INDICTMENT

ON STATUTES.

may

We have already considered the instances in which the infraction of the game laws is punishable criminally by the different statutes, which usually at the same time point out the proper course of proceeding, and it is sufficient to refer the reader to the preceding pages (i). It here suffice to observe, that when the statutes point out a particular remedy, and the offence was not before punishable as a crime at common law, the particular course of proceeding directed by the statute must be pursued. Thus no indictment lies for killing a hare or for having nets in possession, this not being criminal at common law and punishable only in a particular manner by the statutes (k). So an indictment against several for fishing in the night with nets, not being framed according to the Stat. 5 Eliz. c. 21. was held not sustainable at common law (1). But if several in attempting to sport, be guilty of a riot or a forcible entry, they may without reference to the game laws, be indicted for such breach of the peace (m). So at common law, if wild fowl or fish be ingrossed with intent to raise the price, or otherwise to prejudice the public, the party may be prosecuted,

(i) See also some of the criminal proceedings on the statutes enumerated, 2 East. Pl. Cr. 607 to 614.

(k) Rex v.Buck, 2 Strange, 679. post, Appendix, 1047. The King v. Towning and others. Andrews, 303. Post, Appendix, 1077.990.

(1) The King v. Marshall,

2 Keble, 594. post, Appendix, 547.

(m) The King v. Birt, 2 Keble, 530. post Appendix, 946.-The King v. Wharton, 12 Mod. 510. post, Appen. dix, 990.-The Mayor, &c. of York v. Sir Lionel Pil. kington, 9 Mod. 273, post, Appendix, 1089.

and in the indictment it must be shewn what INDICTMENT quantity of fowl or fish in particular have been ON STATUTES, engrossed (n). Where a statute prohibits an offence under the game laws without pointing out the mode of enforcing the punishment, the only course of proceeding is by indictment (0).

QUO WAR

A proceeding by quo warranto, or an informa. SECONDLY, tion in the nature of it, which is a remedy given RANTO. to the crown against such as have usurped or intruded into a franchise, or abused the use of it (p), may be classed under the head of criminal prosecutions, though the fine is now merely nominal, and the proceeding is in some respects of a civil nature (q). This is a proceeding in the nature of a writ of right for the king, against a person who usurps or claims any franchises or liberties, requiring him to shew by what authority he claims them (r). Proceedings of this nature, with reference to the game laws are now very rare, they still, however, may be exerted by the express interference of the officers of the crown, though it appears from several cases, that the Court will not interfere, unless on the application of the Attorney-general (s). The instances of this proceeding in former times for the

(n) The King v. Forster, 1 Ld. Raymond, 475. post, Appendix, 988.-The King . Gilbert, 1 East. 583. post, Appendix, 1278.

(0) Ante, 87. 110. n. l. 4 Term Rep. 202.

(p) 3 Bla. Com. 262.
(9) 3 Bla. Com. 263.-4

Bla. Com. 312.2 Term
Rep. 484.

(r) Com. Dig. tit. Quo
Warranto, A.

(s) The King v. Lowther, 2 Ld. Raym.1409. 1 Strange, 637. S. C. post, Appendix, 1047.-Ibotson's case, Rep. Temp. Hard. 261.

SECONDLY,
QUO WAR-
RANTO.

usurpation of forests, chases, parks, and free war-
rens, are very numerous (r). The form of the
proceeding is given in Coke's Entries(s). The de-
fendant may
disclaim the liberties mentioned in
the information, either generally, or he may dis-
claim as to part, and justify as to the residue (t),
and the replications and subsequent pleadings
are the same as those in other proceedings by
quo warranto (u). The judgment which is con-
clusive upon the king as well as the subject, if in
favour of the former, is, that the subject be
ousted of the supposed franchise if it do not
exist, and that the king have it, where it has
been forfeited (r); and in the latter case, a writ
of seizure issues to the sheriff, upon which he is
to return execution (y).

II. PECUNI

1. OF OFFENCES PUNISHABLE BY PECUNIARY PENALTIES, AND COURSE OF PROCEEDING.

IT is observable, that most of the offences ARY PENAL- against the game laws are punishable by pecuniary penalties, which at the present time are

TIES AND

COURSE OF
PROCEEDINGS.

TIES, AND

generally recoverable by three modes of pro- 11. PECUNIceeding; 1st. By action. 2d. By information in ARY PENALthe Crown Office. 3d. By information before a COURSE OP magistrate.

Formerly these penalties were, for the most part, recoverable only before a magistrate, in which case a moiety of the penalty goes to the informer, and the other to the poor of the parish, and no costs are recoverable, unless in case of an appeal and affirmance of the conviction, which must take place within three months after the offence was committed (2). But this division of the penalty and restriction as to costs and time of proceeding, together with the minute accuracy required in the form of the conviction, having been found to deter persons from prosecuting offenders, it was afterwards enacted, "That the informer might proceed by action of debt on the case, bill, plaint, or information, in any of his majesty's courts of record, in which, if he recovers, he shall likewise have double costs (a), and the whole of the penalty to his own use, and may sue for the same within six months after the offence was committed (b). But it is provided, that no offender shall be prosecuted by both of these methods, but only by one, and that in case of any second prosecution, the person so

(z) 5 Ann. c. 14. post, Appendix, 477. there are particular regulations relating to taking game in the night-time and out of season, which give costs to the informer.

(a) 8 Geo. 1. c. 19. s. 1. post, Appendix, 512.

(b) 2 Geo. 3. c. 19. s. and 6. post, Appendix, 605, 6.

5

PROCEEDINGS.

II. PECUNI-
ARY PENAL-
TIES AND

COURSE OF
PROCEEDINGS,

1st. Actions

and proceed

doubly prosecuted may plead in his defence the pendency of the former prosecution or the conviction or judgment had thereon (c). And from these advantages, as well as from the proceedings not requiring so much precision as a conviction (d), it is more frequent, particularly in cases where difficulties may arise, to proceed by action or information in the King's Bench, than before a magistrate, which latter course, however, is more expeditious and less expensive. We will consider these respective proceedings in the following order; viz. 1st. Actions for the penalties and proceedings thereon. 2dly. Informations in the superior courts. 3dly. Informations before magistrates, and proceedings thereon.

First, Actions for Penalties and Proceedings thereon.

With respect to actions, we may observe that ings thereon. the first general regulation, that introduces them, directs that they shall be brought in a court of record.

The 8 Geo. 1. c. 19. s. 2. (e) enacted, “ That "the action should be brought before the end of "the next term after the offence was committed." But the 3 Geo. S. c. 19. s. 6. (f) enacts," That "it shall be brought within six months after the "matter done," which means lunar (g) and not

(c) 8 Geo. 1. c. 19. s. 2. post, Appendix, 513. Rex v. Midlam, 3 Burr. 1720. post, Appendix, 1137.

(d) Avery v. Hoole, Cowp.

(f) Post, Appendix, 606. (g) Lacon v. Hooper, 1 Esp. Rep. 246. post, Appen. 825. post, Appendix, 1169.

(e) Post, Appendix, 513.