ORAL ARGUMENT OF SIR CHARLES RUSSELL, Q. C. M. P. 251 



Judge must be held to liave misdirected the jury in having omitted to impress suffi- 

 ciently upon them the importance of the fact of the deer being kept in an ancient 

 legal park. But the judge did distinctly direct the attention of the jury to the fact 

 of the deer being in a legal park, if such should be their opinion of the place, as an 

 important ingredient in the consideration of the question whether the deer were 

 reclaimed or not, when he directed them that the question whether the deer had been 

 reclaimed, must be determined by a consideration, among the other matters pointed 

 out of tiie nature and dimensions of the park in which they were contiued; and we 

 do not ])erceive any objectionable omission in the Judge's direction in this respect, 

 unless the jury ought to have been directed that such fact was conclusive to negative 

 the reclamation of the deer. 



Then he proceeds to deal with the facts, and he says: 



It is not contended that there wastio evidence fit to be submitted to the jury, and 

 that therefore the plaintiff ought to have been nonsuited; but it is said that the 

 weight of the evidence was against the verdict. 



He deals with that question thus: 



In considering whether the evidence warranted the verdict upon the issue, whether 

 the deer were tamed and reclaimed, the observations made by Lord Chief Justice 

 Willes in the case of Davies v. Poivell are deserving of attention. The difference in 

 regard to the mode and object of keeping deer in modern times, from that which 

 anciently prevailed, as pointed out by Lord Chief Justice Willes cannot.be over- 

 looked. It is truly stated, that ornament and profit are the sole objects for which 

 deer are now ordinarily kept, whether in ancient legal parks, or in modern inclosures, 

 so called; the instances being very rare in which deer in such places are kept and 

 used for sport; indeed, their whole management differing very little, if at all, from 

 that of sheep, or of any other animals kept for profit. And in this case, the evidence 

 before adverted to, was, that the deer were regularly fed in the winter ; the does with 

 young were watched; the fawns taken as soon as dropped, and marked; selections 

 ifrom the herd made from time to time, fattened in places prepared for them, and 

 afterwards sold or consumed, — with no difference of circumstance than what attached, 

 as before stated, to animals kept for profit and food. 



As to some being wild, and some tame, it is said, — individual animals, no doubt 

 differed, as individuals in almost every race of animals are found, under any circum- 

 stances, to difier in the degree of tameness that belongs to them. Of deer 

 1021 kept in stalls, some would be found tame and gentle, and others quite irreclaim- 

 able, in the sense of temper and quietness. 



Upon a question whether deer are tamed and reclaimed, each case must depend 

 upon the particular facts of it; and. in this case, the Court think that the facts were 

 such as were proper to be submitted to the jurj'; and, as it was a question of fact 

 for the jury, the Court cannot jierceive any sufficient grounds to warrant it in say- 

 ing that the jury have come to a wrong conclusion upon the evidence. 



I therefore wish to point out that all that case really shows is that? 

 upon certain evidence, it was submitted as a question of fact to a jury? 

 who are, according to the English system of jurisprudence, charged 

 with the determination of questions of fact, whether or not, in the cir- 

 cumstances of the i)articular case, the deer in question belonged to the 

 category of wild and unreclaimed deer, or belonged to the category of 

 tamed and reclaimed deer; whether in fact in the opinion of the jury 

 they were tamed and reclaimed. The jury found that in fact they 

 were tamed and reclaimed. That is the whole case. 



Next we have the case of Davies v. Powell, which is reported in 

 Willes' Eeports. It was decided in 1737, long previous to the case 

 last mentioned; in the middle of the last century. This was of the 

 same class of cases for which I must be forgiven for uttering one word 

 of explanation. This was also on demurrer. It is found on page 126 

 of the United States Argument: 



Trespass for breaking and entering the close of the plaintiff called Caversham 

 Park, containing 600 acres of land, etc., for treading down the grass, and for chasing, 

 taking and carrying away diversas feras, videlicet, 100 bucks, 100 does and 60 fawns 

 of the value of £600 of the said ijlaiutift' inclusas et coarctaias in the said close of 

 the plaintitf. 



