Page:Halsbury Laws of England v1 1907.pdf/592

Animals.

870 Sect. 2.

Criminal Law.

wound, if the accused acted with knowledge that what he was doing would so result, and did the act without caring whether the animal would be injured or not (h). Setting a rat-trap to catch trespassing cats and dogs has been held not to be within the provision (i). Sub-Sect. 2 —Wild Animals.

At common law not generally the subject of larceny.

808. Living animals ferae naturae, unless reclaimed and fit for human food, are not the subject of larceny at common law (k). They are not in the possession of the owner of the soil or privelage, he having at most a qualified property in them, or a right to reduce them into possession (l). hey belong to the soil, savour of the realty, and until reduced into possession are nullius in bonis. Nor are animals ferae naturae which are kept merely for the whim or pleasure of man the subject of larceny at common law—a rule no doubt made in favorem vitce (m); therefore there can be no larceny of a captive lion, bear, monkey, fox, or ferret (n).

Exceptions. (1) Reclaimed animals.

809. Living animals ferae naturae, useful for the food of man and reclaimed—that is, actually tamed or in confinement—are the subject of larceny at common law, for a taking of them is a takingout of the owner's possession. Examples are, tame deer; rabbits or peacocks domesticated though not actually in confinement; fish in a stew, net, or private pond, whence they can be taken at the will of the owner at any time; pheasants or partridges in an aviary or mew; deer in a house or even in a park if inclosed (o); swans marked and pinioned, or unmarked, if tame and kept in private waters (p); young pheasants and partridges hatched under a hen in a coop, though unconfined and able to fly a little, if they are unable to escape, for they are practically in the power and dominion of the owner (q); pigeons in a dovecot, though they can fly to and fro, which are tame(r), for they have the animus revertendi, and are constructively in the owner's possession and control; reclaimed hawks or falcons (s); and young hawks taken from the nest(though not the eggs (t)); but not hares or rabbits in a forest, chase

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(h) R. v. Welch (1875), 1 Q. B. D. 23, (i) Bryan v. Eaton (1875), 40 J.P. 213; see pp. 396, 397, post. (k) 2 East, P. C. 607. (l) See p. 366, ante. (m) See not (n) p.368, ante. (n) 2 East, P. C. 614. As to ferrets, see R. v. Searing (1818), Ruse & Ry, O. C. 350. (o) 1 Hawn. P. C., 8th ed. 149; 1 Hale, P. O. 511; 3 Co. Inst. 109; 2 East, P. O. 607. (p) Case of Swans (1592), 7 Co. Rep. 18 n. (q) R. v. Cory (1864), 10Cox, C. O. 23; R v Shickle (1868), T, R, 1 C. O. R. 158. (r) R. v. Cheafor (1851), 21 I. J. (m. c.) 43; R v. Brooks (1820), 4 O. & P. 131. (s) 1 Hawk. P. C. supra: "Because of the very high value formerly set on the bird"; compare 2 Bl. Com. 394: "a relic of the tyranny of our ancient sportsmen." (t) 1 Hale, P. C. 510; 1 Hawk. P. C., supra.