124 ARGUMENT OF THE UNITED STATES. 



them that, if it had been an ancient park, and the boundaries could 

 not now be ascertained, that the franchise might be forfeited in refer- 

 ence to the crown, but that that would not affect the question between the 

 parties relative to the deer, that question being- whether the deer were 

 tamed and reclaimed; which must be determined with reference to the 

 state and condition of the animals, the nature of the place where they 

 were kept and the mode in which they had been treated: and the 

 learned judge stated in writing- the questions to be answered by the 

 jury, which were, first, whether they found for the plaintiffs, the exec- 

 utors, or for the defendant, Lord Abergavenny; secondly, whether they 

 found the place to be an ancient park, with the incidents of a legal 

 park; thirdly, whether the boundaries could be ascertained by distinct 

 marks. 



The jury answered, that they found the place to be an ancient park, 

 with all the incidents of a legal park; secondly, that the boundaries of 

 the ancient park could be ascertained. And the jury expressed a wish 

 to abstain from finding for either plaintiffs or defendant; but, upon 

 being required to do so, they found a verdict for the plaintiffs, and 

 stated that the animals had been originally wild, but had been re- 

 claimed. 



The rule came on for argument in Easter term, 1848; and it appeared, 

 upon the discussion, that the objection that no sufficient verdict had 

 been found by the jury, hadbeen urged upon a misapprehension of what 

 the jury had said. It was supposed that the jury had not found, in 

 terms, for either plaintiffs or defendant, but merely had answered the 

 questions put to them: but it appeared, upon inquiry, that the jury 

 had been required to find a verdict for the plaintiffs or for the defend- 

 ant, in addition to answering the questions; and that they accordingly 

 returned a verdict for the plaintiffs. 



The second objection was that the judge had misdirected the jury; 

 and it has been contended, in support of that objection, that the judge 

 must be held to have misdirected the jury in having omitted to im- 

 press sufficiently upon them the importance of the fact of the deer being 

 kept in an ancient legal park. 



But the judge did distinctly direct the attention of the jury to the 

 fact of the deer being in a legal park, if such should be their opinion 

 of the place, as an important ingredient in the consideration of the 

 question whether the deer were reclaimed or not when he directed them 

 that the question whether the deer had been reclaimed must be de- 

 termined by a consideration, among the other matters pointed out, of 

 the nature and dimensions of the park in which they were confined; 

 and we do not perceive any objectionable omission in the judge's direc- 

 tion in this respect, unless the jury ought to have been directed that 

 such fact was conclusive to negative the reclamation of the deer. 



It has not been, on the part of the defendant, contended, in terms, 

 that deer kept in a legal park can in no case be deemed to have been 

 tamed or reclaimed, although the argument seemed to bear that aspect; 

 but the many cases to be found in the books in which the question has 

 been agitated, in whom the property was of deer in a park, seem quite 

 inconsistent with such a position; because in all such cases the argu- 

 ments proceeded upon the distinct fact that the deer were in a park, 

 that is, a legal park; and the question was whether deer continued to 

 be wild animals, in which no property could be acquired, and which, 

 therefore, like other game and wild animals, being upon the land, 

 passed with the estate, or whether, by reason of their being tamed ami 

 reclaimed, a property could be acquired in the deer distinct from the 



