The numbers from Mrs. Butcher's aviary were as naught to the flocks from a certain vivary which the court had to consider in all their blackness and noyfulness in Hannan v. Mockett (2 Barn. & C. 934). The plaintiff complained that divers great quan tities of rooks had been and were used and accustomed to resort and come and to settle, build nests, and breed, and rear their young in and upon certain trees growing and being in a close he lawfully owned, by which means he had been and was used and accustomed to kill and take divers great quantities of the said rooks and their young, and thereby divers great profits and advan tages had accrued and still ought to accrue to him, etc., yet the defendant, well-knowing, etc., but contriving and wrongfully and ma liciously intending to injure the plaintiff, and to alarm, affright, and drive away the said rooks and to cause them to forsake and abandon the said trees of the plaintiff and their nests built therein, and to prevent other rooks from resorting thereto, and set tling in and upon the said trees, and to de prive the plaintiff of the profits and advan tages so arising from the said rooks and the young thereof, as aforesaid, did on divers days and times, wrongfully and unjustly cause divers guns loaded with gunpowder to be discharged near the land of the plain tiff, and with the noise of the discharges of the said guns and the smell of the said gun powder, did disturb, terrify and drive away divers rooks, then being in or near the said close and trees of the plaintiff, insomuch that a thousand rooks, which before that time had been used and accustomed to re sort and come to the said trees, and to settle, build nests, breed and rear young, in and upon the said trees, flew away and abandoned the said close and trees, and the nests built therein, and wholly forsook the same, and a thousand other rooks which were then about to resort to and settle in and upon the said close and trees, were thereby prevented from so doing; whereby
the plaintiff was prevented from killing and taking rooks young and old, in such plenty as he might and would have done, and thereby lost the profits and advantages which might and otherwise would have ac crued to him. For all this injury, Hannan only asked the reasonable sum of,£200 damages; the jury were somewhat sympa thetic and gave him .£10. The Court how ever held that the action was not maintain able, inasmuch as rooks were a species of birds ferce natures, destructive in their habits, not known as an article of food or even alleged so to be, and not protected by any act of parliament; that the plaintiff had not been at any expense with regard to them; and could not therefore have any property in them, or show any right to have them resort to his trees, or to keep them there to the injury of his neighbors. The judge in this case said that the legis lature has generally looked upon birds of the rook kind as nuisances. Henry VIII. fulminated one of his bolts against choughs, crows and rooks. His act recited that they destroy great quantities of corn, as well in the sowing as in the ripening and kerneliing thereof, that they make a marvelous de struction of the covertures of thatched houses, barns, ricks, stocks, etc., and it or dered every one having land in his occupa tion to do as much as in him lay to kill such birds, on pain of grievous amerciament. The statute also directed that nets should be provided to catch these birds of evil omen and hoarse croakings, and that for ten years the people should yearly assemble and discuss how best to do for these birds. Elizabeth Tudor disliked these " noyful fowl and vermin " as much as did her burly father, and offered a price for their heads, a penny for those of three old birds or twice that number of the young, or of eggs (24 Hy.VIII. ch. 10; 8Eliz. ch. 15.) If King Hal had not been such a skeptic he would have believed what the venerable Bede tells us of the crows who carried away part of
