126 ARGUMENT OF THE UNITED STATES. 



jects for which deer are now ordinarily kept, whether in ancient legal 

 parks or in modern inclosures so called; the instances being very rare 

 in which deer in such places are kept and used for sport; indeed, their 

 whole management differing very little, if at all, from that of sheep, or 

 of any other animals kept for profit. And, in this case, the evidence 

 before adverted to Avas that the deer were regularly fed in the winter; 

 the does with young were watched ; the fawns taken as soon as dropped, 

 and marked; selections from the herd made from "time to time, fattened 

 in places prepared for them, and afterwards sold or consumed, with no 

 difference of circumstance than what attached, as before stated, to 

 animals kept for profit and food. 



As to some being wild, and some tame, as it is said, individual ani- 

 mals, no doubt, differed, as individuals iu almost every race of animals 

 are found, under any circumstances to differ, in the degree of tameness 

 that belongs to them. Of deer kept in stalls, some would be found 

 tame and gentle, and others quite irreclaimable, in the sense of temper 

 and quietness. 



Upon a question whether deer are tamed and reclaimed, each case 

 must depend upon the particular facts of it; and in this case, the court 

 think that the facts were such as were proper to be submitted to the 

 jury; and, as it was a question of fact for the jury, the court can not 

 perceive any sufficient grounds to warrant it in saying that the jury 

 have come to a wrong conclusion upon the evidence, and do not feel 

 authorized to disturb the verdict; and the rule for a new trial must, 

 therefore, be discharged. Kule discharged. 



f John Davies v. Thomas Powell and six others. Willes's Reports, 1737-1758.] 



The following opinion of the court was thus given by Willes, Lord 

 Chief Justice: 



Trespass for breaking and offering the close of the plaintiff called 

 Caversham Park, containing 600 acres of land, iu tin 1 parish of Caver- 

 sham in the county of Oxford, for treading down the grass, and for 

 chasing taking and carrying away diversas feras, videlicet, KM) buck's 

 100 does and 00 fawns of the value of £000 of the said plaintiff inclu- 

 sas et coarctatas in the said close of the said plaintiff. Damage £700. 



The defendants all join in the same plea; and as to the force and 

 arms, etc. they plead not guilty, but as to the residue of the trespass 

 they justify as servants of Charles Lord Cadogan, and set forth that the 

 place where, etc., at the time when, etc., was, and is a park inclosed and 

 fenced with pales and rails, called and known by the name of Caver- 

 sham Park, etc. ; and that the said Lord Cadogan was seized thereof 

 and also of a messuage, etc., in his demesne as of fee, and being so seized 

 on the 3d of August, L730, by indenture demised the same to the plain- 

 tiff by the name {inter alia) of all the said park called Caversham Park 

 from Lady-day then last past for the term of 7 years, under the 

 rent of £V2i "2s. The deer are not particularly demised, but there 

 is a covenant that the plaintiff, his executors, and administrators 

 should from time to time during the term keep the full number of 

 100 living deer iu and upon the said demised premises, or in or upon 

 some parts thereof. And Lord Cadogan covenants to allow the 

 plaintiff in the winter yearly during the term twenty loads of boughs 

 and lops of trees for browse for his deer to feed on, calling them there, as 

 he does in other parts of the lease, the deer of the said John Davies; and 

 likewise covenants that if the plaintiff shall on the feastof St. .Michael 

 next before the expiration thereof pay Lord Cadogan all the rent that 



