ORAL ARGUMENT OF SIR RICHARD WEBSTER, Q. C. M. P. 511 



haps to the same pastures as the tame one. The hind that drops the 

 calf has the same animus revertendi to return and feed the calf wherever 

 it may be; but until possession has been taken, neitlier in one case nor 

 in the other is there any property-. 



But it may be said to me — You are not stating the law as to the 

 strongest case that can be put against you sufficiently fairly. 



Before I come to that however, I would ask Mr. Justice Harlan's atten- 

 tion in justification of what I have said, that so far from the doctrine 

 of the rooks not being fit for food, being the ratione decitendi or the basis 

 of the judgment in Hannam v. Moclcett, in a passage which unfortu- 

 nately is by a inadvertence not set out in the United States Case, imme- 

 diately following where they do stop, and within a few lines of it, this 

 passage occurs : 



And even with respect to animals ferce naturae, though they be fit for food, such as 

 rabbits, a man Las no right of property in them. In Bolston's Case, it was adjudged 

 that if a man makes coney burroughs in his own land which increase in so great 

 number that they destroy his neighbour's land ... he has no property in them. 



Of course you know, Mr. President, that "conies" are rabbits. It is 

 the word that is used in this case to describe rabbits. 



Mr. Justice Harlan. — That means that he has no property in the 

 wild animals simply because they are wild. 



Sir EiCHAKD Webster. — 'So^ sir ; simply because they are coming 

 back; they are supposed to have gone off; I agree that they are rab- 

 bits supposed to have gone off the land of the man who made the coney 

 burroughs on to another man's land. 



Mr. Justice Harlan. — On what land are they killed? 



Sir Richard Webster. — They are killed on the land of the stranger. 

 There are two adjoining proprietors, A and B. A makes coney bur- 

 roughs, or in other word a house for the conies, feeds them, if you like, 

 puts down turnips in hard weather in order that the conies may not eat 

 his trees. The rabbits run out of their holes and run on to the land of 

 the adjoining owner B; B shoots them. They are B's rabbits when he 

 has shot them, and A has no claim against him, in other words although 

 he made the coney burroughs, A has no property in them. I think. Sir, 

 that as to the distinction which you have put to me, tending, to remove 

 the force of my argument based on Hannam v. Moclcett, I have satisfied 

 you that it is impossible on a fair examination of this judgment to come 

 to the conclusion that the fact that the rooks were not ordinarily fit for 

 food had anything to do with the judgment at all. 



Senator Morgan. — If shoots the conies on the land of B, they belong 

 to B ratione solif 



Sir Richard Webster. — If C reduces into possession, by killing, 

 the wild animals on the land of B, the dead animal it belongs to 13. 

 That is a fiction of the law. — 



Senator Morgan. — Ah! 



Sir Richard Webster. — Well, Senator, I am not unwilling to grap- 

 ple with tbe point. 



Senator Morgan. — I beg your pardon; I did not think it was a fic- 

 tion of the law, I thought it was a jirovision of the law, a decision. 



Sir Richard Webster. — Really I used that expression, but I did 

 not mean ficti(m in that sense. I merely meant the dead animal being 

 a thing which, as was said in the House of Lords, is in somebody's 

 possession, it is given by oiu- law, contrary to the civil law, contrary to 

 the Roman law — 



The President. — And to the French law also. 



