11. Trespass in pursuit of game. (3). Mode of preventing trespass. Resisting entry or forcing off land. Seizing, &c. dogs, &c. Setting spears. Setting dog-traps. (3). THE MODE OF PREVENTING TRESPASSES. If a person attempt to enter by force the property of another, he may be opposed in such attempt by force. (Weaver v. Bush, 8 T. R. 78). In the case of Holt v. Wilkes, (3 B. & Ald. 304), Best, J., said, "Every proprietor of property is allowed to use the force that is absolutely necessary to vindicate it. If he uses more force than is absolutely necessary, he renders himself responsible for all the consequences of the excess. Thus if a man comes on my land, I cannot lay hands on him to remove him off until I have desired him to go off. If he will not depart on request, I cannot proceed immediately to beat him, but must endeavour to push him off. If he is too powerful for me, I cannot use a dangerous weapon, but must first call in aid other assistance. I am speaking of out-door felony, and of cases in which no felony is to be apprehended. It is evident also that this doctrine is applicable only to trespasses committed in the presence of the owner of the property trespassed on." The owner of land cannot in general seize a dog which is pursuing game; (Athel v. Corbett, Cro. Jac. 463); nor can he shoot it. (Vere v. Lord Cawdor, 11 East, 568; Carpenter v. Adams, Comb. 183; see ante, 233). But a different rule prevails with respect to privileged places, such as ancient parks and warrens. Thus, in trespass for killing a mastiff, the defendant may justify that the mastiff infested a warren, and could not be restrained from doing damage there; and it is not necessary to allege, that the defendant could not otherwise prevent the dog from killing the conies; but it is sufficient to state, that the dog was in the warren pursuing the conies, and therefore the defendant killed him. (Wadhurst v. Damme, Cro. Jac. 44). And so it is, if a dog runs after deer in an ancient park. (Barrington v. Turner, 3 Lev. 28; 1 Saund. 84, n. 3; and see Rotheroe v. Matthews, 5 C. & P. 581; and ante, 234). And see ante, 219, 231, 233, as to the power of a lord of a manor or his gamekeeper to seize or kill dogs. In the case of Dean v. Clayton, (7 Taunt. 489; 2 Marsh. 577; 1 Moore, 203, S. C.), the judges of the Court of Common Pleas were equally divivided in opinion whether a private person has a right to set dog-spears to preserve hares in his woods, and prevent them from being killed by dogs and foxes. But it has been recently decided that the setting of dog-spears is not an illegal act, unless, perhaps, they be set with the intent to do grievous bodily harm to human beings; (vide post, 257); and that a person passing with a dog through a wood, in which he knows dogspears are set, has no right of action against the owner of the wood, for the death of, or injury to his dog, who, by reason of his own natural instinct, and against the will of his master runs off the path against one of the dog-spears, and is killed or injured. (Jordin v. Crump, 8 M. & W.782). And it seems that even if the owner of a dog have no notice of dog-spears being set in a wood, he would not in such a case as the above have any right of action. (Id.) It has been, however, decided that if a man place dangerous traps, baited with flesh, in his own ground, so near to a highway, or to the premises of another, that dogs passing along the highway, or kept in his neighbour's premises, must probably be attracted by their instinct into the traps; and in consequence of such act his neighbour's dogs be so attracted, and thereby injured, an action on the case lies. (Towns hend v. Wathen, 9 East, 277). In an action for placing traps baited with flesh and strong-scented articles, by which the plaintiff's dogs were enticed from the public highways to the said traps, and were caught therein and wounded, there was a verdict for the plaintiff; and the Court of King's Bench refused to arrest the judgment, there being no doubt but the action was maintainable. A rule nisi was, however, granted for setting aside the verdict, as against the evidence; and after hearing the grounds of objection against it, Lord Ellenborough, C. J., said, "It appears by the evidence reported, that the traps were placed so near to the plaintiff's court-yard, where his dogs were kept, that they might scent the bait, without committing any trespass on the defendant's wood. Every man must be taken to contemplate the probable consequences of the act he does; and, therefore, when the defendant caused traps scented with the strongest meats to be placed so near to the plaintiff's house as to influence the instinct of those animals, and draw them irresistibly to their destruction, he must be considered as contemplating this probable consequence of his act. That which might be taken as general evidence of malice against all dogs coming accidentally within the sphere of attraction which he had placed there, must surely be evidence of it against those in particular which were placed nearest to the source of attraction, and within the constant influence of it. What difference is there in reason between drawing the animal into the trap by means of his instinct, which he cannot resist, and putting him there by manual force? If a man knowingly keep a dog accustomed to bite, and any person coming by chance in his way be bitten, an action lies against the owner, though he had no malice against the particular individual. (See title "Dogs," Vol. I.) Here there is evidence that the defendant's purpose in setting the traps was to catch dogs in general, as well as vermin; for he afterwards recompensed his servant for dogs taken in the traps. The rule, therefore, omnis ratihabitio retro trahitur et mandato æquiparatur, applies to this case. Without, therefore, considering what had happened before the plaintiff came to his residence in the defendant's neighbourhood, when he did come, he came to a place where the mischief existed and continued to operate within the sphere where he might lawfully have his dogs, and which in fact did afterwards operate upon them to the plaintiff's prejudice.' The other judges agreeing, the rule was discharged. (Id.) 11. Trespass in pursuit of game. Before the statute 7 & 8 Geo. IV. c. 18, it was undecided whether a Spring-guns. person might set spring-guns in woods or inclosed grounds. However, in one case, (Ilott v. Wilkes, 3 B. & Ald. 304), decided before the passing of that statute, it was held, that a trespasser, who had knowledge that there were spring-guns in a wood, although he might be ignorant of the particular spots where they were placed, could not maintain an action for any injury received in consequence of his accidentally treading on the latent wire communicating with the gun, and thereby letting it off. (And see Jordin v. Crump, 8 M. & W. 789, per Alderson, B.) But where a defendant, for the protection of his property, some of which had been stolen, set a spring-gun, without notice, in a garden completely walled round and at a distance from his house, and the plaintiff, who had climbed over the wall in pursuit of a strayed fowl, was shot thereby; it was held, an action was maintainable, and the defendant liable in damages. (Bird v. Holbrook, 4 Bingh. 628; 1 M. & P. 607, S. C.; and see Jay v. Whitfield, 3 B. & Ald. 308; 4 Bingh. 644, S. C.; Jordin v. Crump, supra, per Alderson, B.) bited. And now the 7 & 8 Geo. IV. c. 18, intituled "An Act to prohibit the Setting of, prohisetting of spring-guns, man-traps, and other engines calculated to destroy kuman life, or inflict grievous bodily harm," by sect. 1, enacts, "That if any person shall set or place, or cause to be set or placed, any springgun, man-trap, or other engine calculated to destroy human life, or infict 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 coming in contact therewith, the person so setting or Made a misdeplacing, or causing to be so set or placed, such gun, trap, or engine as aforesaid, shall be guilty of a misdemeanor." By sect. 3, "If any person shall knowingly and wilfully permit any such spring-gun, man-trap, or other engine as aforesaid, which may have been set, fixed, or left, in any place, then being in or afterwards coming into his or her possession or occupation, by some other person or persons, to continue so set or fixed, the person so permitting the same to conVOL. III. S meanor. Persons permitting guns, traps, to continue, &c. set by others, deemed to have set them. 13. Recovery and applica tion of penal ties, &c. 1 & 2 Will. 4, c.32. Proviso for guns tinue shall be deemed to have set and fixed such gun, trap, or engine, with such intent as aforesaid." But by sect. 4, "Nothing in this act shall be deemed or construed to make it a misdemeanor, within the meaning of this act, to set or cause to be set, or to be continued set, from sunset to sunrise, any spring-gun, man-trap, or other engine which shall be set or caused or continued to set in a dwelling- be set in a dwelling-house for the protection thereof." house. And for traps for vermin. Proviso for proceedings already commenced. Scotland. Setting dog-spears. By sect. 2, "Nothing herein contained shall extend to make it illegal to set any gin or trap such as may have been or may be usually set with the intent of destroying vermin." By sect. 5, "Nothing in this act contained shall in any manner affect or authorize any proceedings in any civil or criminal court, touching any matter or thing done or committed previous to the passing of this act." By sect. 6, "This act shall not extend to Scotland." The setting of a dog-spear is not prohibited by this statute (Jordin v. Crump, 8 M. & W.782; et vide ante, 256, unless, perhaps, it be set with the intent to do grievous bodily harm to human beings. (Id.) Soldiers sporting. Provisions under the Mutiny Act. XII. Soldiers Sporting, &c. In order for better preserving of game and fish, in or near places where officers in the army may be quartered, the 6 Vict. c. 3, s. 69, (the last of the annual Mutiny Acts), enacts, "That every officer who shall, without leave in writing from the persons entitled to grant such leave, take, kill, or destroy any game or fish within the United Kingdom of Great Britain and Ireland, and upon complaint thereof shall be, upon oath of one or more credible witnesses, convicted before any justice, shall for every such offence forfeit the sum of 51." By sect. 77, the penalty is declared to be recoverable before a single justice of the peace, under the provisions of the 3 Geo. IV. c. 23, and 5 Geo. IV. c. 18; and in default of distress, (see "Conviction,” “Distress"), the offender may be imprisoned for any time not exceeding six months. By sect. 78, one moiety of the penalty is to go to the informer, if he be not a witness, and the other moiety, or (where the offence is proved by the informer) the whole, is to be paid to the general agent for the recruiting service in London; and every justice who shall adjudge any such penalty is required, within four days at the farthest, to report same to the Secretary at War. (See "Military Law," Vol. V. p. 136). the Recovery and application of penalties, &c. (1). The information. Oath not necessary. XIII. Of the Recovery and Application of Penalties under (1). THE INFORMATION. case, There must be some information in order to convict the defendant. (1 Saund. 262, n. 1). A verbal information will suffice, though it is in general best that it should be in writing. (See "Conviction," Vol. 1). The charge or information need not be on the oath of the informer or prosecutor, but, by the 6 & 7 Will. IV. c. 65, s. 9, before any proceeding is taken upon such information, either for summoning the party ac cused or compelling his appearance to answer the same, the charge contained in such information must be deposed to on the oath of some other person or persons being a credible witness or credible witnesses. The following is the enactment of that statute:—“And whereas by an act passed in the first and second years of the reign of his present Majesty, intituled 'An Act to amend the laws in England relative to game,' it is enacted that where any person shall be charged on the oath of a credible witness with any offence punishable upon summary conviction by virtue of the said last-mentioned act before a justice of the peace, the justice may summon the party charged to appear before himself or any one or two justices of the peace, as the case may require, at a time and place to be named in such summons, and if such party shall not appear accordingly, then the justice or justices may proceed in the case in the manner directed by the said act; [post, 260]; and it is expedient to explain and amend the said enactments as hereinafter mentioned;" be it therefore enacted and declared, "that upon any information made or exhibited before a justice of the peace of any such offence as aforesaid, it shall not be necessary that the charge contained in such information should be made on the oath of the informer or prosecutor in such case; provided that before any proceeding shall be had or taken upon such information, either for summoning the party accused or compelling his appearance to answer the same, the charge contained in such information shall be deposed to on the oath of some other person or persons being a credible witness or credible witnesses." By the 1 & 2 Will. IV. c. 32, s. 41, "The prosecution for every Limitation of offence punishable upon summary conviction by virtue of this act prosecution. shall be commenced within three calendar months after the commis sion of the offence." The information must therefore be laid within that period. (See "Conviction," Vol. I). of time. The information should state the day and year on which it is exhibited, Statement, &c. as well as the time when the offence was committed; in order that it may appear that the prosecution was commenced within the period limited by the act. But the precise day on which the offence is alleged to have Proof of. been committed need not be proved as stated; and any variance in this respect will be immaterial, if it appear from the evidence that the prosecution was actually commenced within the given time. (See "Conriction," Vol. 1). The information and conviction must take place in the county, &c., Statement of wherein the offence was committed. The place, therefore, wherein such place. offence took place should be described, in order to shew it was within the magistrate's jurisdiction; (R. v. Edwards, 1 East, 278; 14 East, 267; ante, "Conviction," Vol. I.); and also to show to what parish officers the moiety of the penalty is to be given as provided for by the 5 & 6 Will. IV. c. 20, s. 21, post, 262. (See Clarke v. Taylor, 3 Esp. 218; R. v. Wyatt, 2 Lord Raym. 1478). In some places a man may stand in one parish, (or county), and shoot into two or three; in such case the place where the offence was committed is where the party stood when he shot, and not where the object was which he shot at. (R. v. Alsop, 1 Show. 339. See further as to venue in general, ante, "Conviction," Vol. I., and post," Indictment," Vol. III). (2). THE SUMMONS, OR WARRANT. As to the necessity for the defendant's being summoned, and how far (2). The summons, a conviction may be justified without it, see in general, ante, "Convic- or warrant. tion," Vol. I. By the 1 & 2 Will. IV. c. 32, s. 41, “The prosecution for every offence Enforcing punishable upon summary conviction by virtue of this act shall be com- appearance. menced within three calendar months after the commission of the offence; and that where any person shall be charged on the oath of a credible witness, [see now the 6 & 7 Will. IV. c. 65, s. 9, ante, 258], 13. Recovery and application of penalties, &c. 1 & 2 Will. 4, c. 32. Power to summon witnesses. (3). Hearing of the case and evidence, &c. Informer not a with any such offence before a justice of the peace, the justice may summon the party charged to appear before himself, or any one or two justices of the peace, as the case may require, at a time and place to be named in such summons; and if such party shall not appear accordingly, then (upon proof of the due service of the summons by delivering a copy thereof to the party, or by delivering such copy at the party's usual place of abode to some inmate thereat, and explaining the purport thereof to such inmate) the justice or justices may either proceed to hear and determine the case in the absence of the party, or may issue his or their warrant for apprehending and bringing such party before him or them, as the case may be; or the justice before whom the charge shall be made may, if he shall have reason to suspect from information upon oath that the party is likely to abscond, issue such warrant in the first instance, without any previous summons." See further as to the summons and warrant to compel the appearance of the accused, ante, "Conviction," Vol. I. By sect. 40, a power is given to magistrates to summon witnesses, and a penalty is imposed for disobedience, see infra. (3). HEARING OF the Case and Evidence, &c. The observations already made, under title “Conviction," Vol. I., will here apply. If the accused party, after being duly summoned, does not appear before the magistrate, we have seen, supra, that by sect. 41 of the 1 & 2 Will. IV. c. 32, it is provided, that upon proof of the due service of the summons, either by delivering a copy thereof to the party, or by delivering such copy at the party's usual place of abode to some inmate thereat, and explaining the purport thereof to such inmate, the justice or justices may proceed to hear and determine the case in the absence of the party. By the 5 & 6 Will. IV. c. 20, s. 21, (post, 262), one moiety of the competent witness. penalty is to be paid to the informer, and the other to the overseer or parish officer, and since this enactment it should seem that the informer cannot be a witness (a). Inhabitants competent witnesses. Penalty on wit ing. The 1 & 2 Will. IV. c. 32, s. 37, after providing for the application of penalties, enacts that "no inhabitant of such county, riding, or division shall be deemed an incompetent witness in any proceeding under this act, by reason of the application of such penalty or forfeiture to the use of the said general rate as aforesaid." See the enactment, post, 262. By sect. 40, "It shall be lawful for any justice of the peace to issue nesses not attend his summons requiring any person to appear before himself, or any one or two justices of the peace, as the case may require, for the purpose of giving evidence touching any offence against this act; and if any person so summoned shall neglect or refuse to appear at the time and place appointed by such summons, and no reasonable excuse for his absence shall be proved before the justice or justices then and there present, or if any person appearing in obedience to such summons shall refuse to be examined on oath touching any such offence by the justice or justices then and there present, every person so offending shall, on conviction thereof before the said justice or justices, or any other justice (a) In R. v. Stone, (2 Ld. Raym. 1545), a conviction was quashed because the informer was the witness, divers convictions having been quashed for the same reason before. The same adjudged in the case of R. v. Blaney. (T. 11 Geo. II. Andr. 240). And in stat. 2 Geo. III. c. 19, it is recited that in prosecutions on the act of 8 Geo. III. c. 19, in the courts of Westminster, where a part of the penalty is given to the poor of the parish, the inhabitants of such parish had been disallowed to give evidence; and therefore in that case, to remedy the same, the act gave the whole penalty to the prosecutor, in order to enable the inhabitants to give evidence. |