506 ORAL ARGUMENT OF SIR RICHARD WEBSTER, Q. C. M. P. 



And then two instances of that are given, both of which are author- 

 ities in our Courts, — Young v. Mitchens, where fish only partly in a 

 seine-net were held not to be in possession; that is to say, they were not 

 sufhciently captured: and Regina v. Revu Fothadu, where flsh in irri- 

 gation tanks in India (that is to say, large tanks not like ordinary 

 ponds or stews, where fish are kept when in possession) were held not 

 to be in possession. 



Mr. Justice Harlan. — I should like to say that you must read the 

 sentence succeeding the one you read, in order to get at the full mean- 

 ing of the author. 



[Sir Richard Webster. — The succeeding sentence, as the learned 

 Judge asks me to read it, is this : 



An animal, once tamed or reclaimed, may continue in a man's possession, although 

 it fly or run abroad at its will, if it is in the habit of returning regularly to a place 

 Tvhere it is under his complete control; such habit is commonly called "animus 

 revertendi." 



The learned Judge must pardon me for pointing out, with great def- 

 erence, this does not bear on the question of tchat is sufficient posses- 

 sion. I am not on the question of animus revertendi now, or, I am sure 

 unintentionally, he would not have diverted the mind of the Court from 

 the question of what is sufficient possession. I am not on the question 

 of how that possession is continued, but what is sufficient possession: 

 and the test of sufficiency is that they can be taken at pleasure with cer- 

 tainty; and, in the same way, I shall show you that animals which, in 

 the proper sense of the word, have the animus revertendi can be so 

 taken without exception. 



It is to be noted that the taking of an animal ferw naturw found at large, though 

 in fact having an animus revertendi, will not be theft if the talker had not the means 

 of knowing that it was reclaimed; not because there is no trespass, but becaiise an 

 essential ingredient of animus furandi is excluded by his ignorance that there was 

 an owner. In some cases, also, theft is excluded by reason that the taking is con- 

 stituted a lesser offence by Statute. 



Mr. Justice Harlan. — I only referred to it because it was used there 

 in the argument to demonstrate the right to take them, and the right 

 of possession was gone when they left the enclosure. I only meant to 

 suggest that that sentence, taken in connection with the one you read, 

 would perhaps give the whole mind of the Author. 



Sir KiCHARD Webster. — If that impression is conveyed by that pas- 

 sage in the argument, it is not what the persons who framed the argu- 

 ment meant. What the persons who tramed the argument meant was 

 what is the question of what is sufficient possession, and that that can 

 be retained by animus revertendi, not only do we not dispute, but in the 

 subsequent passage that is pointed out. I do not think with great def- 

 erence a, lawyer would have stated it differently, though doubtless he 

 would have been careful to point out, that possession is preserved by 

 what the law calls animus revertendi because you have to differentiate 

 the case of animals of which possession has been taken. 



The President.— Do you understand the last phrase you read from 

 Pollock and Wright as meaning, that when there is no animus furandi, 

 when one takes this reclaimed game out of premises where it is gener- 

 ally kept, he would legally get possession of it? 



Sir KiCHARD Webster. — I think that is not the sentence to which 

 the learned Judge referred. The distinction would affect the question 

 of its being a crime, but would not touch the question of property. 



The President. — You do not think the other alludes to the ques- 

 tion of property. 



