APPENDIX TO PART THIRD DIVISION I. 120 



park, without a prescription time out of mind or the King's charter." 

 (Vid. stat., L'l Ed. I, rfe malefactoribus inparcis there referred to). 



Third. As to the third objection that the deer are part of the thing 

 demised, and consequently not distrainable, the only case which was 

 cited to prove this was the case of tithes, which is nothing to the pur- 

 pose; because where tithes only are let a man can not reserve a rent, 

 it being only a personal contract. Without denying the rule, which I 

 believe is generally true, the fact here will not warrant it, for they are 

 not part of the thing demised. They are not mentioned in the descrip- 

 tion of the particulars, and can not be part of the thing demised for 

 the reason before given, because they may be sold and disposed of by 

 the plaintiff before the expiration of the demise. 



Fourth. The last argument, drawn ab inusitato, though generally a 

 very good one, does not hold in the present case. When the nature of 

 things changes, the rules of law must change too. When it was holden 

 that deer were not distrainable, it was because they were kept princi- 

 pally for pleasure and not for profit, and were not sold and turned into 

 money as they are now. But now they are become as much a sort of 

 husbandry as horses, cows, sheep, or any other cattle. Whenever they 

 are so and it is universally known, it would be ridiculous to say that 

 when they are kept merely for profit they are not distrainable as other 

 cattle, though it has been holden that they were not so when they were 

 kept only for pleasure. The rules concerning personal estates, which 

 were laid down when personal estates were but small in proportion to 

 lands, are quite varied both in courts of law and equity, now that per- 

 sonal estates are so much increased and become so considerable a part 

 of the property of this kingdom. 



Therefore, v^ithout contradicting the reasons which are laid down 

 concerning this matter in the ancient books, and without determining 

 anything with respect to deer in forests and chases or parks properly 

 so called, concerning which we do not think it necessary to determine 

 anything at present, we are all of opinion that we are well warranted 

 by the pleadings to determine that these deer, under the circumstances 

 in which they appear to have been kept at the time when this distress 

 was taken, were properly and legally distrained for the rent that was 

 in arrear. 



There must therefore be judgment for the defendants. 

 14749 9 



