Page:The Green Bag (1889–1914), Volume 07.pdf/212

 A Legal Aviary. that came in contact with the inner part of a cat. We admit that it is not a usual thing to find pigeons damaging the roof and ceilings of a house. Tougel's pigeons, however, used to make a practice of sitting on the top of Lee's house, and while there they amused themselves by picking out the mor tar between the slates, or tiles, in conse quence of which the rain, in damp little England, leaked through to the ceilings. An action of damages was brought, but the judge of the County Court observed, " Al though there can be little doubt that as a question of conduct, and I may say of morality, the defendant ought to compen sate the plaintiff," still he was under no legal liability to do so. Here, surely, was a case where a bishop would have been useful, or a man might have defended the top of his castle with his fowling-piece. Long years before, Dod dridge, J., had said, "If pigeons come upon my land I may kill them, and the owner has not any remedy, provided they be not taken by any means prohibited by statute." "The Chief Justice, however, held that the party had jus proprictas in them, for they are as domestics, and have animum revertendi, and ought not to be killed, and for the killing of them an action lies." The re porter, with more coolness than is usually shown in the present day, adds, "the other opinion is the best. (Dewell v. Sanders, Cro. Jac. 490.) The case appears to be against the County Court judge above quoted, for Bailey, J., says that in it the Court soundly decided that the erecting of a dove-cote was not a common nuisance, but that an indi vidual might sustain a private injury from the doves, and that was cognizable before the justices in eyre. (Hannan v. Mockett, 2 B. & C. p. 940.) A whole aviary full of foreign birds occu pied the attention of Lord Abinger on one occasion. Mrs. Freestone, who carried on business in the bird line in London, sold

Mrs. Butcher, the wife of a country curate, during the short space of ten months, some seven or eight hundred birds, such as lories, avadavats, love-birds, bishop-birds, car dinals, quakers, cut-throats, mannikins, and other kinds: these Mrs. Butcher bought apparently because the wife of that other preacher of righteousness, Noah, had had them in her floating-palace aviary. They cost in all over £959. True, Mrs. Butcher had money of her own, the birds had been charged to her, and she had paid part of their cost; then she stopped paying, and so Freestone sued the poor parson for the bal ance of the account. At the trial Lord Abinger told the jury that such birds were not necessaries for the wife of a clergyman, and that the circumstances did not show that she was the agent of her husband so as to bind him; that it was the bounden duty of tradesmen, when they found a wife giving extravagant orders, to give notice to the husband immediately if they intend to hold the unfortunate man liable. The parson had been wise enough to sell some of the birds and pocket the money; the judge con sidered that did not affect his liability, be cause as soon as the wife had bought the birds they became the property of the hus band. The only bill, therefore, that Mrs. Freestone got by her action was one of costs from the attorneys. (Freestone v. Butcher, 9 Car. & Payne, 643.) By the way, we think Mr. Irving Browne in his poetical report of this case (II. Green Bag, 200) is too severe upon the poor lady: it appears to us (after deep pondering) that her purchases were made, in the main, for the purpose of improving her clerical hus band and exciting his ambition, note the love-birds, the quakers, the bishops and the cardinals; even the cut-throats were appro priate to his name, if not to his nature or profession. By a strange coincidence, the case that comes after this bird case in the work of industrious Carrington & Payne is a cat case (Brooks v. Field, lb. 651).