on to be heard in due form, and upon the hearing it appeared as follows:

That the appellant was the foreman to one Cross, a wholesale dealer in foreign birds, etc., in Liverpool.

On the 10th day of September the appellant superintended the packing in a wooden box of six young parrots at Liverpool. The birds were afterwards dispatched by his direction by the train leaving Liverpool at 11 p. m., consigned to the purchaser at Dover, Kent, the train for which would leave Herne Hill Station at 10.26 on the morning of the 11th day of September. Some Indian corn was placed in the box in which they were consigned.

At 9:15 on the morning of the 11th day of September the respondent, who was employed by the Society for the Prevention of Cruelty to Animals, observed the box lying on the platform at Herne Hill Station.

He observed through a crevice on the top of the box that the birds were much torn about, and, as he described, perspiring very freely, and that the three birds at the bottom of the box were being trampled on by the others, and were in a most exhausted condition. He caused the birds to be removed from the box into a larger one, and after they had been supplied with water they seemed to revive, and were forwarded to their destination. He considered that they were too closely packed.

A porter at the Herne Hill Station, whose attention had been called to the birds by respondent, proved that he heard them squeaking and making a peculiar noise, and that one of the servants of the railway company gave them some cold water, of which they drank about two saucers full with a relish, and did not cry out afterwards, but seemed to be quite happy and contented.

Upon these facts it was contended, on the part of the appellant, that there was no evidence of cruelty upon which he should be convicted, that these being foreign, unacclimatized parrots, were not animals within the meaning of the said statute; that no offense had been committed by the appellant within the jurisdiction of the Lambert Police Court, and that the appellant had not committed any offense.

The magistrate held that the box was of a sufficient size and proper construction, and that the birds were not too closely packed, but he was of opinion that an offense had been committed, and it was cruelty to send birds during hot weather in the box used by the appellant, without water, in a journey of several hours, and convicted the appellant of the offense, and adjudged him to pay a fine of 10s. together with 2s. for costs.

The magistrate held that the parrots were animals within the meaning of the statute, and that the appellant had committed an offense within the jurisdiction of the said court.

The opinion of the court was asked whether the above contentions of the appellant were right in point of law, the court to make such order as to costs as it deemed fit.

By 12 and 13 Victoria: If any person shall from and after the passing of this act, cruelly beat, ill-treat, overdrive, abuse, or torture, or cause to procure to be cruelly beaten, ill-treated, overdriven, abused or tortured, any animal, every such offender shall, for every such offense, forfeit and pay a penalty not exceeding five pounds.

By section 14: Every complaint under the provisions of this act shall be made within one calendar month after the cause of such complaint shall arise; and every offense committed against this act may be heard and determined by any justice of the peace within whose jurisdiction such offense shall be committed in a summary way, upon the complaint of any person, and without any information in writing; and it shall be lawful for any such justice, in all cases where any person complained of shall not be in custody, to summon such person to appear before such justice, or before any other justice of the peace, at a time and place to be named in such summons; and, on the appearance of the party accused, or, in default of such appearance, upon proof of the service of such summons, the said justice, or any other justice who shall be present at the time and place appointed for such appearance, shall proceed to examine into the matter.

By section 29: The word animal shall be taken to mean any horse, mare, gelding, bull, ox, cow, heifer, steer, calf, mule, ass, sheep, lamb, hog, pig, sow, goat, dog, cat, or any other domestic animal.

By 17 and 18 Victoria: 2 The words and expressions to which a meaning is affixed by the act of the twelfth and thirteenth years of Her Majesty, and which are introduced into this act, shall have the same meaning in this act; and the word "animal" shall, in the said act, and in this act, mean any domestic animal, whether of the kind or species particularly enumerated in clause 29 of the said act, or of any other kind, or species whatever, and whether a quadruped or not.

By 42 and 43 Victoria: 3 Where the offense is committed on any person or in respect of any property in or upon any carriage, cart, or vehicle whatever, employed in a journey, or on board any vessel whatever, employed in a navigable river, lake, canal or inland navigation, the person accused of such offense may be tried by any court of summary jurisdiction through whose jurisdiction such carriage, cart, vehicle, or vessel, passed on the course of the journey or voyage during which the offense was committed.

H. G. Greene, for the appellant. The conviction was wrong. The

1 ch. 92, sec. 2.

2 ch. 60, sec. 3.

3 ch. 49, sec. 49, sub-sec. 3.

magistrate decided wrongly on all the three points raised. First. There was no evidence of cruelty, and there was none disclosed in the case, on which the magistrate could convict. Cruelty has been defined to be unnecessary violence to and abuse of an animal.1 Mere inconvenience for a short time to these birds resulting from being sent by railway is not cruelty. Next, these parrots were not, and there was no evidence that they were, domestic animals, within the acts 12 and 13 Victoria,2 and 17 and 18 Victoria.3 A parrot, in a wide sense, is an animal, and may in time become domesticated. The statute applies only to domestic animals, and not to wild animals which have not been domesticated, such as caged animals, or tame hares or foxes. The birds are not shown in the case to be domestic animals, or to be even domesticated animals, but merely young parrots consigned by a dealer in foreign birds to a customer. Thirdly. There was no offense within the jurisdiction. This case does not come within section 14 of 12 and 13 Victoria.4 These birds were merely passing through the district of the magistrate; and the cruelty found by the magistrate in sending these birds without water occurred, if at all, at Liverpool.

Underhill, Q. C. (Morton Smith with him), for the respondent. The court in this case is asked virtually to overrule the magistrate's decision upon questions of fact; for the first two points raised are only questions of fact, and have been found by the magistrate against the appellant. These birds were ill-treated and abused, in the opinion of the magistrate, and his finding of cruelty in the case is conclusive. There was evidence of cruelty. A parrot is a domestic animal, and the magistrate has so found it. The case of Bridge v. Parsons, which was decided on the earlier of the two acts, is in respondent's favor; and 17 and 18 Victoria,6 thoroughly supports his contention. Thirdly. The offense, committed by the appellant was a continuing one, and could be dealt with by any magistrate within whose jurisdiction the suffering of the animal is discovered. This has been so held under a statute passed to meet cases similar to this. The continuity of the offense through several jurisdictions does not prevent the offender from being punished in any one of the jurisdictions; and this is brought within the scope of the summary jurisdiction act, 1879.8

GROVE, J. Three points for our decision have been raised in this case. I am of the opinion that our judgment must proceed for the appellant on the first two points; as to the third, whether the alleged of

1 Murphy v. Manning, 46 L. J. 211; M. C.

L. Rep. 2 Ex. Div. 307.

2 ch. 92.

2 ch. 60.

4 ch. 92.

532 L. J. 95, M. C.

6 ch. 60, sec. 3.

7 Johnson v. Colam, L. R. 10 Q. B. 544.

8 42 & 43 Vict., ch. 49, sec. 46, sub-sec. 3.

fense was a continuing offense or not, I had some doubt. I now think, however, that the offense, if any, was a continuing offense. The case before us does not set out any reasonable evidence of cruelty under the statutes on the part of the appellant. Cruelty has been defined as the unnecessary abuse of an animal. I should prefer to define the word as unnecessary ill-usage by which the animal substantially suffers. No substantial suffering has been here made out by the evidence before the magistrate. An act has been cited to us in which the Legislature lays down that thirty hours is the longest period during which cattle are to be kept without water. Whatever my opinion might be as to whether or not that that was too long a period, we have no evidence before us to show that parrots suffer much in the hot weather from the want of water and that they require to be supplied with it during night time, or within a period of ten hours. Of course it is not impossible that such evidence might be given. Cruelty does not mean any inconvenience or discomfort incidental to traveling from one place to another which may happen to the animal. To keep the bird in September without water for one night is, without frittering away the effect of the statutes, not such cruelty as to be punishable. The box in which the parrots were confined was found to be sufficient for them. The only evidence of cruelty and ground for conviction by the magistrate disclosed by this case is, that the birds seemed refreshed by the water which they are stated to have drunk with a relish. As to the second point, I do not think these birds were domestic animals within the statutes cited. I do not say that a parrot might not become a domestic animal when thoroughly tamed and accustomed to the society of human beings, but these were young, unacclimated birds freshly imported into England. They are clearly different from fowls and other poultry, and the evidence goes to prove that they were not tamed and domesticated. Lastly, I am inclined to think that if there had been any offense it would have been a continuing offense. If an animal is put in such a position that it might inflict great pain upon it, and the circumstances are such that it is reasonable to suppose that the position will not be altered, as long as and wherever that position is maintained, it is a continuing offense.

LINDLEY, J. As to the first two points, that such sufficient cruelty as to convict has not been made out in the case, and that these parrots were not domestic animals under the statutes, I concur with the judgment of my brother GROVE; but on the question of jurisdiction I have grave doubts as to whether the magistrate had jurisdiction in the case by reason of the alleged offense being a continuing one. In the case of Johnson v. Colam,1 the continuing offense was an omission on the part

1 Ubi supra.

of the appellant to make an application at different watering places for water for the purpose of watering his cattle, a state of things different from that now before us. The decision of this point is, however, not material to our judgment.

Appeal allowed with costs.

CRUELTY TO ANIMALS-CATCHING DEPREDATING ANIMAL IN STEEL

TRAP.

HODGE v. STATE.

[11 Lea, 528.]

In the Supreme Court of Tennessee, 1883.

A Person has the Right to Protect his premises against the depredations of mischievous dogs, and for the purpose to use such means as are reasonably necessary, and if the depredating animal is thereby caught in a steel trap and mutilated, it would not be needless torture or mutilation under the statute.

APPEAL from the Criminal Court of Knox County. M. L. HALL, J. J. C. J. Williams, for Hodge.

Attorney-General Lea, for the State.

COOKE, Sp. J., delivered the opinion of the court.

The plaintiff in error was indicted and convicted under the act of 1881,1 enacted for the prevention of cruelty to animals.

The first section of said act is as follows: "If any person shall overdrive, overload, torture, torment, deprive of necessary sustenance, or cruelly beat or needlessly mutilate or kill, or cause, or procure to be overdriven, overloaded, tortured, tormented or deprived of necessary sustenance, or to be cruelly beaten, or needlessly mutilated or killed as aforesaid, any living creature, every such offender shall, for every such offense, be guilty of a misdemeanor." And by the thirteenth section of said act the words "torture, torment or cruelly beat shall be held to include every act, omission or neglect whereby unjustifiable physical pain, suffering or death is caused or permitted, but nothing

in this act shall be construed as prohibiting the shooting of birds for human food."

The indictment charged in substance that the defendant unlawfully and needlessly mutilated a dog, the property of one Garner, by setting a steel trap in a bucket of slop, and exposing the same, whereby said

1 ch. 169.