"deemed to be bills of sale" within secs. 5 and 6 respectively of that Act. The distinction was unimportant until the passing of the Act of 1882, and was not brought into prominence before the decision of the Court of Appeal in Green v. Marsh, [1892] 2 Q. B. 330. [The effect of that decision is that such documents are not bills of sale within sec. 9 of the Act of 1882, and therefore need not be in the prescribed form; but are to be treated as bills of sale for the purposes of registration.] Instruments within sec. 6 were not within the Act of 1854 at all; and that section was a new enactment extending the operation of the Acts. Instruments within sec. 5 were within the Act of 1854; and that section is a survival, as regards "trade machinery," of principles which under the Act of 1854 applied to fixtures generally.

By sec. 5, "trade machinery" is defined to mean "the machinery used in or attached to any factory or workshop," exclusive of fixed motive powers, fixed power machinery, and pipes for steam, gas, and water; and it is enacted that "trade machinery shall, for the purposes of this Act, be deemed to be personal chattels, and any mode of disposition of trade machinery by the owner thereof which would be a bill of sale as to any other personal chattels shall be deemed to be a bill of sale within the meaning of this Act." The term "factory or workshop is also defined. And it is further enacted that "the machinery or effects excluded by this section from the definition of trade machinery shall not be deemed to be personal chattels within the meaning of this Act." It has been held that the "excluded machinery" is not within the Acts for any purpose, even when assigned or charged separately from the land (Topham v. Greenside Firebrick Co., 1887, 37 Ch. D. 281; cp. Ex parte Byrne, In re Burdett, 1888, 20 Q. B. D. 310); and even as regards "trade machinery" the relation between sec. 4 and sec. 5 has never been judicially examined (see Weir on Bills of Sale, pp. 165, 173 et seq.). There are, however, several decisions under the Act as to trade machinery comprised in a conveyance of land.

Where there is a mere conveyance of land, which conveyance by itself gives the mortgagee a right to all the fixtures upon it, including the trade machinery, that is not to be considered as an assurance of personal chattels so as to come within the Act" (Cotton, L.J., In re Yates, Batcheldor v. Yates, 1888, 38 Ch. D. 112). This rule applies to a mortgage in fee of land and buildings, without any general words or any reference to fixtures or machinery (In re Yates, supra), to an equitable mortgage by deposit of the deeds of leasehold premises containing trade machinery (Ex parte Lusty, In re Lusty, 1889, 60 L. T. 160), or to a mortgage which expressly mentions fixed machinery and fixtures, but does not give the mortgagee any larger right than if the machinery and fixtures had passed without express mention as part of the land (In re Brooke, Brooke v. Brooke, [1894] 2 Ch. 600). But if a mortgage expressly mentions fixed trade machinery along with loose chattels, and is intended to give the grantees a right to the fixed machinery in addition to any right which they would have simply as grantees of the land, it will be deemed to be a bill of sale within the section (Small v. National Provincial Bank of England, [1894] 1 Ch. 686).

The general scope of sec. 6 of the Act of 1878 is considered in the article on ATTORNMENT (ante, vol. i.). The exception of a mining lease applies to a bona fide mining lease in an ordinary form, even though it enables the lessor to distrain for the rent on other mines not comprised in the lease, but worked in connection with the mines demised (In re

Roundwood Colliery Co., [1897] 1 Ch. 373). A mining lease, however, which contained extraordinary powers of distress would not be within the exception, but might come within sec. 6 or within sec. 4 as a licence to take possession of chattels as security for a debt (ibid.). It was at one time supposed that instruments within this section were void under sec. 9 of the Act of 1882, as not being in accordance with the statutory form (Mumford v. Collier, 1890, 25 Q. B. D. 279). It has, however, been held by the Court of Appeal that such an instrument, if unregistered, is void under sec. 8 of that Act, but that "not being actually a bill of sale, it need not be according to the scheduled form, because sec. 9 does not apply to it" (Green v. Marsh, [1892] 2 Q. B. 330). This decision is based on the phrase that the instrument is not a bill of sale, but is only to be deemed to be a bill of sale. The Court do not seem to have noticed that the same reasoning would apply to dispositions of trade machinery under sec. 5 of the Act of 1878, which are given by way of security for money. Nor did the Court refer to the language of sec. 3 of the Act of 1882, which defines the application of that Act. It has since been suggested that on the true construction of that section the Act of 1882 does not apply at all to instruments which are deemed to be bills of sale within secs. 5 and 6 of the Act of 1878, and therefore that these instruments remain on the same footing as absolute bills of sale (see Weir on Bills of Sale, pp. 174, 246-248).

[See Reed, Bills of Sale Acts, 12th ed., 1903; Weir on Bills of Sale, 1896; Lyon and Redman, Bills of Sale, 4th ed., 1896; Robson on Bankruptcy; Baldwin on Bankruptcy and Bills of Sale. Reference may be made to the standard works on Conveyancing.]

also

Bills (Sticking).—1. The sticking of a bill or advertisement on the property of another, without his consent, is an actionable trespass. So is pasting a bill over that of a rival bill-sticker, except in exercise of a paramount and lawful right.

2. Bill-sticking is not summarily punishable outside the Metropolitan Police District by any general Act, but is the subject of special provisions in many local Acts affecting particular districts. In the Metropolitan Police District it is an offence punishable on summary conviction by a penalty not exceeding 40s., in any thoroughfare or public place to affix, without the consent of the owner or occupier, any posting bill or other paper upon or against any building, wall, fence, or gate, or to write upon, soil, deface, or mark such wall, etc., with chalk, or paint, or in any other way whatever. A constable may arrest without warrant any person who commits the offence in his view (2 & 3 Vict. c. 47, s. 54 (10)).

3. The sticking or exhibition of indecent bills, etc., is prohibited by the Indecent Advertisements Act, 1889, 52 & 53 Vict. c. 18, which expressly includes bills about venereal diseases. See INDECENCY.

4. The privilege being of value, controversy at times arises between the contractor and the building owner as to who is entitled to advertise on hoardings round a building in course of erection or demolition. Its settlement depends on whether the terms of the contract vest the hoarding in the contractor or building owner (see Chappell v. St. Botolph Overseers, [1892] 1 Q. B. 561, 565). Where hoardings, etc., are temporarily erected under the licence of a local authority over any part of a public highway, or any property of the local authority, the authority may insert in the licence a condition prohibiting advertisements on the

hoarding, etc., or permitting it on terms of paying such sum and complying with such other conditions as the licensing authority think fit (Advertising Stations (Rating) Act, 1889, 52 & 53 Vict. c. 27, s. 5). In London the borough councils are the licensing authority (62 & 63 Vict. c. 14, s. 4). Outside London the authority is the borough council, or urban, or rural district council.

5. The rating of bill-stickers' stations on land not otherwise occupied is regulated by the Advertising Stations (Rating) Act, 1889, 52 & 53 Vict. c. 27. Prior to the Act it had been held that advertising agents could not be rated as occupiers of a wall on which they pasted bills by license of the owner (R. v. St. Pancras, 1877, 2 Q. B. D. 581); under the Act advertising stations can now be rated; but the person who licenses their use of a wall or hoarding is made liable, and not the advertising agent (Chappell v. St. Botolph Overseers, [1892] 1 Q. B. 561; Burton v. St. Giles and St. George's Assessment Committee, [1900] 1 Q. B. 389).

Bind over. This term is correlative to "bond," but is used as a legal term only with reference to certain kinds of recognisances or bonds. A person is said to be "bound over" when he enters into a bond or recognisance to the Crown to do or abstain from some act. 1. On committal for trial for an indictable offence the defendant, if bailed, is bound over to appear and take his trial, and the prosecutor and the witnesses on either side (except witnesses to character) are bound over to appear and prosecute or give evidence, as the case may be (11 & 12 Vict. c. 42, ss. 20, 25, 26; 30 & 31 Vict. c. 35, s. 3). A person called to answer to articles of the peace (q.v.) or accused of misdemeanor may be bound over to keep the peace and to be of good behaviour; and the same power exists by statute as to felonies (except murder) included in any of the Criminal Law Consolidation Acts of 1861 (24 & 25 Vict. c. 96, s. 117; c. 97, s. 73; c. 98, s. 51; c. 99, s. 38; c. 100, s. 71): and in the case of a first conviction for any offence included in the Probation of First Offenders Act, 1887, 50 & 51 Vict. c. 25; and there is a general power to bind over any defendant convicted of an offence (not capital) to come up for judgment when called upon. See BAIL; SURETIES.

2. On a prosecution for an offence punishable on summary conviction, the same power of binding over the defendant during any adjournment or in lieu of other punishment exists as in indictable cases (11 & 12 Vict. c. 43, s. 16; 42 & 43 Vict. c. 49, s. 4).

Birds. From a legal point of view birds fall into two classes(a) domestic, i.e. birds kept, whether in confinement or not, for purposes of food or profit; (b) wild birds, or birds feræ naturæ.

(a) Domestic Birds.-Birds of this class, their eggs and young, are the subject of larceny at common law. The class originally included fowls, tame ducks and geese, and pigeons, if shut up in or regularly resorting to a dovecot (R. v. Cheafor, 1851, 2 Den. 361), and the term is extended to turkeys, peacocks and guinea-fowl, and also to pheasants and partridges when tamed or kept in a pen (R. v. Head, 1857, 1 F. & F. 350; R. v. Gallears, 1839, 19 L. J. M. C. 13), and to all birds wild by nature when alive and reclaimed or confined. The stealing of house pigeons is not larceny at common law in every case; where it is not, the thief is punishable on summary conviction under sec. 27 of the Larceny Act, 1861, 24 & 25 Vict. c. 96.

Under sec. 21 of the Larceny Act, 1861, stealing, or taking with intent to steal, any bird ordinarily kept in a state of confinement or for a domestic purpose is punishable on summary conviction, with an increased penalty for a second or subsequent offence under sec. 22. If any such bird or its plumage is found in the possession of any person, a Court of summary jurisdiction may order its restoration to the owner, and persons who are found in such possession with knowledge that the bird was stolen or the plumage that of a stolen bird, are liable on conviction to the same penalties as under sec. 21.

Under sec. 41 of the Malicious Damage Act, 1861, 24 & 25 Vict. c. 97, unlawfully and maliciously taking, maiming, or wounding any bird ordinarily kept in confinement or for any domestic purpose, is punishable on summary conviction, and with an increased penalty for a second or subsequent offence.

A man does not incur the penalties of these Acts who kills trespassing fowls or pigeons (otherwise than by poison) in defence of his crops or property, if the killing is or is honestly believed to be necessary to protecting the crops or property (Taylor v. Newman, 1863, 32 L. J. M. C. 186; Smith v. Williams, 1892, 9 T. L. R. 9; Daniel v. Janes, 1877, 2 C. P. D. 351; Miles v. Hutchings, [1903] 2 K. B. 714), and the person injured by the incursions of other people's domestic fowls may either distrain them damage feasant (q.v.) if he can catch them, or may sue for the injury done by them. Domestic birds in the ordinary sense are within the protection of the Prevention of Cruelty to Animals Acts, 17 & 18 Vict. c. 60, s. 3 (Murphy v. Manning, 1877, 2 Ex. D. 307; Armstrong v. Mitchell, [1903] 67 J. P. 329). See CRUELTY.

The keeping of birds in such a manner as to be a nuisance or injurious to health is summarily punishable under the Public Health Acts, 38 & 39 Vict. c. 55, s. 91 (2); 54 & 55 Vict. c. 76 (London), s. 2 (1) (c), but these provisions do not apply to nuisances created by noise only, such as early cock-crowing, which can be abated only by indictment or action, or under local by-laws making special provision for this class of nuisance.

Laying poisoned grain or flesh to kill birds, domestic or other, is punishable (26 & 27 Vict. c. 113; 27 & 28 Vict. c. 115), unless, in the case of grain, it is bona fide poisoned for an agricultural purpose or to kill vermin, i.e. insects, and mice and the like.

(b) Wild Birds.-These fall into three classes (1) royal birds; (2) game birds; (3) the rest.

(1) The swan is regarded as feræ naturæ, but as a royal bird. Swans may be reduced into possession by private persons, and kept on their private waters. If so reduced into possession, they are the subject of larceny at common law (Arch. Cr. Pl., 23rd ed., 438). But all swans found in navigable rivers or the sea may be seized for the use of the sovereign.

The right to private possession of swans found on public waters is recognised only where the alleged owner can show that the swan is marked with a swan mark which is his by royal grant or prescription (see 22 Edw. IV. c. 6, and the case of Swans, 1592, 7 Co. Rep. 16, where all the old learning on the subject is collected).

The swans on the river Thames for the most part belong to the Crown, but some are the property of certain city guilds under royal grants, etc.; and annually the process of swan hopping or swan upping is gone through for the purpose of marking the young of the swans of the several owners.

A swan is not a game bird in the eye of the law. Swans' eggs are not the subject of larceny at common law (2 Russ. on Crimes, 6th ed., 247), but their taking was punishable by statute (11 Hen. VII. c. 17); and persons taking them on land on which they have not the right to kill game, or found in possession of eggs so taken, are liable to summary conviction under sec. 24 of the Game Act, 1831, 1 & 2 Will. IV. c. 32, which Act repealed those of Edward IV. and Henry VII.

(2) As to game birds, see GAME LAWS.

(3) Wild birds not falling within classes (1) and (2) stand in a different position in law. Hawks kept for sport are in an exceptional position. They are said to have been treated at common law as domestic animals and the subject of larceny (1 Hawk., P. C., bk. 1, c. 33, s. 36). But their position seems to have rested on 34 Edw. III. c. 22, and 37 Edw. III. c. 19, both now repealed. The same rule has been extended to young pheasants or partridges hatched and reared under a domestic hen (R. v. Shickle, 1868, L. R. 1 C. C. R. 158; R. v. Cory, 1864, 10 Cox C. C. 23).

In other cases there is no right of property in any wild bird unless it is killed (or caught) and reduced into possession. Rooks even in a rookery are not subjects of larceny. In fact, under old Acts (24 Hen. VIII. c. 10; 8 Eliz. c. 15) they are declared noxious animals (see Hannam v. Mockett, 1824, 2 Barn. & Cress. 934).

If people bring wild birds in quantities on to their land for their own purposes, they may be liable for their incursions on to adjoining land (Farrer v. Nelson, 1885, 15 Q. B. D. 58).

If wild birds, even those ordinarily kept in confinement, escape, it is not criminal nor actionable to take or kill them if their owner is not known (1 Hawk., P. C., bk. 1, c. 19, s. 40), and appropriation of wild birds by a servant sent to kill them on the land of his master is not larceny or embezzlement (see R. v. Read, 1878, 3 Q. B. D. 131), although they become part of the land of the man on whose soil they are killed (Blades v. Higgs, 1865, 11 H. L. C. 621); and if they are appropriated as part of a distinct transaction from the killing, larceny is committed (R. v. Townley, 1870, L. R. 1 C. C. R. 315; R. v. Foley, 1889, 26 L. R. Ir. 299).

A decoy for wild fowl is so far recognised as involving an inchoate right of property in the wild fowl attracted, that an action will lie for doing acts such as firing guns with intent to frighten the wild fowl away and injure the owner (Keeble v. Hickeringill, 1708, 11 East, 574n.; Hannam v. Mockett, 1824, 2 Barn. & Cress. 934, at 943); but this view, though still accepted as law (see Mogul Steamship Co. v. M'Gregor, [1891] App. Cas. 25, at p. 51), seems to rest on the protection given by an old Act (25 Hen. VIII. c. 11), the expense incurred on making the decoy, and on the value of wild fowl as food.

The provisions of the Larceny Act, 1861, and the Malicious Damage Act, 1861, set out under Domestic Birds above, also afford protection to the owners of singing birds, parrots, etc., which at common law were regarded of a base nature, and not the subject of larceny.

The Prevention of Cruelty to Animals Acts, 1849 and 1854, apply to birds ordinarily wild, only when they are so kept that they can be regarded as domestic animals (17 & 18 Vict. c. 60, s. 3; Yates v. Higgins, [1896] 1 Q. B. 166). But provision is made for punishing cruelty to birds in captivity or close confinement by 63 & 64 Vict. c. 33. See CRUELTY TO ANIMALS. Linnets trained to act as decoys