APPENDIX TO PART THIRD DIVISION I. 125 



estate, although remaining in the park, and which would pass in like 

 manner as other personal property. 



The general position, therefore, to be found in all the books, that deer 

 in a park will pass to the heir unless tamed and reclaimed, in which 

 case they would pass to the executor, seems to be inconsistent with the 

 position that deer can not, in any case, be considered as tamed and 

 reclaimed whilst they continue in a legal park. Many authorities are 

 cited upon that subject, the names of which it is not necessary to ad- 

 vert to. 



The observations made in support of the rule, on the part of the 

 defendant, were rather addressed to a complaint that the learned judge 

 did not give so much weight to the fact of this being a legal park as 

 they thought belonged to it, than to any exception to what the judge 

 really said upon the subject. There can be no doubt that the learned 

 counsel on the part of the defendant did not omit to impress, upon the 

 jury his view of the importance of the fact of the deer being found in an 

 ancient and legal park; and nothing is stated to have fallen from the 

 judge calculated to withdraw the attention of the jury from the obser- 

 vations of the counsel made in that respect, or to diminish the force 

 which justly attaches to any of them. 



It remains to be considered whether the auguments in support of the 

 rule have shown that the verdict upon the issue, whether the deer were 

 tame and reclaimed, was warranted by the evidence. In showing 

 cause, on the part of the plaintitf, against the rule, it was contended 

 that the conclusion of the jury, that Eridge Park continued to possess 

 all the incidents of a legal park, was not warranted by the evidence; 

 because it was said that the franchise had been forfeited by the addi- 

 tion of other lands to the ancient park, and the destruction of the 

 means of acertaining the ancient boundaries; and numerous authori- 

 ties were referred to, relating to the requisites for constituting an exist- 

 ing legal park, and of the causes of the forfeiture of the franchise. But 

 the opinion which the court has formed upon the other parts of the 

 ease, renders it unnecessary to enter into the consideration of that 

 question, or into an examination of the authorities referred to. 



That it was proper to leave the question to the jury in the terms in 

 which the issue is expressly joined can not be disputed, and the direc- 

 tion that that question must be determined by referring to the place in 

 which the deer were kept, to the nature and habits of the animals, and 

 to the mode in which they were treated, appears to the court to be a 

 correct direction; and it seems difficult to ascertain by what other 

 means the question should be determined, whether the evidence in 

 this case was sueh as to warrant a conclusion that the deer were tamed 

 and reclaimed. 



The court is, therefore, of opinion that the rule can not be supported 

 on the ground of misdirection. 



It is not contended that there was no evidence fit to be submitted to 

 the jury, and that, therefore, the plaintiff ought to have been non- 

 suited ; but it is said that the weight of evidence was against the ver- 

 dict. 



In considering whether the evidence warranted the verdict upon the 

 issue, whether the deer were tamed and reclaimed, the observations 

 made by Lord Chief Justice Willes in the case of Da vies v. Powell, are 

 deserving of attention. The difference in regard to the mode and ob- 

 ject of keeping deer in modern times from that which anciently pre- 

 vailed, as pointed out by Lord Chief Justice Willes, can not be over- 

 looked. It is truly stated that ornament and profit are the sole ob- 



