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at present inquire (32). It is in general sufficient to observe, that the qualifications for killing game, as they are usually
evils are remedied. The first section frames a scale of punishment proportioned to the number of successive of. fences; and the ninth, which imposes the punishment of transportation upon first offences of a particular description, vests the power of trying those offences in the justices of gaol delivery exclusively. The new Act, however, is not free from imperfections and obscuri. ties. Looking at the language of the first section, it would seem, that if one or two persons should be proved to have entered into any land, by night armed with any gun, &c., for the purpose of taking and destroying rabbits only, they would not be liable within that section. Again, it seems by no means clear, that offences committed by three or more persons together, as described in the ninth section, would not be punishable under the first sec. tion. The definition of night, given in the twelfth section, is perfectly dif. ferent from that embodied in the first section of the old statute, and appears unfortunately to be even less distinct and perspicuous. No provision whatever is made for the punishment of offenders returning from transporta tion ; it is presumed, however, that such offenders will be capital felons, and punishable as such under the gene. ral provisions of 5 Geo. IV. c. 84, for which vide ante, 132, notes (12) (13), The following decisions upon the old statute will, it is conceived, be still found useful, as applicable to the new Act.
An indictment, charging a party with having entered into a forest, chase, &c., with intent to destroy game, and being there found armed, in the night must, in some way or other, particularize the place, as by setting forth the name, ownership, occupation, or abuttals; for the offence is substantially local, and the defendant is entitled to know to what specific place the evi.
dence is to be directed; Rer v. Ridley, R. & R. C. C. 515.
If several persons are out with the intent to kill game, and only one of them is armed, the rest who are unarmed, are liable to be convicted; Rex v. Smith, Id. 368.
It is no answer to a charge of being found armed in the night in a wood with intent to kill game, that the prisoners put down their arms, and left them, before they were seen, if it was perceived (by the flash of a gun, or otherwise) that some, or one of them, were armed, before they were seen; Rer v. Nash, Id. 386.
If several go into a close in the night to kill game, and one has arms without the knowledge of the others, the other persons, who are unarmed, are not liable to be convicted; Rer v. Southern, Id. 444.
What is, or is not, a bludgeon, or an offensive weapon, within the meaning of the legislature, has frequently been the subject of argument upon trials of prosecutions under the former Act of parliament. The new Act contains nothing tending to set that question at rest, and there are no decisions to be found upon the point, at least with reference to these particular statutes. The editor once conducted a prosecution under 9 Geo. IV. c. 69, $ 9, in the course of which it appeared that the defendants were armed with sticks, about four feet in length, and about the size of a man's thumb in circumference. It was objected that these were not either bludgeons or offensive weapons within the fair meaning of the Act of parliament, and the learned judge, Burrough, J., expressed himself of that opinion, and upon that ground directed the jury to acquit the defendants, which they did accordingly; Rex v. Edwards and others, Essex Special Gaol Delivery, December 1828, Ed. MS. In Rer v. Johnson, R. & R. C. C. 492, a prosecution on the 7 Geo. II. c. 21, for assaulting the prosecutor with an offensive weapon, with intent to steal his money, it was held, that a stick was an offensive weapon within the meaning of that statute, though not of extraordinary size, and though it might in general be used as a walking stick. And see Fletcher's case, I Leach, 23; 2 Stra. 1166; Hutchinson's case, I Leach, 342; 1 Russell, 167, 882.
called, or more properly the exemptions from the penalties inflicted by the statute law, are, 1. The having a freehold estate of 1001. *per annum ; there being fifty times the pro
(32) By the 1 & 2 W. IV. c. 32, $ 1, the previously existing statutes relating to game (not, however, including the 9 Geo. IV. c. 69) are repealed.
Sect. 2 defines what shall be deemed game.
Sect. 3 particularises the days and seasons during which game shall not be killed ; and imposes a penalty on persons laying poison to kill game.
Sect. 4 makes the possession of game illegal, after ten days in licensed deal ers, and forty days in other persons, after the expiration of the season.
By sect. 5 the Act shall not affect the existing laws respecting game certificates.
By sect. 6, every certificated person may kill game, subject to the law of trespass.
By sect. 7, under existing leases, the landlord shall have the game, except in certain specified cases.
By sect. 8, the Act shall not affect any existing or future agreements respecting game, nor any rights of manor, forest, chase, or warren.
By sect. 9, the Act shall not affect any of his Majesty's forest rights, &c.
By sect. 10, the Act shall not affect any cattle-gates or rights of common; and lords of manors shall have the game on the wastos.
By sect. 11, landlords having the game may authorize others to kill it.
By sect. 12, where landlords have the right to the game, in exclusion of occupiers, the latter shall be liable to a penalty for killing it.
By sect. 13, lords of manors may appoint game-keepers, and authorize them to seize dogs, nets, &c. used by uncertificated persons.
By sect. 14, lords of manors may grant deputations.
Sect. 15, lays down regulations respecting appointments of game-keepers in Wales.
By sect. 16, all appointments of game-keepers shall be registered with the clerk of the peace.
By sect. 17, certificated persons may sell game to licensed dealers.
By sect. 18, justices shall hold special sessions yearly for granting licences to persons to deal in game, who shall put up a board specifying that they are licensed.
By sect. 19, persons licensed to deal in game shall annually take out a certificate with a 21. duty.
By sect. 20, tax collectors shall yearly make out lists of persons who have obtained licences to deal in game.
By sect. 21, partners shall not be obliged to take out more than one licence yearly.
Sect. 22, declares when licences shall become void.
Sect. 23, imposes a cumulative penalty upon persons killing game without a certificate.
Sect. 24, imposes a penalty upon persons destroying or taking the eggs of game.
Sect. 25, imposes penalties upon persons selling game without a licence, and upon certificated persons selling to unlicensed persons.
Sect. 26, excepts innkeepers.
Sect. 27, imposes a penalty upon persons buying game except from licensed dealers.
perty required to enable a man to kill a partridge, as to vote for a knight of the shire : 2. A leasehold, for ninety-nine years of 1501. per annum: 3. Being the 'son and heir
Sect. 28, imposes penalties upon li. censed dealers buying game from uncertificated persons, or otherwise of. fending.
Sect. 29, excepts buying and selling game by servants of licensed dealers.
Sect. 30, imposes a penalty upon persons trespassing in the day-time upon lands in search of game; and provides, that where the occupier of land, not being entitled to the game, allows any person to kill it, the party entitled to the game may enforce the penalty.
By sect. 31, trespassers in search of game may be required to quit the land and to tell their names and abodes; and in case of refusal, may be arrested
Sect. 32, imposes a penalty upon persons found armed using violence, &c.
Sect. 33, imposes a penalty upon persons trespassing in the day-time in his Majesty's forests.
Sect. 34, defines what shall be deemed day-time.
By sect. 35, the provisions as to trespassers shall not apply to persons hunting, &c.
By sect. 36, game may be taken from trespassers not delivering up the same when demanded.
Sect. 37, prescribes the application of penalties; and
Sect. 38, the time for payment thereof, and the scale of imprisonment for non-payment.
Sect. 39, gives a form of conviction.
Sect. 40, gives a power to summon witnesses, and imposes a penalty for disobedience of summonses, &c.
Sect. 41, fixes the time for proceed ings, and the mode of enforcing the appearance of offenders.
Sect. 42, provides that prosecutors shall not be required to prove a negative.
Sect. 43, directs that convictions shall be returned to the sessions.
Sect. 44, gives an appeal. .
Sect. 46, provides that the Act shall not preclude actions for trespass, but prohibits double proceedings for the same trespass.
Sect. 47, regulates proceedings against persons acting under the Act.
Sect. 48, confines the operation of the Act to England and Wales.
Schedules (A) and (B) give forms of licences and certificates.
Having thus taken an abridged view of the provisions of the new law, it may be useful, briefly to notice some of the leading decisions upon the former game laws, with respect to, first, the property in game; secondly, the qualification to kill game; thirdly, the penalties for killing game; fourthly, informations and convictions under the game laws; and fifthly, gamekeepers.
first. One who finds game on his own land, has no right to pursue and kill it on the land of another; Dean v. Clayton, 7 Taunt. 489. And discharging a gun from the outside of another's field into it, so that the shot must strike the soil, is breaking and entering the field; Pickering v. Rudd, 4 Camp. 220; 1 Stark. 58. The plaintiff's dogs having hunted and caught, on the defendant's land, a hare, started on the land of a third person, the property is thereby vested in the plaintiff, who may maintain trespass against the defendant for afterwards taking away the hare. And so it would be, though the hare, being quite spent, had been caught up by a labourer of the defendant for the benefit of the hunters ; Churchward v. Studdy, 14 East, 249.
A clause in a deed dated 1655, (before shooting was in use,) reserving a right of hawking and hunting, does not include the liberty of shooting feathered game with a gun; Moore v.
apparent of an esquire (a very loose and vague description) or person of superior degree : 4. Being the owner, or keeper, of a forest, park, chase, or warren. For unqualified persons transgressing these laws, by killing game, keeping engines for that purpose, or even having game in their custody, or for persons, however qualified, that kill game, or
Earl of Plymouth, 7 Taunt. 614; I J. B. Moore, 346.
Secondly. An estate of the value of 1501. a year, holden by the defendant in his own right, under a lease for ninety-nine years to trustees, if the defendant and others should so long live, is a sufficient qualification to kill game, within 22 & 23 C. II. e. 25, $ 3; Ear! Ferrers v. Hinton, 8 T. R. 506.
A life estate of less than 1501, a year does not give a qualification to kill game; Lowndes v. Lewis, Cald. 188.
A church living is a life estate; Id. Ibid.
On a question of a defendant's qualification to kill game, convicting magistrates may form their opinion that he is not qualified, from the fact of his having previously sworn under the Income Act to an estate under 1001, a year; Rer v. Clarke, 8 T. R. 220.
An equitable estate gives a qualification; but it must be of the necessary value, clear of all mortgages or incumbrances created either by the owner, or by those under whom he claims; Wetherhall v. Hull, Cald. 230, 8T. R. 221, n.
In an action for penalties against an unqualified person for killing game, slight proof of qualification is sufficient, unless rebutted by other evidence; Smyth v. Jefferies, 9 Price, 257.
A Scotch diploma, conferring the degree of M.D., does not give a qualification to kill game, within 22 & 23 C. II. c. 25; Jones v. Smart, I T. R. 44.
Esquires and persons of higher degree are not expressly exempted by 22 & 23 C. II c. 25, from penalties on breach of the game laws, but their sons and heirs apparent are; Rex v. Usley, Cald. 389.
A son can only be qualified while his father lives, the words of the Act being sons and heirs apparent; he ceases to
be heir apparent when his father dies, and therefore that species of qualification is then at an end; Christian's G. L. 130. A commission of captain of volunteers, signed by the lord lieutenant of the county, does not confer the degree of esquire, nor is the captain's son thereby qualified to kill game ; Talbot v. Eagle, 1 Taunt. 510. Whether an apothecary is an inferior tradesman within 4 & 5 W. & M. c. 23, § 10, quære; Buiton v. Mingay, 2 Wils. 70.
The proof of qualification lies upon the defendant, both on an information, and in an action; Rex v. Turner, 5 M. & S. 206; 1 R. & M. 159.
Thirdly. In debt for penalties under the game laws, the plaintiff can recover only one penalty for the same act; Molton v. Chuseley, 1 Esp. 123.
If an unqualified person kills game by accident, he cannot take it away, or he is subject to the penalty; Id. Ibid.
The penalty for not producing a licence when lawfully required, does not attach on a mere refusal to produce it, unless the party refuses, on request, to tell his christian and surname, and his place of residence ; Molton y, Rogers, 4 Esp. 215.
Possession of game by a servant employed to detect poachers, who took it up after it had been killed by strangers on the manor, in order to carry it to the lord, is not a possession incurring a penalty; Warneford v. Kendall, 10 East, 19.
An unqualified person coursing a hare with the qualified owner of greyhounds, is not liable to the penalty of 5 Ann. c. 14; Lewis v. Tay. lor, 16 East, 49.
An unqualified and unlicensed person may join the sport with a qualified person, if he is not himself a principal, and using his own dogs; Molton v. Rogers, 4 Esp. 217.
A servant who justifies killing game as such, must give strict evidence that his master is a qualified person ; Clarke v. Broughton, 3 Camp. 328.
A servant in the presence and by the command of his master, who is qualified, may kill game; Turner v. Lord Coningsby, Bull, N. P. 196.
If a qualified person sends out his huntsman with his hounds, and a hare is killed, which the huntsman takes up, no penalty is incurred; Hawke v. Jack. son, 2 Selw. N. P. 885.
A groom attending his qualified master while using dogs for killing game, and pursuing it by his master's command, is not liable to any penalty; Rei v. Taylor, 15 East, 460.
The servant of a qualified person assisted his master in setting a trap on his land for taking rabbits and vermin, and his master ordered him, if a hare should be caught, to bring it to him; a hare was caught in the absence of the master, and was killed and carried to him by the servant. Held that the servant was not liable to penalties for using a snare to destroy game, or for having game in his possession ; Walker v. Mills, 4 J. B. Moore, 343; 3 B. & B. 1.
But where a servant, in the presence and by the command of his master, who was a qualified person, went out with a gun in pursuit of, and actually shot and killed game, he was held liable to a penalty; Rer v. Sylvester, 4 M. & R. 5; 9 B. & C. 61.
Merely keeping a sporting dog, is not evidence of keeping it for the purpose of destroying game, without proof of its having been used for that pur. pose; Read v. Phelps, 15 East, 271; 2 Selw. N. P. 883, n. And see Hey. ward v. Horner, 5 B. & A. 317; Bris arly v. Althorpe, Id. 320, n.
On an information charging the defendant with keeping and using a dog, and a gun, on the same day, he can
only be convicted in one penalty; Rer v. Lovat, 7 T. R. 152.
But a defendant may be convicted of several offences in the same conviction; Rer v. Swallow, 8 T. R. 284.
Two persons cannot be convicted in separate penalties under 5 Ann. c. 14, for using a greyhound to destroy game; Rer v. Bleusdale, 4 T. R. 809.
In an action for penalties for using a gun to destroy game, it is sufficient to prove that the defendant was beating about for game, and pointed his gun, though he did not fire at any game; Hebden v. Hentey, 1 Chit. Rep. 607; and see Rer v. Davis, 6 T. R. 177; Rer v. Gardner, Andr. 255; 2 Stra. 1098; 2 Sess. Ca. 385; Rer v. King, 1 Sess. Ca. 88.
Fourthly. A conviction on 5 Ann. c. 14, for keeping, or using a dog, or gun, to destroy game, must be made within three months after the offence committed ; Rex v. Tolley, 3 East. 476.
And the word months has been held to mean lunar months; l'er v. Bellamy, 2 D. & R. 727; 1 B. & C. 500.
A conviction must particularly and negatively specify, that the defendant had not any of the qualifications required by the statute; Res V. Jarvis,
Burr. 148; 1 East, 443, n.; Rer v. Wheatman, 1 Doug. 345.
B ut the evidence need not negative every specific qualification; Rer v. Crowther, 1 T. R. 125.
Evidence in a conviction on 5 Ann. c. 14, that “the defendant kept and used a gun to kill and destroy the game” has been held sufficient; Rex v. Thompson, 2 T. R. 18.
A conviction for killing game, not being qualified, to the effect of the form given by 31 Geo. III. c. 21, $ 4, is good; Rex v. Jefferies, Nolan, 106.
A conviction alleging that the defendant had not “lands or tenements, or any other estate of inheritance of