122 ARGUMENT OF THE UNITED STATES. 



boundaries could be ascertained by distinct marks, telling tliem that 

 the principal question was whether they found for the plaintiffs or for 

 the defendant, the others being only incidental. 



The jury retired, and after a protracted absence returned into court, 

 the judge having left; when, upon the associate asking them whether 

 they found for the plaintiffs or the defendant, the foreman answered: 



" We find, first, that it was originally a legal park, but that its 

 boundaries have been altered and enlarged; secondly, we find that the 

 deer have been reclaimed from their natural wild state. What the 

 effect of that opinion is we are not lawyers enough to say." 



The associate declining to receive their verdict in that form, the jury 

 again retired, and after a short absence returned into court, the fore- 

 man (addressing the associate) saying: "You may take it in the first 

 instance as a verdict for the plaintiffs." The associate then asked, 

 "Do you find that there was an ancient park, with the incidents of a 

 legal park?" To which the foreman answered, "We find that it was 

 originally a legal park, but that its boundaries have been altered and 

 enlarged." Associate: " Do you find that there was an ancient park, 

 with the incidents of a legal park*?" Foreman: "Yes." Associate: 

 " Do you find that there were distinct marks by which the boundaries 

 could be ascertained?" Foreman: "Yes, there were." 



The verdict was accordingly entered for the plaintiffs. 



Talfourd, Sergeant, in the following Easter term, obtained a rule nisi 

 for a new trial, on the grounds, first, that there had been no complete 

 finding by the jury, they not having distinctly answered the real ques- 

 tion which was submitted to them, viz, whether the deer were wild or 

 reclaimed; secondly, that the learned judge misdirected the jury, in 

 presenting the case to them as if the existence or nonexistence of 

 Eridge Park, with all the legal incidents of a park, was a mere collateral 

 question, whereas it was of the very essence of the inquiry (Co. Litt. 

 8 a.; The case of Swans; Davies v. Powell); thirdly, that there was no 

 sufficient evidence to warrant the finding. 



Humphrey, Ghannell, Sergt., and BoviU, in Easter term, 1848, showed 

 cause in support of the verdict, and Talfourd and Byles, Terfts and 

 Willes supported the rule to show cause. 



Maule, J., now delivered the judgment of the court: 



This case was argued in Easter term, 1848, before Lord Chief Justice 

 Wilde and my brothers Coltman and Cresswell and myself. In the 

 absence of the Lord Chief Justice, I now proceed to pronounce the 

 judgment, which has been prepared by him, and in substance assented 

 to by us. 



This was an action of trover, brought to recover damages for the con- 

 version of a number of deer. The declaration contained two counts. 

 The first count stated that the testator, in his lifetime, was possessed 

 of a certain number of bucks, does, and other descriptions of deer, being 

 captured and reclaimed from their natural wild state and confined in 

 the close of the testator, and that the plaintiffs, after his death, were 

 possessed as executors, and that the defendants afterwards converted 

 the deer, etc. The second count stated that the plaintiffs, as executors, 

 were possessed of the like quantity of deer, which, the defendant had 

 converted, to the damage of the plaintiffs. 



The defendant, except as to a certain number of bucks, does, and 

 fawns, pleaded not guilty to the whole declaration; and, secondly, 

 that the testator was not possessed, nor were the plaintiffs, as his ex- 

 ecutors, possessed, of the deer us alleged; thirdly, that except as to a 

 certain number of bucks, does, and fawns, the deer alleged in the dec- 



