Early in my first year of law school, I noticed how many times the word ferret was used in cases. (I even blogged about the Property book’s description of ferrets). One day when logging in to Lexis to get my daily research points, I decided to do some more research on ferrets in the law. According to LexisAdvance, the word ferret appears in 13,645 cases. Through the years, the word “ferret” has appeared in cases in all 50 states and 5 U.S. territories. Even Guam, where ferrets are not allowed, is represented with the case Rapadas v. Benito (2011 Guam 28). In that case, the court described the ‘considerable latitude in devising the procedures it will follow to ferret out the facts pertinent to jurisdiction.”

Cases referencing the word ferret cover nearly all areas of law including Civil Procedure, Civil Rights, Constitutional Law, Criminal Law, and Environmental Law. Not surprisingly, the North American black-footed ferret appears in several (24) cases. “The black-footed ferret was among the animals and birds listed.” Defenders of Wildlife v. Administrator, EPA (882 F.2d 1294). Plenty of cases such as New York City Friends of Ferrets v. City of New York (876 F. Supp. 529) involve litigation over whether ferrets are legal to own as pets.

The non-furry but curious tax ferret also appears frequently in cases such as R. C. Jones Cotton Co. v. State (1929 OK 482) where it was decided to “thereby save the county the fees paid the tax ferret.” During my searching, Lexis suggested the related search for the “anti-ferret rule” leading to 1213 cases dealing with this rule of evidence.

I found this all very interesting so I dug a bit more. The very first time that “ferret” appeared was in the case of Brown v. Union Ins. Co. heard by the Supreme Court of Errors of Connecticut (5 Day 1) handed down on June 1, 1811. The case was brought by the owner of the merchant ship Franklin when the insurance company refused to pay for the cargo lost when the ship was captured by the British sloop-of-war Ferret.

The Supreme Court of Massachusetts became the next court to reference “ferret” in March of 1812 in the case of Robinson v. Jones (8 Mass. 536). Strangely enough, this case again involved both the British sloop Ferret and the merchant ship Franklin.

Picture of case in Munford Reporter

According to Lexis, the third case occurred on February 13, 1813, when the Supreme Court of Virginia handed down an opinion in the case of Custis v. Lane (17 VA 579). In this decision, the court became the first court to use the word “ferret” in a manner that has persisted to this day. The court refers to the curious nature of ferrets when it stated that the court should “detect and ferret out every shift and device.” (One can only imagine that the court was influenced by English court decisions. Using Hein Online, I found multiple references where English courts used ferret as a verb. In England, using ferrets to hunt rabbits is still quite popular).

I found it very fitting that the first use of “ferret” as a verb in a court opinion occurred in Virginia. Even more interesting to me, the case originated in Fairfax County near where I have lived for the last thirteen years. I mentioned the case to the excellent staff at Fairfax County Circuit Court’s Historical Record Center hoping that they might have some of the original documents. Unfortunately, the documents are no longer available (due to events of some historical importance in the mid-1800s).

Although they did not have any of the documents for this case, they did seem to recognize the name of the appellant. When I explained that the case was brought against Fairfax County Sheriff William Lane for refusing to allow the appellant Custis to vote in the election of 1809, their suspicions were confirmed.

To understand, we need to go into a bit of history. In 1790, part of Fairfax County had been transferred to the United States to become Washington, D.C. Mr. Custis’ land was included in that transfer. Then, in January of 1808, Virginia passed legislation requiring residency in Virginia in order to vote. Thus, we have Mr. Custis arriving at the polls in Fairfax County only to be turned away because he was a resident of Washington, D.C. True students of history may realize at this point that the case involved George Washington Parke Custis, the step-grandson of George Washington, whose land was ceded to Washington D.C., later returned to Virginia, and eventually became Arlington National Cemetary.

Interestingly, the University of Pittsburgh Law Review states that this case is the first court decision on the issue of taxation without representation for DC residents. (109 U. Pa. L. Rev. 1010 (1961)). “The refusal to permit a person to vote, who is lawfully entitled, is an injury which deprives him of his rank in society, and subjects him to be taxed, and legislated for, without being represented.” Custis v. Lane (17 Va. 579, 590). This remains a touch issue to this day.

This case has so many interesting turns and there are still more. The case records state that the case was argued by Edmund I. Lee, but I unable to find any history for Edmund I. However, I was able to track down another Edmund Lee. Edmund J. Lee was a relative of Custis who served as mayor of Alexandria and had a long career as a lawyer. He was a well-respected member of the bar and argued before the Supreme Court. Although I have not been able to confirm this yet, I believe that Edmund J. likely argued the case.

Awesome case, right? Unfortunately, the story doesn’t end there.

 Munford Reporter

After getting all excited over the Custis case, and doing all that research, it turns out that the Lexis entry was incorrect. When the helpful staff at the Fairfax Circuit Court Public Law Library provided a copy of the Munford Reporter for the case, I realized that the Lexis case entry included pages from the Appendix. In those days, corrections to cases were printed in the Appendix of the next volume. Unfortunately, Custis v. Lane was the last case in the volume and the Appendix began with the next page.  Whoever entered Custis v. Lane into Lexis included the pages from the Appendix by mistake. Unfortunately, our wily “ferret” appeared in the Appendix and not Custis. Even worse, the information from the Appendix never was used to update the case from the previous year’s volume. This means that “ferret” should have appeared in an earlier case in my search. The actual first case to use the word “ferret” as a verb was Watkins v. Taylor (3 Munf 595). (For Westlaw fans, you will be pleased to know that they had it right all along. Lexis grudgingly corrected the error once I brought it to their attention).

Although I tried to transfer my loyalty to Watkins, it just is not as interesting a case as Custis and does not have the same local ties for me. As a result, I have decided to keep Custis v. Lane as the official case of Ferreting Out Justice even though the case turned out to be ferret free. After all, it took quite a bit of ferreting to discover the truth.