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reason, none can make a park, chase, or warren without the king's license. That being the law with respect to birds and animals whose habits are less destruc*942] tive than those of *rooks, it may be fit now to consider in what light the law looks upon birds of this latter description, and it will appear that they are considered nuisances to the neighbourhood where they resort. The stat. 24 H. 8, c. 10, entitled " an act to destroy choughs, crows, or rooks," recites that they destroy great quantities of corn, as well in the sowing as at the ripening and kerneling thereof, that they make a marvellous destruction of the covertures of thatched houses, barns, ricks, stocks, and other such like; so that if they be suffered to breed as in certain years past, they will be the cause of great destruction of corn and grain, to the great prejudice of the tillers and sowers of the earth and it enacts, that every person having any lands, &c., in his own occupation, shall do as much as in him lies to kill and utterly destroy all choughs, crows, and rooks, coming, abiding, breeding, or haunting on the said lands, on pain of a grievous amerciament. By sect. 2, the inhabitants of every parish shall, for ten years, provide and set nets for choughs, crows, and rooks, on pain to forfeit 10s. every lawful day such nets shall be wanting. By sect. 3, the tenants are for ten years yearly to assemble and survey the houses, &c., and conclude by what means it shall be best possible to destroy all the young brood of the choughs, crows, and rooks for the year, on pain to forfeit 20s. every year they shall omit to assemble. By sect. 5, "any person minding to destroy the said choughs, crows, and rooks, may, after request to the owner or occupier where they haunt or breed, enter and carry away all such rooks, &c., as he shall take the same day without let by the owner or occupier." The 25 H. 8, c. 11, is not very material, but it is still in force. In that the word rooks is omitted, whether intentionally or not it is immaterial to inquire. The 8 Eliz. C. 15, *943] *revives the provisions in the 24 H. 8, c. 10, as to the keeping of nets for choughs, crows, or rooks, but repeals all the other branches of that statute. It also provided, that in every parish sums should be raised for the destruction of noyful fowl and vermin: and for the heads of three old crows, choughs, pies, or rooks, or of six young ones, or for six eggs, is to be given a penny, and different sums for other different things. This statute was temporary, and was suffered to expire, but it was not repealed. It is not to be concluded, therefore, that the legislature altered their opinion as to the nature of these birds, and they may now be considered to be of the description the statutes 24 H. 8, c. 10, and 8 Eliz. c. 15, give them, viz., birds of destruction, and noyful fowl. It is not alleged upon this declaration that rooks are an article of food. At all events they are not so much so as rabbits. They certainly answer the description of animals feræ naturæ. They are not protected by any statute, but on the contrary have been declared by the legislature to be a nuisance to the neighbourhood where they are. That being so, it is quite clear no person can claim a right to have them resort to his lands, nor can any person become a wrong-doer by preventing their so doing. Keeble v. Hickeringill, 11 East, 574, n., bears a stronger resemblance to the present than any other case, but it is distinguishable. There it was decided, that an action on the case lies for discharging guns near the decoy-pond of another, with design to damnify the owner by frightening away the wild fowl resorting thereto, by which the wild fowl are frightened away and the owner damnified. But in the first place it is observable, that wild fowl are protected by the statute 25 H. 8, c.

11; that they constitute a known article of food, and that a person

*944] keeping up a decoy expends money and employs skill in taking that which is of use to the public. It is a profitable mode of employing his land, and was considered by Lord HOLT as a description of trade. That case, therefore, stands on a different foundation from this. All the other instances which were referred to in the argument on the part of the plaintiff, are cases of ani

mals specially protected by acts of parliament, or which are clearly the subject of property. Thus hawks, falcons, swans, partridges, pheasants, pigeons, wild ducks, mallards, teals, widgeons, wild geese, black game, red game, bustards, and herons, are all recognised by different statutes as entitled to protection, and, consequently, in the eye of the law, are fit to be preserved. Bees are property, and are the subject of larceny. Fisheries are totally different. The fish can do no harm to any one, and constitute a well-known article of food. Upon the ground, therefore, that the plaintiff had no property in these rooks, that they are birds feræ naturæ, destructive in their habits, and not protected either by common law or statute, and that the plaintiff is at no expense with regard to them, we are of opinion that the plaintiff had no right to insist upon having them in his neighbourhood, and that he cannot maintain this action. The rule for arresting the judgment must therefore be made absolute.

Rule absolute.

*KENWORTHY v. SCHOFIELD.

[*945

At a sale of goods by auction, certain conditions of sale were read before the biddings commenced, but were not attached to the catalogue. An agent for the defendant was the highest bidder for a lot, and the auctioneer put down the price 1057., and the agent's name opposite that lot, in his catalogue: Held, that sales of goods by auction are within the 29 Car. 2, c. 3, s. 17, and that no sufficient memorandum of the bargain was signed to satisfy that sec tion, the conditions of sale not being annexed to the catalogue. Had they been annexed, it would have sufficed to put down the agent's name, that of his principal not being ne

cessary.

SPECIAL assumpsit against the defendant, for not taking away a carding engine, purchased by him at an auction, agreeable to the conditions of sale, (which were set out,) in consequence whereof it was resold at a loss. Plea, non-assumpsit. At the trial before HOLROYD, J., at the Lancaster Summer assizes, 1823, it appeared that the engine in question was put up to sale by auction, among a variety of other things; the sale was subject to certain conditions, which were read by the auctioneer before the biddings commenced, but they were not attached to the catalogue or referred to by it. One Luke Winterbottom, as agent for the defendant, was the highest bidder for the engine, and it was knocked down to him, and the auctioneer wrote his name and the price, 1057., against that article in the catalogue. For the defendant it was objected, first, that the statute of frauds was not satisfied by writing down the name of the agent of the purchaser: secondly, that the conditions of sale were part of the bargain, and not being annexed to the catalogue the signature to the latter did not amount to a signature of a note or memorandum of the bargain, within the meaning of the 17th section of 29 Car. 2, c. 3. The learned judge overruled the first objection, but reserved the second point, and the plaintiff having obtained a verdict, Cross, Serjt., in Michaelmas term, obtained a rule nisi for a nonsuit or a new trial; against which

J. Williams now showed cause. The second question now before the court is certainly very important, as it respects the validity of all sales by auction. The first objection was overruled at the trial, and it appears by *Philli[ *946 more v. Barry, 1 Campb. 513, that where an authorized agent bids at a sale, it is sufficient to put down his name; it is not necessary that the name of the principal should be then declared. The second question depends upon Lord ELLENBOROUGH's dictum in Hinde v. Whitehouse, 7 East, 558. But that case was not decided on the ground that the memorandum was insufficient; the court considered that there had been a delivery and acceptance of part of the goods, in the name of the whole, the other question therefore became unimportant. Suppose conditions of sale to be attached to a catalogue at first, but to be separated during the progress of the sale, will the sale of the

lots previously knocked down be good, and of the rest bad? Surely, the reading of the conditions before the sale was sufficient to connect them with the biddings that afterwards took place. Perhaps it is too late to contend, that auctions of goods are not within the 29 Car. 2, c. 3, although it appears by what fell from three of the learned judges, in Hinde v. Whitehouse, they did not concur in shaking the authority of Simon v. Motivos, 3 Burr. 1921, where it was doubted whether such sales fell within the operation of the

statute,

Cross, Serjt., (with whom was Starkie,) contrà. There was not any evidence to show that the defendant or his agent heard the conditions read; no proof was given of his being in any way conusant of them. They were not referred to by the catalogue. The mere signature of that was not then the signature of a note or memorandum of the bargain, within the meaning of the 29 Car. 2, c. 3, s. 17. In Hinde v. Whitehouse the point was expressly brought under consideration. (He was then stopped by the court.)

*BAYLEY, J. It has been decided by many cases, that in sales of *947] land by auction the auctioneer is agent for both the vendor and vendee, and that such auctions are within the statute of frauds. Walker v. Constable, 1 B. & P. 306; Emmerson v. Heelis, 2 Taunt. 38; White v. Proctor, 4 Taunt. 209; Kemeys v. Proctor, 3 V. & B. 57. Now, the language of the seventeenth section of the statute of frauds, relating to sales of goods, is in substance the same as that of the fourth section, relating to sales of land. The only difference being, that the latter speaks of an agreement, the former of a bargain. The word bargain means the terms upon which parties contract, and it appears by Saunderson v. Jackson, 2 B. & P. 238, that in order to satisfy the statute the signature must either be to some written document, containing in itself the terms of the bargain, or connected with some other document which does. Then comes Hinde v. Whitehouse, in which Lord ELLENBOROUGH, after time taken for consideration, delivered it as his opinion, that an auctioneer had not satisfied the requisitions of the statute by signing the name of the purchaser to the catalogue, that not being connected with, or referring to, the conditions of sale. In the present case nothing was said at the time when the engine was put up, as to the terms upon which the sale was to proceed. The very mischief contemplated by the statute might occur in such a case as this. There is abundant room for fraud and perjury, respecting the conditions of sale. Inasmuch, therefore, as there was not any memorandum of the terms of the bargain, signed by the parties, I think that the case is within the 29 Car. 3, s. 17, and that a nonsuit must be entered.

2, c.

*948] *HOLROYD, J. Upon the trial of this case two objections were made. First, that the defendant's name was not put down by the auctioneer. I thought there was no weight in that, and still continue of the same opinion. (a) The other objection was reserved, and upon the authority of Hinde v. Whitehouse, I both think that auctions of goods are within the statute of frauds, and that there has not been a signature to a memorandum of the bargain to satisfy the seventeenth section of that act. It appears to me that you cannot call that a memorandum of a bargain which does not contain the terms of it. The argument for the plaintiff is, that the conditions being in the room were virtually attached to the catalogue. But I think that as they were not actually attached or clearly referred to, they formed no part of the thing signed. In the case put of a separation of the conditions from the catalogue, during the progress of the sale, I should say that the signatures to the latter, made after the separation, were unavailing. It occurred to me at first, that this might be likened to the case of a will, consisting of several detached sheets, when a signature of the last, the

(a) See White v. Proctor, 4 Taunt. 209.

whole being on the table at the time, would be considered a signing of the whole; but there the sheet signed is a part of the whole. Here the catalogue was altogether independent of the conditions. I agree, therefore, that this rule for a nonsuit must be made absolute.

LITTLEDALE, J., was absent.

(a) See Jackson v. Lowe, 1 Bing. 9.

Rule absolute.(a)

END OF EASTER TERM.

AN

INDEX

TO THE

PRINCIPAL MATTERS.

The figures refer to the English folios, which will be found in a bracket at the head of the page, and in the margin of the text.

ABATEMENT.

See PLEADING, 43. PRACTICE, 17.

ACTION ON THE CASE.

1. Where a lease of premises described them as abutting on an intended way of thirty feet wide;" which was not then set out, and the soil of which was the property of the lessor; and an under lease was granted, describing the premises as "abutting on an intended way," not mentioning the width: Held, that the under lessee was entitled to a convenient way only, and could not maintain an action against the owner of the soil for narrowing the road to twenty-seven feet, no actual injury having been sustained. The under lease was of premises, together with all ways thereunto appertaining." A right of way over the original lessor's soil would not pass by those words. Per Holroyd, J. Harding v. Wilson, T. 4 G. 4.

66

96

2. In case for obstructing the plaintiff's ancient windows, it appeared that the plaintiff and defendant had premises adjoining each other; the plaintiff's house was about four feet with in the boundary of her premises. Some witnesses had known it for thirty-eight years, and during all that time there had been windows looking towards the adjoining premises. For a long series of years before the defendant purchased them, those premises had belonged to a family living at a distance, and it was not proved that any member of that family had ever seen them, and they had been occupied by the same tenant for the last twenty years. About two years before the action brought, defendant purchased them and built a house, thereby darkening the plaintiff's rooms: Held, that the circumstance of plaintiff's house not being at the extremity of her premises, did not affect the question, and that after an enjoyment of thirty-eight years, in the absence of any contradictory evidence, the windows were to be considered as ancient windows, and that plaintiff consequently was entitled to recover. Cross v. Lewis, E. 5 G. 4. VOL.IX.-52

686

3. It is a good defence to an action for a malicious arrest, that the defendant, when he caused the plaintiff to be arrested, acted bonâ fide upon the opinion of a legal adviser of competent skill and ability, and believed that he had a good cause of action against the plaintiff. But where it appeared that the party was influenced by an indirect motive in making the arrest, it was held to be properly left to the jury to consider whether he acted bona fide upon the opinion of his legal adviser, believing that he had a good cause of action. Ravenga v. Macintosh, E. 5 G. 4. 693

4. By the general turnpike act, the trustees of roads are authorized to divert, shorten, alter, or improve the course or path of any of the roads under their management; and divert, shorten. vary, alter, and improve the course or path of any roads through or over any commons or waste grounds, or uncultivated lands, without making satisfaction for the same; and through or over any private lands, tendering or making satisfaction to the owners thereof and persons interested therein, for the damage sustained thereby: Held, that under this clause the trustees are authorized to lower hills and raise hollows: Held, secondly, that the trustees are not liable to an action for a consequential injury resulting from an act which they are authorized to do. Boulton v. Crowther, E. 5 G. 4. 703 Declaration stated that plaintiff was possessed of a close of land with trees growing thereon, to which rooks had been used to resort and settle, and build nests and rear their young in the trees, by reason whereof plaintiff had been used to kill and take the rooks and the young thereof, and great profit and advantages had accrued to him, yet that defendant, wrongfully and maliciously intending to injure the plaintiff, and alarm and drive away the rooks, and to cause them to forsake the trees of the plaintiff, wrongfully and injuri ously caused guns loaded with gunpowder to be discharged near the plaintiff's close, and thereby disturbed and drove away the rooks, whereby the plaintiff was prevented from 2 M 409

5.

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