c. 90. 23 & 24 Vict. ties hereby granted and imposed respectively, and otherwise in relation thereto, so far as the same shall be consistent with and not superseded by the express provisions of this act, as fully and effectually as if the same had been herein repeated and specially enacted in this act with reference to the said last-mentioned duties and penalties respectively." Licence to be taken out for taking or killing game in Great Britain. Penalty for neglect. Exemptions and exceptions from the duties. 996 Sect. 4. "Every person before he shall in Great Britain take, kill or pursue, or aid or assist in any manner in the taking, killing or pursuing by any means whatever, or use any dog, gun, net or other engine for the purpose of taking, killing or pursuing-any game-or any woodcock, snipe, quail or landrail, or any coney,―or any deer,―shall take out a proper licence to kill game under this act, and pay the duty hereby made payable thereon ;-and if any person shall do any such act as hereinbefore mentioned in Great Britain without having duly taken out and having in force. such licence as aforesaid, he shall forfeit the sum of twenty pounds." Sect. 5. "The following exceptions and exemptions 6 The mode of recovery of the penalties under the laws here referred to are specially treated of in Chap. XIV., post. See note 7, infra. 7 See Chap. XIV., post, for the mode of recovering this excise penalty. The party is also liable to the cumulative penalty of 51. by 1 & 2 Will. 4, c. 32, s. 23, in respect of game only (Chap. VI.) As to the persons aiding and assisting in taking game, see 3rd exemption in sect. 5, infra, and cases thereunder. There is now, since the repeal of 52 Geo. 3, c. 93, Sched. L. (ante, p. 25), neither a surcharge of the duty by the surveyor of taxes under 6 & 7 Will. 4, c. 65, s. 8, as before the 23 & 24 Vict. c. 90, nor a liability to pay the duty by any other proceeding. The 4 & 5 Will. 4, Excise Act (4 & 5 Will. 4, c. 51, s. 11), which applies to the recovery of duty from excise traders, cannot be applied to the recovery of any duty under 23 & 24 Vict. c. 90, as those granted by it are not specially directed by it to be charged upon the persons liable. A conviction for a trespass forfeits the licence (23 & 24 Vict. c. 90, s. 11, post, p. 36. If the game taken be dead, see note, ante, p. 14. c. 51, s. 11. c. 90. from the duties and provisions of this act are hereby 23 & 24 Vict. made and granted; (that is to say,) Exceptions. 1. The taking of woodcocks and snipes with Exceptions. nets or springes in Great Britain. 2. The taking or destroying of conies in Great 8 3. The pursuing and killing of hares respectively 4. The pursuing and killing of deer by hunting The following assessed tax appeal cases have been decided on a similar exception to this in the repealed act, 52 Geo. 3, c. 93, Schedule L.:-A mere written request from an owner of land to another to come and kill rabbits is within this exception (No. 1070); and the owner may authorize any other person to do so (No. 1243) as well as his labourer (No. 2055). A burgess who shot rabbits on his common was held by the judges to be an owner within the act, though the appellant would not swear he did not beat for game (No. 1373); whereas where the appellant killed the rabbits for his own use, though with the owner's license, he was not relieved from the duty (No. 641). An unlimited permission to shoot rabbits may well consist with this exception (No. 2293), but it seems that the authority should come from the tenant. Therefore if A. has leave from B., and he goes on C.'s land without leave, he must take the consequences (No. 2364). The words "direction or permission" (in the 52 Geo. 3, c. 93, it was "direction or command") are not confined to destroying the rabbits for hire. It is quite sufficient if the tenant gives a general permission (No. 2388). The onus of proving the exemption lies on the person charged (No. 1931); Woolrych, G. L., p. 62, n. also the cases of Spicer v. Barnard and Padwick v. King, Chap. IV., and Morden v. Porter and other cases, Chap. V., decided in respect to trespasses after rabbits by the permission of occupiers, whose leases reserved game only. See a form of written permission, No. 12, Chap. IV., post. Vide 9 This is the same as the provision of 11 & 12 Vict. c. 29, s. 4, still in force. See post, Chap. IV. 23 & 24 Vict. c. 90. Exemptions. 5. The taking and killing of deer in any inclosed lands by the owner or occupier of such lands, or by his direction or permission. Exemptions. 1. Any of the royal family. 2. Any person appointed a gamekeeper on behalf of her majesty by the commissioners of her majesty's woods, forests and land revenues, under the authority of any act of parliament relating to the land revenues of the crown.9a 3. Any person aiding or assisting in the taking or killing of any game, or any woodcock, snipe, quail, landrail or coney, or any deer, in the company or presence and for the use of another person who shall have duly obtained, according to the directions of this act, and in his own right, a licence to kill game, and who shall by virtue of such licence then and there use his own dog, gun, net or other engine for the taking or killing of such game, woodcock, snipe, quail, landrail, coney or deer, and who shall not act therein by virtue of any deputation or appointment.10 9a See note, post, in Chap. IV. 10 This exemption was before provided by 54 Geo. 3, c. 141, in similar terms, the principle of it being to exempt persons sporting with a licensed person who is using his own dogs, &c. Under it, it was held that a gamekeeper is not such person as there intended, and therefore a person who joined a gamekeeper, and beat for game, was held liable to the duty (Ass. Taxes, Appeal Case, No. 726). A qualified and licensed person may take as many servants or other unlicensed persons to attend him in raising the game as he thinks necessary, and to assist him without subjecting such servants to any penalty, but the unlicensed persons, although servants, must not shoot; and the acts must be done in the master's presence, so as to be considered his acts (Ex parte Sylvester, 9 B. & C. 63; 4 Man. & R. 5; R. v. Taylor, 15 East, 460; Lewis v. Taylor, 16 East, 49; Walker v. Mills, 2 Brod. & B. 1). The dogs, &c., here referred to as used mean c. 90. 4. And as regards the killing of hares only, all 23 & 24 Vict. shall herein to alter 11 & 12 and 30, ex Vict. cc. 29 cept that "game certi- ficate" in 1 & 2 Will. 4, be read as "licence to kill game." Sect. 6 enacts,-"That nothing herein contained Nothing shall extend to repeal, alter or affect any of the provisions of the said two several acts of the eleventh and twelfth years of her majesty, chapter twenty-nine and chapter thirty, further than that the term 'game certificate' in the said acts respectively used be construed to mean a licence to kill game under the provisions of this act, and shall be so read accordingly ;—and that the term 'game certificate ' used in the act of the first and second years of King William the Fourth, chapter thirty-two, shall be construed and read in like manner; -and that wherever in the said last-mentioned act the duty of three pounds thirteen shillings and sixpence on a game certificate is mentioned the duty of three pounds on a licence to kill game shall be read in lieu." strictly the dogs, &c., of the licensed person, as will be seen from the numerous cases decided by the judges on appeal from the commissioners of assessed taxes; and, therefore, if the licensed person has not his own dog, &c., with him while sporting, or if, when there are more than one person present together, some or one of them use borrowed dogs, the unlicensed person or persons accompanying such licensed person and assisting are each liable to the penalty; and so also if the unlicensed person or persons use his or their own dogs, &c., in the company of the licensed person (Locke, G. L. 144; Woolrych, G. L. 77). The qualified and licensed person must in all cases be present at the time an unlicensed person is assisting him. But a mere spectator of the sport is not liable (Ass. Taxes, App. Case, No. 205); nor is a person who merely joins in the pursuit, but neither beats for game nor assists in killing it, although he may be present when it is killed (Id. Nos. 470, 138, 1687, 2560). A minor is liable to the penalty (Id. No. 2525). "" 23 & 24 Vict. c. 90. Licences may be taken out assessed servants acting as gamekeepers for persons having right to kill game, or under depu tations from lords of manors. Sect. 7. "Any person having the right to kill game on any lands in England or Scotland, and being on behalf of charged or liable to be charged to the assessed tax on servants in respect of any gamekeeper, by whomsoever deputed or appointed, and whether deputed or appointed or not,-and any person granting a deputation or appointment in Great Britain to the servant of any other person who shall be duly charged to the assessed tax on servants in respect of such servant, whether as gamekeeper or in any other capacity, with power and authority to take or kill any game,—shall respectively be at liberty to take out a licence to kill game on behalf of any such servant, on payment of the duty of two pounds for the year ending on the fifth day of April,11 and such licence shall exempt the servant named therein during his continuance in the same capacity and service, and on his quitting such service, shall also exempt any servant who shall succeed him in the same service and capacity, or who shall succeed to the deputation of the same manor or 1 & 2 Will. 4, c. 32, s. 6 (part). a 11 By 1 & 2 Will. 4, c. 32, s. 6 (proviso), no "game certificate, on which a less duty than 37. 13s. 6d. is chargeable under the acts relating to game certificates [which must now be read as "licence to kill game at a duty of 37., 23 & 24 Vict. c. 90, s. 6, p. 31], "shall authorize any gamekeeper to kill or take any game, or to use any dog, gun, net or other engine or instrument for the purpose of killing or taking game, except within the limits included in his appointment as gamekeeper; but that in any case where such gamekeeper shall kill or take any game, or use any dog, gun, net or other engine or instrument for the purpose of killing or taking game, beyond such limits as aforesaid, he may be proceeded against under this act, or otherwise, in the same manner to all intents and purposes as if he had no game certificate whatsoever." (I. e., under 23 & 24 Vict. c. 90, s. 4, ante, p. 28, for the excise penalty of 201.; under s. 23 of 1 & 2 Will. 4, c. 32, post, Chap. VI., for the cumulative penalty of 51.; and under s. 30 in 21. for the trespass upon the lands out of the limits of his appointment, or subject to an action at law.) As to the gamekeeper's right to sell game, see 1 & 2 Will. 4, c. 32, s. 17, ante, p. 20, and notes thereto. |