128 ARGUMENT OF THE UNITED STATES. 



damages have been recovered. Besides the nature of things is now 

 very much altered, and the reason which is given for the rule fails. 

 Deer were formerly kept only in forests or chases, or such parks as 

 were parks either by grant or prescription, and were considered rather 

 as things of pleasure than of profit; but now they are frequently kept 

 in inclosed grounds which are not properly parks, and are kept princi- 

 pally for the sake of profit, and therefore must be considered as other 

 cattle. 



And that this is the case of the deer which are distrained in the pres- 

 ent case is admitted in the pleadings. The plaintiff by bringing an 

 action of trespass for them in some measure admits himself to have a 

 property in them; and they are laid to be inclusas et coarctatas in his 

 close, which at least gave him a property ratione loci ; and they are laid to 

 be taken and distrained there; but what follows makes it still stronger, 

 for in the demise set forth in the plea, and on which the question de- 

 pends, they are several times called the deer of John Davies, the plaintiff, 

 and he is at liberty to dispose of them as his own before the expiration 

 of the term on the condition there mentioned. And it is expressly said 

 that the defendants distrained the deer being the property of the said 

 John Davies; it is also plain that he had a valuable property in them, 

 they having been sold for £80 10s, both which facts are admitted by the 

 demurrer. The plaintiff therefore in this case is estopped to say either 

 that he had no property in them or that his property was of no value. 

 Besides it is expressly said in Bro. Abr., tit. "Property," pi. 44, and 

 agreed in all the books, that if deer or any other things ferce natures, 

 become tame a man may have a property in them. And if a man steal 

 such deer it is certainly felony, as is admitted in 3 Inst., 110, and 

 Hawk P. C, in the place before cited. 



Upon a supposition, therefore, which I do not admit to be law now, 

 that a man can have no property in any but tame deer, these must be 

 taken to be tame deer, because it is admitted that the plaintiff had a 

 property in them. 



Second. As to their not being chattels but hereditaments and inci- 

 dent to the park and so not distrainable, several cases were cited: (Jo. 

 Lit., 47 b. and 7 Co. 17 b. ; where it is said that if the owner of a park 

 die the deer shall go to his heir and not to his executors; and the 

 statute of Marlbridge (52 lien. Ill, c. 22), where it is said that no one 

 shall distrain his tenants de libero tenemento suo nee de aliquibus ad 

 liberum tenementum spectantibus. I do admit the rule that heredita- 

 ments or things annexed to the freehold are not distrainable; and 

 possibly in the case of a park, properly so called, which must be either 

 by grant or prescription, the deer may in some measure be said to be 

 incident to the park; but it does not appear that this is such a park, 

 nay it must be taken not to be so. In the declaration it is stiled the 

 close of the plaintiff, called Oaversham Park. In the plea indeed it is 

 stiled a park, called Caversham Park; but it is not said that it is a 

 park either by grant or prescription; and it can not be taken to be so 

 on these pleadings, but must be taken to be a close where deer have 

 been kept, and which therefore has obtained the name of a park, because 

 the deer, as I mentioned before, are called the deer of John Davies, and 

 because he is at liberty to sell them, and so to sever them from the 

 park before the expiration of the term. And in Hale's History of the 

 Pleas of the Crown (1 vol. fol. 401), cited for the defendants, it is ex- 

 pressly said that there maybe a pari: in reputation, "as it a man 

 inclose a piece of ground and put deer in it, but that makes it not a 



