Trespasses committed in sporting.

trespass for sporting over land not in his own occupation. The provisions of the 1 & 2 Will. 4, c. 32, hereon do not affect the tenant's right to kill and take by himself or servants woodcocks, snipes, quails, landrails and conies, which are his, although the " game" be reserved to the landlord. As respects hares (which are within the definition of "game"), the tenant has the right to kill them, if they are not reserved to the landlord, and, in addition, he may by a written authority, registered with the clerk to the magistrates of the district, authorize any other person to do so, who is exempted thereby from taking out a licence to kill game.30

The authority given by the excise licence to kill game, &c., is subject to an action, or the summary proceeding before justices for the penalty of 40s. under s. 30 of the 1 & 2 Will. 4, c. 32, for any trespass in search or pursuit of game, &c., committed by the holder of such licence on land over which he has no right to the game; but the proceedings by way of civil action cannot be resorted to in addition to the summary proceeding.31 As respects occupiers of lands who have the right to kill conies, they have a right also tc employ their servants or other persons to do so for them, without such persons being liable to be proceeded against for a trespass; but a person availing himself of the permission to shoot over another's lands should first ascertain that the person giving such permission has authority to give it, otherwise he would be liable.32

29 Pickering v. Noyes, 4 B. & C. 639; 7 Dow. & Ry. 49; Brown v. Taylor, 10 East, 189; Woolrych, G. L. 88. 30 11 & 12 Vict. c. 29; 23 & 24 Vict. c. 90, s. 5. Chap. IV.

31 1 & 2 Will. 4, c. 32, ss. 6, 46, p. 57, Chap. V.

See p. 49,

32 Spicer v. Barnard and Padwick v. King, pp. 45, Chap. IV.; and Morden v. Porter, p. 60, Chap. V.

If five or more persons commit a trespass together the penalty is increased from 27. to 5l. each.33

taking or de

penalties.

The unlawful taking of game, &c. is punishable in Unlawfully various ways. Those who do so without the excise stroying licence to kill are liable to the excise penalty of 207.,34 game, &c. and the cumulative penalty of 5l. under 1 & 2 Will. 4, c. 32.35 These are in addition to the penalties for Cumulative taking game on improper days, or out of season; 36 for all the penalties under the acts are cumulative, if the act done embraces more than one offence under different statutes or sections; as, for example, if an unlicensed person trespass in pursuit of game on a Sunday, and kill any game, he may be convicted in four penalties, the excise penalty of 207., under 23 & 24 Vict. c. 90, s. 4, and 57. cumulative under 1 & 2 Will. 4, c. 32, s. 23; 21. under s. 30, for the trespass; and 57. under s. 3, for taking on the Sunday; and possibly to a fifth, if a bird of game, and it be taken out of season, of 11. for every head of game taken, under s. 3 also.

Persons not having the right to the game cannot Taking eggs. take the eggs of any bird of game, or of any swan, wild duck, teal or widgeon, or have such eggs in possession, without incurring a penalty of not exceeding 5s. for each egg. Occupiers, who are not entitled thereto, Occupier. are specially made liable to a penalty for taking game,

37

ing.

or giving permission to others to do so.38 The taking Night poachof game or rabbits by night, whether on land or on roads, is punishable by long imprisonment in addition to sureties not so to offend again, which are increased

33 1 & 2 Will. 4, c. 32, s. 30, p. 59, Chap. V. 34 23 & 24 Vict. c. 90, s. 4, p. 28, Chap. III. 35 1 & 2 Will. 4, c. 32, s. 23, p. 69, Chap. VI.

36 See ante, p. 7.

37 1 & 2 Will. 4, c. 32, s. 24, pp. 74, 75, Chap. VII. 38 Id. s. 12, p. 44, Chap. IV.

Tabular list of the penal

ties.

Procedure

on a second and subsequent conviction.39 So, likewise, is the unlawful taking of hares and conies in warrens and breeding grounds by day or night punishable summarily as well as indictable.40

A tabular list of the various penalties and punishments enacted by the several acts cited or set out is given in Chapter XIX., p. 186—193, the proceedings to recover which are treated of in the following manner : -for those under the 1 & 2 Will. 4, c. 32, and in for penalties. actions, a separate chapter (X.) is given; for those which are described as excise penalties (recoverable only on the information of a duly authorized officer of inland revenue) Chapter XIV. embodies a succinct. view of the practice; while for those under the other statutes the procedure is shortly sketched out in the chapter where the offences are stated.

39 9 Geo. 4, c. 69, s. 1; 7 & 8 Vict. c. 29, s. 1, pp. 109-116, Chap. XI.

40 24 & 25 Vict. c. 96, s. 17, p. 131, Chap. XIII.

41 Officers of inland revenue detecting persons violating the law are to inforin the collector or supervisor, who are directed by the Instructions of the Board to investigate the circumstances and state the facts to the Board for directions as to proceedings against the offenders.

CHAPTER I.

THE SEASONS AND DAYS OF SPORTING.

c. 32.

THE season during which game may lawfully be 1 & 2 Will. 4, taken in England1 follows from the provisions of the 3rd section of the 1 & 2 Will. 4, c. 32, prohibiting the taking of any game on a Sunday or Christmas-day, and the taking of certain birds of game between certain periods of the year, known as the breeding season, leaving the remaining periods open to sporting. Except on a Sunday or Christmas-day, hares may be taken throughout the year, and it is no offence to take a woodcock, snipe, quail, landrail or coney, or a swan, wild duck, teal or widgeon, on those days or at any time, no season being prescribed for them. The enactments are :

1 & 2 Will. 4, c. 32, s. 3, enacts,

"That if any 1 & 2 Will. 4,

1 The prohibited season in Scotland is,- for muir fowl or ptarmigan, between 10th December and 12th August; heath fowl, between 10th December and 20th August; partridges and pheasants, the same as in England (13 Geo. 3, c. 54, s. 1). In Ireland it is, for pheasants and wild turkeys (better known as bustards, but said to be extinct in Ireland), between 10th January and 1st September (27 Geo. 3, c. 35, s. 4, Irish); moor game (black game), heath game (ptarmigan) and grouse between 10th December and 20th August; and partridges, and landrails and quails (which in Ireland fall under the term " game") between 10th January and 20th September (37 Geo. 3, c. 21, s. 2, Irish), There is, like England, no restriction as to the time for killing hares; but dealing in them is prohibited between the first Monday in November and the first Monday in July following (27 Geo. 3, c. 35, s. 4). Levinge's Irish Game Laws, 3, 4.

C

c. 32.

Seasons in

Scotland and

Ireland.

c. 32.

Game not to be killed on Sunday or Christmasday,

2-or

1 & 2 Will. 4, person whatsoever shall kill or take any game,2 use any dog, gun, net or other engine or instrument for the of killing or taking any game,-on a Sunpurpose day or Christmas-day, such person shall, on conviction thereof before two justices of the peace, forfeit and pay for every such offence such sum of money, not exceeding five pounds, as to the said justices shall seem meet, together with the costs of the conviction ;3

or birds of

game within

"And if any person whatsoever shall kill or take any certain dates. partridge between the first day of February and the first day of September in any year,-or any pheasant between the first day of February and the first day of October in any year,-or any black game (except in the county of Somerset or Devon, or in the New Forest in the county of Southampton) between the tenth day

1 & 2 Will. 4, c. 32, s. 2.

By 1 & 2 Will. 4, c. 32, s. 2, "The word 'game' shall, for all the purposes of this act, be deemed to include hares, pheasants, partridges, grouse, heath or moor game, black game and bustards." See note 3, infra, observations on mode of punishment where the game is dead when taken.

as

66

3 Where the game is dead when taken on the land by the person charged (he not being entitled thereto), and not killed at the same time as the taking away, the offence is simple larceny, punishable on indictment, in which the game may be described one dead pheasant, the goods and chattels of" the rightful owner or occupier; and so if such offender steal it, when dead, elsewhere. It is also larceny to steal live game when reclaimed or confined, as in a mew or breeding-place (Roscoe's Ev. in Cr. Cas. 601, 5th ed.), or if it has been reduced into possession, whether the person from whom they are taken came lawfully by them or not, either by virtue of a licence to kill or sell, or by trespass; in which case the game would be described as "one tame pheasant," it not being necessary to describe it as alive, for the law presumes it to be so when not stated otherwise. The same rule applies to tame rabbits and deer reclaimed. See Locke, G. L. iii.; Woolrych, G. L. 132, 133. Vide Chap. X., post, for the mode of recovery of all penalties under the 1 & 2 Will. 4, c. 32, and pp. 15, 16, Form No. 1, mode of describing offence; and Chap. VI., post, note 2, for cases and observations under s. 23, as to the amount of penalty when several offenders commit the offence at the same time.