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



You \y\]\ see therefore tliat the plaintiff was coniphiining that these 

 100 bucks, does, etc. which lie said were his, were incliisas et coaretatas 

 in the close of the x)laintiff. 



Lord Hannen. — Can you explain the use of that Latin? It was 

 lono- after Latin had been used in that way. 



Sir Richard Webster. — As late as the middle of the last century 

 I think some words were still used in certain portions of the pleadings. 



Lord Hannen. — That is the explanation I had given of it, that cer- 

 tain phrases were used. 



Sir Charles Russell. — Yes; certain words of art were used in 

 the Latin tongue. I think that is the explanation. But the question 

 here was: Whether they were distrainable for rent which the plaintiff 

 owed to his landlord, Lord Cadogan: and if they were the plaintiff's 

 property they were distrainable for rent, but if they Avere not the plain- 

 tiff's property, if they were animals ferw naturce and wild, then they 

 were not distrainable; but he was complaining that they had been 

 seized to pay the rent he owed, and he described them as his own bucks 

 and his own fawns, as inclKsas et coaretatas in his close. 



This is again raised on demurrer. That is to say the plaintiff having 

 made this complaint, the defendant pleads, "I seized them for 

 1022 rent. Admitting all your facts, I seized them for rent"; where- 

 upon a demurrer to that defence. If you will turn to page 127, 

 the matter explains itself pretty well. It is the second paragraph: 



To this plea the plaintiff demurs generally, and the defendants join in demurrer. 



The technical effect of that, Mr. President, is this: That the plaintiff 

 says: Although I admit that the facts you set up in the defence are 

 true in fact, I deny that in point of law they afford an answer to my 

 claim. 



That is the effect of the demurrer. Then the report goes on : 



And the single question that was submitted to the judgment of the court is 

 whether these deer under these circumstances, as they are set forth in the pleading, 

 were distrainable or not. It was insisted for the plaintiff that they were not; 



(1) Because they were not ferte naturce, and no one can have absolute property in 

 them. 



(2) Because they are not chattels, but are to be considered as hereditaments and 

 incident to the park. 



(3) Because if not hereditaments, they were at least part of the thing demised. 



(4) Their last argument was drawn ab inusitato, because there is no instance in 

 which deer have been adjudged to be distrainable. 



Then the argument is set out. The judgment of the Chief Justice 

 is given. He says : 



I do admit that it is generally laid down as a rule in the old books that deer, 

 conies, etc., are ferw naturce, and that they are not distrainable; and a man can only 

 have a property in them ratione Joci. 



'■^Ratione locV is only another way of saying ratione soli. 



And therefore in the case of swans (7 Co. 15, 16, 17, 18) and iu several other books 

 there cited it is laid down as a rule that where a man brings an action for chasing 

 and taking away deer, hares and rabbits, etc., he shall not say suos, because he has 

 them only for his game and pleasure ratione privilenii whilst they are in his park, 

 warren etc. But there are writs in the register (fol. 102), a book of the greatest 

 authority, and several other places in that book which show that this rule is not 

 always adhered to. The writ in folio 102 is quare clausum ijysius et intravit et cuniculos 

 8U08 cepit. 



The reason given for the opinion in the books why they are not distrainable is 

 that a man can have no valuable property in them, etc. 



