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Bacon on "Game"

Matthew Bacon


Bouvier's Edition
Publish Date:
1856
Place of Publication: Philadelphia by T. & J. W. Johnson & Co
Printable Version

Bacon on "Game"
 Large Additions and Corrections, by Sir Henry Gweyllim; and Charles Edward Dodd, Esq.; 
 With The Notes and References Made to the Edition Published in1809 by Bird Wilson, Esq. 
To which are added Notes and References to American and English Law and Decisions. 
[Published 1856, Philadelphia by T. & J. W. Johnson & Co.]

[ed. notes: Footnotes by Bacon were by paragraph and are represented by (a), (b) etc. Comments by English editors over several additions, last updates in 1831 are noted with ¶…¶ or [ ]. Comments and notes by the American editor John Bouvier are noted by ß…£ and are current up to the date of 1843.  Page number to the above cited publication are noted with *'s, for example [*431*.]  Dates marked [*...] have been added for the readers convenince.]

[*431*] Before we take notice of the statutes made for the preservation of the game, it may be necessary to observe how the common law stood herein; and this depends upon the difference made between tame and wild animals.

2 Bl. Com. 410.

The tame animals, such as (a) horses, cows, sheep, &c., are such creatures, as by reason of their sluggishness and unaptness for motion, do not fly the dominion of mankind, but generally keep within the same purlieus and pastures, and may be easily pursued and overtaken if by accident they should escape; and therefore, the owner hath the same kind of property in them as he hath in inanimate chattels, and for the violation thereof may bring an action of trespass.

(a) Hens and chickens are tame. So peacocks, like other domestic fowls, are tame. Off. of Exec. 83; Roll. Abr. 5; 18 H. 8, 2. [*1524?] So, several sorts of dogs are tame, as the mastiff, hound, which comprehends greyhound, &c., spaniel, and tumbler; and for these a person may maintain an action of trespass, without alleging that they were tame. Ireland v. Higgins, cited and agreed. --- So a person may justify in assault and battery in defence of his dog that is tame, Rast. Ent. 611. --- So, a replevin lieth of a ferret, Cro. Eliz. 126.  ß Trover lies for wild geese which have strayed away, without regaining their natural liberty. Amory v. Flyn, 10 Johns. 102.£ 

The wild animals, such as deer, hares, foxes, &c., are understood to be those, which by reason of their swiftness or fierceness, fly the dominion of man, and in these no person can have a property, unless they be tamed or reclaimed by him; and as property is the power that a man hath over any other thing for his own use, and the ability that he has to apply it to the sustentation of his being, when the power ceases, his property is lost; and by consequence, an animal of this kind, which after any seizure escapes in to the wild common of nature, and asserts its won liberty by its swiftness, is no more mine than any creature in the Indies, because I have it no longer in my power or disposal.

7 Co. 16; 3 Lev. 227.

Hence it appears, that by the common law every man had an equal right to such creatures as were not naturally under the power of man, and that the mere caption or seizure created a property in them.

5 Co. 104; Cro. Eliz. 547.

By immediate manucaption, or taking them and killing them, they belong to such person in the same manner as any other chattels, and cannot be violated from him, since the first seizure and caption was sufficient to vest the property of them in him.

7 Co. 17. [Not only actual mancaption, but also the wounding of wild animals, by one not abandoning his pursuit, which prevents their escape and brings them within his certain control, and encompassing and securing them with nets and toils, or otherwise intercepting them, so as to deprive them of their natural liberty and render escape impossible, will vest the property of them in him. But merely starting and pursuing them with hounds gives no right of property; and therefore an action cannot be supported against one who intercepts and kills them in the view of the pursuer, while he is continuing the pursuit. 3 Cain. 175, Pierson v. Post.]

By taking and taming them, they belong to the owner, as do all the other [*432*] tame animals, so long as they continue in this condition, that is, as long as they can be considered to have the mind of returning to their masters; for while they appear to be in this state they are plainly the owner=s and ought not to be violated; but when they forsake the houses and habitation of men, and betake themselves to the woods, they are then the property of any man.

7 Co. 17 b; Doct. Placit. 314. ß Wild geese which have been tamed and have strayed away, without regaining their natural liberty, still belong to the person who tamed them. Amory v. Flyn, 10 Johns. 102. £ 

Another way of regaining property in them is by enclosure, and then the beasts must be understood to be mine, as the profits of the soil itself are, and they can no more be taken and carried off than any other profits of the land; and therefore if deer become enclosed in a park or paddock, conies in a field or warren, they become so my own, that no man ought to kill or take them away. And since on this case it is the enclosure only that retains them (for take away the enclosure and they are in their natural liberty;) therefore, the party is said to have right as he hath to any other profits there enclosed, and a distinct and independent right in every animal.

March, 49. ß Wild bees, on a tree, belong to the owner of the soil where the tree stands. Ferguson v. Miller, 1 Cowen, 433; but if they have been reclaimed, and can be identified, they belong to their former owner. Goff v. Kiltz, 15 Wend. 550. In Wallis v. Mease, 3 Binn. 546, it was decided that bees confined in the top of a tree, by the owner of the tree, and not secured in a hive, were not the subject of larceny. But when hived and reclaimed, they become the subject of a qualified property. Gillet v. Mason, 7 Johns. 16. Doves are feræ naturæ, and not subject of larceny, unless they have been reclaimed. Commonwealth v. Chase, 9 Pick. 15. £

The king, as an acknowledgment of his dominion over the seas and great rivers by his prerogative, has a property in some animals under the denomination of royal creatures, as sturgeons, whales, and swans, all which are the natives of seas and rivers.

7 Co. 16.

On these reasons and distinctions of the common law, we may now see how the law stands with regard to persons qualified to kill the game, within the statutes made for the preservation thereof.

First it is clear, that if a man pursue deer, hares, or conies out of his land, or the lands of another, into (a) mine, and there take them, they are the hunter=s and not mine, because I never had any original property by enclosing them.

Mich. 9 W. 3, Sutton v. Moody agreed, per Curiam; 1 Ld. Raym. 250, S. C.; 2 Salk. 556, S. C.; 5 Mod. 375, S. C.; 12 Mod. 145, S. C.; Com. Rep. 34, S. C.; 2 Bl. Comm. 419, S. P.; Churchward v. Studdy, 14 East, 249, S. P. (a) But it is said, that if a man flies his hawk at a pheasant on his own ground, and the hawk pursues the pheasant into another=s warren, the owner of the hawk cannot justify entering the warren and taking the pheasant. 38 Ed. 3, 10 b [*1363-4]; 12 H. 8, 10 [*1516?]; 2 Roll. Abr. 567; Poph. 162, S. C. cited.  ß A hunter is not entitled to a wild animal by merely pursuing and hunting it, and another person may lawfully kill such an animal and appropriate it to his own use. Pierson v. Post, 3 Caines, 175. But if the hunter wound an animal mortally, or by nets or other contrivances intercept it, so as to deprive it of its natural liberty, and render escape impossible, he acquires a property in it; unless he abandons the pursuit. Buster v. Newkirk, 20 Johns. 75. The civil law accords with this decision. Poth. Du Dr. de Propriété, lere part. c. 2, s. 1, art. 2, n. 26; Puff. Lib. 4, c. 6. £ 

If a man hunts conies, and kills them in my ground, I may seize them, because they are indeed my property by the enclosure; but, if he hunts them out of my ground, they are in the condition of natural liberty, and then I [*433*] cannot take them away from the hunter, for then the property is in no man: but damages I may have against the hunter for his entering and breaking my enclosure.

Mich. 9, W. 3, Sutton v. Moody.

But, where a man hunts conies in my warren, or deer in my park, and the warrener pursues them, he may retake them; for the park or warren is set apart by the public for the preservation of the game; for all things occupied, in which no man hath a civil right, are under the regulation of the public. Now in parks and warrens, officers are established by authority to have an eye over the game, and to keep it within the boundaries; so that the property is not altered by driving it out of the enclosures, unless it be also out of the pursuit of the officers; for, as long as he that is thus trusted doth pursue it, it is not in its natural liberty, but is still belonging to the warren.

12 H. 8, 9 [*1515?].

&An action lies for hunting in a free warren, though no game be taken; and such an action is maintainable even against the owner of the soil.

Lord Dacre v. Tebb, 2 Bl. Rep. 1151; Patrick v. Greenway, 1 Saund. 347 b.¶

Also, the common law warrants the hunting of ravenous beasts of prey on another=s ground, such as foxes, wolves, badgers, &c., so that the party in pursuing those through the grounds of another is subject to no action whatsoever. But it hath been (a) resolved, that the hunting and killing such noxious animals must be done in the ordinary and usual manner; and that therefore the digging for a badger is unlawful, and the party subject to an action of trespass.

Poph. 162; Latch. 119. (a) Geuch v. Mynns, Cro. Ja. 321; 2 Buls. 60, S. C. &Indeed this right of following foxes over the lands of another without his consent, seems to rest upon very slender loose authorities, and is rendered exceedingly questionable by some recent decisions. See Gundry v. Feltham, 1 T. R. 334, and Earl of Essex v. Capel, Hertf. Summ. Ass. 1809. Coram Ellenborough, C. J., Chitty=s G. L. App. 1381.&

A warrener or keeper of a park may justify the killing of dogs and cats, as well as other vermin, which he finds disturbing the game in those places.

& Wadhurst v. Damme, Cro. Ja. 44; Barrington v. Turner, 3 Lev. 28; Lewin=s case, 2 Rol. Abr. Tit. Trespass (L); Vin. Abr. Tit. Trespass (L, a) p. 2, contr. But Lewin=s case, as well as that of Wadhurst v. Damme, were brought under consideration of the court in determining the case of Barrington v. Turner. In the case of Wadhurst v. Damme the justification was, that the dog was divers times killing conies in the warren, and therefore the warrener, finding him there at the time when, &c., running at the conies, there killed him. In the case of Barrington v. Turner it was, that the greyhounds chased a deer in the defendant=s park, and there killed her; on which, to prevent further mischief by them, the defendant took the greyhounds and killed them. But though the owner or keeper of a park or warren has this power, yet the lord of a manor has no power, as such, or as the owner of private land within the manor, to kill the dog of a qualified person running after game in it. Vere v. Lord Cawdor, 11 Ease, 568. Neither is a person who has put up a notice that dogs trespassing in his land will be shot, thereby at liberty to shoot another=s dog coming thereon. Corner v. Champneys, Tauton Lent Ass. 1814, coram Dampier, J., 2 Marsh. 584.&

A man cannot have an action of trespass on the case, for another man=s conies breaking into his ground, because they are no longer the other=s than while they are enclosed, so that no violation arises to the property of one man by the beast of another; but the conies being in their natural liberty may be lawfully kil [*434*] led by the owner of the soil.

5 Co. 104; Cro. Eliz. 547; Moor, 420; Roll. Abr. 90, 405; 2 Le. 201.

&So, in a subsequent case, it was holden, that a commoner may kill rabbits upon the waste, which have not been put on by the lord, nor have burrows there, but have escaped from the adjoining land, and that he could not support any action against the owner of such adjoining land for keeping rabbits, however injurious to the common.

Hinsley v. Wildinson, Cro. Cha. 387.&

An action of trespass may be brought for taking a man=s deer in a park or chase, or conies in his warren, for the law takes notice that they are enclosed, because these are the proper enclosures for that purpose; and, consequently, those beasts are not in their natural liberty, and therefore the property is in the plaintiff. (a)

March, 49; Godb. 174; Rast. Ent. 650; Reg. 93. But Child v. Green, 7 Co. 17, cont., and vide Cro. Cha. 553, that trespass lies for breaking his close, and fishing in separali piscariâ suâ, and for taking pisces suos, &c., for being alleged to be in separali piscariâ suâ, he may say they were pisces suos. (a) & In Sutton v. Moody, supra, it was holden, that trespass for entering a close, though not a free warren, and killing the plaintiff=s rabbits there, is maintainable, though it was objected that rabbits are feræ naturæ, and therefore that there is no property in them in any one; but it was admitted that for hunting in a free warren, and killing plaintiff=s rabbits there, trespass is maintainable, because he would have a privileged property in them; upon which Holt, C. J., said, Aa warren is a privilege to use his land for such a purpose, and a man may have a warren in his own land, and he may alienate the land and retain the privilege of the warren; but this gives no greater property in the rabbits to the warrener; for the property arises to the party from the possession; and therefore, if a man keeps rabbits in his close, as he may, he has a possessory property in them so long as they abide there; but, if they are run into the lands of his neighbour, the latter may kill them, for then he has the possessory property.@ &

In an action of trespass quare clausum fregit, et damas ipsius querentis cepit et asportavit, they shall be intended to be enclosed for a verdict; because when a verdict hath found that they are the deer of the plaintiff, that verdict must be intended to be true; therefore the deer must be intended so to be enclosed as to be under the plaintiff=s power; otherwise he could not have property according to the verdict.

Mich. 9 W. 3, Sutton v. Moody.

But if, in trespass quare duas damas ipsius querentis in quodam clauso querentis vocat. Le park, cepit et asportavit, the defendant demurs generally; this hath been ruled to be ill, because the court will not intend them to be tamed or enclosed; and in beasts, that are in their natural liberty, the plaintiff hath no property; for being only a place called a park, it cannot be understood to be a park. (b)

Mallocke v. Eastly, judged, 3 Lev. 227. (b) & For it is not every enclosed place stocked with a herd or deer, that is thereby constituted a legal park; for the king=s grant, or at least immemorial prescription, is necessary to make it so. 2 Bl. Comm. 38; 2 Inst. 199; 11 Co. 86; 1 H. H. P. C. 491; Willes=s Rep. 46. &

Any person, upon his own frank-tenement, may erect a dove-house; nor can he for such building be indicted in the leet. This was a matter often controverted, because the pigeons and doves were to be accounted as tame animals inasmuch as they had animum revertendi; and then whoever did erect such houses, was answerable for the damage; and because he was not liable to every man=s action, to avoid multiplicity of suits, it was formerly holden, that he was indictable in the leet. But the contrary opinion pre- [*435*] vailed, because it was allowed the lord of the manor might erect, or permit by his license any person to erect a dove-house; but no person could raise himself, or authorize another to create a nuisance. Besides, these are rather to be accounted feræ naturæ; and, by consequence, the only remedy any person had for the damage sustained by the birds feeding on his ground, was to kill them and take them to himself, which was the proper relief according to the common law, inasmuch as the birds were accounted no man=s property. (a)

2 Roll. Abr. 138; Poph. 141; Cro. Ja. 382, 490; Godb. 259; Cro Eliz. 548; Roll. Rep. 136, 200; 2 Roll. Rep. 3, 30; 5 Co. 104. (a) & But it appears from the above cases that a qualified property in these animals may be obtained by other titles; as per industriam, by a man=s reclaiming or making them tame, and so confining them within his own immediate power, that they cannot use their natural liberty; propter privilegium, by having the privilege of hunting, taking, or killing them in exclusion of other persons, by virtue of a grant of a forest, chase, or free warren, or of a several or free fishery; or ratione soli, whilst the animals are on a man=s private ground. The right of every freeholder, from the earliest periods of the common law, to take and kill game found upon his own premises, ratione soli, is admitted even by Mr. Justice Blackstone, though he insists upon an exclusive right in the crown. The laws of Canute, and of Edward the Confessor, show it. 4 Inst. 320. And there is a parliamentary recognition of it in the preamble of 11 H. 7, c. 17 [*1495], which recites, AThat divers persons having little substance to live upon, use many times, as well by nets, snares, or other engines, to take and destroy fesants, and partridges, upon the lordships, manors, lands, and tenements of divers owners and possessioners of the same, without the license, consent or agreement of the same owners of possessioners, by the which the said owners and possessioners leese not only their pleasure and disport that they, their friends, and servants, should have about hawking, hunting, and taking of the same, but also they leese the profit and avail that by that occasion should grow to their household, to the great hurt of all lords and gentlemen, and other, having any great livelihood within this realm.@ It is also laid down by Lord Coke, that seeing the wild beasts do belong to the purlieu man, ratione soli, so long as they remain in his grounds he may kill them; for the property, ratione soli, is in him.

4 Inst. 304. And in 11 Cha. 87 b [*1630?], it is laid down, that for hawking, hunting, &c., there needeth not any license, but every one may in his own land use them at his pleasure, without any restraint to be made, if not by parliament, as appears by the statutes of 11 H. 7, c. 17 [*1495], 2 Eliz. c. 10, [*1560?] and 3 Ja. c. 13. [*1605-6] These, and the other authorities to the same purport to be found above, have been lately referred to in the Report of the Committee of the House of Commons appointed to take into consideration the laws relating to game; from whence they infer, that all game should be made the property of the person upon whose lands it is found. &

Thus it appears by the common law, that a property in those living creatures, which by reason of their swiftness or fierceness were not naturally under the power of man, was gained by the mere caption or seizure of them, and that all men had an equal right to hunt and kill them. But, as by this toleration persons of quality and distinction were deprived of their recreations and amusements, and idle and indigent people, by their loss of time and pains in such pursuits, were mightily injured (a), it was thought necessary to make laws for preserving the game from the latter.

(a) & The first act upon this subject, the stat. 13 Ric. 2, st. 1, c. 13 [*1390], seems merely a regulation of police to confine the lower class of people from mis-spending their time, in a way that was neither useful to themselves nor to the community. The preamble states, AThat divers artificers, labourers, servants, and grooms, keep greyhounds and other dogs, and on the holidays, when good Christian people be at church hearing devine service, they go hunting in parks, warrens, and connigries of lords and others, to the very great destruction of the same; and sometimes under such colour they make their assemblies, conferences, and conspiracies to rise, and disobey their allegiance.@ Thus, says Mr. Reeves, History, vol. iii. 215, was the safety of the state, as on other occasions, made a reason for imposing the following restrictions: for it was ordained by the above act, that no artificer, labourer, nor any other layman, not having lands or tenements of forty shillings by year, nor priest, nor other clerk, if not advanced to the value [*436*] of 10l. by year, should keep any greyhound, hound, or other dog to hunt; nor use ferrets, hays, nets, hare-pipes, nor cords, nor other engines, to take or destroy deer, hares, conies, nor other gentlemen=s game, on pain of a year=s imprisonment, to be inquired of by the justices of the peace.&

The statutes to this purpose are very numerous, such as the 11 H. 7, c. 17 [*1495], against taking pheasants or partridges in another=s ground; the 23 Eliz. c. 10 [*1580-1] against taking or killing pheasants or partridges in the night, and against hawking in standing or eared corn; the 14 and 15 H. 8, c. 10 [*1523], against tracing and killing hares in the snow; also those of the 1 Ja. 1, c. 27 [*1603-4]; 3 Ja. 1, c. 13 [*1605-6]; 7 Ja. 1, c. 11 [*1609-10], and 13; 22 & 23 Cha. 2, c. 25 [*1670-71] 4 & 5 W.& M., c. 25 [*1692], for preserving the game, and inflicting penalties on persons destroying thereof.

Those for preserving the young fry of fish, prohibiting the taking them at unseasonable times of the year, &c., such as the 13 Eliz. 1., c. 47 [*1571]; 13 Ric. 2, c. 19 [*1389-90]; 17 Ric. 2, c. 9 [*1389-90]; (a) 2 H. 6, c. 19 [*1423]; 1 Eliz. c. 17 [*1558-9]; 5 Eliz. c. 21 [*1562-63]; 22 & 23 Cha. 2, c. 25, ' 7 [*1670-71], against fishing in the ponds, pools, rivers, &c., of the owners, the 30 Cha. 2, c. 9 [*1678]; 4 & 5 W. 3, c. 23, ' 5 [*1692] and 6; 4 & 5 Ann. c. 21 [*1705]; 1 Geo. 1, c. 18 [*1714]; 22 Geo. 2, c. 49 [*1748-9]; 23 Geo. 2, c. 26 [*1749-50].

Vide tit. Pischare, infra. (a) Made perpetual by 3 Cha. c. 4. [*1627]

Those against deer-stealers, such as the 19 H. 7, c. 7 [*1503-4]; 7 Ja. 1, c. 13 [*1609-10]; 13 Cha. 2, c. 10 [*1661]; 3 & 4 W. & M. c. 10 [*1692]; 5 G. 1, c. 15, and c. 28 [*1718-19]; and 9 G. 1, c. 22 (b) [*1722-23], called the Black-Act, by which it is made felony for persons offensively armed, and having their faces blacked, or otherwise disguised, to appear in any forest, park, &c., or in any warren, &c., and hunt, would, or kill any deer, &c., or steal fish out of any river or pond, &v.

(b) Made perpetual by 31 G. 2, c. 42, ' 2 [*1757-8].

& But this last statute is in this respect virtually repealed by 16 G. 3, c. 30 [*1775-6], which again is altered, and in part repealed by 43 G. 3, c. 107 [*1802-3].

See R. v. Davies, 2 East, P. C. ' 609. &

The 33 H. 8, c. 6 [*1541-2], and 2 & 3 Eliz. 6, c. 14, (c) [*1560?] which enact, That no &Aperson or persons, of what estate or degree he or they be, except he or they in their own right, or in the right of his or their wives, to his or their own uses, or any other to the use of any such person or persons, have lands, tenements, fees, annuities, or offices, to the yearly value of one hundred. Pounds, shall shoot in any cross-bow, hand-gun, hag-but, or demy-hake, or use to keep in his or their houses, or elsewhere, any cross-bow, hand-gun, hag-but, or demy-hake, otherwise, or in any other manner than is in this act hereafter declared, upon pain to forfeit, for every time that he or they so offend contrary to this act, ten pounds.@ But by ' 2, hand-guns, that are not in the stock and guns of the length of one whole yard, and hag-buts, and demy-hakes, not being three quarters of a yard, are forbidden to all persons, under pain of 10l. per annum might take such short instruments, or any cross-bows, from persons who had them. And by ' 16, any person may carry the offender before the next justice of peace of the county where the offence is committed, who, upon due examination and proof, hath power to commit him till he pay the penalty, &c.

(c.)This last statute is repealed by 6 & 7 W. 3, c. 13 [*1698-9]. For the construction of these statutes vide Cole=s case, Sir W. Jon. 170; St. John=s case, 5 Co. 70 b; Cro. El. 821, S. C.; Sanders=s case, 1 Saund. 263; Vent. 33, 39, S. C.; 1 Sid. 419, S. C.; 2 Keb. 521, 537, S. C.; R. v. Alsop, Sir T. Raym. 378; 4 Mod. 49, S. C.; R. v. Silcot, 3 Mod. 280; Rex et Reg. v. Bullock, 4 Mod. 147; R. v. Llewellin, 1 Show. 339. &

&The 2 Ja. 1, c. 27 [*1605?], by which any person keeping greyhounds for the [*437*] coursing of deer or hare, or setting dog or net to take pheasants or partridges, except he be seised of an estate of inheritance of the yearly value of 10l. above all charges and reprises, or 30l. a year of a life-estate, or goods or chattels to the full value of 200l., or be the son of a knight, or baron of parliament, or some other person of higher degree, or the son and heir-apparent of an esquire, is to be committed to jail for three months, unless he forthwith pay 20s. for every pheasant, &c., taken or destroyed.

The 3 Ja. 1, c. 13 [*1605-6], imposes further restrictions, with respect to deer and conies, upon persons not having hereditaments of 40l. a year, nor worth in goods 200l.

The 7 Ja. 1, c. 11, ' 7 [*1609-10], permits freeholders of 40l. a year of inheritance in their own or their wives' right, or life-estate of 80l. in such right, or worth in goods or chattels 400l., to take pheasants and partridges, in the day-time only, in their own free warrens, &c.&

But the principal statutes relating to this matter are the 22 & 23 Cha. 2, c. 25 [*1670-1], & reciting that "divers disorderly persons, laying aside their lawful trades and employments, do betake themselves to the stealing, taking, and killing of conies, hares, pheasants, partridge, and other game intended to be preserved by former laws, with guns, dogs, tramels, lowbels, hays, and other nets, snares, hare-pipes, and other engines, to the great damage of this realm, and prejudice of noblemen, gentlemen, and lords of manors and others, owners of warrens;" it is enacted, "that all lords of manors, or other royalties (a), not under the degree of an esquire, may from henceforth, by writing under their hands and seals, authorize one or more gamekeeper, or gamekeepers, within their respective manors or royalties, who, being thereunto so authorized, may take and seize all such guns, bows, greyhounds, setting-dogs, luchers, or other dogs to kill hares or conies, ferrets, tramels, lowbels, hays or other nets, hare-pipes, snares, or other engines for the taking and killing of conies, hares, pheasants, partridges, or other game, as within the precinct of such respective manors shall be used by any person or persons who, by this act, are prohibited to keep or use the same: And moreover, that the same gamekeeper or gamekeepers, or any person or persons, being thereunto authorized, by warrant under the hand and seal of any justice of the peace of the same county, division, or place (b), may, in the day-time, search the houses, out-houses, or other places of any such person or persons by this act prohibited or keep or use the same, as upon good ground shall be suspected to have or keep in his or their custody any guns, bows, greyhounds, setting-dogs, ferrets, coney-dogs, or other dogs to destroy hares, or conies, hays tramels, or other nets, lowbels, hare-pipes, snares, or other engines, aforesaid, and the same, and every or any of them, to seize, detain, and keep to and for the use of the lord of the manor or royalty where the same shall be so found or taken; or otherwise to cut in pieces or destroy, as things by this act prohibited to be kept by persons of their degree."

(a)The lord of a hundred or wapentake cannot, as such, appoint a gamekeeper. Earl of Ailesbury v. Pattison, Dougl. 28. In Com. Dig. Tit. Justices of Peace (B,40), Lutw. 1506, is referred to, as showing that a hundred with a leet is a royalty within this statute. But the reporter himself questions it. (b) It would seem that the justice himself is not authorized to search. Briggs v. Evelyn, 2 H. Bl. 114. It would seem also, that a gamekeeper, or other persons, cannot enter under the search-warrant, but when the house is open. R. v. Birt, 2 Keb. 530. &

By ' 3, it is enacted and declared, "That all and every person and persons not having lands and tenements, or some other estate of inheritance, in his own or his wife's right, of the clear yearly value (a) of 100l. per ann. or for term [*438*] of life; (b) or having lease or leases of 99 years, or for any longer term, of the clear yearly value of 150l.(c) other than the son and heir apparent of an esquire, (d) or other person (e) of higher degree; (g) and the owners and keepers of forests, parks, chases, or warrens,& being stocked with deer or conies for their necessary use, in respect of the said forests, parks, chases, or warrens,& are hereby declared to be persons, by the laws of this realm, not allowed to have or keep for themselves, or any other person or persons, any guns, bows, greyhounds, setting dogs, ferrets, coney-dogs, lurchers, hays, nets, lowbels, hare-pipes, gins, snarees, or other engines aforesaid, but shall be, and are hereby prohibited to have, keep, or use the same."(h)

(a)& If the estate is subject to a mortgage, the interest of which reduces it below this annual value to the mortgagor, it is not a qualification within these acts: but possession is prima facie evidence of property, and the defendant must be presumed to be the entire owner: the task lies on the other party to make proof to the contrary. Wetherell v. Hall, Cald. 230. A declaration by the defendant before the commissioners of income tax, that he had not an income of 100l. a year, and that interest-money was payable out of his estate, is evidence of his want of qualification, in opposition to evidence of his having an estate worth 100l. a year. R. v. Clarke, 8 T.R. 220. (b) A life-estate of less than 150l. a year is not a qualification; for in construing this act, life-estate is to be coupled with leasehold. Lowndes v. Lewis, Cald. 188. A church living is merely a life-estate. Id. Ibid. (c) An estate of 150l. for 99 years, if three lives shall so long live, is sufficient. Earl Ferrers v. Henton, 8 T.R. 506. (d) What constitutes an esquire is somewhat unsettled. In the case of Jones v. Smart, 1 T.R. 44, a captain in the army or navy is considered as an esquire for the purposes of this act. But a commission of captain of volunteers, signed only by the lord-lieutenant of the county, styling the person an esquire, does not confer that degree. For though the statute 44 G. 3, c.34, ' 26, enacts that all officers in corps of volunteers, having commissions from lieutenants of counties, shall rank with the officers of his Majesty's regular forces, yet that means only the same military rank. The lord-lieutenant of the county cannot confer honours. Talbot v. Eagle, 1 Taunt. 410. (e) This means the son of some other person of higher degree, and not such person himself, who is not qualified merely as being of such higher degree. Jones v. Smart, 1 T.R. 44. (g) Doctors in the three learned professionals are of higher rank that esquires; but a diploma from a Scottish university does not give a qualification for this purpose. Id. Ibid. (h) The keeping or using of hounds not being prohibited by this clause, a gamekeeper cannot seize a dog of that description. Grant v. Hulton, Barn. & Aders. 134.&

& By stat. 4 7 5 W.& M. c. 23, ' 10 [*1692], reciting, "That great mischiefs do come by inferior tradesmen, (a) apprentices, and other dissolute persons neglecting their trades and employments, who follow hunting, fishing, and other game, to the ruin of themselves, and damage of their neighbours; for remedy thereof it is enacted, that if any such person as aforesaid shall presume to hunt, (b) hawk, fish or fowl, (unless in company with the master of such apprentice, duly qualified by law,) such person or persons shall be subject to the penalties of this act, and shall or may be sued and prosecuted for their willful trespass in such their coming on any person's land, and if found guilty thereof, the plaintiff shall not only recover his damages thereby sustained, but his full costs (c) of suit; and former law to the contrary notwithstanding.@

(a) Who is an inferior tradesman or dissolute person within this act, is unsettled. In Buxton v. Mingay, 2 Wils. 70, the court were equally divided whether a surgeon and apothecary, not qualified to kill game, was such. That a qualified person cannot be deemed such seems to be determined. Reg. v. George, 6 Mod. 40. But see Bennett v. Talbois, 1 Ld. Raym. 49; Com. Rep. 26, S.C. And it hath been holden, that a huntsman, hunting with his master=s hounds, and by his orders, through not in his presence, is not a dissolute person within this clause. Pallant v. Roll, 2 Bl. Rep. 900. If a person be found to be an inferior tradesman, his having hunted in company with a qualified person will not protect him. Wickham v. Walter, Barnes, 125. (b) it is not necessary to allege or prove that the defendant killed any game, or that he hunted un- [*439*] awfully, hunting alone being sufficient, and there being no distinction in this act between lawful and unlawful hunting. Shadow v. Painter, Carth. 424; R. v. Chipp, 2 Str. 711. (c) To entitle himself to such costs, the plaintiff must prove not only that the defendant is an inferior tradesman, but also that particular species of tradesmen alleged in the declaration, through under a videlicet. Dickenson v. Pearson, 1 Hull. 93.&

By the 5 Annae, c. 14 [*1705], it is enacted, AThat any higlar, chapman, carrier, innkeeper, victualler, or alehouse-keeper shall have in his or their custody or possession, any hare, pheasant, partridge, moor, heath game or grouse, or shall buy, sell, or offer to sell any hare, pheasant, partridge, moor, heath, game or grouse, every such higlar, &c., (unless such game, in the hands of such carrier, be sent up by a person or persons qualified to kill the game,) shall upon every such offence be carried before some justice of the peace for the county, riding, city, or town corporate, or liberties, where the said offence is committed: and if upon view, or upon the oath of one or more credible witnesses, shall be convicted of the same, shall forfeit for every hare, pheasant, partridge, moor, heath game or grouse, the sum of 5l., one half to the informer, and the other half to the poor of the parish (a) where the offence was committed: the same to be levied by distress and sale of the offender=s goods, by warrant under the hand and seal of the justice or justices of the peace, before whom such offender or offenders shall be convicted, rendering the overplus, (if any be,) the charge of distraining being first deducted; and for want of distress, (b) the offender or offenders to be committed to the house of correction for the first offence for the space of three months, without bail or mainprise; and for every such other offence for the space of four months, provided that such conviction be made within three months after such offence committed; and that [no] *certiorari shall be allowed to remove any conviction made, or other proceedings of or concerning any matter or thing in this act, into any of the courts at Westminster, upon any pretence whatsoever, unless the party or parties against whom such conviction shall be made, shall, before the allowance of such certiorari, become bound to the person or persons prosecuting the same, in the sum of fifty pounds, with such sufficient securities, as the justice or justices of the peace, before whom such offender shall be convicted, shall think fit, with condition to pay unto the prosecutors, within fourteen days after such conviction [confirmed] or procedendo granted, their full costs and charges, to be ascertained upon their oaths; and that in default thereof, it shall be lawful for the said justice or justices, or other, to proceed for the due execution of such conviction, in such manner as if no such certiorari had been awarded.

Made perpetual by 9 Ann. c. 75 [*1710]. By 28 Geo. 2, c. 12 [*1754-5], persons selling, or exposing to sale, any game, are liable to the penalties in this act, or higlars, &c., offering game to sell. And by ' 2, of the same act, game found in the house or possession of a poulterer, salesman, fish-monger, cook, or pastry-cook deemed exposing thereof to sale. Forfeitures and penalties to be recovered and applied as directed by the above act of 5 Ann. c. 14 [*1705]. *[The word no is inserted instead of the words if any, which are in the act, since that word seemeth necessary to make up the sense; and the word confirmed is added for the like reason. And indeed there have been too many inadvertencies in the drawing up of this act: for there is false grammar in no fewer than six places, besides other mistakes. 2 Burn=s Just. Tit. Game, 253.] (a) & If a man being in one parish, shoot into another, the offence is committed in the parish in which he stands. R. v. Alsop, 1 Show. 239. (b) Trespass will lie against a justice, who, immediately upon conviction, commits a person who has effects which may then be distrained, without endeavouring to levy the penalty of the goods. Hill v. Bateman, 2 Str. 710. &

AAnd for the better discovery of such higlar, (a) chapman, carrier, innkeeper, alehouse-keeper, and victualler, as shall offer to buy or sell any hare, pheasant, partridge, moor, heath game or grouse, it is enacted, That any per-[*440*] son that shall destroy, sell, or buy any hare, pheasant, partridge, moor, heath game or grouse, and shall within three months make discovery of any higlar, chapman, carrier, innkeeper, alehouse-keeper, or victualler, that hath bought or sold, or offered to buy or sell, or had in his possession, any hare, pheasant, partridge, moor, heath game or grouse, so as any one shall be convicted of such offence in manner as aforesaid, such discoverer to be discharged of the pains and penalties hereby enacted for killing or selling such game as aforesaid, shall receive the same benefit or advantage as any other informer shall be entitled to, by virtue of this act, for such discovery and information.@

(a) [A poulterer is not a chapman within the meaning of this statute. Kearle v. Boulter, Say. Rep. 191.]

And it is further enacted, AThat if any person or persons, not qualified by the laws of this realm so to do, shall keep or use any greyhounds, setting dogs, hays, lurchers, tunnels, or any other engines to kill or destroy the game, and shall be thereof convicted upon the oath (a) of one or two credible witnesses, by the justice or justices of the peace where such offence is committed as aforesaid, the person or persons so convicted shall forfeit the sum of five pounds; one half to be paid to the informer, and the other half to the poor of the parish where the same was committed; the same to be levied by distress and sale of the offender=s goods, by warrant under the hand and seal of such justice or justices, before whom such person or persons shall be convicted as aforesaid; and for want of such distress, the offender or offenders shall be sent to the house of correction for the space of three months for the first offence, and for every such other offence four months; and that it shall and may be lawful to and for any of her majesty=s justices of peace in their respective counties, ridings, cities, towns, corporate, or liberty, and the lords and ladies of his, her, their, or any of their respective manors, within the said manors, to take away any such hare, pheasant, partridge, moor, heath game or grouse, or any other game, from any such higlar, chapman, innkeeper, victualler, or carrier, or any other person or persons not qualified to kill the same, as shall be found in their custody or possession; and likewise to take away such dogs (b) nets, or other engines, which shall be in the power or custody of any person or persons not qualified by the laws to keep the same, to their own proper use, without being accountable to any person or persons for the same; and that it shall and may be lawful for any lord or lady of his or her respective lordship or manor, by writing under his or her hand and seal, to empower his or her gamekeeper or (c) gamekeepers upon his or her own lordship or manor as aforesaid, to kill hare, pheasant, partridge, or any other game whatsoever; but, if the said gamekeeper shall, under colour or pretence of the said power and authority to kill or take the same for the use of such lord or lady, afterwards sell or dispose thereof, to any person or persons whatsoever, without the consent or knowledge of the lord or lady of such manor or manors that hath given such power or authority in manner as aforesaid, and shall be thereof convicted, upon the complaint of such lord or lady of any manor, and upon the oath of one or more credible witnesses, before any one or more of her majesty=s justices of the peace as aforesaid, upon such conviction, such gamekeeper shall be committed to the house of correction for the space of three months, there to be kept to hard labour.@

(a) & The defendant may be convicted also on his own confession. R.v. Gage, 1 Str. 546; 8 Mod. 64, S.C. & (b) & A magistrate who convicts a person under this act of killing game, and causes his dog to be brought for the purpose of seizing it, may order [*441*] the dog to be killed without any formal adjudication of seizure. Kingsnorth v. Bretton, 5 Taunt. 416. & (c) Vide the 9 Ann. c. 25 {*1710], by which it is enacted that no lord or lady of a manor, shall make or appoint above one person to be a gamekeeper within any one manor, whose name shall be entered with the clerk of the peace, &c. Any by 3 G. 1, c. 11 [*1716-17], it is enacted, that no lord or lady of any manor shall make or constitute any person to be gamekeeper, with power and authority to take and kill hare, pheasant, partridge, or any other game whatsoever, unless such person be qualified by the laws of this realm so to do, or unless such person be truly and properly a servant to the said lord or lady, or such person be immediately employed and appointed to take and kill the game for the sole use and benefit of the said lord or lady, &c. & But this statute was repealed by 48 G. 3, c.93 [*1808], by which any lord or lady of any manor is empowered to appoint any person, whether qualified or not, to be a gamekeeper to his or her manor, and to kill game for the use of any person; but it is to be specified in the deputation whether qualified or not; and such person is invested with all the privileges of a gamekeeper appointed under former acts. The stat. 48 G.3, c.55, ' 9, which relates to the certificate., enacts that no gamekeeper shall thereby be enabled to use any dog or engine out of the precincts of the manor or royalty, for which such deputation was granted. & [It had been determined in Rogers v. Carter, M. 9 G.3, 2 Wils. 387, that a lord of a manor may appoint a gamekeeper, with power to kill game, though he is neither a person qualified, nor a menial servant of the lord; and such gamekeeper hath a right to carry a gun anywhere, though out of the manor; and though he kills game, or sports out of the manor, his gun cannot be taken from him; but, if he kills game out of the manor, he is liable to the penalty.]  & A gamekeeper regularly appointed is to be presumed, in an action for the penalty under these laws, to have killed game for the use of the lord, if nothing appear to the contrary. Spurrier v. Vale, 10 East, 413.&  [Though it is a rule of law not to permit a question respecting the boundaries of a manor to be discussed in an action on the game-laws; Calcraft v. Gibbs, 4 T.R. 681, and Hawkins v. Bailey; and Blunt v. Grimes, there cited; yet it is no defence to such an action that the defendant acted as gamekeeper under a deputation from a person claiming to be lord of the manor, if there appear to be no ground for the claim.] Calcraft v. Gibbs, ubi supra, and 5 T.R. 19; 8 East, 177.

By the 9 Ann. c. 25, ' 2 [*1710], it is enacted, AThat if any hare, pheasant, partridge, moor, heath game or grouse shall be (a) found in the shop, house, or possession of any person or persons whatsoever not qualified, in his own right, to kill game, or being entitled thereto under some person so qualified, the same shall be adjudged, deemed, and taken to be an exposing thereof to sale within the true intent and meaning of this and the statute 5 Ann. c. 14@(b) [*1705].

(a) [In an action therefore upon this statute for exposing a hare to sale, it is sufficient to allege, that the defendant had a hare in his possession, though objected, that the statute made it only evidence of an exposing to sale. Jones v. Bishop, Say. Rep. 64.] & It is scarcely necessary to say, that a servant employed to detect poachers, taking up a hare killed by strangers, for the purpose of carrying it to the lord, has not such a possession as will subject him to a penalty. Warnford v. Kendall, 10 East, 19. (b) By reference to the statute of Ann. The penalty is incurred for every hare, &c. Bluet v. Needs, Com. Rep. 522. &

' 3. AIf any person or persons whatsoever shall take, kill, or destroy any hare, pheasant, partridge, moor, heath game or grouse, in the night-time, the person or persons so offending shall likewise, for every such offence incur such forfeitures, pains, and penalties, to be recovered by such means, within such time, and to such uses as directed by the stat. 5 Ann.

For the punishing of persons who unlawfully hunt or take any red or fallow deer in forests or chase, or who beat or wound keepers or other officers in forests, chases, or parks; and for more effectually securing the breed of wild fowl, see 10 Geo. 2, c. 32, ' 9, 10 [*1736-7]. Made perpetual by 31 Geo. 2, c.42, ' 5, as to ' 9 [*1757-8]. For the preservation of the game in Scotland, see 24 Geo. 2, c. 34 [*1750-1]. For preventing the burning or destroying of goss, furze, or fern, in forests or chases, see 28 Geo. 2, c. 19, ' 3 [*1754-5].

[Humorous health and species protection.] Also by the said statute, 9 Ann. c. 25, ' 4, reciting [*1710], AThat very great numbers of wild fowl of several kinds are destroyed by the pernicious practice [*442*] of driving and taking them with hays, tunnels, and other nets, in the fens, lakes, and broad waters, where fowl resort in the moulting time; and that at the season of the year when the fowl are sick and moulting their feathers, and the flesh unsavoury and unwholesome, to the prejudice of those who buy them, and to the great damage and decay of the breed of wild fowl; it is enacted, that if any person or persons whatsoever between the first day of July and the first day of September, as they shall yearly happen, shall be hays, tunnels, or other nets, drive and take any wild duck, teal, widgeon, or any other fowl, commonly reputed water-fowl, in any of the fens, lakes, broad waters, or other places of resort for wild fowl in the moulting season, such person or persons who shall so offend, and thereof shall be convicted before any one or more of her majesty=s justices of the peace for the county where such offence shall be committed, by the oath of one or more credible witnesses, shall, for every wild duck, teal, or other water fowl so taken as aforesaid, [punishment] forfeit and pay the sum of five shillings; one moiety thereof to be paid to the informer, and the other moiety to the poor of the parish where such offence shall be committed; the same to be levied by distress and sale of the offender=s goods, by warrant under the hand and seal of the justice and justices of the peace before whom the offender shall be convicted, rendering the overplus, if any be, above the penalty and charge of the distress; and for want of distress the offender shall be committed to the house of correction for any time not exceeding one month, nor less than fourteen days, there to be whipped and kept to hard labour; and the justice or justices of the peace, before whom such person or persons so offending shall be convicted, shall order such hays, nets, or tunnels, that were used in driving and taking the said wild fowl as aforesaid, to be seized and immediately destroyed in the presence of such justice or justices.@

By a clause in the mutiny acts, "for the better preservation of the game in or near such place where any officers or soldiers shall at any time be quartered, it is enacted. That if any officer or soldier shall, without leave of the lord of the manor, under his hand and seal, first had and obtained, take, kill, or destroy any hare, coney, pheasant, partridge, pigeon, or any other sort of fowls, poultry, or fish, or his majesty's game within the united kingdom of Great Britain and Ireland; and upon complaint thereof shall be, upon oath of one or more credible witness or witnesses, convicted before any justice or justices of the peace, who is and are hereby empowered and authorized to hear and determine the same, (that is to say) every such officer so offending shall, for every such offence, forfeit the sum of five pounds to be distributed among the poor of the place where such offence shall be committed; and every officer commanding in chief upon the place, for every such offence committed by any soldier under his command, shall forfeit the sum of twenty shillings, to be paid and distributed in manner aforesaid; and if upon such conviction made by the justices of the peace, and demand thereof also made by the constable or overseers of the poor, such officer shall refuse or neglect, and not within two days pay the said respective penalties, such officer so refusing or neglecting shall forfeit, and is hereby declared to have forfeited his commission, and his commission is hereby declared to be null and void."

[Citizen suit] By the 8 Geo. 1 [*1721], "for rendering more effectual the laws now in being for the better preservation of the game, it is enacted, That wheresoever any person shall, for any offence to be hereafter committed against any [*443*] law now in being, for the better preservation of the game, be liable or subject to pay any pecuniary penalty or sum of money, upon conviction before any justice or any justices of the peace, it shall and may be lawful for any other person whatsoever, either to proceed to recover the said penalty by information and conviction before a justice or any justices of the peace, in such manner as is in such law contained, or to sue for the same by action of debt, or on the case, bill, plaint, or information, in any of his majesty's courts of record, wherein no essoin, protection, wager of law, or more than one imparlance, shall be allowed, and wherein the plaintiff, if he recovers, shall likewise have his double costs.

By 26 Geo. 2, c. 11 [*1753], suits for the recovery of pecuniary penalties for offences committed after 25 March, 1753, against the game-laws, may be brought before the end of the second term after the offence committed.--Any person may sue within six months after the offence, for the whole penalty, (though the same be given to the poor,) to his own use, and have double costs. Stat. 2 Geo. 3, c. 19 [*1761-2]. & The six months are lunar months; but it is not necessary to aver in the declaration, that the action was commenced within six months; and if alleged to be within six calendar months, it is no objection. Lee v. Clarke, 2 East, 333. The action may be brought against several, and the verdict taken against some, and the others acquitted. Hardyman v. Whitaker, 2 East, 573. &

"Provided, that all suits and actions to be brought by force of this act, shall be brought before the end of the next term after the offence committed, and that no offender against any of the laws now in being, for the better preservation of the game, shall be prosecuted for the same offence, both by the way prescribed by this law, and by the way prescribed by any of the said former laws; and, that in case of any second prosecution, the person so doubly prosecuted, may plead in his defence the former prosecution pending, or the conviction or judgment thereupon had."

Vide supra.

[Hunting seasons]*By 2 Geo. 3, c. 19 [*1761-2], none shall take, kill, or have any partridge, from February 12(a) to September 1, or pheasant, from February 1 to October 1, (except taken in lawful time, and kept in a new,) or any black game from January 1 to August 20, or grouse, from December 1 to July 25, on pain of 5l. per bird.

(a)& Altered by Geo. 3, c. 34 [*1761-2], to 1st February, as to partridges. &

[Illegal to sell or purchase] All penalties on the game laws, sued for in Westminster-Hall, shall go to the informer, and no part to the poor of the parish.

By 13 Geo. 3, c. 55 [*1772-3], None shall kill or have black game from December 10 to August 20, or grouse, from December 10 to August 12, on pain from 20l. to 10l. for the first, and from 30l. to 20l. for subsequent offences, by suit or before a justice.

By 28 Geo. 2, c. 12 [*1754-5], Every person, qualified or not, who offers to sale game, is liable to the penalties on higlars, &c., offering to sale, by 5 Ann. c. 14 [*1705]. And game found in possession of a poulterer, &c., is deemed exposing to sale.

By 58 Geo. 3, c.75 [*1818], no person, whether qualified or not, shall buy any hare, pheasant, partridge, moor, heath, game or grouse, under a penalty of five pounds for every hare, pheasant, &c. so bought.

[Night hunting] By 13 Geo. 3, c. 80 [*1772-3], Persons killing hare, pheasant, &c., or using gun, dog, engine, &c., to kill or take, between seven at night and six in the morning, from October 12 to February 12; and between nine at night and four in the morning, from February 12 to October 12, convicted before one justice, forfeit for the first offence [Penalty] from 20l. to 10l., and for [*444*] the second from 30l. to 20l. and costs, or, for want of distress, shall be committed for three months; and for offence after second conviction shall be committed till the quarter session, or give surety to appear to indictment, and if convicted forfeit 50l. and costs, or, for want of distress, committed from twelve to six months, and publicly whipped. Half the forefeiture to the informer, and half to the poor.

Killing, or using an engine on Sunday, or Christmas-day, liable to the like penalty. The justice where the offence is committed may grant a warrant to be endorsed by a justice in another country where the offender lives, and the offender thereby be brought before the first justice, or distress be made. An appeal is given, but no certiorari.

By 10 Geo. 3, c. 18 [*1770], [Dog stealing] A person stealing any dog, or receiving it, knowing it to be stolen, convicted before two justices, forfeits from 30l. to 20l. or imprisonment from twelve to six months; and for the second offence from 50l. to 30l. or from eighteen to twelve months' imprisonment, and whipping. An appeal is final, and there is not any certiorari.

[It hath been determined, that in an information on the acts of 22 & 23 Cha. 2, c. 25 [*1670-1], and 5 Ann. c. 14 [*1705], not only the qualifications must be all negatively set out, but (a) that the time when the offence was committed must also be stated.

Rex v. Marriot, 1 Str. 66; R. v. Hill, 2 Ld. Raym. 1415; R. v. Jarvis, 1 Burr. 148; 1 T.R. 643, n. S.C.; Bluet v. Needs, Com. Rep. 522; R. v. Wheatman, Dougl. 331; R. v. Earnshaw, 15 East, 456. (a) R. v. Pullen, 1 Salk. 369; R. v. Chandler, Ibid. 378; R. v. Simpson, 10 Mod. 248. In an action, however, it is enough to state that the defendant was not duly qualified. Bluet v. Needs, Com. Rep. 522. & In R. v. Crowther, 1 T.R. 125, the court seemed to think that it was necessary in a conviction, that the evidence should negative every particular qualification; but, as the conviction was quashed on another point, the question, whether in such a case it was necessary to give any evidence of want of qualification, was not entered into. But in R. v. Stone, 1 East, 639, this question came directly before the court, when the judges were equally divided; Lord Kenyon and Grose, J., being of opinion that in a conviction some evidence of want of qualification must be given; Lawrence, J., and LeBlanc, J., on the contrary, that the proof of qualification lay on the defendant. &

In a conviction for deer-stealing, the county where the offence was committed was mentioned only in the information, and not in the evidence of the witnesses; and therefore that not appearing to be proved, the conviction was quashed.

Anon. Cited in 2 Ld. Raym. 1387.

A conviction on the 5 Ann. set out the vill, but not the parish wherein the offence was committed: upon motion to quash it for this defect, a part of the penalty being given to the poor of the parish; the court said, if there was a parish of the same name with the vill, they would intend it to be co-extensive with it; if the vill was extraparochial, then the informer was entitled to the whole penalty.

R. v. Wyatt, 2 Ld. Raym. 1478.

A conviction for deer-killing will be quashed, if made upon the evidence of the informer.

R. v. Stone, 2 Ld. Raym. 1545.

A conviction for keeping (only) a lurcher is good, for the bare keeping of it is evidence of the purpose for which it is kept. So of hare-pipes, and such like, which are peculiarly fitted for the killing of game. But it is not so in the case of a gun, for the keeping of a gun is an ambiguous act: in order therefore to bring the party keeping it within the statute, it must be [*445*] shown that it was kept for the purpose of killing game. However, a conviction (a) that the defendant kept and used a gun to kill and destroy the game, hath been solemnly adjudged to be sufficient. & (b) And proof that he "did keep and use a gun with intent to kill and destroy the game," is sufficient to support the conviction, though the witness may allege a very insufficient reason for imputing such intent to him.&

R. v. Filer, 1 Str. 497; R. v. Gardner, 2 Str. 1084; Wingield v. Stratford, 1 Wils. 315. (a) R. v. Thompson, 2 T.R. 18; R. v. Pearse, 9 East, 358, acc. & (b) Rex v. Davis, 6 T.R. 177.&

[In an action on the 5 Ann. c. 14 [*1705], for keeping and using a dog to kill the game, it must be shown what sort of a dog it was; that it may appear whether it were one of the dogs mentioned in the statute; for this being a penal law shall not be extended by equity; in an action therefore for using a hound, the judgment was reversed, the word hound not being to be met with in the statute.

Reason v. Lisle, Com. Rep. 575; Hooker v. Wilks, 2 Str. 1126.]

& A conviction for keeping and using a dog called a greyhound, is positive enough. So, for keeping and using a dog called a lurcher.

R. v. Hartley, Cald. 175; R. v. Earnshaw, 15 East, 456.

It seems to have been thought, in one case, that the mere keeping of a greyhound was sufficient. But in a later case, in an action for keeping a setting-dog, there being no evidence of the dog, which was still young, having been used for the purpose of killing game, it was ruled, that the action could not be supported.

R. v. Hartley, Cald. 175; Read v. Phelps, 15 East, 271.&

[It hath been adjudged that a conviction super præmissis for three penalties of 5l. each for killing three hares, where it appears that all was done in the same day, is bad, for the statute does not give 5l. for every hare, it being all but one offence.

Marriot v. Shaw, Com. Rep. 274; Ld. Mansfield in the case of Cripps v. Durden, Cowp. 646, declared that "killing a single hare was an offence; but that killing ten more in the same day would not multiply the offence, or the penalty imposed by the statute for killing one." See a similar decision on this point in the case of Reg. V. Matthews, 10 Mod. 26, and see 3 T.R. 510.]

& A person can be convicted in only one penalty for keeping and using a gun, and also a dog, on the same day.

R. v. Lovet, 7 T.R. 152.

[Two or more persons cannot be convicted in separate penalties under 5 Ann. for using a greyhound to destroy game, for it is only one offence.

Rex v. Bleasdale, 4 T.R. 809.]

& But a defendant may be convicted of several offences in the same conviction.

R. v. Swallow, 8 T.R. 284. &

If unqualified persons sporting with a qualified man are his servants, or act as such upon that occasion, they are not subject to the penalties of these acts. Such persons neither keep nor use the dogs, &c. But as they claim protection under a qualified person, strict proof of his qualification will be required of them.

R. v. Taylor, 15 East, 460; Lewis v. Taylor, 16 East, 49; Clarke v. Broughton, 3 Campb. 328.

A lord of a manor is qualified, as such, to sport within his own manor; [*446*] but, if he has no other qualification, he will be liable to the same penalties with any other unqualified person, if he sport out of his manor.

Mallock v. Eastley, 7 Mod. 482; 1 Chitty, 42.&

[It is not to be forgotten that none of the above statutes qualify any one, except in the instance of a gamekeeper, to kill game: the circumstance of having 100l. per ann. and the rest, are not properly qualifications, but exemptions, and the persons, so exempted from the penalties of the game statutes, are not only liable to actions of trespass by the owners of the land, but also if they kill game within the limits of any royal franchise, they are liable to the actions of such as may have the right of chase or free warren therein.

2 Bl. Com. 481. ][ Blackstone]

One who finds game on his own land cannot justify pursuing it into the land of another.

Deane v. Clayton, 7 Taunt. 489; 1 Moo. 203.

Quere, Whether the owner of land who sets dogspears thereon for the destruction of foxes and dogs following game on the land, and sticks up notice of their being set, is answerable to the owner of a dog which trespasses on the land and is killed by one of the dogspears?

1 Moo. 203.

If a person has notice that spring-guns are set in a wood, and afterwards trespasses there, it is injured by a spring-gun, it is clear he cannot recover compensation from the owner who set the guns. Quere, Whether he could sue if he had no notice?

Ilott v. Wilkes, 3 Barn. & A. 304.

But now by 7 & 8 G. 4, c. 18, ' 1 [*1826-7], it is enacted and declared, that if any person shall set any spring-gun, man-trap, or other engine calculated to destroy human life or inflict grievous bodily harm, with the intent that the same or whereby the same may destroy or inflict grievous bodily harm upon a trespasser or other person, the person so setting, &c., shall be guilty of a misdemeanor.

By ' 3, persons permitting any such spring-gun, &c., set by others to continue set, shall be construed to have set the same with intent as aforesaid.

By ' 4, the act is not to apply to spring-guns, &c., set from sunset to sunrise in a dwelling-house for the protection thereof; nor (by ' 2) shall extend to make it illegal to set guns or traps usually set to destroy vermin.

The grantee under a deed of conveyance executed to give a colourable qualification to kill game, may maintain ejectment on it against the grantor, for the latter cannot set up his own fraud as a defence.

Doe v. Roberts, 3 Barn. & Ald. 367.

The lord or lady of a manor cannot delegate to a gamekeeper a general discretionary power to seize game in the hands of unqualified persons under the statutes of Cha. 2, and Ann.; but they must themselves exercise their judgment on the particular case as to whether the person is unqualified or not.

Bird v. Dale, 7 Taunt. 560; 1 Moo. 290.

In an action against a gamekeeper for a penalty for using a gun to kill game without being qualified; evidence of the real title to the manor is [*447*] admissible for the purpose of negativing the existence of a colourable title in the person under whom the defendant claims to act.

Hunt v. Andrews, 3 Barn. & Ald. 341.

An unqualified person setting a trap for hares by order and in presence of his master, and on his master's ground, and finding a hare caught, taking it to his master according to a general order, is not liable to the penalties of the 5 Ann. c. 14, ' 4 [*1705], and 9 Ann. c. 25, ' 2 [*1710], for using snares to destroy game, or for having game in his possession.

Walker v. Mills, 2 Bro. & Bing. 1; 4 Moo. 343.

To constitute the offence of keeping a setting dog within the 5 & 6 Ann. c. 14, ' 4 [*1705], the dog must be kept for the purpose of destroying game; and if it appear that at the time of the offence charged he is tied up, there is no offence.

Hayward v. Horner, 5 Barn. & Ald. 317.

A conviction for this offence must be made within three months after the offence committed.

Rex. v. Tolley, 3 East, 467; Rex v. Bellamy, 1 Bar. & C. 500.

On a conviction on the 5 Ann. c. 14, ' 2, against a carrier for having game in his possession, it has been held sufficient in the information and adjudication negative the qualifications in statute 22 Cha. 2, c. 25 [*1670-1], without negativing them in evidence.

Rex. v. Turner, 5 Maule & S. 206.

But it has been since held, that it is not necessary in such case against a carrier even to aver that the defendant was unqualified; for, according to the statute, the carrier having game of an unqualified person in his possession is guilty of the offence, whether qualified or not himself.

Rex v. Marsh, 2 Barn. & C. 717.

It is however necessary to aver non-qualification in informations for killing game; but it seems (on the principle of Rex v. Turner) that the negative need not be proved by the prosecutor.

Rex v. Stone, 1 East, 639.

An information for penalties under the game laws is not an information within the meaning of the 48 G. 3, c. 58 [*1808] whereby if the defendant neglect to appear and plead, the prosecutor may enter an appearance and plea for him; for the statute only applies to such indictments and informations as must be brought in the Court of King's Bench.

Davies v. Bint, 3 Barn. & C. 586.

Grouse are not birds of warren.

Devonshire v. Lodge, 7 Barn. & C. 36.

Though a person be not qualified to keep or kill game, yet he may have a sufficient possession of animals coming under that description to support an indictment for stealing them.

Jones's case, 3 Burn. Just. Larceny; Russ. On Cri. 152 (2d edit.)

[Illegal night hunting-7 years] By 57 G. 3 c 90, ' 1 [*1817], if any person having entered into any forest, chase, park, wood, plantation, close, or other open or enclosed ground, with intent illegally to destroy, take, or kill game or rabbits, or to aid others therein, shall be found at night, i.e. between six in the evening and seven in the morning, from the 1st of October to the 1st of February; between seven in the evening and five in the morning, from the 1st of February [*448*] to the 1st of April; and between nine in the evening and four in the morning for the remainder of the year, armed with any gun, cross-bow, fire-arms, bludgeon, or other offensive weapon, every person so offending shall be guilty of a misdemeanor, and sentenced to transportation for seven years, or shall receive such other punishment as may be inflicted on persons guilty of misdemeanor.

57 G. 3, c. 90, ' 1 [*1817], now repealed. Vide infra.

On this statute it is held, that if several are together, and any one of them is armed, the others are liable to be convicted under the act, unless indeed the others are ignorant of their companion having arms.

Rex v. Smith, Russ. & Ry. 368; Rex v. Southern, Ibid. 444.

Perceiving a person fire is finding him armed, though his person is not seen at the time.

Rex v. Nash, Russ. & Ry. 386.

It is not sufficient in the indictment to state that the defendant entered into a certain close or a certain enclosed ground, without specifying it with name or abuttals, &c.

Rex v. Ridley, Russ. & Ry. 515.

A person convicted under the 57 G. 3, c. 90 [*1817], of being found armed in a forest, chase, park, wood, or plantation, may be sentenced to hard labour under the 3 G. 4, c. 114, for all these places are "open or enclosed ground" within the meaning of the latter statute.

Rex v. Parkhurst, Russ. & Ry. 503.

The 57 G. 3, c. 90 [*1817], is now repealed by the 9 G. 4, c. 69 [*1828], except as far as it repeals any former acts; and it is thereby enacted, that if any person shall, by night, unlawfully take or destroy any game or rabbits in any land, whether open or enclosed, or shall, by night, unlawfully enter or be in any land, whether open or enclosed, with any gun, net, engine, or other instrument, for the purpose of taking or destroying game, such offender shall, on conviction before two justices, be committed for the first offence, to the common jail or house of correction, for any period not exceeding three calendar months, there to be kept to hard labour; and at the expiration to find sureties by recognisance, himself in 10l., and two sureties in 5l. each, or one surety in 10l., for not so offending again for one year; and in case of not finding sureties, shall be further imprisoned and kept to hard labour for one year, unless such sureties are sooner found; and if he offend a second time and be convicted before two justices, he shall be committed to the common jail or house of correction for any period not exceeding six calendar months, and to find sureties, himself in 20l., and two sureties in 10l. each, or one surety in 20l., for his not so offending again for two years; and in case of not finding such sureties, shall be further imprisoned and kept to hard labour for one year, unless sureties are sooner found: and in case he offend again, he shall be guilty of a misdemeanor, and being convicted thereof shall be liable, at the discretion of the court, to be transported beyond the seas for seven years, or to be imprisoned and kept to hard labour for any term not exceeding two years.

By ' 2, owners or occupiers of land, or any person having a right of free chase or free warren thereon, or the lord of the manor or their game-keepers or servants, may apprehend such offenders and deliver them to a peace officer; and in case the offender shall assault, with any gun or other offensive weapon, any person authorized to seize him, he shall be guilty of [*449*] a misdemeanor, and liable to be transported for seven years or imprisoned for two years.

By 9 G. 4, c. 69, ' 4 [*1828], the prosecution for every punishable on summary conviction shall be commenced within six calendar months from the time of the offence; and the prosecution for every offence punishable on indictment within twelve months.

Section 5 gives a form of conviction.

By ' 6, an appeal is given, in cases of summary conviction, to the quarter sessions.

By ' 7, no such conviction or adjudication on appeal shall be quashed for want of form, or removed by certiorari.

[Punishment] By ' 9, any persons, to the number of three or more, together by night, unlawfully entering or being in any land, whether open or enclosed, for the purpose of taking or destroying game or rabbits, any of such persons being armed with any gun, cross-bow, firearms, bludgeon, or any other offensive weapon, shall be guilty of a misdemeanor, and liable to be transported for not exceeding fourteen years, or imprisoned for not exceeding three years.

By ' 12, for the purpose of this act, night shall be considered to commence at the expiration of the first hour after sunset, and to conclude at the beginning of the last hour before sunrise.

By ' 13, for the purposes of this act, "game" shall include hares, pheasants, partridges, grouse, heath or moor game, black game, and bustards.

Where an indictment on the ninth section of the above act alleged that the parties did by night unlawfully enter divers closes, &c., and were then and there, in the said closes, &c., armed with guns for the purpose of destroying game, it was held, that it did not sufficiently appear that the defendants were, by night, in the closes, armed for the purpose of destroying game, and the judgment was reversed.

Davies v. Rex, 10 Barn. & C. 89.

In an action for penalties on the game laws limited to be brought within six months, by 2 G. 2, c. 19, ' 6 [*1728-9], if the defendant goes to trial without having obtained a particular of the penalties meant to be proceeded for, the plaintiff is entitled to recover in respect of an offence committed within six months from the commencement of the action, although not proved to have been known to him till six months after its commission, and it is not a question for the jury whether the action was brought for that offence.

Rushworth v. Craven, 1 M'Clel. & Y. 417.

If a gentlemen sends out his hounds and his servants, and invites other gentlemen to hunt with him, although he does not himself go on the land of another, but those other gentlemen do, he is answerable for the trespass they commit, unless he desire them not to go on those lands.

Baker v. Berkeley, 3 Carr. & P. Ca. 32.

The statute 58 G. 3, c. 75 [*1818], prohibits the buying of pheasants in all cases, and, therefore, by a contract for the sale of live pheasants no property passes to the purchaser.

Helps v. Glenister, 8 Barn. & C. 553. &

    

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