ORAL ARGUMENT OF SIR CHARLES RUSSELL, Q. C. M. P. 253 



Then comes the real grouud of the decision, the second paragraph at 

 the top of page 128 : 



And that tins is the case of the deer which are distrained in this present case is 

 admitted in the pleadings. Tlie ])laintitf by bring an action of trespass for them in 

 some measnre admits himself to have a property in them; and they are laid to be 

 inchisas et coarvlatas in his close, 



"They are hiid to be", means " alleged to be" — 



which at least gave him a property ratione loci; and they are laid to be taken and 

 distrained there; but what follows makes it still stronger, for in the demise set forth 

 in the plea and on which the (|nestion depends, they are several times called the 

 deer of John Davics, the plaintiH". 



. . , . The plaintilf therefore in this case is estopped to say either that he had 

 uo property in them or that his property was of no value. 



1023 The case is a case decided on demurrer and it is only of interest 

 technically. It decides nothing. It simply says — 



You as plaintifts have alleged th"'y were your property. If they were your property, 

 they were distraiuable. The Court therefore say it is a good plea, and it is a good 

 answer to your claim. 



I have come to the end of all the authorities cited on the question of 

 property, witli one exception, and that is an additional authority cited 

 by my learned friend JMr. Phelps at page 180 of tlie printed argument. 

 That is the only case which he adds to the authorities citied by my 

 friend Mr. Carter, the case of Hannam v. Mocket. This is a case of 

 rooks. I have got the report here for the use of my learned friends if 

 they desire it, or for any member of the Court j but there is quite enough 

 in tliis for me to refer to. 



The facts there are these: 



The declaration [that is to say the plaintiff's claim] stated that the plaintiff was 

 possessed of a close of land with trees growing thereon, to which rooks had been 

 used to resort and to settle and to build nests and rear their young in the trees. That 

 is to say, they came there year after year to this same ]>]ace; by reason whereof 

 plaintiff had been used to kill and take the rooks and the young tliereof, and great 

 profit and advantage had accrued to him, yet that the defendant wrongfully and 

 maliciously intending to injure the plaintiff and alarm and drive away the rooks and 

 cause them to forsake the trees of the plaintiff, wrongfully and injuriously caused 

 gnus loaded with gun-powder to be discharged near the plaintiff's close, and thereby 

 drove away the rooks; and thereby the plaintiff' was prevented from killing and 

 taking the young thereof. 



I need not say that rook-pie is supposed to be an edible commodity; 

 and the shooting of young rooks sometimes amuses youthful sportsmen 

 at all events. 



Plea not guilty. 



The general issue, in fact. 



" Plea not guilty " nieans I deny what you say; I did not do the thing. 

 The Case is tried; decided in a particular way; and then after trial, 

 motion in arrest of judgment: it was held that this action was not main- 

 tainable, inasmuch as rooks were a species of bird /era' naturm, destruc- 

 tive in their habits, not known as an article of food, or alleged to be so, 

 not protected by any Act of Parliament; and the plaintiff could not 

 have any right in them or show any right to have them resort to his 

 trees. I should like to read what Mr. Justice Bayley says in giving 

 judgment: 



A man's rights are the rights of personal security, personal liberty, and private 

 property. Private property is either property in possession, property in action, or 

 property that an individual has a special right to acquire. The injury in this case 

 does not affect to be right of ]>ersonal security or personal liberty, nor any property 

 in possession or in action; and the question then is whether there is any injury to 



