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in time of snow, forfeits L.100 Scots, half to the King, and half to the informer."
Such offences to be tried as those against the ancient rules regarding qualification. See above.
III. SALE OF GAME.
The English Act as to the licensed sale of game (1 & 2 Will. IV. c. 32,) has no counterpart applying to Scotland.
The ancient Scottish Statute, forbidding the buying and selling of game having been repealed, the sale of game, which is everywhere openly practised, seems to be lawful to the following extent.
1. Probable Extent of Legality.
(a) In regard to Qualified Persons. Any qualified person may
game. And such a person, by virtue of his qualification, may communicate to an unqualified purchaser a right to buy
game from him.
Any qualified person may buy game.
But he cannot at the same time authorise an unqualified, and otherwise unauthorised seller to dispose of it to him.
(B) In regard to Unqualified Persons. Hence, in the case of an unqualified seller of game, it would appear, that if he have authority from a qualified person to buy his game, he may purchase that, and he may sell it to any qualified person.
But he may neither buy from, nor sell to any unquali
| Acts 1621, c. 32_1685, c. 20. Hutch. iv. 12, § 3. (ii. 548, and foot note d.)
In the event of a prosecution, however, a dealer's shewing authority from a qualified person to buy his game, might justly throw upon the accuser the burden of proving the
game in question was not that included in the sanction from the qualified seller.
IV. TRESPASSING IN PURSUIT OF GAME.
Trespassing in pursuit of game is the subject of both old and recent enactments.
1. By Earlier Laws. By the earlier Statutes, hunting (or shooting), or hawking, in standing corn after Easter, or hunting, (or shooting,) within inclosures, or woods, or broom, without leave, is punishable with a fine to the King of L.10 Scots for a first, L.20 Scots for a second offence, and forfeiture of moveables for a third trangression ;' which last may, in practice, be resolved into a discretionary penalty.
And in regard to these laws there is no distinction between searching for game, and following it when started elsewhere. 2
2. Right of Landlord to Hunt, &c. A tenant cannot hinder his landlord, or those having the latter's leave, from shooting or hunting over his farm, at least if they do not go through standing corn, or where injury may be anticipated, but he has a claim against such persons for actual damage done.
1 1555, c. 51-1685, C. 20. Hutch. iv. 12, § 4. (ii, 550, 1.) 2 Hutch. ut sup. (ii. 551, and footnote b.) Case of Marquis of Tweeddale v. Hugh Dalrymple, 3d March, 1778.
3 So decided unanimously in the case of Ronaldson v. Ballantyne, Nov. 21st, 1804. Hutch. iv. 12, § 4, (ii. 551.)
3. Poachers. Common fowlers hunting (or shooting) on any grounds (without distinction as to enclosures, &c.) without written authority from the proprietor, forfeits for each offence L.20 Scots, [half to to the informer, and half to be at the Judge's disposal,] besides “ their dogs, guns, and nets, to the apprehenders or discoverers,"l—by the term common fowlers are to be understood unqualified persons, who make a livelihood or business of poaching, or killing and selling game.
4. Forfeited Articles not Seizable. It is to be observed, that the articles forfeited may not be seized brevi manu by the apprehender of the delinquent, no such authority being given in the statute, (although game may, in certain cases, be taken from a poacher by a new law, See below, v. $ 9;) but must be awarded by the judge.”
And the Act 1707, c. 13, has been held to supersede the Act 1621, c. 31, as to penalties.
V. TRESPASSING IN PURSUIT OF GAME BY DAY.
Trespasses by persons unlawfully pursuing game by day, are the subject of a special Act, 1 & 2 Will. IV. c. 68.
1. What reckoned Day time. This Act, which repeals no previous laws, relates to trespasses in the day time only; that is, from the beginning
1 Act 1707, c. 13. Hutch. iv. 12, § 5, (ii. 554.)
2 Hutch, ibid. Case of Gregory v. Wemyss, 230 January 1753. Trial of Mungo Campbell for murder, Dec. 1769.—Maclaurin's Criminal Cases.
- So decided on an appeal to the Glasgow Circuit, 2d Oct. 1803.
of the last hour before sunrise, to the end of the first hour after sunset.'
2. Simple Offence and Penalty. Whoever comes upon any land without the proprietor's leave, “in search or pursuit of game, or of deer, roe, “ woodcocks, snipes, quails, landrails, wild ducks, or “ conies,” by day, is liable in a penalty of not more than L.2, besides expenses ;a and there is here no distinction, as that in the older laws, between inclosed and uninclosed ground.
3. Aggravated Offence. Whoever (in the day time too) does so, having his face blackened, colored, or disfigured, for the purpose of disguise; or being one of five persons in company together, is liable to a penalty of not above L.5, besides expenses.}
4. Defence of Party. But any defence that would have been good in an action at law for such a trespass is valid against this act.*
5. Trespasser to tell his Name, &c. Whoever trespasses in any of the above ways, may be required to quit the lands, and to tell his Christian name, surname, and place of abode, by the person entitled to kill game on the land, or the occupier of the land, or a gamekeeper or servant of either, or other person authorised by either of these ; and, in case of his remaining or returning to the lands, or refusing to tell his real name, &c. or giving too general a description of his place of abode, he is liable to a penalty of not more than L.5, besides expenses."
1 Act 1 & 2 Will. IV. c. 68, § 3.
2 g 1.
5 8 2.
6. Arrest of Trespasser. And any of the above parties requiring the trespasser to quit the land, or to tell his real name, &c. or any assistant to such party may, on the offender's refusal, &c. apprehend and carry him before a Justice of Peace; the previous detention of the offender not exceeding twelve hours, unless a warrant be procured, which may be used after the discharge of the prisoner, on expiry of the twelve hours."
7. Trial of Offence. An offender may be tried summarily, And before a single Justice.
The owner or occupier of the lands, or the procurator fiscal may prosecute. 4
And proof may be, by confession of party, oath of one witness or more, or other legal evidence.
8. Exception of Persons Hunting, &c. These rules of the Act do not apply to any person
who is with hounds or grey-hounds, in fresh pursuit of any deer, hare, or fox, started on other land where he was entitled to hunt or course. But trespasses of this sort may be prevented, and damages obtained at common law. See Foxes, $ 2.
9. Game in Trespasser's Possession. If a trespasser, in the meaning of this act, have game in his possession upon any land, the person entitled to the game there, or the occupier of the land, or a game-keeper or servant of, or other person authorised by either of them, or any person acting by order, or in aid of any of
I Act. 1 & 2 Will. IV. c. 68, S 2. 5 Ibid.
6 § 4.