APPENDIX TO PART THIRD DIVISION I. 127 



would be due at the expiration of the lease, then the plaintiff, his ex- 

 ecutors, etc., might sell or dispose of any or all of the deer that he or 

 they should have in the said park at any time in the last year of the 

 said term, anything in the said indenture to the contrary in anywise 

 notwithstanding. And the defendants justify taking the said deer as 

 a distress for £186 rent due at St. Thomas-day, 1731, and say that 

 they did seize, chase, and drive away the said deer in the declara- 

 tion mentioned then and there found, " being the property of and be- 

 longing to the said John Davies," in the name of a distress for the 

 said rent; and then set forth that they complied with the several 

 requisites directed by the act concerning distresses (and to winch there 

 is no objection taken) that the deer were appraised at £161 15s. C>d., 

 and that they were afterwards sold for £$6 Ids., being the best price 

 they could get for the same; and that the said sum was paid to Lord 

 Cadogan towards satisfaction of the rent in arrear; and that in tak- 

 ing such distress they did as little damage as they could. 



To this plea the plaintiff demurs generally, and the defendants join 

 in demurrer. 



And the single question that was submitted to the judgment of the 

 court is whether these deer under these circumstances, as they are set 

 forth in the pleadings, were distrainable or not. It was insisted for 

 the plaintiff that they were not; 



(1) Because they were ferce naturce, and no one can have absolute 

 property in them. 



(2) Because they are not chattels, but are to be considered as here- 

 ditaments and incident to the park. 



(3) Because, if not hereditaments, they were at least part of the 

 thing demised. 



(4) Their last argument was drawn ah inusitato, because there is no 

 instance in which deer have been adjudged to be distrainable. 



First. To support the first objection, and which was principally re- 

 lied on by the counsel for the plaintiff, they cited Finch 176; Bro. Abr., 

 tit. -'Property," pi 20; Keilway,30b; Co. Lit. 17 a; lEol. Abr.666; and 

 several other old books, wherein it is laid down as a rule that deer are 

 not distrainable; and the case of Mallocke v. Eastley, 3 Lev. 227, 

 where it was holden that trespass will not lie for deer, unless it ap- 

 pears that they are tame and reclaimed. They likewise cited 3 Inst. 

 109, 110, and 1 Hawk. P. O. 94 to prove that it is not felony to take 

 away deer, conies, etc., unless tame and reclaimed. 



I do admit that it is generally laid down as a rule in the old books 

 that deer, conies, etc., are ferce naturce, and that they are not distrain- 

 able; and a man can only have a property in them rat lone loci. And 

 therefore in the case of swans, (7 Co. 15, 16, 17, 18) and in several other 

 books there cited it is laid down as a rule that where a man brings an 

 action for chasing and taking away deer, hares, rabbits, etc., he shall not 

 say suos, because he has them only for his game and pleasure ratione 

 privilegii whilst they are in his park, warren, etc. But there are writs 

 in the register (fol. 102), a book of the greatest authority, and several 

 other places in that book which show that this rule is not always 

 adhered to. The writ in folio 3 02 is "quare clausum ipsius A.freget ct 

 intravit, d; cuuiculos suos oepit." 1 - 



The reason given for this opinion in the books why they are not 

 distrainable is that a man can have no valuable property in them. But 

 the rule is plainly too general, for the rule in Co. Lit. is extended to 

 dogs, yet it is clear now that a man may have a valuable property in a 

 dog. Trover has been several times brought for a dog, and great 



