of a highway is vested, and to whom the waste land at the side of a highway belongs, see post, title "Highway."

But it would seem that if a party outside of a field fire at game, &c., so as that the shot strike the soil of such field, he is not liable to be convicted under the above section as a trespasser therein in pursuit of game, &c., as the enactment, it is apprehended, does not extend to a constructive entry. That a party for such an act would be liable to an action of trespass, vide ante, 249.

The information under this enactment may be laid by any person, though he be not interested in the game upon the land trespassed on, or in the land. (Midleton v. Gale, 8 Ad. & Ell. 155; 3 Nev. & P. 372, S. C.) Parol evidence of what a party says before a magistrate, on the hearing of a case of trespass under the above section, is admissible, although, in fact, what he said was taken down; as this is not one of the cases in which it is the magistrate's duty to take down what is said before him. (Robinson v. Vaughton, 8 Car. & P. 252).

The place where the trespass was committed should, it would seem, be described in the conviction by name, abuttals, or occupation. (See Rez v. Ridley, R. R. C. C. 515, post, 273). Where the conviction described the land as "certain land in the parish of Stoke-upon-Trent, in the county aforesaid, in the possession and occupation of Daniel Bird Baddeley," Taunton, J., held that the description was sufficient. (Rex v. Mellor, 2 Dowl. 173).

removable.

Trespassers after game may be re land, and tell their and if they refuse may be arrested.

quired to quit the

names and abodes,

A conviction under this enactment is irremovable, notwithstanding Conviction not the 5 & 6 Will. IV. c. 20, s. 21, post, 262. (See R. v. Hester, 4 Dowl. 589). See 31. "Where any person shall be found on any land, or upon any of his Majesty's forests, parks, chases, or warrens, in the day-time, (see post, 252), in search or pursuit of game, or woodcocks, snipes, quails, landrails, or conies, it shall be lawful for any person having the right of killing the game upon such land, by virtue of any reservation or otherwise as hereinbefore mentioned, or for the occupier of the land, (whether there shall or shall not be any such right by reservation or otherwise), or for any gamekeeper or servant of either of them, or for any person authorized by either of them, or for the warden, ranger, verderer, forester, master-keeper, under-keeper, or other officer of such forest, park, chase, or warren, to require the person so found forthwith to quit the land whereon he shall be so found, and also to tell his Christian name, surname, and place of abode; and in case such person shall, after being so required, offend by refusing to tell his real name or place of abode, or by giving such a general description of his place of abode as shall be illusory for the purpose of discovery, or by wilfully continuing or returning upon the land, it shall be lawful for the party so requiring as aforesaid, and also for any person acting by his order and in his aid, to apprehend such offender, and to convey him or cause him to be conveyed as soon as conveniently may be before a justice of the peace; and Penalty for. such offender, (whether so apprehended or not), upon being convicted of any such offence before a justice of the peace, shall forfeit and pay such sum of money, not exceeding five pounds, as to the convicting justice shall seem meet, together with the costs of the conviction: Provided always, that no person so apprehended shall, on any pretence whatsoever, be detained for a longer period than twelve hours from the time of his apprehension until he shall be brought before some justice of the peace; and that if he cannot, on account of the absence or distance of the residence of any such justice of the peace, or owing to any other reasonable cause, be brought before a justice of the peace within such twelve hours as aforesaid, then the person so apprehended shall be discharged, but may nevertheless by proceeded against for his offence by summons or warrant, according to the provisions hereinafter mentioned, as if no such apprehension had taken place." (See Cooke v. Wordwards, post, 253; and see ante, 239).

Party arrested must be disbrought before a justice within

charged, unless

twelve hours.

11. Trespass in pursuit of

game.

1 & 2 Will. 4, c.32.

Trespassers armed using violence, &c.

Trespass in daytime in queen's forests.

What to be deemed day-time.

The provisions as to trespassers not to apply to persons hunting, &c.

Game may be taken from trespassers not delivering up same when demanded.

To justify the apprehension of a person under this section, he must have been required to quit the land, and tell his name; and the “wilfully continuing or returning upon the land," to justify the apprehension, must be upon the same land, and for the purpose of pursuing game there. (Rex v. Long, 7 C. & P. 314, per Williams, J.)

Sect. 32. "Where any persons, to the number of five or more together, shall be found on any land, or in any of his Majesty's forests, parks, chases, or warrens, in the day-time, (vide post, 252), in search or pursuit of game, or woodcocks, snipes, quails, landrails, or conies, any of such persons being then and there armed with a gun, and such persons or any of them shall then and there, by violence, intimidation, or menace, prevent or endeavour to prevent any person authorized as herein before mentioned from approaching such person so found, or any of them, for the purpose of requiring them or any of them to quit the land whereon they shall be so found, or to tell their or his Christian name, surname, or place of abode respectively, as herein before mentioned, every person so offending by such violence, intimidation, or menace as aforesaid, and every person then and there aiding or abetting such offender, shall, upon being convicted thereof before two justices of the peace, forfeit and pay for every such offence such penalty, not exceeding five pounds, as to the convicting justices shall seem meet, together with the costs of the conviction; which said penalty shall be in addition to and independent of any other penalty to which any such person may be liable for any other offence against this act."

Sect. 33. "If any person whatsoever shall commit any trespass, by entering or being, in the day-time, upon any of his Majesty's forests, parks, chases, or warrens, in search or pursuit of game, without being first duly authorized so to do, such person shall, on conviction thereof before a justice of the peace, forfeit and pay such sum of money, not exceeding two pounds, as to the justice shall seem meet, together with the costs of the conviction."

Sect. 34. "For the purposes of this act the day-time shall be deemed to commence at the beginning of the last hour before sunrise, and to conclude at the expiration of the first hour after sunset."

Sect. 35. "The aforesaid provisions against trespassers and persons found on any land shall not extend to any person hunting or coursing upon any lands with hounds or greyhounds, and being in fresh pursuit of any deer, hare, or fox already started upon any other land (ante, 249), nor to any person bonâ fide [see "Conviction," Vol. I.] claiming and exercising any right or reputed right of free warren or free chase, nor to any gamekeeper lawfully appointed within the limits of any free warren or free chase, nor to any lord or any steward of the crown of any manor, lordship, or royalty, or reputed manor, lordship, or royalty, nor to any gamekeeper lawfully appointed by such lord or steward within the limits of such manor, lordship, or royalty, or reputed manor, lordship, or royalty."

Sect. 36. "When any person shall be found by day or by night upon any land, or in any of his Majesty's forests, parks, chases, or warrens, in search or pursuit of game, and shall then and there have in his possession any game which shall appear to have been recently killed, it shall be lawful for any person having the right of killing the game upon such land by virtue of any reservation or otherwise, as hereinbefore mentioned, or for the occupier of such land, (whether there shall or shall not be any such right by reservation or otherwise), or for any gamekeeper or servant of either of them, or for any officer as aforesaid of such forest, park, chase, or warren, or for any person acting by the order and in aid of any of the said several persons, to demand from the person so found such game in his possession, and in case such person shall not immediately deliver up such game, to seize and take the same from him, for the use of the person entitled to the game upon such land, forest, park, chase, or warren."

By this provision, it seems that the owner, &c. may seize all the game in the trespasser's possession, whether killed on the land or not. (See ante, 233).

The demand must be made on the party while he is on the land.

If he resist the delivery up of the game and use force, force may be opposed to him, but no more force should be used than is requisite to compel the delivery up of the game. (See Wisdom v. Hodson, 3 Tyrw. 811; and title “ Assault,” Vol. I).

Mr. Baron Parke, in one case, stated it to be his opinion, that a person who was the son of the owner and occupier of certain land, and who had a general authority from his own father to shoot the game upon it, and keep off trespassers, had no authority to demand game upon it under this section; that the words "having the right of killing the game" in this section mean having the legal right so to do, and therefore that a party who has merely a license or permission to shoot the game is not within the enactment; and that a person could not be said to be acting in "aid of any of the said several persons," unless he was acting in the actual presence of such person. The case ultimately was decided upon grounds different from the above. (Cooke v. Wordwards, cor. Parke, B. Herts. Sum. Assizes, 1843. Ex re Marsh, who was one of the counsel for the plaintiff).

Sect. 46. "Nothing in this act contained shall prevent any person from proceeding by way of civil action to recover damages in respect of any trespass upon his land, whether committed in pursuit of game or otherwise, save and except that where any proceedings shall have been instituted under the provisions of this act against any person for or in respect of any trespass, no action at law shall be maintainable for the same trespass by any person at whose instance, or with whose concurrence or assent, such proceedings shall have been instituted, but that such proceedings shall in such case be a bar to any such action, and may be given in evidence under the general issue."

Where A. authorized B. to sport over the lands of C., which he did. D., by the assent of C., laid an information before a magistrate against B. for the trespass, under the above section, and the magistrate dismissed the complaint; it was held, in an action by C. against A. and B., for this trespass, that the proceedings before the magistrate were a bar to the action, both as to A. and B., under the above section; and that, to be a bar, it was not necessary that the magistrate should convict of the trespass, it being sufficient if he adjudicated between the parties. (Robinson v. Vaughton, 8 Car. & P. 252).

Remedy by Action of Trespass, &c.]-If a person commit a trespass by entering the close of another, he becomes subject to an action of trespass. (2 Bac. Ab. 613; 2 Bla. Com. 117).

Costs.

Where damages

For such a mere trespass, however, a party should be cautious before bringing an action; as in some cases he cannot recover his costs, if the verdict do not amount to 40s. By the 3 & 4 Vict. c. 24, s. 2, after repealing the 43 Eliz. c. 6, so far as it relates to costs in actions of trespass, or trespass on the case, and so much of the 22 & 23 Car. II, c. 9, as under 408. relates to costs in personal actions (a), it is enacted, "that if the plaintiff in any action of trespass or of trespass on the case, brought or to be brought in any of her Majesty's courts at Westminster, or in the court of Common Pleas at Lancaster, or in the court of Common Pleas at Durham, shall recover by the verdict of a jury less damages than 40s., such plaintiff shall not be entitled to recover or obtain from the defendant, in respect of such verdict, any costs whatever, whether it shall be given upon any issue or issues tried, or judgment shall have passed by default, unless the judge or presiding officer before whom such verdict shall be obtained shall immediately afterwards certify on the back of the record,

(a) The 8 & 9 Will. III. c. 11, seems virtually repealed by the 3 & 4 Vict. c. 24.

11. Trespass in pursuit of game.

3 & 4 Vict. c. 24.

Proviso as to notice not to trespass.

Certificate to deprive plaintiff of costs.

Costs after notice not to trespass.

Damages in general.

or on the writ of trial or writ of inquiry, that the action was really brought to try a right besides the mere right to recover damages for the trespass or grievance for which the action shall have been brought, or that the trespass or grievance in respect of which the action was brought was wilful and malicious" (a).

Sect. 3. Provided " that nothing herein contained shall extend to or be construed to extend to deprive any plaintiffs of costs in any action or actions brought for a trespass or trespasses over any lands, commons, wastes, closes, woods, plantations, or enclosures, or for entering into any dwellings, outbuildings, or premises in respect of which any notice not to trespass thereon or therein shall have been previously served, by or on behalf of the owner or occupier of the land trespassed over, upon, or left at the last reputed or known place of abode of the defendant or defendants in such action or actions" (b).

It has been held under this act, that the granting of the certificate is entirely a matter for the discretion of the judge presiding at the trial. (Shuttleworth v. Cocker, 2 Scott, N. R. 47; 1 Man. & Gr. 829; 9 Dowl. P. C. 76; Barker v. Hollier, 8 M. & W. 513; 1 Dowl. n. s. 32)—that the court cannot review his decision (Id.)—that the certificate ought to be the simple result of his impression upon the facts proved, uninfluenced by any extraneous matter, or any expression of understanding on the part of the jury that the verdict would carry costs, (Pryme v. Browne, 4 Scott, N. R. 739; 1 Dowl. n. s. 680, S. C.)—that the certificate must be granted immediately, that is to say, within a reasonable time after the trial; (Thompson v. Gibson, 8 M. & W. 281; Page v. Pearce, 8 M. & W. 677; 9 Dowl. P. C. 815; Gillett v. Green, 7 M. & W. 347; 9 Dowl. 219; Nelmes v. Hedges, 6 Jurist, 1015, B. C.; Shuttleworth v. Cocker, supra; and see this case as to the amendment of an informal certificate); and that the certificate need not be signed sedente curiâ, ( Thompson v. Gibson, supra).

If an action be brought for a trespass committed, after notice not to trespass, there is no necessity for the judge to certify, in order to enable the plaintiff to recover his costs, although he recover less than 40s. damages, as the case is then within the third section of the above statute. (See Bourne v. Alcock, 5 Jurist, 660; and see Bourne v. Alcock, 7 Jurist, 553; Q. B. 10th May, 1843). For this reason, independent of others, it is advisable, before bringing an action against a party for trespassing in pursuit of game, to give him a notice not to trespass.

Such notice should be given by or on behalf of the owner or occupier of the land, and should be in writing. The notice had better be explicit, showing where the party must not trespass. (See Bourne v. Alcock, supra). A general printed notice stuck up, purporting to be a notice that "The Stanmore Association" would prosecute all persons trespassing, but not signed by the plaintiff, nor addressed to the defendant, was held not a sufficient notice not to trespass. (Sellon v. Huntsmen of Berkeley Hunt, Chit. G. L. 2nd. ed. 229. See Deac. G. L. 198, 199). The notice may be personally served upon the party to whom it is directed, or left for him at his last reputed or known place of abode.

The amount of the damages to be given in an action must depend on the nature of the case submitted to the jury. In trespass for breaking and entering the plaintiff's closes and sporting there, under circumstances of aggravation, the jury gave 5007. damages; the court refused to set aside the verdict. (Merest v. Harvey, 1 Marsh. 139; 5 Taunt. 442, S. C.) This was an action of trespass for breaking and entering the plaintiff's closes, and with dogs and guns beating and hunting for game. The defendant suffered judgment to go by default, the

(a) These words import personal malice and ill-will to the plaintiff. (Foster v. Pointer, 8 M. & W. 395; 9 Car. & P. 718).

(b) The 4 & 5 Vict. c. 28 materially qualifies the above statute of 3 & 4 Vict. c. 24, as to verdicts obtained before the passing of it.

damages to be assessed before a judge of assize, and which were assessed accordingly before Heath, J., at Thetford Spring Assizes, 1814, to the amount of 500l., being the extent of the damages laid in the declaration, On motion for a rule to set aside the verdict, on the ground of excessive damages, Heath, J., briefly stated the circumstances, which were that the defendant, who was a magistrate, had committed a trespass before the plaintiff's face, in defiance of the plaintiff's notice; that he was a trespasser, and accompanying the injury by every kind of insult and aggravation. Gibbs, C. J., said, "When a man disregards the conduct and principles of a gentleman and of a magistrate, what is to prevent the repetition of such conduct but large damages? What should we say to a man in any inferior station in life, who should so conduct himself? I know not on what principle we could grant a rule in this case, except on the ground that the jury should only have found to the amount of the actual pecuniary damage sustained by the plaintiff. Suppose I had a walk before my house, which I had a pleasure in looking at or in walking upon, should it be allowed that a man should walk there to my annoyance, and then offer me a halfpenny in satisfaction, alleging that I had received no actual damage? This is a much stronger case, for no conduct could have been more outrageous than that of the defendant on this occasion." Heath, J.-"I left it to the jury to say what damages would be a compensation, and it never can be contended that these were too much. I remember a case, many years ago, where the jury gave 500%. for merely throwing off a man's hat, and the court refused to set aside the verdict." Per Curiam. Rule refused.

11. Trespass in pursuit of

game.

In Hume v. Oldacre, (1 Stark. 551), it was held, that the jury might Damages by give damages not only in respect of the huntsman's own individual followers. trespass, but for the damage done by his followers. And again, in Baker v. Berkeley, (3 C. & P. 32), in trespass for breaking into plaintiff's farm, &c., where the plaintiff received 1007. damages, Lord Tenterden, C. J., said, "If a gentleman sends out his hounds and his servants, and invites other gentlemen to hunt with him, although he does not himself go on the lands of another, but those gentlemen do, he is answerable for the trespass they commit in so doing, unless he distinctly desires them not to go on those grounds; and if (as in the present case) he does not so desire them, I think he is answerable, in point of law, for the damage they do." (See ante, 249).

ment.

Remedy by Action on a Bond or Agreement, &c.]—The owner of land Remedy by action may take a bond to prevent the commission of trespasses thereon. (Roy on bond or agreev. Duke of Beaufort, 2 Atk. 190). And the tenant may be restrained by bond or covenant from sporting, and the landlord may make his tenant stipulate to bring actions against trespassers. (Id.) A court of equity will restrain an improper use of such a covenant.

in equity.

Remedy by Suit in Equity.]—A court of equity will, in some cases, Remedy by suit interfere to prevent a repetition of trespasses. (Ld. Teynham v. Herbert, 2 Atk. 483. See further, Chit. G. L. 224, 225).

Remedy by Indictment, &c.]-No indictment can be supported for a Remedy by indictmere civil trespass. (R. v. Storr, 3 Burr. 1701; R. v. Wilson, 8 T. R. ment, &c. 357). Nor will it lie for a conspiracy to commit a civil trespass on property, by agreeing to go into another's preserve to snare hares, though done in the night by defendants armed with offensive weapons to resist any endeavours to apprehend them. (R. v. Turner, 13 East, 228; R. v. Marshall, 2 Keb. 594; see R. v. Kenrick, 7 Jurist, 848, T. T. 1843, Q. B., per Denman, C. J., ante, 230).

A party cannot be imprisoned for a mere trespass. (Ante, “Arrest," Vol. I. 269). But we have seen (ante, 251) that the 1 & 2 Will IV. c. 32 in some cases allows an arrest of a trespasser.

As to the indictment for night poaching, see post, 274.