Page:Halsbury Laws of England v1 1907.pdf/590

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.

Animals.

368 Sect.

1.

Civil Rights.

Huntsmen,

and therefore there was no property in them in any one, and no damages ought to be given but the plaintiff had judgment " because he had property by the possession " {I). If poachers take rabbits, sell them, and send them avs^ay by rail, the servants of the owner of the land are justified in following them up and taking possession of them from the purchaser {m), and if a customary naturce,



tenant, who has a right of pasturing only, such as a cattle-gate, shoots grouse on his cattle-gate, the lord of the manor may maintain trover for the dead grouse so killed (?^). If a trespasser starts an animal fercB naturce in the ground of one, and hunts it into the ground of another and there kills it, the property has been held to be in the killer (o) who, however, is liable to an action of trespass for hunting in either ground. This view of the law has been adversely criticised, but it has been received for so long that it is not now likely to be altered by judicial decision (p) naturce in a forest or warren If a trespasser starts an animal and hunts it into the ground of another and there kills it, the property in the animal remains in the proprietor of the forest or warren, because his privilege continues {q).

Criminal Law.

Sect. 2. Sub-Sect. At common law.

By

statute.

1.

Domestic Animals.

804. Domestic and tame animals, such as horses, cattle, oxen, all animals which are fit for human food, and their young and eggs, are the subject of larceny at common law (r). Dogs of all kinds (s), cats, and animals of a base nature, are exceptions {t). The reason for this distinction has been variously given as the baseness of their nature, that they are not fit for food, and that they are kept merely for the whim or pleasure of man. No doubt the real reason is the severity of the ancient punishment for felony {u). sheep, poultry, peacocks, and

805. To

mare, gelding, colt, filly, bull, cow, ox, ram, ewe, sheep or lamb, is felony, punishable with

steal a horse,

Stealing horses, cows,

heifer, calf,

.€heep etc.

{!) Sutton V. Moody (1697), 1 Ld. Eaym. 250. (m) Blades v. Higgs (1865), 11 H. L. Cas. 621. (n) See Lord Lonsdale v. Bigg (1856), 11 ExcL.. 654, affirmed 1 H. & N. 923. (o) Churchward Y. Studdy (1811), 14 East, 249; where a huntsman maintained trespass for a dead hare against the owner of the land upon which the animal wa s killed by hounds. and compare Gundry v. Feltham {p) See Blades v. Higgs, supra, at p. 640 (1786), 1 Term Eep. 334; Paul v. Summerhayes (1878), 4 Q. B. D. 9 (fox;

hunting) and see title Game and Sport. {q) Per Lord HoLT in Sutton v. Moody, supra ; and see per Lord "Westbury,

Xj.G., in Blades v. Higgs, supra, at p. 633.

Hawk.

(r)

1

(s)

See

P.

C,

bk.

1, c.

19, s.

43



1

Hale, P. C. 511.

p. 394, post.

(t) 3 Co. Inst. 109 1 Hale, P. C. 512 nor are they the subject of the crime of obtaining by false pretences (B. v. Bobinson (1859), 28 L. J. (m. c.) 58 (dog) ). (u) Case of Swans (1592), 7 Co. Eep. 18, citing 12 Hen. 8, 3, and 18 Hen. 8, 2, where it is said that bloodhounds or mastiffs are of "so base a nature that no felony can b6 committed of them and no man shall lose life or member for them." The skin of a dog when dead was always the subject of larceny, see Halloway (1823), 1 C. & P. 127, note (b).