A Legal Aviary. the thatch of St. Cuthbert's hut to build their nests : the saint rebuked them, and they not only made him an apology, but brought him a piece of hog's lard to make amends. Sometimes " killing is no murder," like wise in certain cases " stealing is not lar ceny." Wild animals or birds (ferce natures) cannot be the subject of larceny unless they be dead, tamed, confined or reclaimed. Young partridges, hatched and reared by a hen,' while they remain with her and from their inability to escape are practically under the dominion and in the power of the owner of the hen, may be the subject of larceny, even though the hen is not confined but is allowed to wander over the owner's prem ises; so with peahens and swans on a public river and pigeons in a cote. (Reg. v. Shickle, L. R. I C. C. 1 58; Com. v. Beaman, 8 Gray. 497; Dalt. Inst. 156; Reg. v. Cheafer, 5 Cox C. C. 367.) Turkeys are not wild animals now, whatever they may have been, although they may still be found wild and unreclaimed in many parts of America. Mary Turner was indicted in North Carolina for stealing " one turkey of the value of five cents." (Query, Was it worth Mary's while to steal such a skinny bird as this must have been; or was it worth the State's while to prosecute for such a tuppenny ha'penny affair?) Mary was convicted; a motion for arrest of judgment on the ground that the indictment failed to state that the turkey stolen was a tame one; that it should have negatived the presump tion that the bird in question was wild and unreclaimed. The motion was sustained : but the Supreme Court reversed the decision on the ground that " our domestic turkey is not a creature ferce natures, and that the rule applicable to animals ferce natures of having to allege that the creature was dead, tame, confined or reclaimed, did /lot apply when the defendant was indicted for stealing one of our " domesticated " gobblers. (State v. Turner, 66 N. C. 618.) In the days of
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King David Kalakaua a similar decis1on was given by the Supreme Court of the Hawaiian Islands. (Browne's Hum. Pha. Law, p. 140.) The case of Miss Minnie Turner and her five-cent turkey reminds us of another case in which the maxim tie min imis non curat lex was set aside : the legis lature of British Guiana passed an act pro tecting humming-birds, and forbidding them being killed, sold or exported for trade pur poses. The case of some freshly imported young parrots came up in Swan v. Saunders. (2 Q. B. Div.; 44 Law Times, 424.) The question was, were they domestic animals within the statute anent cruelty to animals. The Court, while declining to say that a parrot might not become a domesticated animal when thoroughly tamed and accustomed to the society of human beings, held these freshly caught young things were clearly different from fowls and other poultry, and not tamed and domesticated. So, like many other bipeds, while they had to bear the ills of civilization, they were not entitled to share its blessings. On the other hand it has been held that the term " domestic animal" includes any pet bird, such as a parrot, a canary, or linnet; and that linnets kept in cap tivity and trained as decoy-birds for the pur pose of bird-catching were " domestic aniimals" within the meaning of the act for the more effectual prevention of cruelty to ani mals, in England. (Colam v. Pagett, 12 Q. B. Div. 66.) And in Indiana a domestic fowl has been held to be an animal within the meaning of a similar act. (State v. Bruner, 1n Ind 98.) Kelly, C. B. held that cutting the combs of cocks, whether to fit them for fighting or winning prizes at exhibitions, was to " cruelly ill-treat, abuse or torture the birds." (Murphy v. Manning, L. R. 2 Ex. Div. 307.) Wharton, in his work on " Evidence," mentions an interesting case in which a bird not only appeared in court, but actually spoke there, recommending a settlement of the
