating Manning Holding
Sample for Brandon: (ME: Conceding Taming)
OO retains property rights in an escaped animal f.n. that
• was tamed
• had a distinctive man-made mark
• and was claimed shortly after escape
Mullett v. Bradley BRIEF: KRYPTON
Statement of the Case:
Mullett … ???
sued Bradley …
for [cause of action]
seeking [remedy]
Mullett v. Bradley BRIEF: KRYPTON
Statement of the Case:
Mullett, original owner of an escaped sea
lion,
sued Bradley … ???
for [cause of action]
seeking [remedy]
Mullett v. Bradley BRIEF: KRYPTON
Statement of the Case:
Mullett, OO of an escaped sea lion,
sued Bradley, who purchased the animal
from its finder
for [cause of action] … ???
seeking [remedy]
Mullett v. Bradley BRIEF: KRYPTON
Statement of the Case:
Mullett, OO of an escaped sea lion, sued
Bradley, who purchased the animal from F
for conversion
seeking [remedy] … ???
Mullett v. Bradley BRIEF: KRYPTON
Statement of the Case:
Mullett, OO of an escaped sea lion, sued
Bradley, who purchased the animal from
F, for conversion seeking damages.
Mullett v. Bradley BRIEF: KRYPTON
Procedural Posture:
The lower court dismissed the complaint.
The plaintiff appealed.
After a Trial or on a Dispositive Motion?
How do you know?
Mullett v. Bradley BRIEF: KRYPTON
Procedural Posture: The lower court dismissed the
complaint after a trial. The plaintiff appealed.
• “The complaint was dismissed on the merits.” (Top p.41)
• Statements referring to evidence and proof, e.g., “The
evidence not only fails to show that there was any animus
revertendi on its part, but the inference from the facts proven
is quite the contrary.” (Long para. mid-p.41)
Mullett v. Bradley BRIEF: KRYPTON
Facts Relevant to Analysis:
• P placed sea lion he owned on island in Atlantic. Sea lion
escaped. P made no effort to recapture it.
• Fisherman found sea lion in Atlantic 2 weeks later, 70+ miles
from the island. Fisherman sold it to D.
• A year later, plaintiff recognized the sea lion and demanded
its return. D refused.
ADDITIONAL FACT NOT FOUND IN FACT
SECTION OF OPINION?
Mullett v. Bradley BRIEF: KRYPTON
Facts Relevant to Analysis:
• Sea lions are native to Pacific Ocean; not found in the
Atlantic.
• P placed sea lion he owned on island in Atlantic. Sea lion
escaped. P made no effort to recapture it.
• Fisherman found sea lion in Atlantic 2 weeks later, 70+ miles
from the island. Fisherman sold it to D.
• A year later, plaintiff recognized the sea lion and demanded
its return. D refused.
Mullett v. Bradley BRIEF: KRYPTON
Before Doing Issue/Holding, We’ll
Examine the Three Factors that the
Court adopts from the English
Common Law
DQ47: Mullett Factors : KRYPTON
1. Abandonment: If Abandoned, to Finder
2. Intent to Return (Animus
Revertendi/AR): If not abandoned &
animal has AR, to OO
3. Return to Natural Liberty (NL): If no
intent to return, and animal has
returned to NL, to Finder
DQ47: Mullett Factors : KRYPTON
For Each Factor, We’ll:
1.
2.
3.
4.
Define & Discuss How to Prove
Discuss Why It Is Relevant to OO/F Disputes
Discuss Evidence & Outcome in Mullett
Discuss How It Would Apply to Facts of Manning
(Next Class: DQ48 Uranium)
DQ47: Mullett Factors : KRYPTON:
ABANDONMENT
Define & Discuss How to Prove
• No Definition in Case; Usually Means Intentionally
Giving Up Property Rights in Something.
• Look for act by OO indicating intent to relinquish
ownership.
• Negligence in caring for the animal or in
maintaining possession is insufficient.
DQ47: Mullett Factors : KRYPTON:
ABANDONMENT
Why Relevant to OO/F Disputes?
• Typically, we allow people to choose to give up
property rights if they want to
• Maybe unfair to return to OO, esp. if F aware of act
of abandonment or has invested in animal
DQ47: Mullett Factors : KRYPTON:
ABANDONMENT
Evidence & Outcome in Mullett
• Evidence of Abandonment Here?
DQ47: Mullett Factors : KRYPTON:
ABANDONMENT
Evidence & Outcome in Mullett
• Evidence of Abandonment Here?
– Investment, but low commercial value
– Left unenclosed on island
– No pursuit (BUT court says reasonable to think
hopeless)
• Outcome in Mullett?
DQ47: Mullett Factors : KRYPTON:
ABANDONMENT
Evidence & Outcome in Mullett
• Outcome in Mullett?
• [C]ounsel for the defendant [suggested] that the animal
had been abandoned by the plaintiffs …. It is, however,
unnecessary to pass upon this, in view of the conclusion to
which we have come that the plaintiff had lost his right of
property in the sea lion [because] it had regained its
natural liberty without any intention of returning. (Last
para.)
DQ47: Mullett Factors : KRYPTON:
ANIMUS REVERTENDI (AR)
Define & Discuss How to Prove
• Animus Revertendi is “Intent to Return” in Latin.
In this context, means animal out of OO’s
immediate control intended to return home
• How do you prove what goes on in mind
of animal?
DQ47: Mullett Factors : KRYPTON:
ANIMUS REVERTENDI (AR)
Define & Discuss How to Prove
• Animus Revertendi is “Intent to Return”
• Blackstone: Can “only” show by “usual
custom of returning.”
Why Relevant to OO/F Disputes?
DQ47: Mullett Factors : KRYPTON:
ANIMUS REVERTENDI (AR)
Why Relevant to OO/F Disputes?
• Shows labor/training by OO
• Shows connection betw OO and animal
• Reasonable for OO to let loose
Evidence in Mullett?
DQ47: Mullett Factors : KRYPTON:
ANIMUS REVERTENDI (AR)
Evidence & Outcome in Mullett
• Evidence
– No prior returns
– Leaves soon after placed on island
– Travels 70 miles in 2 weeks with no return
• Outcome?
DQ47: Mullett Factors : KRYPTON:
ANIMUS REVERTENDI (AR)
Evidence & Outcome in Mullett
• Evidence
– No prior returns
– Leaves soon after placed on island
– Travels 70 miles in 2 weeks with no return
• Outcome = No AR
DQ47: Mullett Factors : KRYPTON:
Return to NATURAL LIBERTY (NL)
Court Defines NL:
• NL = “that which the animal formerly enjoyed,
namely, to provide for itself, in the broadest sense
which the phrase may be used.”
• Regained NL = “when, by its own volition, it has
escaped from all artificial restraint and is free to
follow the bent of its natural inclination.”
How Would You Prove?