inclosed or not, or into any inclosed land where deer shall be usually kept, with intent unlawfully to hunt, course, wound, kill, snare, or carry away any deer, every person intrusted with the care of such deer, and any of his assistants, whether in his presence or not, may demand from every such offender any gun, firearms, snare, or engine in his possession, and any dog there brought for hunting, coursing, or killing deer, and in case such offender shall not immediately deliver up the same, may seize and take the same from him in any of those respective places, or, upon pursuit made, in any other place to which he may have escaped therefrom, for the use of the owner of the deer; and if any such offender shall unlawfully beat or wound any person intrusted with the care of the deer, or any of his assistants, in the execution of any of the powers given by this Act, every such offender shall be guilty of felony, and being convicted thereof shall be liable, at the discretion of the court, to be imprisoned for any term not exceeding two years, with or without hard labor, and with or without solitary confinement, and, if a male under the age of sixteen years, with or without whipping."(k)

By the express words of this section, a demand must be made of the gun, &c., before a seizure; the 16 Geo. 3, c. 30, s. 9, authorized persons intrusted with the care of deer to seize any gun, &c., brought by any person with intent unlawfully to shoot deer, without making a previous demand necessary; but it was held upon that statute that an assistant keeper had no right to seize the person of one so *373] armed, in order to get his gun, without having first demanded the gun. On an indictment under the 16 Geo. 3, c. 30, s. 9, for assaulting one Barrett in the execution of his office, as assistant keeper of Cranbourne Chase, it appeared that Barrett saw the prisoner in the chase, with a gun in his hand, running; he pursued him, and called out that if he did not stop he would knock him down, and threw a stick at him, but it did not appear that the stick hit him. When he arrived within twenty yards of the prisoner he turned around, and presenting his gun at Barrett threatened to blow his brains out if he came any nearer. On Barrett still advaneing the prisoner ran on until Barrett came within four or five yards of him, when he again put his gun to his shoulder, pointed it towards Barrett, and threatened as before. Barrett, however, still advanced, and put out his hand to catch hold of the prisoner, his intention being to take both his gun and his person, when the prisoner, seizing the barrel of his gun, struck Barrett with the butt-end a violent blow on the head, which knocked him down and stunned him. Upon a case reserved, the judges were unanimous that as the keeper had no right to seize the person in order to get the gun, unless he had first demanded the gun, he was not duly in the execution of his office when the prisoner beat him, and that the conviction was therefore wrong.(1)

On an indictment against the prisoner for having unlawfully beaten and wounded an assistant keeper of the Forest of Dean, it appeared that, the prisoners being found in the forest with a gun, the keeper demanded the gun, and, not receiving a reply, collared one of them for the purpose of taking the gun, when the others seized the keeper, and pulled him off the other prisoner, pulled him to the ground, and there held him until the other prisoner had escaped: no other violence was used, nor was the keeper otherwise beaten than by the force necessary to hold him to the ground; and Maule, J., held that the 7 & 8 Geo. 4, c. 29, s. 29, was not satisfied by a mere battery in point of law; it contemplated a beating in the popular sense of the word; and that pulling a man to the ground, and there holding him, was not a beating within the Act.(m)

The 103d section of the same statute contains a general provision for the apprehension and discovery of offenders punishable under this Act, and the 105th and following sections regulate the proceedings in respect of a summary conviction.

(k) This clause is taken from the 7 & 8 Geo. 4, c. 29, s. 29, and extended to Ireland. As to hard labor, &c., see ante, p. 67.

(1) Rex v. Amey, R. & R. 500. A further question, not decided, was whether an assistant keeper, not appointed or confirmed by the owner of the chase, had authority to seize guns unless the head keeper were present; the words "any of his assistants, whether in his presence or not," in sec. 16, seem introduced to meet this point. C. S. G. (m) Reg. v. Hale, 2 C. & K. 326 (61 E. C. L. R.).

By section 98, principals in the second degree, and accessories before the fact, are punishable in the same manner as principals in the first degree; and accessories after the fact (except receivers) are, on conviction, liable to be imprisoned for any term not exceeding two years, and abettors in misdemeanors are liable to be indicted and punished as principal offenders. By sec. 99, abettors in offences punishable on summary conviction are made punishable as principal offenders.(n)

*CHAPTER THE FIFTEENTH.

OF TAKING OR KILLING HARES OR CONIES IN A WARREN, ETC.

[*374

THE statutes formerly existing upon this subject are repealed. But by the 24 & 25 Vict. c. 96, s. 17, "whosoever shall unlawfully and wilfully, between the expiration of the first hour after sunset and the beginning of the last hour before sunrise, take or kill any hare or rabbit in any warren or ground lawfully used for the breeding or keeping of hares or rabbits, whether the same be inclosed or not, shall be guilty of a misdemeanor;(a) and whosoever shall unlawfully and wilfully, between the beginning of the last hour before sunrise and the expiration of the first hour after sunset, take or kill any hare or rabbit in any such warren or ground, or shall at any time set or use therein any snare or engine for the taking of hares or rabbits, shall, on conviction thereof before a justice of the peace, forfeit and pay such sum of money, not exceeding five pounds, as to the justice shall seem meet; provided that nothing in this section contained shall affect any person taking or killing in the daytime any rabbits on any sea bank or river bank in the county of Lincoln, so far as the tide shall extend, or within one furlong of such bank."(b)

With respect to what shall be deemed a taking of a hare, &c., in a case upon the 5 Geo. 3, c. 14, in which the prisoner was indicted for entering a warren in the night-time, and there taking a coney against the will of the occupier of the warren, it appeared that he set wires in the warren at about six o'clock in the evening, and a coney was caught in one of the wires; and that he came again before six o'clock the next morning, when he was seized by the warrener just as he was about laying hold of the wire in which the coney was caught; the coney being then alive and, upon a case reserved, the judges thought that the taking by the wire was a taking by the prisoner within the meaning of the statute, and that he had been properly convicted. (c)

Sec. 103 contains a general provision for the apprehension and discovery of offenders punishable under the Act, and the 105th and following sections regulate the proceedings in respect of summary convictions.

By sec. 98, (d) abettors in misdemeanors are liable to be indicted and punished as principal offenders; and by sec. 99 abettors in offences punishable on summary conviction are made punishable as principal offenders.

*The Act applies to places which are either warrens, or which are similar [*375 to warrens, where rabbits are commonly kept, and not to places where a few rabbits may be kept. On an indictment for destroying conies in the night time in a ground lawfully used for breeding them, it appeared that the prosecutor kept rabbits, which ran about loose in his rick yard, and that the rabbits were destroyed by poison in the night time; it was submitted that the statute only applied to

(n) The Act does not extend to Scotland.

(a) This offence is punishable, like other misdemeanors, by imprisonment or fine, or both: see vol. 1, p. 92. As to imprisonment, fine, sureties, aiders and abettors, see ante, p. 67. The Act does not extend to Scotland.

(b) This clause is taken from the 7 & 8 Geo. 4, c. 29, s. 30, and extended to Ireland. The words in italics are substituted for "in the night-time" and "in the day-time" in

warrens, and to places similar to warrens, but which could not legally be called warrens. Patteson, J., "This place was not used exclusively for rabbits; and it appears that the prosecutor merely kept some rabbits in his rick yard. If the yard had been kept exclusively for rabbits, I should have doubted it; but I think that this case is clearly not within the Act of Parliament. The Act applies to places commonly called rabbit-warrens, and not to places where a few rabbits may be kept."(e)

Upon the trial of any misdemeanor mentioned in this chapter the jury may, under the 14 & 15 Vict. c. 100, s. 9,(ƒ) convict the prisoner of an attempt to commit the same, and thereupon he may be punished in the same manner as if he had been convicted upon an indictment for such attempt.

*376]

*CHAPTER THE SIXTEENTH.

OF UNLAWFULLY TAKING OR DESTROYING FISH.

It is admitted that larceny at common law may be committed of fish, when confined in a trunk or net;(a) but doubts have been raised whether it may be committed in like manner of fish in a pond. It should seem, however, upon principle, and according to the better opinions, that larceny may be committed of fish in a pond, if the pond be private enclosed property, and of such kind and dimensions that the fish within it may be considered as restrained of their natural liberty, and liable to be taken at any time, according to the pleasure of the owner. (b) But clearly larceny at common law cannot be committed of fish at their natural liberty in rivers or great waters (c)

The former statutes relating to subjects contained in this chapter are repealed. By the 24 & 25 Vict. c. 96, s. 24, "whosoever shall unlawfully and wilfully take(d) or destroy any fish in any water which shall run through or be in any land adjoining, (e) or belonging to the dwelling-house of any person being the owner of such water, or having a right of fishery therein, shall be guilty of a misdemeanor ;(ƒ) and whosoever shall unlawfully and wilfully take or destroy, or attempt to take or destroy, any fish in any water not being such as herein-before mentioned,(g) but

(e) Rex v. Garratt, 6 C. & P. 369 (25 E. C. L. R.).

(f) Ante, vol. 1, p. 1.

(a) Ante, p. 278; 2 East P. C. c. 16, s. 43, p. 610.

(b) Staundf. 25 b.; 3 Inst. 109; Lamb. 274; 1 Hawk. P. C. c. 33, s. 39; 2 East P. C. c. 16, s. 43, p. 610, 611. But the indictment should describe the pond, so that it may appear on the face of it, that taking fish out of such a pond is felony: 2 East P. C. 611.

(c) 3 Inst. 109; 1 Hawk. P. C. c. 33, s.39.

(d) If fish were enclosed in a net, or hooked on a line, it would seem that the case would come within this clause by analogy to Glover's case, ante, p. 374, although there had been no actual removal of them by the hands of the prisoner. C. S. G.

(e) See Rex v. Hodges, ante, p. 258, as to the meaning of the term adjoining.

(f) This offence is punishable, like other misdemeanors, by imprisonment or fine, or both see vol. 1, p. 92. As to imprisonment, fine, sureties, aiders, and abettors, see ante, p. 67. The Act does not extend to Scotland.

(g) Where a summary conviction on the 7 & 8 Geo. 4, c. 29, s. 34, negatived that the water ran through land adjoining or belonging to the dwelling-house of the complainant, it was held sufficient, and that it need not negative that the water ran through land adjoining or belonging to the dwelling-house of any other person being the owner or having the right of fishing therein: Fuller v. Brown, 3 Sess. C. 603. Where on the hearing of an information under this clause a claim of right is set up by the defendant, such claim, if made bona fide and with some show of reason, will oust the jurisdiction of the justices; but it is for them to determine whether such claim is so made; but their decision may be reviewed by the Court of Queen's Bench, if it proceed on wholly insufficient grounds: Reg. v. Stimpson and Reg. v. Peak, 9 Cox. C. C. 356; s. c., 4 B. & S. 301. But where such a claim is set up wholly without color, the justices may convict, even though the claim be made bona fide: Hudson v. Macrea, 9 Law T. 678; s. c., 4 B. & S. 585 (116 E. C. L. R.).

which shall be private property, or in which there shall be any private right of fishery, shall, on conviction thereof before a justice of the peace, forfeit and pay over and above the value of the fish taken or destroyed (if any), such sum of [*377 money *not exceeding five pounds, as to the justice shall seem meet: Provided, that nothing hereinbefore contained shall extend to any person angling between the beginning of the last hour before sunrise and the expiration of the first hour after sunset; but whosoever shall by angling between the beginning of the last hour before sunrise and the expiration of the first hour after sunset unlawfully and wilfully take or destroy, or attempt to take or destroy, any fish in any such water as first mentioned, shall, on conviction before a justice of the peace, forfeit and pay any sum uot exceeding five pounds, and if in any such water as last mentioned, he shall, on the like conviction, forfeit and pay any sum not exceeding two pounds as to the justice shall seem meet; and if the boundary of any parish, township, or vill shall happen to be in or by the side of any such water as in this section before mentioned, it shall be sufficient to prove that the offence was committed either in the parish, township, or vill named in the indictment or information, or in any parish, township, or vill adjoining thereto."(h)

Sec. 25. "If any person shall at any time be found fishing against the provisions of this Act, the owner of the ground, water, or fishery where such offender shall be so found, his servant, or any person authorized by him, may demand from such offender any rod, line, hook, net, or other implement for taking or destroying fish which shall then be in his possession, and in case such offender shall not immediately deliver up the same, may seize and take the same from him for the use of such owner: Provided, that any person angling against the provisions of this Act, between the beginning of the last hour before sunrise and the expiration of the first hour after sunset, from whom any implement used by anglers shall be taken, or by whom the same shall be so delivered up, shall by the taking or delivering thereof be exempted from the payment of any damages or penalty for such angling."()

Sec. 26. "Whosoever shall steal any oysters or oyster brood from any oyster bed, laying, or fishery, being the property of any other person, and sufficiently marked out or known as such, shall be guilty of felony, and being convicted thereof shall be liable to be punished as in the case of simple larceny; (j) and whosoever shall unlawfully and wilfully use any dredge, or any net, instrument, or engine whatsoever, within the limits of any oyster bed, laying, or fishery, being the property of any other person, and sufficiently marked out or known as such, for the purpose of taking oysters or oyster brood, although none shall be actually taken, or shall unlawfully and wilfully, with any net, instrument, or engine, drag upon the ground or soil of any such fishery, shall be guilty of a misdemeanor, and being convicted thereof shall be liable, at the discretion of the Court, to be imprisoned for any *term not exceeding three months, with or without hard labor, and with or [*378 without solitary confinement; and it shall be sufficient in any indictment to describe either by name or otherwise the bed, laying, or fishery in which any of the said offences shall have been committed, without stating the same to be in any particular parish, township, or vill: Provided, that nothing in this section contained shall prevent any person from catching or fishing for any floating fish within the limits of any oyster fishery with any net, instrument, or engine adapted for taking floating fish only.(k)

(h) This section is taken from the 7 & 8 Geo. 4, c 29, s. 34, and extended to Ireland. There are some excellent provisions of a similar kind in the 5 & 6 Vict. c. 106, ss. 79, 80, ' &c.; and 11 & 12 Vict. c. 92, ss. 22 and 41, for the protection of fisheries in Ireland. The words in italics are introduced instead of " day-time" in the former enactment, in order to remove any doubt as to what is the beginning and end of day-time.

() This clause is taken from the 7 & 8 Geo. 4, c. 29, s. 35, and extended to Ireland. A similar substitute for "day-time" is made in this clause to that in the preceding clause. (j) See ante, p. 145, for the punishment.

(k) This clause is taken from the 7 & 8 Geo. 4, c. 29, s. 36. There were similar clauses in the 5 & 6 Vict. c. 106, ss. 11, 12 (I); 8 & 9 Vict. c. 108, s. 18 (I.); and 13 & 14 Vict. c. 88, s. 42 (I.). The words in italics were introduced to remove a doubt as to whether oyster fishery" was co-extensive with the words in the beginning of the clause. As to hard labor, &c., see ante, p. 67.

44

Sec. 103 contains a general provision for the apprehension of offenders punishable under the Act, except only as to the offence of angling in the day-time; and the 105th and following sections regulate the proceedings in respect of summary

convictions.

Sec. 98(1) makes principals in the second degree and accessories before the fact punishable in the same manner as principals in the first degree; and accessories after the fact (except receivers) are liable to be imprisoned for any term not exceeding two years; and abettors in misdemeanors are liable to be indicted and punished as principal offenders. By sec. 99, abettors in offences punishable on summary conviction are made punishable as principal offenders.(m)

Where an indictment charged the prisoner with unlawfully entering a garden adjoining a dwelling-house, and with a certain net stealing out of a pond in the said garden a certain quantity of live gold and silver fish of the goods and chattels of S. T.; the judges held the indictment good, the case being brought within the 5 Geo. 3, c. 14, without the allegation that the fish were the goods and chattels of any person, and therefore that part of the indictment was surplusage.(n)

An indictment on the same statute was good, although it did not state the means by which the fish were taken or stolen, and although it alleged them to have been feloniously stolen. An indictment stated that the prisoner unlawfully did enter into a certain park, through which there ran a river, and "feloniously did steal, take, kill, and carry away certain fish," specifying them; it was objected that the ways and means by which the fish were taken ought to have been specified, and that the fact was alleged to be done feloniously, and the offence was not a felony; but, on a case reserved, the judges thought there was nothing in these objections.(0)

Upon the trial of any indictable offence mentioned in this chapter, the jury may, under the 14 & 15 Vict. c. 100, s. 9,(p) convict the prisoner of an attempt to commit the same, and thereupon he may be punished in the same manner as if he had been convicted upon an indictment for such attempt.

*379]

*CHAPTER THE SEVENTEENTH.

OF STEALING IN ANY VESSEL IN PORT, OR UPON ANY NAVIGABLE RIVER, ETC., OR IN ANY CREEK, ETC, AND OF PLUNDERING SHIPWRECKED VESSELS.

As to larceny in ships, wharves, &c., by the 24 & 25 Vict. c. 96, s. 63, "whosoever shall steal any goods or merchandise in any vessel, barge, or boat of any description whatsoever in any haven, or in any port of entry or discharge, or upon any navigable river or canal, or in any creek or basin belonging to or communicating with any such haven, port, river, or canal, or shall steal any goods or merchandise from any dock, wharf. or quay adjacent to any such haven, port, river, canal, creek, or basin, shall be guilty of felony, and being convicted thereof shall be liable, at the discretion of the Court, to be kept in penal servitude for any term not exceeding fourteen years and not less than three years, or to be imprisoned for any term not exceeding two years, with or without hard labor, and with or without solitary confinement."(a) Sec. 64. "Whosoever shall plunder or steal any part of any ship or vessel which shall be in distress, or wrecked, stranded, or cast on shore, or any goods, merchandise,

(1) Ante, p. 67.

(m) See ante, p. 67, as to hard labor and solitary confinement.

(n) Hundson's case, 2 East P. C. c. 16, s. 43, p. 611.

(0) Rex v. Carradice, R. & R. 205. The judges held the conviction wrong on the ground that the fish were not "bred, kept or preserved" in the river, as the river ran in its natural course, and there was nothing to keep or preserve the fish within the park. (p) Ante, vol 1, p. 1.

(a) This clause is taken from the 7 & 8 Geo. 4, c. 29, s. 17, and the 9 Geo. 4, c. 55, 8. 17 (I.), with the addition in italics. As to hard labor, &c., see ante, p. 67.