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



any property tbo plaintiff had a special riglit to acquire. A man in trade has a riffht 

 in hia fair chances of profit and he t^ives up capital to obtain it. It is for the ftood 

 of the public that he should. But has it ever been held that a man has a right in the 

 chance of ohUnning auimalsferw natitrcv wheve he has had no expense in inducing 



them to his pi-eniisea, and where it may be at least questionable whether they 

 1024 will he of any service to him, and whether indeed they will not be a nuisance 



to the neigh1)ourhood. This is not a claim propier impoknliam because they 

 are yonng, propter sohim because they are on the plaintiff's land, or propter indiistriam 

 because plaintiff has brought them to the place or reclaimed them, but propter iisum 

 et consuetudinem of the birds. 



In other words, the migratory habits, the animus revertendi, of the 



birds. 



They of their own choice and without any expenditure or trouble on his part have 

 a preclilectiou for his trees and are disposed to resort to them. 



The seals have a predilection for the Pribilof Islands and have a right 

 to resort to them. 



But has he a legal right to insist that they shall be permitted to do so? Allow the 

 right as to these birds and how can it be denied as to all others. 



Then he proceeds to point out the distinction in a claim of this kind 

 between birds that are fitted for food and birds that are not fitted for 

 food. He says : 



It is not alleged in this declaration that these rooks were not fit for food ; but we 

 know in fact that they are not generally so used, etc. 



Then follows a passage which is omitted in the Argument, but w' hich 

 is not unimportant. It follows after the word " established". He says : 



So far from being protected by law they have been looked upon by the Legislature 

 as destructive in their nature and as nuisances to the neighbourhood where they are. 



Then follows the passage which is omitted. 



It has been said that a man may acquire rights over other animals similis naturae 

 as affording him diversion, such as rabbits in a Avarren, doves in a dove-cote. But 

 first it is to be observed that rabbits and pigeons are not only subjects of diversion 

 but constitute an article of food. In the second Inst. 199. it is said that the common 

 law g.ave no way to matters of pleasure (wherein most men do exceed) for that they 

 brought no profit to the commonwealth; and therefore it is not lawful for any man 

 to erect a park, chace, or warren, without a license under the great seal of the 

 King. . . And even with respect to animals ferw naturcp, though they may be fit for 

 food, such as rabbits, a man has no right of propertj^ in them. 



Then he goes on to explain, in the way so many other authorities 

 have done, what are the rights in respect to animals /era; naturw, ratione 

 soUy etc. 



I have exhausted the authorities, I have considered every authority 

 that has been cited by my learned friend on this point; and I am not 

 justified in doing more than submitting to the Tribunal at this stage of 

 the argument that there is not one of them which is not in favor of the 

 propositions for Avhich we are contending, the non-existence of property 

 in the particular animal with which we are dealing in this case. 



The Tribunal here adjourned for a short time. 



The President. — Sir Charles, we are ready to hear you. 



Sir Charles Russell. — My friend Mr. Phelps has courteously inti- 

 mated to me that his impression is that in that case of Goff v. Kilts 

 (which is at page 117 ot the printed Argument of the United States), 

 the learned Judge did affirm the proposition that wiien bees take 

 1025 up their abode in a tree they belong to the owner of the soil, 

 if they are unreclaimed. I respectfully difter from my friend. 

 What I first read is the head note of the case — not the reported words 

 of the Judge. The head note ends with the word "trespass"; but if. 



