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



I will only trouble tlie Tribunal by reading one more passage from 

 the judgment of Lord Chelmsford, on page 638 of the Keport. 



With respect to wild and unreclaimed animals, therefore, there can he no douht 

 that no property exists in them so long as they remain in the state of nature. It is 

 also equally certain that •when killed, or reclaimed by the oAvuer of the land on Avhich 

 they are found, or by his authority, they become at once his property, absolutely 

 "when they are killed, and in a qualilied manner when they are reclaimed? 



That is to say, when they are reclaimed the property is qualified and 

 not absolute. If they escape again, the property is gone. 



The next case is the very long case of Morgan and the executors of 

 Lord Abergavenny against the Earl of Abergavenny. I have here the 

 report of that case in full as it is reported in the 8th Common Bench 

 Keports at page 768. 



This case of Lord Abergavenny covers a good many pages in the 

 printed Argument; but the point may be stated very briefly. The short 

 l^oint was this: If certain deer Avere wild and unreclaimed, they did not 

 pass to the personal representatives of the late owner. If they were 

 reclaimed so as to be in the category of domesticated animals, they did 

 pass to the representative of the late owner. That is the short point. 

 I will read first of all what the jury found. The facts are stated in vari- 

 ous ways: 



These deer were fed. They were described as to their habits as 

 being to a large extent at least tame, some shy and timid. The report 

 continues: 



That they very rarely escaped out of the boundaries; that they were attended by 

 keepers, and were fed iu the winter with hay, beans and other food ; that a few years 

 back a quantity of deer had been brought from some other place and turned into 

 Eridge Park; that the does were watched, and the fawns, as they dropped, were con- 

 stantly marked, so that their age at a future time might be ascertained; that, at 

 certain times, a number of deer were selected from the herd, caught with the assist- 

 ance of dogs, and were put into certain parts of the park, whicli were then inclosed 

 from the rest, of sufficient extent to depasture and give exercise to the selected deer, 

 which were fattened and killed, either for consumption, or for sale to venison dealers ; 

 that the deer were usually killed by being shot; that there was a regular establish- 

 ment of slaughter houses, for preparing and dressing them for use. 



Those are all the facts I need trouble you with. 



The jury found that the place was an ancient park with all the inci- 

 dents of a legal park : Secondly, that the boundaries of the ancient 

 park could be ascertained. They expressed a wish to abstain from find- 

 ing for either x)laintiffs or defendant; but upon being required to 

 1020 do so, they found a verdict for the plaintilfs, and stated that the 

 animals had been originally wild, but had been reclaimed. There- 

 fore the jury found that they were reclaimed animals — originally in the 

 class of wild animals, but reclaimed. 



Then the rule came (m for argument. I read now from the judgment. 



The President. — Does it appear that those deer were selected and 

 shut up to be fattened ? 



Sir Charles Russell. — Oh no ; the question arose as to all the deer, 

 some of whom were shut up and fattened. The report continues: 



The rule came on to be argued in Easter term, 1848; and it appeared, upon the dis- 

 cussion, that the objection that no sufficient verdict had been found by the jury, 

 had been urged upon a misapprehension of what the jury had said. 



The judgment of the court was delivered by Mr. Justice Maule, the 

 argument having been heard before Chief Justice Wilde, Mr. Justice 

 Coltman, and Mr. Justice Creswell: and the learned Judge said. 



The second objection [to the summing up of the Judge] was that the Judge had 

 misdirected the jury; and it was contended, in support of that objection, that the 



