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Decisions of the Superior Courts of New South Wales, 1788-1899

R v Lee (1830) NSW Sel Cas (Dowling) 19; [1830] NSWSupC 3

larceny, emu, animals, property in native, ferae naturae

Supreme Court of New South Wales

Dowling J., 26 February 1830

Source: Australian, 3 March 1830[1 ]


John Lee was indicted for stealing two emus, value 10l., belonging to Mr. Joseph Thompson, on the 3d February.

Before the Attorney General proceeded to state the case for the prosecution, Mr. Justice Dowling ruled against the indictment, inasmuch as the birds were not described as being tame; for prima facie it was necessary to show they were otherwise than ferae naturae,[2 ] or the indictment could not be sustained at all.  The prisoner was acquitted upon that indictment, but remanded for another to be prepared. ...[3 ]

John Lee was again indicted for stealing, on the 13th February, 1829, two tame emus, the property of Mr. Joseph Thompson, value £10.

It appeared in evidence, that at the latter end of the year 1828, the prosecutor had two young emus presented to him, which he kept in an enclosed place on his premises.  That after he had them about two months, they disappeared, and he saw them a short time afterwards, in the yard of a man named Wheatby, who it appeared purchased them of the prisoner for one pound, in the presence of Small, a conductor of police.  When the prisoner was apprehended, he stated that he purchased them, but would not tell from whom; and a day or two afterwards he escaped from the watch-house, and had been at large eleven months.  The prisoner in his defence endeavoured to prove that he purchased them for three dollars, of a man, who stated that he brought them from the New Country.[4 ]

At the close of the prosecution, Mr. Therry rose, and contended that the indictment in this case was not sustainable, being at Common Law.  Now it was in evidence that the emus were not kept for food, but whim and pleasure.  4. Blackstone, 336, laid it down, that stealing of animals, kept for whim or pleasure, in which the person had but a bare property, as dogs, &c. was not indictable at Common Law, but that the party so losing them had his action for damages, or criminally, under the statute.  If the emus were not ferae naturae, they approached most nearly to that state, and therefore were not subjects for indictment, any more than ferrets, rabbits, rats, &c.  Had the prisoner been indicted under the statute of Mr. Peel, for such cases, made and provided, the case would have been different.  But as it was, the indictment being at Common Law, could not hold good.[5 ]

The Attorney General contended on the other hand, for the validity of the indictment, and it being proved by the first witness that the birds were reclaimed, and not ferae naturae, the prisoner was therefore properly indicted under the Common Law.

Mr. Therry contended that the Act which he had quoted superseded the Common Law.

Mr. Justice Dowling observed, that in point of law, he considered it a Common Law offence to steal a tame emu, but he would take care to bring the question under consideration of the other Judges, although it had been laid down in East's Pleas of the Crown, that ferrets were of too base a nature to be the subject of a Common Law indictment, yet he would leave it for his learned collegues to say, whether stealing a tame emu was or was not indictable at Common Law in this Colony.  He would therefore for the present but put the case on the evidence, which having recapitulated, the Commission retiring, after a short absence found the prisoner guilty.



Forbes C.J. and Dowling J., 6 March 1830

Source: Australian, 10 March 1830


Mr. Attorney General Baxter next prayed the judgment of the Court on John Lee, found guilty on an indictment for larceny, in stealing two emus from Captain Thompson (mariner and merchant.)  The learned gentleman proceeded to demonstrate, that the prisoner had been properly indicted at Common Law - that the birds were tame, kept enclosed within a seven feet fence, worth 101., of a description frequently used for food, and as the owner described them, a luxurious dish.

Mr. Therry on the other hand contended against the validity of the indictment.

Mr. Justice Dowling referred to his notes of the trial, and having refreshed the memory of the Court with their repetition in detail,

Mr. Therry went on to contend that emus were of a nature too base to be subjects for felony at Common Law.  There was an express statute of Mr. Peel's, 7 and 8, Geo. IV. C. 29, s. 31, bringing several description of game and animals within the provisions of an explicit enactment, the stealing of which, on conviction before two or more Magistrates, was made punishable by fine, not exceeding 20l.  The game and animals thus protected were designated by this statute; and had that rara avis, an emu even been included, and among them it was not, the learned Counsel contended that the proper course would have been to indict the prisoner under the statute; whereas he was indicted at Common Law for a larceny, in stealing what was unknown to the Common Law, and would have been classed, were it known with ferrets, rats, mice, and other base animals.  But the emu was utterly unknown to the Common Law.  It was wrapped up in the wilds of this Terra Australis incognita.  It was never even mentioned out of the mouth of a British Judge.  The Learned gentleman proceeded to quote law authorities in support of his argument, and when on with much force and humor to attack the opinions expressed by the opposite side, as to the uses of this bird, whether kept for the purposes of mere caprice or for the table, and its value, as compared with other fowl.  His learned friend had styled it a luxurious dish, and the prosecutor, when asked if he had ever eaten any, said he would as soon partake of emu as the most delicious bird, but unfortunately his taste was so acute, that the prosecutor could not determine whether the flesh more resembled mutton than goose.  He placed upon the birds the value of 10l. a couple.  Ten pounds for a blind emu!  An animal that was never thought of being eaten, or remembered by the oldest inhabitants to have ever been eaten - an ugly, useless creature, which the solitary individual who said he had eaten of it was puzzled to say whether the flesh in flavor most resembled mutton or Goose! - a base scarecrow - "nigroque simillima cygno."  He wished heartily that both his learned friend, the Attorney General, and the prosecutor, might make their delicious repast upon tame emu again, in default of goose or mutton.  Ten pounds a couple!  a pretty way we should be in, indeed, if a pair of ordinary fowls, one couple of which to his palate would be worth fifty emus, were to cost the buyer ten pounds!  Mr. Therry proceeded to cite a case decided by Lord Tenterden, who laid it down that grouse, not being a bird of warren, the stealing thereof was not indictable at Common Law, and it was remarkable that in no one instance had grouse been held as game, till the session of June, 1827, when Mr. Peel's Act brought it within the statute.  The learned gentleman wound up by expressing his confidence of the invalidity of the indictment, and the prisoner's discharge.

The Attorney General replied, contending for the propriety of the indictment, that there was a law common to every country, and though emus might not have been protected by English Common Law, yet here there was vested in them a certain right of property, which should make the possession as sacred as of any other.

Mr. Justice Forbes said that his learned brother, Dowling, and he were both of opinion that the indictment should hold good, as coming within the meaning and intention, though not the strict letter of the Common Law.  Therefore the Court, considering it a felony to steal a tame emu, sentenced the prisoner to be worked in irons on the public roads for twelve calendar months.[6 ]



[1 ] Justice Dowling recorded this case as follows (Dowling, Select Cases, Vol. 2, Archives Office of N.S.W., 2/3462, p. 275):

"To steal a live tame Emu though feræ natura is Larceny at Common Law

"Friday 26 February 1830

"Rex v John Lee

"Indicted for stealing at Sydney on the 13th of February 1829 Two Emus of the value of £10 the property of Joseph Thomson.

"NG. not described as being tame.

"Forbes CJ. agreed with me that to steal a tame reclaimed Emu, which had been kept for pleasure in an inclosed [sic] fence, and was fit for food, was larceny at Common law."

See also, Sydney Gazette, 27 February 1830.

[2 ] Of wild disposition, animals not normally domesticated.

[3 ] The Australian reported other cases before returning to Lee.

[4 ] The Sydney Gazette, 27 February 1830, reported that one witness, Frederick Whitby, gave evidence that people did not eat emus, but that some people made oil from them.

[5 ] The Sydney Gazette, 27 February 1830, said that Therry referred here to 7 and 8 Geo. 4, a statute which made special provision for deer, "conies" and oysters.  Sections 31 and 32 said that stealing any other animals not the subject of larceny at common law, was an offence punishable only before a magistrate.

[6 ] On the sentence, see also Sydney Gazette, 9 March 1830.

Published by the Division of Law, Macquarie University