Nicholas Everitt.

Ferrets : their management in health and disease with remarks on their legal status online

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'' laid up," this rod is driven into the
ground, and the ferret worker uses it as
a kind of telephone ; by placing his ear
to the top he listens for any indication of
the ferret's whereabouts, however faint it
may be, to guide him in which direction
to dig. This may have its advantages,
but there is the risk of spearing the ferret
every time it is driven into the ground,
which would hardly recommend it.


The Line Ferret

For the line ferret an old buck, or a
ferret tliat is specially adapted for tlie
purpose, is usually selected, and it is used
for tlie line only. The object of this is
to train the ferret to use its own natural
intelligence, and by being made aware of
the line attached to its collar, it will not
tie the line round a root, stub, or other
projection, so often to be met with when
a line ferret is employed.

Should all efforts fail to entice the
"laid-up" ferret from its temporary lair,
the worker must prepare the earth for
setting a ferret trap.



Ferret Traps

The reader must imagine for ttie moment
that he has a ferret " laid-up," and all his
endeavours to lure it forth have been un-
availing. His only chance of recovering
it is to set a ferret trap, unless he leaves
it to its fate, or to luck, neither of which
courses is to be recommended. The traps
in use by keepers and others are numer-
ous in design, but it is strange that there
does not appear to be a good recognised
ferret trap on the market, and when in
want of a trap, one must either utilise
some trap used for other purposes, or
manufacture one as best one can.


A wire trap, invented by Mr. Alfred
Clifford, of Hawley, to catch rats, stoats,
weasels, and other vermin, can be used for
catching a '' laid-up " ferret by placing it
in front of the hole. The description,
supplied by the inventor himself, is as
follows : — " It has a trap door in centre
of floor, and when set is perfectly level
and cannot be noticed. The bait only
requires to be laid on the floor of trap.
Immediately the animal puts its weight
on the hinged floor the doors close. It
has a clear space right through, thereby
causing no suspicion whatever. Strongly
made in galvanised iron and painted.
For catching rabbits, game, and such-like
the floor can be taken away and the
natural earth will form the floor. The
trap can be taken to pieces in a few
seconds and packed into a small space.
It can also be used for catching laid-up
ferrets, by placing it in front of the hole."

It must be remembered that ferreting


is done during the winter months. The
trap would not be set until after sun-
down, and ferrets are animals that must
have warmth. Therefore, although it
would most probably catch the ferret, un-
less released very soon afterwards the ferret
would in all probability die from cold.

The author uses a wooden box trap of
similar design, but the ferret when caught
therein is as comfortable as it is in its
own hutch and sleeping box at home.
This box trap is baited with flesh food,
and has a pan of milk and a comfortable
straw bed ready for the ferret's reception
after it has been caught. The ferrets get
to know this trap by sight, and will go
straight towards it in preference to any-
where else, which is to be desired.

If Mr. Clifford's traps were fitted up
inside with a comfortable and warm
sleeping place for the ferret (and there is
no reason why, with a little alteration,
this should not be done), it would do well


for a ferret trap, and would have the
double advantage of being able to be used
for other purposes.

Before setting a trap, the bolt holes
of the burrow should all be blocked or
stopped, by placing a sod of earth before
each, but the main entrance should be left
open and the trap set a few feet in front
of it. Bait the trap with some of the
entrails of a rabbit taken when " hulking,"
and, before placing this on the catch of
the trap, trail it along the ground from
the inside of the entrance to the earth,
quite up to the mouth of the trap. The
ferret, on emerging, will scent this trail
and follow it up, which will lead to its
capture. Some gamekeepers, w^hen they
have lost a ferret, do not set a trap or
traps, but simply place straw in the
entrance to the earth, blocking up all
exits, and they argue that they are sure
to find the ferret in the early morning of
the next day asleep in this artificial bed.


An exceedingly simple box-trap is shown
in Fig. 35 ; it is made of wood with a
wire door. The ferret can easily push
up this door, which acts automatically,
and prevents its escape when once it is

One of the simplest expedients which



Fig. 35.

may be adapted to the emergency of a
"laid-up" ferret is a pitfall made as
follows :— Before leaving the earth for
the night, dig, on the windward side of
the main entrance to the earth, a small
pit, about 13 to 15 inches square, and
2|- feet deep, with evenly -cut perpen-
dicular walls. Make a nice warm nest


of straw, hay, dry grass, or bracken,
and, if wet weather or snow is expected,
hollow out a cavity at the bottom, to
give better shelter and comfort for this
nest. Place a straight wand in the centre,
which will stand some 6 inches or more
above the level of the pit's mouth. On
this wand place the bait, laying some
thick pieces of stick over the top of the
pit to enable the top to be covered with
grass, etc., so that the pitfall is concealed
and not suspected. The " laid-up " ferret,
on emerging from the earth, will soon
discover the bait, and, in endeavouring
to get at it, will fall into the pit, where
he will be found asleep in the morning.

Ferret Boxes

Ferrets should be taken out in a
proper ferret box, not in a hag. Bags
harbour insects, are difficult to keep clean,
are very stuffy for the ferrets, and on a


rainy day make the ferrets wet, cold, and
miserable. A good box for the purpose
is the one shown in Fig. 36. It is made
either as a single or double box, with a
stowage place for the line and collar for


Fig. 36

the line ferret. It is roomy, airy, and

Ferret boxes must be kept scrupu-
lously clean, and the remarks made in
the chapter dealing with ferret hutches
and sleeping compartments apply equally



Property in a ferret — Rights of the owner, rights
of possession and retaking escaped ferret — " Find-
ing's keeping" — Ownership of progeny — Rights
of owner under the criminal law — Theft of ferrets
— Can they be stolen ? — Killing or injuring —
Shooting and trapping stray ferrets — Rights of
action under civil law — Recovery of ferret by
action — Market overt — Action for damage for in-
jury to ferret — Liabilities of owner under the
criminal law — Cruelty to ferret — Liabilities under
civil law — Damage committed by ferret — Killing
chickens, sucking eggs, etc. — Scienter of owner
not necessary — Not liable for wild rabbits killed
— Liabilities of borrower and hirer — Distress
for rent : damage-feasant

Property in a Ferret

The riglit of ownership in game and
wild animals (using the word wild in the


sense of untamed or unclomesticated) is
essentially different from that in ordinary
domesticated animals. In wild animals,
or what lawyers term animals ferce
naturcBj there is no right of ownership
until the animal is captured or killed. A
pheasant or a partridge, a hare or a
rabbit, for instance, belongs to no one,
in the eye of the law, so long as it is at
large. The same is the case with a fox,
otter, badger, or other vermin. There is,
however, a difference between the two
classes of animals mentioned, viz. game
and vermin, in regard to the right of
property in them when killed ; for whilst
the law recognises in the owner of land
from which game is started a sort of
prospective right to it, so that, generally
speaking, when killed it is deemed to
belong to him, no one has even a
prospective right in vermin, which, when
trapped or killed, belong to the captor.
The reason for the distinction, as given in


one of our oldest lav/ books, is that '' the
otter, fox, and badger are vermin and
pernicious to the commonwealth, and are
carrion, but deer, pheasants, etc., are
pleasure and good victuals."

To which of the above classes, it will
be asked, does the ferret belong? Its
cousin, the stoat, as may be gathered from
wdiat is stated above, is outside the pro-
tection of the English law of property,
and, being vermin, it belongs to the first
person who catches or kills it. To the
reader unlearned in the law it might seem
that what is law for the stoat and the
polecat might well be law for the ferret,
and to some extent this is so ; but in the
main they are subject to different laws,
as will shortly appear. The difference
has arisen from the fact that the ferret,
though naturally perhaps as wild as the
stoat, has never lived in a state of nature
in this country, so that our early lawyers
found it impossible to class him with the


so-called animals ferm natures, whose
chief characteristic was that they usually
roamed about unattached to any particular
person, and thus were not the subject of
personal property.

As early as the reign of Elizabeth it
was laid down as law that "a man may
have a property in a ferret" (cited in
Viner's Abridgment, 2nd edition, vol.
xviii.). It must not, however, be lightly
assumed that such property or ownership
carries with it the same rights and lia-
bilities as the ownership of a horse or a
cow, or even a tame rabbit. This would
be crediting our law with too great
a simplicity of detail. In the present
chapter the rights and liabilities attaching
to such right of property or ownership in
a ferret will be briefly discussed. It will
perhaps be convenient to divide the
subject under two heads, dealing first
with the rights of the owner, and secondly
with the duties of an owner, subdividing


the first into (1) rights of possession and
property, (2) rights of the owner under
the criminal law, (3) rights of action
under the civil law, and subdividing the
second head into (1) criminal liabilities
and (2) civil liabilities. It is not, however,
pretended that this division of the subject
is in any respect a scientific one.

The Eights of the Owner

Right of Possession

The owner having an absolute property
in a ferret is, speaking generally, entitled
to the possession of it against all other
persons. If it escapes he may retake it
wherever he can find it. He may even
go so far as to commit an assault upon
a person who has wrongfully obtained
possession of it and refuses to give it up,
being careful, however, to use no more
violence than is necessary to efi'ect the


recapture (see Blades v. Higgs, 1861, 30
L.J.G.P. 347). Let him beware, how-
ever, how he tries to take his ferret by
force from any one but a man whom he
can prove has obtained possession of it in
other than a rio;htful manner.

There's an old saying that " finding's
keeping," and, like many another wise
saw, it has a grain of truth in it. The
man who finds a ferret running at large
and secures it, not having any idea who
the rightful owner is, has a right to keep
it against everybody but the owner him-
self. It is more than likely in such a
case that the owner will never see his
property again. If, however, he should
find out who has caught it, he may have
it back again if he can identify it, and let
not his conscience trouble him that it is
many months, or even years, since he lost
it, or that the finder of it has expended a
good deal more than its value on its keep.
His remedy may be by civil action or


(possibly) by criminal prosecution, as will
be shortly seen.

The owner of a doe ferret is the owner
of her young, notwithstanding she was
lined by another man's buck without
the consent of the owner of the latter,
and even though it was done by fraud or
stealth, thouo^h in such case the owner of
the buck might claim the value of the
service or damages for interfering with
his property.

Eights of the Owner under the
Criminal Law

Under this head it will be natural to
deal first with the question of larceny or
theft, and then with that of injuries done
to the animal.

Can a man steal a ferret? In other
words, has the owner of a ferret any
criminal remedy against the person who
maliciously takes it away? If it is a


criminal offence to take another's ferret
it must be so either by common law or
statute. Let us see how the law stands
with regard to each.

At common law — that is, apart from
statute — animals ferce naturce were incap-
able of being stolen, for the simple reason
that no one was considered as having any
property in them, and so an indictment
could not be framed, it being essential that
the name of the owner of anything alleged
to have been stolen should be set out in the
indictment. This exemption, however,
could hardly have been reasonably ex-
tended to ferrets, seeing that at such an
early date our lawyers had declared them
to be the subject of property, and to this
extent different from animals ferce naturce.

But amongst animals of which there
could be ownership there were some which
our law regarded as not capable of being
stolen. For it was laid down by our
ancient jurists that certain animals were


of such a base nature that larceny could
not be committed of them. Some
animals, now invariably tame, came
within this definition, as doo^s and cats,
and others which, though unusually wild
in this or other countries, were often kept
in confinement, such as "bears, foxes,
apes, monkeys, polecats, ferrets, and the
like" (Coke, 3rd Inst. 108, 109). The
reason was said to be that "creatures of
this kind, for the most part wild in their
nature, and not serving when reclaimed
for food, but only for pleasure, ought not,
however the owner may value them, to
be so highly regarded by the law that for
their sakes a man should die " (Eussell on
Crimes, citing Hale, P.C. c. 33). (It
will be remembered that in old days
larceny was a capital offence.) It is a
curious fact that the last case dealing with
this exemption from the law of larceny
should have been a prosecution for
stealing ferrets. In the case of R. v.


Searing (Russ. & R. 350), decided as far
back as the year 1818, the prisoner was
charged with stealing five live tame ferrets
confined in a certain hutch, the property
of one Flower. It was proved that the
ferrets were taken by the prisoner under
such circumstances as to constitute lar-
ceny, if they were the subject of larceny,
and also that he sold them for 9s. The
jury found the prisoner guilty, but a
motion was made to arrest judgment on
the ground that ferrets were animals of so
base a nature that the law would not
recognise them as capable of being stolen,
and the judges held that, though tame
and saleable, they could not be the subject
of larceny, and discharged the prisoner.

No other conclusion can therefore be
come to than that at common laiv no one
could or can be criminally prosecuted
for taking another man's ferret. The
vagaries of our common law on the sub-
ject of larceny will be thought somewhat


curious when it is stated that although
a dog, cat, or ferret was not, a hawk
kept for sport w^as capable of being stolen.
So much for the common law. A
statute of 1861 (24 and 25 Vict. c. 96),
re-enacting and extending older statutes,
after special provisions dealing with the
stealing of dogs, enacts (sec. 21) that
"whoever shall steal any bird, beast, or
other animal ordinarily kept in a state of
confinement, or for any domestic purpose
. . . or shall wilfully kill . . . with
intent to steal," shall be liable to im-
prisonment not exceeding six months, or
else to forfeit by way of penalty over and
above the value of the thing stolen or
killed not exceeding £20, and for a
second offence provide imprisonment up
to twelve months. There is. also provision
made for dealing out similar punishment
to the receiver of any such bird, beast, or
animal, knowing the same to be stolen
(sec. 22).


One would, at first blush, be inclined
to say that the section quoted clearly
includes ferrets within its purview as
"animals ordinarily kept in a state of
confinement." They cannot in this
country be kept otherwise than in a state
of confinement. The question, however,
has never yet, as far as the writer knows,
come before any judge of the High Court,
and the law on this point cannot be said
to be otherwise than uncertain until it
has been decided before the five or more
judges who compose the Court for Crown
Cases Reserved. Y/hen so great an
authority as the late Mr. Justice Stephen
has expressly refrained from giving an
opinion ("I know not whether a ferret
would fall within the statute or not," Dig.
Cr. Law, 230), it would be almost pre-
sumptuous to hazard any opinion as to
whether ferrets are the subjects of theft
under the statute ; but looking at the
tendency of judges to abolish useless


distinctions, there is in all probability but
a very indifferent chance for the convicted
prisoner who risks taking the opinion of
the Court for Crown Cases Reserved on
the point. As all offences under these
sections are dealt with summarily, it is
hardly likely that justices, who would
naturally take a common -sense rather
than a technical view of the statute, will
ever give a defendant the benefit of the

Killing or Injuring Ferrets

The statute dealing with malicious
injuries to property, of the same year as
that above cited (24 and 25 Vict, c. 97),
provides (sec. 41) that the same maximum
punishment as for theft shall await any
one who unlawfully and maliciously kills
or wounds any animal ordinarily kept
in a state of confinement, although not
with intent to steal. As to this statute


there is no doubt : ferrets are clearly
within its scope.

The word '' maliciously " in the above
statute means with intent to do damage,
or recklessly, careless whether damage be
done or not. The wounding must also
be done unlawfully. Now, it is perfectly
lawful to protect the game or rabbits on
your land by killing vermin, or, in fact,
anything that is chasing them, if you
cannot otherwise save them. If, therefore,
you see a stray ferret killing a rabbit on
your land, or about to enter a burrow,
shoot it if you like, and you can get into
no trouble for so doing. Here you will note
a difference between a ferret and some other
animal, say a cat. For if you shoot a cat,
whose only offence is that it is in the
immediate vicinity of your rabbit burrows,
you may be liable under the statute, the
distinction between the two cases being
for the simple reason that you are not
legally entitled to do more than protect


your game for the time being ; and whilst
you can frighten a cat away and so avert
the immediate danger to your rabbits, the
effect of noise on the ferret would in all
probability be to make it take to earth.

If you know there is a stray ferret
lying up in your burrows, catch it or
trap it any way you can, as you would
a stoat or rat. If, however, you find a
ferret in your field, or in your barn or
stackyard, not near your chickens or
anything else for which it has a fancy,
but right away from anything which there
is danger of its immediately killing, it
seems doubtful whether you are justified
in killing it, if at least you can catch it
without being bitten.

A man may lawfully set a trap for
vermin in his own garden or field, and is
not responsible if a cat or a ferret gets
caught (Bryan v. Eaton, 40 J.P. 213); but
if he catches one he should, apart from
mere considerations of humanity, put it


to death as soon as lie knows it has been
caught, for if he leaves it to suffer for any
length of time he may be convicted of
cruelty under the Act, to which we shall
shortly refer.

Eights of Action under the
Civil Law

If a man loses his ferret he is entitled
to recover it by action from any person
whom he finds in possession of it, save in
the exceptional case of the latter having
purchased it in what is called market
overt. He should, however, first make a
demand for j)ossession, and if the person
in possession refuses to part with it, the
owner may sue for the ferret in the
County Court, and recover it or its value
by w^ay of damages, and possibly further
damages for its detention. The County
Court Kules provide that the judge may
make an order for the delivery by the


defendant of specific property, or in de-
fault for the payment of the value of such
property to be assessed by the judge or
jury, and that under such a judgment
the plaintiff may issue a warrant for
delivery of the property, and that, if the
same cannot be found, the bailiff shall
distrain all the lands and chattels of the
defendant and hold them until the
defendant delivers the specific property
for the return of which judgment has
been given, or, at the option of the
plaintiff, that the bailiff cause to be made
of the defendant's goods the assessed
value of the property (0. xxv. r. 50).

As stated above, the recovery of a
ferret by legal action resolves itself into
a question of identification of the ferret,
and although one ferret may differ from
another ferret in its usefulness as a
worker, as one star differeth from another
star in its glory, still it cannot be denied
that to the inexperienced eye of a County


Court judge, and even to the experienced
eye of a gamekeeper, one ferret may
appear as like another ferret as one pea is
like another pea. So let the owner not
go into Court unless he has clear evidence
that the ferret in question is the one he
has lost. He may even go so far as to
obtain from the Court before the trial of
his case an order for himself or his
witnesses to inspect the ferret alleged to
be his, but unless he is bent on getting it
back at all costs, he will hardly think it
worth while to go to such expense, for to
take such unusual proceedings he will
find it necessary to employ a solicitor,
whose costs — or at least a considerable
portion of them — he will have to pay out
of his own pocket.

As before hinted, the owner is entitled
to recover his property without paying
anything for its keep. The finder has no
lien on it for expenses (Binstead %\ Buck,
2 W. Bl. 117).



In the exceptional case above referred
to of a ferret having been bought in
market overt — that is, in any established
market where the sale of such things
ordinarily takes place, such as Leadenhall
Market, or any shop in the City of
London where such things are usually
sold — he has a good title to it against
every one, including the real owner, so
that in such a case the owner's remedy
for its recovery is gone.

"An action lies for injury to any
domestic or tame animal, and to all
animals usually marketable, as parrots,
monkeys," etc. (Notes to Yiner's Abridg-
ment, vol i. p. 621). This would in-
clude ferrets, notwithstanding the seem-
ing inconsistency of the law on the
question of property in larceny of a ferret.
Malicious — that is, intentional — injuries,
which, we regret to say, are as common
as injuries caused by negligence, have
been dealt with above. Injuries by


neo[lio;ence — for there must be neoiisfence
to give a right of action — render the
person causing the injury liable to an
action for damages. Thus, if a man
through carelessness shoots another's
ferret without just cause, he must make
good the loss, as he must also if his in-
sufficiently trained dog, through excess
of zeal, kills a ferret of the professional
rat-catcher whom he has engaged to clear
his stacks or barns, in mistake for a rat.
Injuries caused by inadvertence without
negligence render no one responsible.

Liabilities of Owners under the
Criminal Law

Under the Act for the Prevention of
Cruelty to Animals, a person who wilfully

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Online LibraryNicholas EverittFerrets : their management in health and disease with remarks on their legal status → online text (page 5 of 8)