248 ORAL ARGUMENT OF SIR CHARLES RUSSELL, Q. C. M. P. 



Then further on he continues: 



The qnestiou iu the present case is whether game found, killed, and taken npon 

 my land, by a trespasser becomes my property as much as if it had been killed and 

 taken by myself, or my servant by my authority. Upon principle there cannot, I 

 conceive, be much ditliculty. If propertj' in game be made absolute by reduction 

 into possession, such reduction must not be a wrongful act, for it would be unreason- 

 able to hold that the act of the trespasser, that is of a wrongdoer, should divest the 

 owner of the soil of his qualified property in the game, and give the wrongdoer an 

 absolute right of property to the exclusion of the rightful owner. 



But in game, when killed and taken, there is absolute property in some cue, and, 

 therefore, the property in game found and taken by a trespasser on the land of A. 

 must vest either in A. or the trespasser; and, if it be unreasonable to hold that the 

 property vests in the trespasser or wrongdoer, it must of necessity be vested in A., 

 the owner of the soil. 



1017 Then he proceeds to the conclusion that it vested in the owner 

 of the soil. 

 In this connection an erroneous reference I think is made by my 

 learned friends in note in their printed Argument attributing: I think to 

 Lord Chelmsford what in point of fact I think Lord Chelmsford did not 

 say. The note is on page 51. 



Lord Chancellor Chelmsford made the proposition that every thing must be owned 

 by some one, the ground of his decision in the House of Lords in the case of Blades 

 V. Higgs. 



I think that will not be found to be quite correct. 



Mr. Carter. — I should say it was entirely correct from what you 

 have read. 



Sir Charles Eussell. — I have not yet read Lord Chelmsford. 



Lord Hannen. — He uses a iDhrase which Mr. Carter thinks is equiv- 

 alent. 



Sir Charles Russell. — I quite agree, applied to the particular case 

 it is the equivalent of it, and it is quite right, but the statement is 

 attributed to Lord Chelmsford. 



Lord Hannen. — It is not a general proposition; it is with regard to 

 the facts of the particular case. 



Sir Charles Russell. — Quite so, it is not worth dwelling upon. 

 The general proposition that everything must be owned by somebody 

 is attributed to Lord Chelmsford. 



Lord Hannen. — I have opposite to my note on that "page 119"; 

 there may be something there. 



Sir Richard Webster. — That is where it is noted in the Ai)pendix 

 later on. 



Sir Charles Russell. — Yes that is the page I have now got to in 

 the Argument. It is not worth dwelling upon. The Judges agree in 

 saying the rabbits which were killed were wild: they were killed by a 

 trespasser on the land of A, and the question was whose is the property? 

 And contrary to the Roman law they arrived at the conclusion that the 

 property was not the trespasser's, but that of the man on whose land 

 it was killed. 



The President. — Before you leave that subject, will you allow me to 

 put a question relating to one of the earlier cases because I should like 

 to know your explanation. 



Sir Charles Russell. — On what page is it? 



The President. — It is about the white swans on page 114. There 

 is this, that property vested in the King by reason of his prerogative 

 because — 



VolatiUa (guw sunt f era; naiurw) alia sunt regalia, alia communia. 



Well of course instead of '' volatilia^^ you might use animaUa in gen- 

 eral. Would you consider that, in the case of the white swans, this 



