as the ownership of the game is considered as incident to the property in the land. But this consequence is the result of a peculiarity in the law of larceny, which holds that the act of severing and taking away things attached to the freehold is not a felonious taking, a result which does not affect the existence of the rights of property. I am, therefore, of opinion that the learned counsel for the defendants, on the trial at nisi prius, were right in requiring the evidence to be admitted which they proposed to give, in order to prove that the property in the rabbits was in Lord Exeter, and that the learned Judge was wrong in his direction to the jury that such evidence was immaterial, and ought not, therefore, to be admitted. I am, therefore, of opinion that the order making the rule nisi for a new trial absolute was right, and that the present appeal ought to be dismissed, with costs. LORD CRANWORTH said: I think it is safe and just to adhere to the law as laid down by Lord Holt. He had evidently considered the subject care fully, and, according to his view of the law, the rabbits killed by a trespasser on the lands of Lord Exeter, certainly belonged to his Lordship. Lord Holt's opinion was followed in Churchward v. Studdy (loc cit.). There the hunter (who was a poacher) was eventually held to be entitled to the hare, but that was because he had started it on the land of a third person and followed it on to the ground of the defendant, and there caught and killed it. It was in strict conformity with Lord Holt's view of the law to hold, that in these circumstances the hare belonged to the poacher. The rule nisi was granted by the Court of King's Bench on the supposition that the hare had been caught on the land of the defendant by his servant acting as his agent, in which case the Court clearly thought it would have been the property of the defendant, whereas in fact the defendant's servant was assisting the hunter and his dogs. That case was followed by that of Lord Lonsdale v. Rigg (loc. cit.), afterwards affirmed in the Exchequer Chamber, where the subject was carefully considered. It was there decided that grouse killed by a poacher belong to the owner of the soil on which they are killed, strictly following Lord Holt's doctrine. There was not a formal plea in that case, traversing the property in the birds; but it was agreed to waive that objection in point of form, and to dispose of the case as if such an issue had been expressly raised. It was argued before this House that if game killed by a poacher is the property of the owner of the soil, then every poacher is guilty of larceny. But that is a fallacy. Wild animals whilst living, though they are according to Lord Holt the property of the owner of the soil on which they are living, are not his personal chattels so as to be the subject of larceny. They partake while living of the quality of the soil, and are, like growing fruit, considered as part of the realty. If a man enters my orchard and fills a wheelbarrow with apples which he gathers from my trees, he is not guilty of larceny, though he has certainly possessed himself of my property, and the same principle is applicable to wild animals. It was further said that the late Game Act, which authorises the stopping of a poacher having game in his possession and the selling of the game for the benefit of the parish, shows that the Legislature could not have understood the game to be the property of the person on whose land it was killed, for in that case it was said it would have been an unjust appropriation of the property of another. But this arrangement was probably made because it might be impossible to know on whose land every particular head of game had been killed, and was considered to be an arrangement beneficial to the land-owner. On the whole I see no reason for disturbing the decision of the Court below, and think that there ought to be a new trial. LORD CHELMSFORD said: The question to be determined on this appeal is, whether animals feræ naturæ killed or reduced into possession by a trespasser on the land of another, become the property of the owner of the land? The case was very learnedly argued on both sides, and all the authorities, with respect to property in wild animals, cither in a state of nature or reclaimed, were fully examined, and both the civil and the common law were referred to for doctrine on the subject. By the civil law the person who took or reduced into possession any animal feræ naturæ, although he might be a trespasser in so doing, acquired the property in it. This appears clearly from the following passage in the Institutes, cited in the argument"Feræ igitur bestiæ et volucres et pisces, id est omnia animalia quæ mari cœlo et terrâ nascuntur, simul atque ab aliquo capta fuerint, jure gentium statim illius esse incipiunt, quod enim ante nullius est, id naturali ratione occupanti conceditur-nec interest feras bestias et volucres utrum in suo fundo quisque capiat an in alieno." If the same rule prevails in our law, then the rabbits in question were not the property of Lord Exeter; but of the poacher who took and killed them upon his land. This doctrine, however, as to the right of property in wild animals captured, seems never to have prevailed in our law to its full extent. With respect to animals in a wild and unreclaimed state there seems no difference between the Roman and the Common Law. A distinction was suggested in argument between wild animals which are unprofitable and regarded as vermin, and those which are fit for food, and therefore profitable; and it was said of the latter that, by the law of England, there is always a property in game, whether alive or dead, in somebody. when he said that, "If A starts a hare on the ground of B, and hunts it into the ground of C, and kills it there, the property is in A, the hunter; but A is liable to an action of trespass for hunting in the grounds as well of B as of C." I have some difficulty in understanding why the wrong-doer is to acquire a property in the game under the circumstances here supposed. If the animal had left the land of B, and passed into the land of C of its own will, and had been, immediately it crossed the boundary, killed by C, it would unquestionably have been his property. Why, then, should not the act of a trespasser, to which C was no party, have the same effect as to his right to the animal, as if it had voluntarily quitted the neighbouring land? And why,-not only should Blose his right to the game, and C acquire none, but the property by this accident of the place where it happened to be killed be transferred to the trespasser? But this is not reconcileable with the authorities. In The case of Swans (loc. cit.), Lord Coke says, "A man hath not absolute property in anything which is fera natura. Property qualified and possessory, a man may have in those which are feræ nature; and to such property a man may attain in two ways, by industry, or ratione impotentiæ et loci." "But when a man hath savage beasts ratione privilegii, as by reason of a park, warren, &c., he hath not any property in the deer, or conies, or pheasants, or partridges, and therefore in an action, quare parcum warrennum, &c., fregit et intravit et tres damas, lepores, cuniculos, phasianos, perdrices cepit et asportavit, he shall not say suos, for he hath no property in them, but they do belong to him ratione privilegii for his game and pleasure, so long as they remain on the privileged place;" à fortiori, therefore, where a person is merely the owner of land without any other privilege attached to it than that which the ownership confers, he can have no property in the wild animals upon the land, It would appear to me to be more in accordance so long as they are in a state of nature, and unre- with principle to hold, that if the trespasser deprived claimed. Indeed this notion of the existence of pro- the owner of the land where the game was started of perty in wild animals is inconsistent with the whole his right to claim the property, by unlawfully killing current of the authorities from the Year Books down-it, on the land of another, to which he had driven it, wards, which almost invariably show that no action lies merely for taking away hares, conies, pheasants and partridges; and that where the taking animals of this description is stated in the writ in addition to the trespass upon the land, the plaintiff shall not say, "lepores, &c., suos." With respect to wild and unreclaimed animals, therefore, there can be no doubt that no property exists in them so long as they remain in a state of nature. It is also equally certain, that when killed or reclaimed by the owner of the land on which they are found, or by his authority, they become at once his property, absolutely when they are killed, and in qualified manner when they are reclaimed. So far everything is clear, and the only difficulty which arises upon the subject of property in wild animals is that which the present case presents. As animals feræ naturæ, when killed or reduced into possession by the owner of land where they are found, or by his authority, become instantly his property, does the unauthorised act of a trespasser, by the very act of killing them, convert them at once to the use of the owner of the land? To this question Lord Holt, according to the case which he puts in Sutton v. Moody (loc. cit.), would have given a distinct answer, that, provided the game was both started and killed on the ground of the same owner, the property would be in him. I think Lord Holt must have been of opinion that as long as the game continued upon the land, there was a species of property, or rather, perhaps, a right to take it, existing in the owner of the land, which was sufficient to make it his, the instant by being killed or taken, it became the subject of property. But I cannot so easily discover the principle upon which he proceeded, he converted it into a subject of property for that owner, and not for himself. But the first proposition stated by Lord Holt, with respect to game started and killed on the land of the same owner, is free from all difficulty, and is sufficient to dispose of the present question. The case of Sutton v. Moody (loc. cit.) has always been regarded as an authority upon this point, and, as far as I can ascertain, has never been questioned. It was recognised in Churchward v. Studdy (loc. cit.), in Graham v. Ewart (loc. cit.), by Baron Martin in Rigg v. Lord Lonsdale (loc. cit.), and in this last case, when before the Court of Error, Mr. Justice Coleridge said—“The grouse shot on the land of the plaintiff" (that is, shot by the defendant a wrongdoer) "belonged to him according to all the authorities." It certainly would not be right to disturb a principle of law so long established, unless it could be clearly shown to be erroneous. And it appears to me not only to be well founded, but that very strange consequences would follow from adopting the view contended for by the appellant. If he is right in saying that the owner of the land has no property in game unless it is killed by him or by his authority, it will necessarily follow that a poacher reducing the game into possession, and thereby as possessor, though a wrong-doer, having a right to it against all the world but the true owner, there being no owner to challenge his possession, might maintain an action against the owner of the land for taking the game from him even upon the land itself where it was killed. It is much more reasonable to hold that the trespasser, having no right at all to kill the game, he can give himself no property in it by his wrongful act; and that, as game killed or reduced into possession is the subject of property, and must belong to somebody, there can be no other owner of it under these circumstances, but the person on whose ground it is taken or killed. This view of the case will render the distinction suggested in the course of the argument between killing and carrying away the rabbits as parts of one and the same continuous act, and killing them and leaving them upon the land, and coming back for them, wholly immaterial. For the act of killing being at once that which made the rabbits the subject of property, and reduced them into possession, whether they were for an instant or for hours upon the land, they equally belonged to the owner of the land. For these reasons, I think that the judgment of the Court of Exchequer Chamber, affirming the judgment of the Court of Common Pleas, was right, and ought to be affirmed. Minute.-Judgment affirmed. Privy Council. 16 JUNE, 1865. THE HELENE. OHRLOFF v. BRISCALL AND ▲ suit was brought, under 24 Vict. c. 10, s. 6, against a ship, the owners of which were domiciled abroad. Judgment having been given for the plaintiffs, and the defendants having appealed, the respondents prayed for security,-first, for the costs below not covered by the arrest; secondly, for the costs of the appeal:— Held, that the appellants need give security for the costs of the appeal only; that a bail-bond given in the Court below covered only the costs in that Court, and that section 33 of the Act was not yet in force. not be entertained, and directed the appellant's counsel to confine himself to the second point.] R. G. Williams, for the appellants: tion of the Admiralty Act, 1861, to proceed in rem The respondents having elected, under the 6th seccannot now demand a further security merely on the ground of the foreign domicil of the appellants. Under the 33rd section of the Admiralty Act, 1861, bail might have been taken for the costs of the appeal, as well as of the original cause. V. Lushington, in reply. The fact, that the Admiralty Act, 1861, gives a remedy in rem, when owners reside abroad, is no argument that the ordinary rule, that foreign appellants must give security, ought to be departed from. The 33rd section of the Admiralty Act, 1861, has not yet come into force, as it cannot be acted upon until a new form of bail-bond has been sanctioned by an Order in Council. The form of the bail-bond still in use only covers the costs incurred below. THE LORD JUSTICE KNIGHT BRUCE delivered the opinion of the Committee, as follows The form of bail-bond is now the same as it was before the Act of 1861. It was then construed to have reference only to costs in the Court of Admiralty. We see no reason why the Act should introduce a change of interpretation. The Act gave power to the Court of Admiralty to extend its requirements by a new form of bail-bond. That form, however, could not be adopted without the sanction of an Order in Council, which has not yet been made, though we understand that it will speedily be issued. The old form of bond alone exists, and must be construed as it always has been. There is, therefore, no security for the costs of this appeal, and the appellants, being foreigners, must, according to the ordinary rule, give such security. Minute.-Security for 2007. to be given, within three months, for the costs of the appeal; otherwise This cause was instituted in the Court of Admiralty, the appeal to be dismissed. The costs of the petition under 24 Vict. c. 10, s. 6, by the assignees of the bill of lading of a cargo of oil, to recover damages for loss by leakage from the owners of the vessel who were resident abroad. On the 3rd of March last, judgment was given for the plaintiffs (see 5 N. R. 448). The ship was arrested for 6007., but that sum having proved insufficient to cover the costs of the cause in addition to the damages, and the defendants having appealed V. Lushington, for the respondents, now prayed that the appellants, on the ground of their being resident out of the jurisdiction, might be ordered to give security for the uncovered costs below, and for the costs of the appeal. [THEIR LORDSHIPS here expressed their opinion that the application, as to the uncovered costs below, could to be costs in the cause. Lord Chancellor. } SIMPSON V. SOUTH STAF- Minutes of the Decree made in this Cause. This case is reported ante, 6 N. R. 184. The parties being unable to agree as to the form of the order, it was now set down to be spoken to. Greene, Q.C., and F. O. Haynes, for the plaintiff. The Attorney-General, Malins, Q. C., and Speed, for the defendants. The following minutes were eventually settled- machinery of the defendants for the purpose of inspection. Direct taxation of costs of the plaintiffs, including their costs of the motions for an injunction before Vice-Chancellor Kindersley, Vice-Chancellor Stuart, the Lords Justices, and the Lord Chancellor, and also the costs of the motion for a decree before the Lords Justices, and order payment thereof by the defendants to the plaintiffs. Liberty to apply generally. Re THE AGRICULTURIST IN- Waterworks Company, are not entitled, under the powers of their Acts of Parliament, or any or either of such Acts or of any Acts incorporated therewith respectively, to take or use permanently the surface of the field of the plaintiffs, in the pleadings described, or any part of the said surface; but as respects the said field are only entitled to construet in and through the same, beneath the surface thereof, an aqueduct in tunnel, as shown on the original plans in and by the 7th section of "The South Staffordshire Waterworks Amendment Act, 1864," mentioned or referred to (with such alterations and deviations in the dimensions and course of the said aqueduct within the limits of deviation, as by the South Staffordshire Waterworks Amendment Act, 1864, and the Acts incorporated therewith, are authorised, and as the defendants may deem necessary) and also to take permanently so much of the said field, beneath the surface thereof, as may be necessary for the passage through and under the said field of the said aqueduct in tunnel which the A agreed to take shares in a company, and paid a defendants are, as aforesaid, entitled to construct, deposit in respect of them, and afterwards refused to and to enter upon and use, for the period of twelve accept the shares, sign the deed of settlement, receive calendar months from the present time, the said field dividends, or pay calls. An action for calls being (including the surface thereof) for the temporary pur-threatened by the company, a compromise was entered pose of constructing the said aqueduct in tunnel, from into between him and the directors, whereby he was to Bourne Brook to Lichfield, authorised to be constructed by the said Act of 1864. |pay 501., and be released from all liability in respec of the shares alleged by the company to be held by him; the deed of settlement authorised the directors to Award an injunction to restrain the defendants, &c., from proceeding upon their said notice to treat, dated the 19th day of July, 1864, and from giving to the plaintiff's any fresh notice to treat, save for the purpose of procuring the compensation or purchase-money to be paid by the defendants to the plaintiffs in respect of so much of the said field as it is hereinbefore declared that the defendants are authorised to take permanently, to be ascertained in the mode prescribed by the Lands Clauses Consolidation Act, 1845. And also to restrain the defendants from in any way using the plaintiffs' field, or any part thereof, save for the purpose of the construction of the said aqueduct in tunnel, as shown by the said original plans, with such alterations and deviations (if any) as aforesaid. And the plaintiffs, by their counsel, consenting to the defendants retaining possession of the plaintiffs' field for the purpose of constructing their said aqueduct in tunnel, but not for any other purpose. Reserve to the plaintiffs the benefit of the undertaking of the defendants, contained in the Order of His Honour Vice-Chancellor Kindersley, made on the 5th day of August, 1864. [The Order made in the Vacation of 1864.] Order, that the plaintiffs are to be at liberty, at reasonable times and upon reasonable notice to the defendants in that behalf, during so long as the defendants shall retain the occupation of the plaintiffs' field for the purpose of constructing the said aqueduct in tunnel, to enter upon and under the said field, and to view and inspect the works of the defendants upon and under the same, and to use the apparatus and Lords Justices. Company-Compromise between Directors and alleged Shareholders-Legal Question. enter into compromises, and the transaction in question a general meeting, but A's name remained upon the was made known to the shareholders, and confirmed at register of shareholders. The company being after was improperly put upon the list of contributories. Held, that such compromise was binding, and that A This was an appeal from an order of the Master of the Rolls, dated the 28th of March, 1865, putting Lord Belhaven upon the list of contributories in this company for twenty-five shares. tion. The company was formed in the year 1845, under the 7 & 8 Vict. c. 110. Soon after the formation of the company, it was suggested to Lord Belhaven that he should become a vice-president," and he was told that for that purpose he must take shares in the com pany. He accordingly applied for the shares in quesThe shares were allotted to him, and he paid 17. per share upon them. Soon afterwards he was told that it was not necessary for his holding the office of vice-president that he should take shares for his qualification, and he then declined to take the shares, and refused to execute the deed of settlement of the company, or to have any further concern with the matter. In the year 1847 a dividend was declared upon the shares of the company, and it appeared that the factor of Lord Belhaven wrote to the secretary or agent of the company, requesting to know how he might receive that dividend, but it appeared that that letter was written by Lord Belhaven's factor without his authority, and he never received that or any other dividend. In the months of February and September, 1848, calls of 1. per share were made upon the shares in this company, and Lord Belhaven refused to pay those calls. In November, 1848, great differences arose among the shareholders, and some of them desired to retire. An arrangement was made for their so retiring; the nature of that arrangement being, that a call of 47. per share should be made upon all the shares of the company, that the retiring shareholders, in proportion to the number of the shares which they held, should pay a portion of that call, and that the shares held by the shareholders who desired to retire should be forfeited for non-payment of the remainder of the call. Several shareholders retired under this arrangement. In the year 1849, various other shareholders desired also to retire, and another arrangement was made with those other shareholders for their retirement by a forfeiture of their shares. Many members of the company retired under this other arrangement, In the year 1849 and 1853 renewed applications were made to Lord Belhaven for payment of the calls which had been made upon the shares; and he again refused to pay the calls. Ultimately, in June, 1854, the directors resolved to sue Lord Belhaven for his calls. Thereupon a negotiation between them and Lord Belhaven ensued, and in January, 1855, Lord Belhaven offered to pay 507. upon being released altogether from any further liability in respect of his shares, and the directors of the company accepted that offer; and, accordingly in March, 1855, Lord Bel- | haven paid the 50%. In April, 1855, there was a formal resolution of the directors to accept Lord Belhaven's offer, and to recommend to the general meeting of the shareholders a cancellation of Lord Belhaven's shares, and that he should be absolved from all further liability. On the 11th of June, 1855, notice was given for a general meeting, and for a special meeting on the 28th of June, to alter the deed of settlement, and for other purposes. The general and special meetings were held accordingly on the 28th of June, 1855; and at one of those meetings a resolution was passed to alter the deed, and a further resolution was also passed that the arrangement with Lord Belhaven, as the resolution expressed it, "now reported by the directors to the meeting be adopted and confirmed, and the same is hereby done." After this meeting, a printed circular was sent to all the shareholders containing the report made to the meeting, and the resolutions which had been passed by it, including, amongst others, the resolution which had been passed as to the arrangement with Lord Belhaven, setting out that resolution in the terms in which it was passed. Subsequently, on the 19th of July, 1855, another special meeting of the company was held, at which the resolution, which had been made at the meeting on the 28th of June, 1855, for altering the deed of the company, was confirmed. There was also another general meeting of the shareholders held in the month of April, 1856, at which the balance-sheet for the year ending the 31st of December, 1855, was presented; and in this balance-sheet there was an item of 5261. returned as received from shareholders. The 501. which had been received from Lord Belhaven was included in this item, but it was not in any way distinguished in the item. In 1857, another dividend was declared on the shares in this company, Lord Belhaven received no part of it, and there was no communication with him upon the subject of any of the affairs of the company from the date of the 28th of June, 1855, when the resolution had been passed for releasing him from any further liability in respect of the shares, until after the company was wound up. Upon Lord Belhaven agreeing to take the shares, his name had been returned to the joint stock registration office as a shareholder, and it remained there when the order for winding up the company was made; but in the alphabetical list of shareholders, corrected from the share register of the company to the 1st of April, 1858, Lord Belhaven's name did not appear. It was, however, left in another register book, and also in a book called the "numerical register of shareholders;" but in this latter book, the word "forfeited" was written in pencil, after Lord Belhaven's name, subsequently to the meeting of the 28th of June, 1855. The order to wind up this company was made on the 20th of April, 1861. For reports of the various cases, where the liabilities of shareholders who retired under the several arrangements above-mentioned, have been decided, see Brotherhood's Case, 31 Beav. 365; Spackman's Case, 5 N. R. 385. Hobhouse, Q. C., and J. Pearson, for Lord Belhaven, contended, that this case was not (as the Master of the Rolls had held) governed by Spackman's Case (loc. cit.); because the Lord Chancellor's judgment there proceeded upon the ground of the concealment from shareholders of the transaction; but in this case there could not be said to be any concealment. The dispute between Lord Belhaven and the company was a bond fide one; he always asserted that he was not a shareholder; and a compromise of such a dispute could be sanctioned, as it was certainly doubtful whether he ever was a shareholder, Oriental Inland Steam Company v. Briggs, 2 J. & Selwyn, Q.C., and Bush, for the official assignee, and Daniel, Q.C., and Long, for the creditors' representative, contended, that Lord Belhaven was unquestionably a shareholder at the time of the alleged compromise, and was registered as such, |