6. Who may kill, &c.

Dog or engine need not be kept or used to kill game.

Catching a hare evidence of taking it.

What an using.

It is to be noticed, that the repealed statute of 5 Anne, c. 14, s. 4, made it penal for any unqualified person to keep or use any greyhounds, &c. to kill and destroy game, but did not inflict any penalty upon such a person for killing or destroying it, therefore a conviction or declaration merely for killing game would not be sufficient. Thus, in R. v. Morgan, (2 Chit. Rep. 563), the defendant was convicted on stat. 5 Anne, c. 14, under a conviction which stated the information to have been, that the defendant “did kill a hare and destroy the game;" and the evidence to have been, that the defendant "did, with certain dogs, called hounds and greyhounds, kill and destroy one hare." Plomer moved to quash the conviction, on the ground that the offence, as stated in the conviction, was no offence against the 5 Anne, c. 14. The evidence of itself certainly brought the offence within the meaning of the statute; but the evidence cannot extend the offence further than that stated in the information. The fact charged in the information is, that the "defendant killed a hare and destroyed the game." Now the words of 5 Anne, c. 14, are prohibitory against keeping or using a gun, &c. to kill, and not against killing. The defendant, for all that appears in the information, might have accidentally killed the hare. Killing in the night, or in the snow, is an offence against the statute, but then the offence must be so charged. The conviction was admitted to be bad by the other side, and the court ordered the same to be quashed: and it was quashed accordingly. (And see Reg. v. Matthews, 10 Mod. 26). Now, however, the 1 & 2 Will. IV. c. 32, s. 23, it will be seen, inflicts a penalty upon an uncertificated person for killing or taking the game.

To catch a hare in a wire will be evidence of taking the hare; although the hare is not killed, nor even taken away by the party who set the snare to catch it. (R. v. Glover, R. & R. 269).

As to what is an using (a) of a gun or dog, for the purpose of searching for or killing or taking game, evidence that the party was seen walking about a field with a gun, accompanied with a pointer or setting dog, apparently in quest of game, will be sufficient proof that he used the gun for the purpose of killing game, and the dog for the purpose of searching for it. (See R. v. Kay, Sess. Cas. 88). So, the using a gun for the purpose of killing game will be sufficiently established by proving that the party was beating about for game, and was

(a) The words of the repealed statute of 5 Anne, c. 14, s. 4, were, "shall keep or use any greyhounds, setting dogs, hays, lurchers, tunnels, or any other engine, to kill and destroy the game." The mere fact of keeping a sporting dog of the description in the statute would not subject an unqualified person to the penalty, if he could show he did not keep it for the purpose of killing and destroying game. Therefore where it appeared from defendant's evidence that, at the time the alleged offence was charged to have been committed, the dog (a setter) was tied up and never went out into the field with its master, the defendant was not liable within the act. (Hayward v. Horner, 5 B. & Ald. 317). Nor would the mere fact of his keeping of harepipes, or other instruments peculiarly appropriated and fitted for the destruction of game, have made him liable, if he could have shewn that he did not keep them to kill and destroy game. (R. v. Gardiner, Andr. 255; 2 Stra.

1098; 14 Vin. Ab. 3). But the fact of such a keeping would in either case have afforded primâ facie evidence that the dog or instrument was to kill and destroy game, and, if not rebutted by evidence to the contrary, would have been sufficient to have subjected defendant to the penalty. (And see R. v. Filer, 1 Stra. 496; R. v. Hartley, Cald. 175; Read v. Phelps, 15 East, 271; Briarly v. Althorpe, 5 B. & Ald. 320). The mere fact of keeping a gun or other instrument not peculiarly appropriated and fitted for the destruction of game, was not even primâ facie evidence sufficient to subject an unqualified person to the penalty, and he need not, as in the preceding instances, have proved that he did not keep it for the purpose of killing and destroying of game. It must have been proved against him that he kept it for that purpose, as by proving he used it for that purpose. (R. v. Thompson, 2 T. R. 18; R. v. Gardiner, Andr. 255; 2 Stra. 1098, S. C.; 14 Vin. Ab. 3).

observed to fire off his gun; or that he pointed his gun at a partridge, though he did not actually fire at it. (R. v. Davies, 6 T. R. 177; Hebden v. Hartley, 1 Chit. Rep. 607). And although an uncertificated person, as will be presently seen (infra), cannot be convicted of using a dog to kill game which belongs to a certificated person, where he is merely assisting that person in beating the bushes to find a hare, yet if he takes out his own greyhound for the purpose of sporting, and this dog chases hares with the dogs of a certificated person, he himself all the time joining in the sport, this is evidence of his using the dog for the purpose of taking game. (Lewis v. Taylor, 15 East, 50. Per Lord Ellenborough, 15 East, 462, n.; Deacon, G. L. 100).

In Rea v. Davies, (6 T. R. 177, decided upon the repealed stat. 5 Anne, c. 14, s. 4; see ante, 226, n. (a)), where the evidence stated in the conviction was, that the witness was satisfied that the defendant did keep and use a gun to kill and destroy the game, from the circumstance of his hearing a gun go off, and observing that it was fired by the defendant, who was then walking about a piece of ground with that apparent intent, the court affirmed the conviction. Lord Kenyon, C. J., said, “It is sufficient in convictions, if there were such evidence before the magistrate as in an action would be sufficient to be left to a jury: here we cannot say that there was no evidence of the fact for the consideration of the magistrate."

6. Who may

kill, &c.

In all these cases the justice of the peace himself must be satisfied of The justice should be fully satisfied the intent, from the circumstances stated by the witnesses. He must be of the intent. satisfied that the party was searching for or in pursuit of game (ante, 212), and not of sparrows, larks, or fieldfares. Even if he were in pursuit of woodcocks, snipes, or rabbits, the justice would have no authority to convict under the 23rd sec. of 1 & 2 Will. IV. c. 32. (See Christ. G. L. 157, 158).

A person (who has a certificate) is empowered to take as many of his servants or other uncertificated persons to attend him as he thinks necessary, and for the purpose of assisting him in raising the game, without subjecting such servants or uncertificated persons either to a penalty for sporting without a certificate, (see stat. 54 Geo. III. c. 141, post, 236), or to a penalty under the 23rd sec. of the stat. 1 & 2 Will. IV. c. 32, ante, 225. Thus, in Rex v. Taylor, (15 East, 460, decided under the 5 Anne, c. 14, now repealed), it was held that a servant who went out coursing with his master, who was qualified, could not be convicted for using dogs to kill and destroy game. And in Lewis v. Taylor, (16 East, 49), it was held that an unqualified person being out coursing with the owner of greyhounds who was qualified, although not his servant, and although he took an active part in the sport, was not liable to the penalties imposed by the now repealed act of 5 Anne, c. 14; and Lord Ellenborough, C. J., said, "There is no evidence against this defendant upon the charge of using a greyhound for killing the game. This is not a solitary amusement, and there is nothing to prevent a qualified person from taking others with him to aid him in the pursuit of the game; and he is the person using the dogs: the others have no other use of them than as his servants, and contemplating with him the pleasure of the chase. If indeed an unqualified man used his own greyhound for the purpose of sporting, though in the same company with a qualified person, the case would admit of a different consideration: but there can be no ground for recovering the penalty against this defendant, who went out with the dogs of another who was qualified, and which other was using them himself: the defendant's picking up the hare after it was killed is no using of the dogs to kill the game.' Bayley, J., also observed that the words of the statute of Anne are keep or use any greyhounds, &c.; but this defendant neither kept the dog, nor was it under his control at the time it was used to kill the hare.

And, where an unqualified person, by the orders and in the presence of his master, a qualified person, set on his master's grounds a trap for

How far an uncertificated person for certificated

may sport with or

one.

6. Who may kill, &c.

hares, &c., and afterwards finding a hare therein carried it according to order to his master, who was not present when the hare was found: it was held that the defendant was not liable to the penalties for using snares to destroy game on the now repealed act of 5 Ânne, c. 14, or for exposing game to sale on the also now repealed act of 9 Anne, c. 25. (Walker v. Mills, 2 Brod.& B. 1; 4 Moore, 343, S. C.) See next section.

Debt, on the statutes of 5 Anne, c. 14, s. 4, and 9 Anne, c. 25, s. 2, to recover penalties for using a snare to destroy game, (the defendant not being qualified), and for exposing a hare to sale. Plea, nil debet. The following were the facts as proved before Garrow, B., at the Sussex assizes. The defendant, a cottager in the employ of a qualified person, was on Sunday morning found with a hare in his possession, which he had just taken out of a trap placed on his master's property. The master stated, that the trap was placed there on the Thursday preceding by his direction, and in his presence, for the purpose of catching hares and rabbits which had annoyed him; that the defendant had received orders from him to bring to his (the master's) residence whatever might be caught in the trap, and that the defendant had, accordingly, brought the hare in question to him on the Sunday morning on which it was seen in the defendant's possession. The learned Judge thought the point new, but having directed the jury that this resembled the case of a qualified person attended by a person unqualified, assisting him in the operations of sporting, that the defendant was acting as servant to his master, and under his directions; and that, therefore, the possession of the hare by the servant must be taken to be the possession of the master; the jury found a verdict for the defendant. D'Oyley, Serjeant, moved to set aside the verdict, and have a new trial, on the ground that the right of a person qualified to kill game did not extend to the protection of persons unqualified, unless the qualified person were actually present; and that a qualified person had no right to send out one unqualified to kill game for him: that the master, in this case, though present at the setting of the trap, was absent when the hare was caught and found in the defendant's possession, and that such possession constituted an exposure to sale, under the 9 Anne, c. 25, s. 2. He cited Molton v. Cheeseley, (1 Esp. 123). Dallas, C. J.-"Cases of this sort frequently run into very nice distinctions, and I would not hastily lay down a general rule which might be open to objection. If I had any doubt I would look into the cases that have been referred to; but I have none: nor have I any hesitation in saying that this action is most improperly brought. For what are the circumstances of this case? The defendant was the servant of a qualified man, who, finding his land annoyed by hares and rabbits, ordered this trap to be set, with a view to their destruction. I take it to be perfectly clear, that a qualified person has a right to order a trap to be set for such a purpose, even in his absence; but, in this case, the qualified person was present, and superintended the setting of the trap. In this trap the hare was afterwards caught, and the catching was a catching by the master on his own land. Then as to the possession, the master ordered that whatever was caught should be brought to him: the hare was brought the moment it was taken, and the possession of the servant in the act of taking the hare to his master was under the master's direction, and the same as the possession of the master." Burrough, J.-"Actions of this kind do a great deal of mischief; there was no pretence for charging this defendant with an illegal taking or possession." Richardson, J.-" The trap being set by the master's order, and in his presence, the hare was in effect caught by him. As to the possession, it was proved that he ordered his servant to bring to him whatever might be taken, so that the case falls within the principle of Warneford v. Kendall, (10 East, 19)." He also referred to Spurrier v. Vale, 10 East, 413; Walker v. Mills, 2 Brod. & B. 1; 4 Moore, 343, S. C.

But in Ex parte Sylvester, (4 Man. & R. 5; 9 B. & Cres. 61, S. C.), (decided before the 1 & 2 Will. IV. c. 32), it was held that an unqualified

person going out with a qualified person as his servant, and shooting game for him, was liable to the penalty imposed by the now repealed act, 5 Anne, c. 14, and for keeping and using a gun to kill game. In that case it appeared, the defendant, on the occasion in question, shot with a gun of a qualified person in his presence, and by his order and direction, and for his use, at game, the qualified person himself not having on the same day shot at game or used a gun for that purpose. The above cases of Walker v. Mills, Rex v. Taylor, and Lewis v. Taylor, were urged in defendant's favour. Sed per Bayley, J., "The principle upon which those two latter cases proceeded was, that the using the greyhounds was the act of the owner and master, and not of those who accompanied him. So also the principle of Walker v. Mills was, that the trap being set by the master's order, and in his presence, must be taken to have been set by him. But we cannot say that of using the gun, neither his hand nor his skill was applied to it. If we were to hold that the firing of the gun was the act of the master, he might in the same manner use twenty guns at the same time. I think we must consider the gun to have been used by the person who actually fired it, and if so, the cases cited are inapplicable, and there can be no doubt that Sylvester was properly convicted." Rule for quashing conviction discharged.

The repealed statute of 5 Anne, c. 14, s. 4, prohibited the using or keeping any greyhound, setting dogs, hays, lurchers, tunnels, or other engine." (See ante, 226, n.) In order to subject an unqualified person to a penalty under that act for keeping or using a dog, such dog must have come within one of these descriptions, and must have been described accordingly in any proceeding for the penalty. (See Reason v. Lizle, Com, 576; Hooker v. Wilks, 2 Str. 1126; and Grant v. Hulton, 1 B. & Ald. 134). The 1 & 2 Will. IV. c. 32, s. 23, however, in using the words "any dog, gun, net, or other engine or instruments," puts an end to these distinctions.

6. Who may kill, &c.

What dogs and engines within the

enactment.

Only hares, pheasants, partridges, grouse, heath or moor game, black What deemed game, and bustards are within the act, ante, 212. Neither this nor the game. former act includes woodcocks or rabbits as game. (See per Ashhurst, J., in Rez v. Thomson, 2 T. R. 18; Rex v. Yates, 1 Ld. Raym. 151). But woodcocks and rabbits, snipes, quails, and landrails, are comprehended under the 52 Geo. III. c. 93, relating to taking out game certificates, post, 235, 236.

If an uncertificated person kill several hares, partridges, &c., (see Reg. v. Matthews, 10 Mod. 26; Marriott v. Shaw, Com. 274; Crepps v. Derden, Corp. 646), or use a dog and also a gun, (see Rex v. Lovett, 4 T. R. 152; Rex v. Blaney, Andr. 240), upon the same day, he is it seems only liable to one penalty under the 1 & 2 Will. IV. c. 32, s. 23. (See Deac. G. L. 13). On a conviction under the 4 & 5 Anne, c. 14, (see ante, 226, n. (a)), exception was taken that the person was charged with so many 51. as he had killed hares in the same day. And the court were of opinion that the offence for which the statute gave the forfeiture was the keeping of dogs and engines, and not killing the hares. If a man not qualified go hunting, and kill never so many hares on the same day, he would forfeit but one 5l., for it is but one offence; but if a man keep dogs, and go hunting several days, and kill hares, if it were thus laid, that he such a day kept dogs and killed, and then again such a day, &c., by laying it thus severally the offence is severed, and he shall forfeit 51. for each offence. (Q. v. Matthews, 10 Mod. 26). In a subsequent case, (Rex v. Lovett, 7 T. R. 152), also decided under the same act, Lord Kenyon, C. J., said, “If a person go in pursuit of game with a dog and gun on the same day, he can only be convicted in one penalty." From a nisi prius report (Molton v. Cheeseley, 1 Esp. 123), it might be supposed to have been decided that only one penalty could be incurred under the now repealed act of 5 Anne, c. 14, but this has been considered as a mistake, and that if two distinct offences be committed against the same act, the defendant will be liable to several penalties: and see this case observed upon in 10 East, 19; see also ante, 225.

What number of penalties incurred by killing several heads of game, &c.

7. Gamekeepers, and power to search, &c. for game.

Several penalties

in same conviction.

How far punishable by indictment.

Conspiring to kill game, &c.

Night poaching, &c.

Lords of manors, &c. may appoint gamekeepers (a).

It will be observed, that by the 1 & 2 Will. IV. c. 32, s. 12 (ante, 225), the occupier of land not entitled to the game is subject to a penalty for each head of game killed by him or others with his permission. And that, by other sections of the same act, a penalty is imposed for every head of game killed &c. out of season, &c. (See ss. 3, 4, 25, 27, post, 244, 247).

A defendant may be convicted of several penalties in the same conviction. (Rex v. Swallow, 8 T. R. 284, post, 263).

How far offence punishable by indictment.]—In R. v. Buck, (2 Stra. 679), the Court of King's Bench held, that an indictment could not be supported for killing a hare without a qualification, the 5 Anne, c. 14, having appointed a summary proceeding before justices of the peace; nor was it an indictable offence to have nets or guns in possession to kill game. (R. v. Towning and others, Andr. 303; Chit. G. L.87). The same doctrine would be applicable to an offence against the 1 & 2 Will. IV. c. 32.

And although for some purposes several persons, by associating in the commission of an illegal act, may become indictable for a conspiracy, yet several persons cannot be indicted at common law for conspiring simply to kill game; and therefore in R. v. Turner and others, (13 East, 228), where the defendants resolved to go into a preserve, or place set apart for the protection of hares, with arms by night, and take and carry away hares, which they accordingly did, it was held, they could not be indicted for it as for a conspiracy. Lord Ellenborough, C. J., there said he should be sorry to have it doubted, whether persons agreeing to go and sport upon another's ground, in other words, to commit a civil trespass, should be thereby in peril of an indictment for an offence which would subject them to infamous punishment.

As to the offence of night poaching against 9 Geo. IV. c. 69, see post, 271. As to stealing deer and hares, &c., see post, Sects. XVI. XVII.

VII. Gamekeepers, and herein of the Power to Search for,
Seize, and Kill Game, &c.

By 1 & 2 Will. IV. c. 32, s. 13, "it shall be lawful for any lord (ante, 223,n. (d)) of a manor, lordship, or royalty (6), or reputed manor (c), lordship, or royalty, or any steward of the Crown of any manor, lordship, or royalty appertaining to his Majesty, by writing under hand and seal, or in case of a body corporate, then under the seal of such body corporate, to appoint one or more person or persons as a gamekeeper or gamekeepers to preserve or kill the game within the limits of such manor, lordship, or royalty, or reputed manor, lordship, or royalty, for the use (d) of such

(a) The repealed acts relative to the appointment of gamekeepers are the 22 & 23 Car. II. c. 25, s. 2; 5 Ann. c. 14, s. 4; and 9 Ann. c. 25, s. 1. It seems that a deputation granted before the 31st October, 1831, (when the 1 & 2 Will. IV. c. 32, came into force), ceased to be of efficacy on that day. (Bush v. Green, 5 Scott, 289; 4 Bing. N. C. 41: Lidster v. Borrow, 9 Ad. & Ell. 654; et vide ante, 212, post, 233). And see post, 266, as to a gamekeeper appointed before the passing of the above statute not being entitled to notice of action, &c. under the 47th section of that act.

(b) As to what manor, lordship, or royalty is sufficient, see post, 232; as

to the rights of the lord, see ante, 218.

(c) Where the defendant pleaded that he had been deputed gamekeeper by the lord of a manor, and the jury negatived the existence of a manor, it was held that this amounted to a negative of the existence of a reputed manor. (Bush v. Green, 5 Scott, 289; 4 Bing. N. C. 41, S.C.)

(d) Where a gamekeeper kills game within the manor of his principal, the presumption is that the killing was for the use of his principal; as, where an act may be lawful or unlawful, the law presumes the former until the contrary be shown. (Spurrier v. Vale, 10 East, 413).