III. Of the Statutes 5 Ann. c. 14.-9 Ann. c. 25.28 G. 2. c. 12. relating to the Preservation of the Game; the Penalties imposed for Offences against these Statutes; the Modes of recovering the Penalties, 1st, By Distress, 2dly, By Action of Debt, and herein of the Stat. 8 G. 1. c. 19. -26 G. 2. c. 2.-2 G. 3. c. 19.

By stat. 5 Ann. c. 14. (made perpetual by stat. 9 Ann. c. 25.) 8. 2. "every higler, chapman', carrier, inn-keeper, victualler, or alehouse keeper, (6) who shall have in his custody or possession any hare, pheasant, partridge, moor, heathgame, or grouse, or shall buy, sell, or offer to sell, any hare, &c. unless such game in the hands of such carrier be sent up by a person qualified to kill the game, shall, upon every such offence, be carried before some J. P. for the county, city, &c. where the offence is committed, and being convicted upon view, or upon the oath of one or more credible witnesses, shall forfeit for every hare, &c. the sum of 51.; one half to the informer, and the other half to the poor of the parish where the offence is committed; (the subsequent part of this section directs, that the penalty shall be levied by distress, and for want of distress, the offender shall be punished by three months imprisonment for the first, and by four months for the second offence, and that

1 See Kearle v. Boulter, Say. R. 191.

(6) By a subsequent stat. 28 G. 2. c. 12. (reciting the stat. 5 Ann. c. 14.) "Persons, qualified or not qualified, selling, exposing, or offering to sale, any hare, pheasant, partridge, moor, heath-game, or grouse, are for every such offence made liable to the same forfeitures and penalties as are inflicted by the recited act upon higlers," &c. And, if any hare, pheasant, partridge, &c. shall be found in the shop, house, or possession of any poulterer, salesman, fishmonger, cook, or pastry cook, the same shall be adjudged to be an exposing thereof to sale within the meaning of this act, and the recited act, or any other act; the forfeitures to be recovered and penalties inflicted to be applied in manner prescribed by the recited act, or by any other act since made for the preservation of the game."

* S. 2.

before the allowance of any certiorari to remove conviction under this statute, the party convicted shall enter into a recognizance, with sureties, conditioned for the payment of costs to the prosecutor within fourteen days after conviction or procedendo granted, and in default thereof, J. P. may proceed to execution, &c.) And for the better discovery of offenders, "any person who shall destroy, sell, or buy any hare, &c. and shall within three months make discovery of any higler, &c. (who hath bought or sold, or offered to buy or sell, or had in his possession, any hare, &c. so as the of fender shall be convicted), shall be discharged of all penalties, and entitled to all the advantages of an informer under this statute."

"If any person", not qualified, shall keep or use any greyhound, setting dogs, hayes, lurchers (7), tunnel or other engines (8) to kill and destroy the game, and shall be thereof

(7) A hound is not within this statute, not being expressly mentioned, and the words "other engines" coming after tunnells, are applicable to inanimate things only. Hooker v. Wilks, Str. 1126.

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(8) "As greyhounds, setting dogs, hayes, lurchers, and tunnels are expressly mentioned, in this statute, it is not necessary to allege that any of these have been used for killing or destroying the game; and the rather, as they can scarcely be kept for any other purpose than to kill or destroy the game; but as guns are not expressly mentioned, and as a gun may be kept for the defence of a man's house, and for other lawful purposes, it is necessary to allege, in order to its being comprehended within the meaning of the words, any other engines to kill the game," that the gun had been used for killing the game." Per Lee C. J. in Wingfield v. Stratford, Say. R. 15. N. "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." Per Ld. Kenyon C. J. in R. v. Lovet, 7 T. R. 153. In Molton v. Cheeseley, 1 Esp. N. P. C. 123, it was proved that a pheasant had been killed by accident by the defendant's dog; and the defendant had afterwards carried it away. Two penalties were sought to be recovered, one for having the pheasant in his possession, not being qualified, the other for keeping a dog to kill game. Mr. Justice Buller is said to have ruled that the plaintiff could go for one pe nalty only, for that both offences being by the same act, the plaintiff could recover but one penalty under the same statute." The wording being equivocal, it was considered at first, as if by the word act was to be understood statute; which, it was agreed on all hands, could not have been ruled by the learned judge, who probably said that two-penalties could not be recovered under this

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convicted upon the oath of one or two credible witnesses, by the justice or justices of the peace where such offence is committed, the person so convicted shall forfeit 57.; one half to be paid to the informer, and the other half to the poor of the parish where the same was committed;" (the subsequent part of this section prescribes the like mode of execution as is prescribed in the second section, and then proceeds to enact," that J. P. within their districts, and lords and ladies of manors, within their mauors, may take away any such hare, &c. from any such higler, &c. or other person not qualified to kill the same; and may take to their own use such dogs, nets, or other engines in the power or custody of persons not qualified to keep (9) the same;") "and lords and ladies of manors may, by writing, under hand and seal, empower their gamekeepers upon their manors to kill any game; but that such gamekeepers who shall under colour of authority kill or take game, and afterwards sell the same to any person, without the consent of their lords, and shall be convicted thereof upon complaint by the lord of the manor, upon the oath of one or more witnesses before a J. P., shall be committed to the house of correction for three months, &c."

By a subsequent statute", "if any hare, pheasant, par tridge, &c. shall be found in the shop, house, or possession (10) of any person not qualified in his own right to kill game,

o Stat. 9 Ann, c. 25. s. 2.

statute for the same act done by the defendant. N. A farmer who keeps a setting-dog for his landlord, is not to be considered as keeping a dog for the destruction of the game within this statute. Reed v. Phelps, B. R. E. 52 G. 3. MS.

(9) A justice of the peace under this stat. cannot seize the gun of a gamekeeper, although he is sporting for the purpose of killing game in another manor than that for which he has received his deputation; for the power of seizure under this act extends to those persons only who are not qualified to keep engines for the destruction of the game, and gamekeepers are qualified to keep such engines any where. Rogers v. Carter, C. B. 2 Wils. 387. It was admitted, however, in this case, that if the gamekeeper had actually killed game beyond the limits of his own manor, he would have been liable to the penalties of this statute.

(10) The plaintiff declared in debt for the 51. penalty given by this stat. against the defendant for exposing to sale a hare, not being. qualified in his own right to kill game, nor entitled thereto under any person so qualified. At the trial, it was proved that the plains,

or being entitled thereto under some person so qualified, the same shall be adjudged to be an exposing to sale within the meaning of this act and the statute 5 Ann. c. 14." And by s. 3. "if any person shall take, kili, or destroy any hare, &c. in the night time, the person so offending shall, for every such offence, incur the forfeitures" mentioned in the stat. 5 Ann. c. 14.P

By the preceding statutes, the penalties are given half to the common informer, and half to the poor of the parish, upon summary conviction. But by stat. 8 G. 1. c. 19. s. 1.it is enacted, that for the recovery of the penalties, an action of debt may be brought in any of the king's courts of record before the end of the next term after the offence committed, and the plaintiff, if he recover, shall be entitled to double costs. It is, however, expressly provided by this statute, that the party shall not be prosecuted twice for the same offence, i. e. both by action and upon summary conviction. The time limited by the last mentioned stat. 8 G. 1. c. 19. for bringing such action, viz. "before the end of the next term after the offence committed," having been found inconvenient, and in many cases not sufficient, it was enacted by stat. 26 G. 2. c. 2. that such action might be brought "before the end of the second term after the offence committed."

p See further provisions for the pre

day, 13 G. 3. c. 80. and 40 G. 3. c. 50. servation of game during the night- q See post, n. (11). time, and on Sunday and Christmas

tiff went out coursing, and killed a hare on Shipston manor, when the defendant, who was employed as a carpenter and woodman by Mr. Earl, the lord of the manor, and had directions from him to detect poachers, came up and took the hare from the dog, and carried it away, notwithstanding the plaintiff claimed it, to Mr. Earl's steward according to his instructions. It was holden, that the possession of the defendant was not such as constituted an offence and subjected him to the penalty under the statute; Ld. Ellenborough C. J. observing, that the defendant did not claim the hare as his property nor acquire the possession of it for himself, but for his master, on whose manor it was taken; and if this were an offence, no case could be stated in which an unqualified person could innocently come in contact with game. It might as well be said that if a qualified man returning home with a bag of game were to fall from his horse, another person could not lawfully take up the bag, in order to assist the owner. Grose J. added that the possession of the game by the defendant was rather for the purpose of protecting the game, than in breach of the laws for preserving it. Warneford v. Kendall, 10 East, 19.

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It having been found difficult to maintain the action of debt given by the statute 8 G. 1. c. 19. because the evidence of the rated inhabitants of the parish (to the poor of which the moiety of the penalty was directed by stat. 5 Ann. c. 14. to be applied) was disallowed; the interference of the legislature was again deemed necessary, and it was enacted by stat. 2 G. 3. c. 19. s. 5. "that any person might sue for and recover the whole of the penalty for his own use by action of debt, or on the case, to be brought within six months", i. e. lunar months, after the offence committed, in any of his Majesty's courts of record at Westminster, and that the plaintiff, if he recovered, should have double costs, and that no part of the penalty should be paid or applied to the use of the poor of the parish wherein the offence was committed." It is to be observed, that this statute gives the whole penalty to the informer, and not merely the other half, in addition to the one half, which was recoverable by him in an action of debt under stat. 8 G. 1. c. 19.

IV. Of the Statutes relating to the Destruction of the Game at improper Seasons of the Year-Stat. 2 G. 3. c. 19.-13 G. 3. c. 55.—39 G. 3. c. 34. -Declaration-Evidence.

"PERSONS taking, killing, destroying, carrying, selling, buying, or having in their possession or use, any partridge within the kingdom of Great Britain, between the first day of February and the first day of September; or any pheasant between the first day of February and the first day of October", excepting pheasants taken in the season allowed, and kept in a mew or breeding place, are subject to a penalty of 57. for every bird."

By stat. 13 G. 3. c. 55. a similar provision is made for the preservation of black game between the 10th of December and the 20th of August, and red game between the 10th of December and the 12th of August; but the penalty imposed on persons offending against this last-mentioned statute is, for the first offence, a sum not exceeding 201. nor less than 10%. and for every subsequent offence, a sum not exceeding

r See Portman v. Qkeden, Say. R. 179. t Stat. 39 G. 3. c. 34. §. 3.

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Stat. 2 G. 3. c. 19. s. 1.