ORAL ARGUMENT OF SIR CHARLES RUSSELL, Q. C. M. P. 259 



1030 begirminj,' of the argument of the case, illustrates his view of 

 the matter by saying. 



In Chasemore v. Richards the plaintiff was possessed of a spring undergrouncl 

 which supplied his well. The defendant dug a well on his land, and the plaintiff's 

 spring in consequence dried up. The only remedy the plaintiff had was to dig his 

 well deeper and so retain the water if he could. 



So, says Lord Bramwell, in the present case the remedy of the Duke 

 is to offer greater attractions to the grouse, and induce them to come in 

 that way, and because the plaintiff has done an unneighborly thing, he 

 has got no right to frighten them away. 



He says: 



What is the reason given? The reason given is this: That the game which the 

 defendant frightened away was game which the plaintiff wholly or partially got 

 from oft' the Duke of Rutland's land, — say the Defendant's land — the Duke having 

 attracted it there by providing food for it, or taking care of it, and then the plaintiff 

 improjierly attempted to get it on his laud by putting down some grain on his land. 

 Then, in order that the plaiTititt' may not shoot the game which the Plaintift'had so 

 attracted and in order that the plaintiff may have no inducement to go on with such 

 conduct — for that is the only meaning of preventing him from alluring the grouse 

 aforesaid, — in order that he should be without inducement for such acts as that, the 

 defendant did the thing complained of. Jfr appears to me clearly that the plea is 

 bad, because I see nothing in point of law, to prevent the plaintiff from doing that 

 which the plea alleges he has done. If the plaintiff has done no wrong, how can 

 there be a justification of the defendant's act. No one can pretend for a moment 

 that any action wouhl lie at the suit of the Duke against the plaintiff. The truth 

 is this: without sa\ ing anything as to tlie propriety of such conduct as this between 

 gentlemen and neighbours, the true remedy, I take it, where a person knows game 

 is atfracted away from his laud, is to offer them stronger inducements to remain. 



Now I have said that we have exhaustingly and exhaustively stated the 

 municipal law of these two great communities, but I have yet to trouble 

 the Tribunal witli the law of another great community. French law as to 

 I mean the law of France; and at some trouble, and with '^i^d animals. 

 some pains, we have endeavored to inform ourselves aboitt this law; 

 and it will be found that, with very slight exceptions, it is essentially 

 the same in principle as that of the United States of America and of 

 Great Britain. 



I am glad to know that there is, in the President of this Tribunal, one 

 who can check or correct, if any error be committed, our statement of 

 the French law. I find as the result of this enqniry that there are 

 recognized three main divisions of living animals; wild animals: Fera^ 

 who live in a state of natural i'reedom, or as the civilian exi^resses it in 

 laxitate natnrali. I find that there are domestic animals, Mayisueta; and 

 the third class is the half-tame or reclaimed animals, Mansuefacta, which 

 is an intermediate class between the other two. But I find also that 

 the existence of that third class is not admitted universally by text 

 writers; but it is to be added that the existence of that class is a mat- 

 ter of small importance, for these animals are regarded by the law in 

 the light of domestic animals when they are on the land, that is 



1031 to say, the right to take them is recognized when they are on the 

 land; and treated as wild, or no man's jiroperty, when they are 



off" the land. 



Sen ii tor Morgan. — Does the Government of France assert a title in 

 any wild animals for any purposed 



Sir Charles Russell. — I am not aware, except on the same lines I 

 have been endeavouring to ex])lain ; but I would respectfully refer to 

 the President as a much more reliable authority. 



Now as regards domestic animals, or the animals which belong to the 

 first class, they are dealt with by various articles of the Code; and I 



