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or other proceeding of ur concerning any matter or thing in this Act into No. XXIX. any of the courts at Westminster upon any pretence whatsoever, unless the party or parties against whom such conviction shall be made
5 Anne, shall, before the allowance of such certiorari, become bound to the c. 14. person or persons prosecuting the same in the sum of fifty pounds, with such sufficient securities as the justice or justices of the peace before whom such offender shall be convicted shall think fit, with condition to pay unto the prosecutors within fourteen days after such conviction or procedendo granted their full costs and charges to be ascertained upon their oaths; and that in default thereof it shall be lawful for the said justice or justices or others to proceed for the due execution of such conviction in such manner as if no such certioruri had been awarded.
III. And for the better discovery of such higlar chapman carrier inn- Encouragement keeper alehouse-keeper and victualler as shall offer to buy or sell any to Destroyers of bare pheasant partridge moor heath-game or grouse; Be it further the Game to enacted by the authority aforesaid, That from and after the said first day make Discoof May any person that shall destroy sell or buy any hare pheasant muor veries. heath-game or grouse, and shall within three months make discovery of any higiar chapman carrier inn-keeper alehouse-kceper or victualler that hath bought or sold or offered to buy or sell or had in their possession any hare pheasant partridge moor heath-game or grouse, so as any one shall be convicted of such offence in manner as aforesaid, such discoverer to be discharged of the pains and penalties hereby enacted for killing or selling such game as aforesaid, shall receive ihe same benefit or advantage as any other informer shall be entitled to by virtue of this Act for such discovery and information.'
IV. And be it enacted by the authority aforesaid, That if any person Persons not or persons not qualified by the laws of this realm so to do (3.) shall qualified to keep keep (4.) or use (5.) any greyhounds, (6.) setting-dogs, (7.) bayes lurchers Greyhounds,
&c. and destroy the Game, to forfeit 5l. to be levied by Distress and Sale, &c. See i Bur. 148.
(3.) It is fully settled that a general Averment the subject, and referring to the precedent in of the Defendant not being qualified is sufficient Burn, in which the Qualifications are negatived in an Action on this Statute. Bluet 1'. Needs, by the Evidence, judiciously observes, that the Com. Rep. 522; and that such general Allega- considerations which he had stated may sugtion is not sufficient in a Conviction ; but that gest the prudence at least of adhering to a form the several Qualifications enumerated in 22 and so long used, till a conclusive determination shall 23 Charles II. c. 25. must be negatively set out have set the Question at rest. Lord Kenyon, in in the Conviction. R. v. Jarvis, 1 Bur. 148. giving his Opinion in R. r. Stone, observed, “ It And in Rex v. Earnshaw, 15 E. 456. the Convic- is said to be impossible for the Prosecutor's Wittion was set aside for not expressly negativing that nesses to give negative Evidence of the want of the Defendant was seised in right of his Wife; Qualification; but I do not see why it may not although the Conviction was according to the be done. A Witness may give general Evidence form of Burn, drawn by Lord Ashburton, and of it from his belief: he may know the Defendwhich had been usually pursued. In Rex v. Crow- ant, and know that to all appearance he may not ther, I 'T. R. 125. the Court seemed to think be a man of substance. Evidence may be given that it was not necessary that the Evidence should of his condition in life, to raise a reasonable prenegative every particular Qualification ; but the sumption against his having any of the necessary Conviction was quashed on another point; and Qualifications." It is also necessary to advert to the general question, whether upon a Conviction his Lordship's observation upon another part of it was necessary to give any Evidence of want of the Section, in R. v. Davis, 6 T. R. 177. “ Here Qualification, was not entered into. Such Evi- was evidence tending to prove the offence : we dence is admitted not to be necessary in the case have no authority to examine further, and see of an Action. In R. r. Stone, 1 East. 636. the whether the conclusion drawn by the Magistrate Question, whether Evidence must be given of the be or he not the inevitable conclusion from the want of Qualification in case of a Conviction, Evidence. It is sufficient in Convictions if there came directly before the Court of King's Bench, were such Evidence before the Magistrate, as, in when the Judges were equally divided ; Lord Ken- an Action, would be sufficient to be left to a yon and Grose J. being of opinion that some Evi- Jury." dence upon that point must be given ; Lawrence J. (4.) The mere keeping a Lurcher is sufficient and Le Blanc J. on the contrary, that the proof to incur the Penalty, without using. R. v. Filer, of Qualification lay on the Defendant. Mr. Paley, i Str. 426. So of Harepipes and such like, which in his Treatise on Convictions, p. 139, after no- are peculiarly fitted or disposed for killing Game : ticing this Case, and the Opinions which were per Curiam, Rex v. Gardiner, Andr: 255. 2 Str. expressed in some preceding cases bearing upon 1098.; but it is otherwise with respect to a Gurr,
tunnells or any other engines to kill and destroy the game, (8.) and shall
be thereof convicted upon the oath of one or lwo credible witnesses, (9.) which is not an instrument so appropriated to kil- (8.) In Rex v. Newman, Loft, 178. upon an ling Game, as that it is criminal for a person to application for an Information against a Justice have one in his custody only: Ruled ibid. In for convicting two unqualified persons who were Rex v. Huntley, Cald. 175. it seems to have been out coursing with a qualified person, the Court thought that the mere keeping a Greyhound was were of opinion, that the two unqualified persons sufficient; but in Read v. Phelps, 15 East. 271. were protected by being in company with the in an Action for keeping a Setting-dog, there being qualified one; but dismissed the application, the no Evidence of the Dog, which was still young, Justice paying costs. The subjecting the Jushaving been used for the purpose of killing Gime, tice to costs seems to have been rather a hard it was ruled that the Action could not be sup- measure, whatever may have been the Law upon ported; and Lord Ellenborough said, that according the principal question; as there seems to have to the argument of the Plaintiff, the keeping of a been no ground for imputing any thing more than dog, not for the purpose of destroying Game, would a mere erroneous judgment, which would not have be Evidence of a keeping in order to destroy it. been sufficient without more to have supported
(5.) In Rex u. King, i Sess. Cas. 88. Parker the Information if it had been brought to trial. Ch. J. said that walking about with a Gun, with In a case before Lawrence J. at Stafford, cited in intent to kill gaine, is Evidence of using the in- the later Editions of Burn, it was held that strument for that purpose. In Rex r. Davis, though a qualified person may take his Servant to 6 T. R. 177. the Witness swore that the Defend- assist him to kill Game, he cannot qualify him to ant did keep and use a Gun with intent to kill kill it, neither will his presence protect an unand destroy Game, and that he was satisfied that qualified person, not being his Servant, who goes he did so, from hearing a Gun go off, and olso to take the amusement of coursing. . But if such serving that it was fired by the Defendant, who person take an active part by beating across the was walking about with that apparent intent; and fields, or on open lands, and join in the diversion the Conviction upon this Evidence was held good: in the same manner with a qualified person, he Vi, the Observation of Lord Kenyon, supra is as much liable to the Penalties as if no qualinote 3. In Rex v. Thomson, 2 T. R. 18. a De. fied person was present; but from a note in position by the Witness in general terms, accord- 15 East. 462. it appears that there is reason to ing to the Precedent in Burn, that the Defend. think that that case was governed by special cirant did keep and use a Gun to kill and destroy the cumstances. In Rex v. Taylor, 15 East. 460. it Game, was supported as being an established form, was held that a Huntsman'attending his Master although objectionable upon princip'e ; and the was not liable to the Penalties. The general Decision was adhered to in Rex
v. Pearse, 9 East. question came more fally before the Court in 358. In Rex v. Clarke, 8 T. R. 220. the Court Levis v. Taylor, 16 East. 49. where the Defend. expressed their approbation of the manner in ant was cut coursing with a qualified man, and which the Conviction was drawn up, wherein the took an active part in the sport by beating the Magistrates had not simply stated in the words Bushes, and took up the Game after it had been of the Act of Parliament, that the Defendant had killed ; and it was ruled that he was not liable to kept and used, &c. but had set forth the particue the Penalty of the Statute. Lord Ellenborough lar Evidence of his having done so ; viz. ihat the said, “ There is no Evidence against this DeWitness had seen him course and kill a Hare with fendant of using a Greyhound for killing the the said Greyhound; and had also set forth all Game. This is not a solitary amusement, and the Evidence for and against the Defendant, upon there is nothing to prevent a qualified person frora the Question of his Qualification: and they re- taking others to assist him in the pursuit of the commended this as a precedent to be followed in Game, and he is the person using the Dogs; the future. See the precedent framed on the same others have no other use of them than as his Serprinciple, Burn Game L. and said to be drawn by vants, and contemplating with him the pleasures Lord Ashburton ; but see also Rex v. Earnshaw, of the chase. If indeed, an unqualified man had Supra, note 3.
used his own Greyhounds for the purpose of (6.) A Conviction for keeping and using a Dog sporting, though in the same company with a called' a Greyhound, was held good; and Lord qualificd person, that case would admit of a dif. Mansfield said that he thought a Dog called a ferent consideration. The picking up of the Hare Greyhound was positive enough, and must inean after it is killed, is no using of the Dogs to kill the Dog of that species generally known in this Game.” The other Judges agreed; and Bailey J. country. Rex v. Hartley, Caldw. 173. In Rex said, “ The Defendaut neither kept the Dog no 7. Earnshaw, a Conviction for keeping and using was it under his controul at the time it was used a Dog called a Lurcher was held to be sufficient. to kill the Hare.” The Legislature seem to have
(7.) The Act only extends to such Dogs as are had in view the variation of the judicial opinions particularly mentioned, therefore in Hooker v. above noticed. For by the Schedule of Assessed Wills, 2 Str. 1126. it was held that an Action Taxes, 52 Geo. III. c. 93. a Duty is imposed could not be maintained for the Penalty for using upon any person who shall use any Dog, &c. op a Hound to destroy the Game. So in Reason v. shall take or kill or assist in any manner in the Little, Com. Rep. 576. where the Action was for taking or killing any Game: which enactment, using a Dog.
by 54 Geo. III. c. 141. is repealed as to persons by the justice or justices of the peace where such offence is committed No. XXIX. as aforesaid, the person or persons (10.) so convicted shall forfeit the sum of five pourds (11.) one-half to be paid to the informer, and the
5. Anne, other half to the poor of the parish where the same was committed ;
c. 14. (12.) the same to be levied by distress and sale of the offender's goods, hy warrant under the hand and seal of such justice or justices before whom such person or persons shall be convicted as aforesaid ; and for want of such distress, (13.) the offender or offenders shall be sent to the house of correction for the space of three months for the tirst offence, Sustices or and for every such other offence four months; and that it shall and may Lords of Mabe lawful to and for any of her Majesty's justices of the peace in their nors, &c. may respective counties ridings cities towns corporate or liberty, and the lords take away any and ladies of his her or their or any of their respective manors within the Hare, &c. from said manors to take away any such hare pheasant partridge moor heath Person not quagame or grouse or any other game, from any such higlar chapman inn- lified ; and also keeper victualler or carrier or any other person or persons not qualified their Dogs, to kill the same, and shall be found in their custody or possession; and Nets, &c. likewise to take away such dogs (14.) nets or other engines (15.) which shall be in the power or custody of any person or persons not qualified by the laws to keep the same to their own proper use, without being accountable to any person or persons for the sanie; and that it shall and may be lawful for any lord or lady of his or her respective lordship or manor, by writing under his or her hand and seal, 10 empower his or her gamekeeper or gamekeepers upon his or her own lordship or manor as aforesaid, (16.) to kill hare pheasant partridge or any other game whatsoever ; (17.) but if the said gamekeeper shall under colour or preaiding and assisting, provided it be in the presence (14.) A Magistrate who convicts an unqualified and for the use of another person who has ob- person of killing Game under the Stat. 5 Ann, tained a Certificate in his own right; and who c. 14. and causes his Dog to be brought for the purtherein shall use his own Dog, Gun, &c. pose of seizing it, may order the Dog to be killed
The Declaration in an Action on this Clause without any formal adjudication of Seizure. Kingsusually avers, that the Defendant used a Gun, &c. worth v. Bretton, 5 Taunt. 416.S.C. I Marsh, 106. being an engine for the destruction of Game, to (15.) A Justice of Peace may take a Gun used kill and destroy the Game: but in Avery v. an unqualified person,
Devensh. 2. Mertuas, Hoole, Cowp. 825. it was held that the Allega- 7 Mod. 215., but not the Gun of a Gamekeeper, tion that he “ used a Gun, being an engine for although he be not within his own Manor. Rothe destruction of Game,” though bad on De- gers v. Carter, 2 Wils. 286. he cannot enter a murrer was cured by Verdict, and should be con- a house to search for Engines, &c. See Briggs u strued as averring that the engine was used for Evelyn, 2 H. B. 114. the destruction of Game.
(16.) The Courts will not permit the Title or (9.) The Defendant may be convicted on his Boundaries of a Manor to be tried in an Action own Confession, although not so expressed in the for Penalties on the Game Laws, provided there Act. R. r. Gage, I Str. 546.
is any colourable Title; but it is otherwise when (.10) There can be only one Penalty against there is no pretence of Title, and there has been several persons for using a Greyhound at one no other Exercise of Right than the granting of time, as it is only one offence. Rex v. Bleasdale, the particular Deputation. Calcraft v. Gibbs, 4 T. R. 809.
4 T. R. 681. and Hawkins v. Bailey, and Blunt (11.) A person can only incur one Penalty in 2. Grimes, there cited. And upon the new Trial the same day, whatever number of Hares, &c. he in Calcraft and Gibbs, 5 T. R. 19. it appeared may kill. Q. v. Mathews, 10 Mod. 26. Marrott that the person making the appointment had purv. Śhawe, Ave R. 274. And a person can only chased an Estate within the Manor from the be convicted in one Penalty for keeping and using Lord, who agreed that he should have the Depua Gun, and also a Dog, on the same day. R. v. tation of the Manor : this was held not to be such Lovet, 7 T. R. 152. Several Penalties for dis- a colour of Title as would excuse the Game. tinct Offences may be included in one Convic- keeper. Lord Kenyon said, “A man cannot contion : Rex v. Swallow, 8 T. R. 284.
vey to another the power of appointing a Game. (12.) If a party, being in one Parish, shoot into keeper, without a conveyance also of the Manor another, the Offence is committed in the Parish itself. Such a power is a mere emanation of the in which he stands. R. v. Alsop, Sho. 339. Manor, and is inseparable from it. It is a mere
(13.) An Action of Trespass was maintained shadow, accompanying the substance." against a Justice, for committing a person who (17.) Semble, that a Lord of a Manor, although had Effects which might have been distrained, not qualified by Estate, may kill Game within immediately upon Conviction, without endeahis Manor, but not elsewhere. See Mallock vovouring to levy the Penalty on his Goods. Hill Eastley, 7 Mode 482; and Cases referred tog 8. Bateman, 2 Str. 710.
No. XXIX. tence of the said power and authority to kill or take the same for the use
of such lord or lady and afterwards sell or dispose thereof to any per5 Anne,
son or persons whatsoever without the consent or knowledge of the ford c. 14.
or lady of such manor or manors that hath given such power ur authority in manner as aforesaid, and shall be thereof convicted upon the consplaint of such lord or lady of any manor, and upon the oath of one or more credible witnesses before any one or more of her Majesty's justices
of the peace as aforesaid, upon such conviction such gamekeeper shall This Act made be committed to the house of correction for the space of three nionths, perpetual by and there to be kept to hard labour. And this Act shall remain and be 9 Ann. c. 25.
in force for the space of three years from the first day of May one thouas altered by sand seven hundred and seven, and from thence to the end of the next that Act. sessions of Parliament and no longer.
V. (No heath ling or brakes to be burnt in Forest of Sherwood without licence of owner.--None to buy fern ashes on penalty.- Justices to issue their warrants for offenders.] [ No. XXX. ] 9 Anne, c. 25. A. D. 1710.-An Act for
making the Act of the Fifth Year of her Majesty's Reign, for the better Preservation of the Game, perpetual,
and for making the same more effectual. 9 Anne, c. 25. WHEREAS the Act made in the fifth year of her Majesty's reign, 5 Anne, c. 14. intituled An Act for the better Preservation of the Game, will exmade perpetual. "pire at the end of this present session of Parliament unless the same be
. continued: And whereas the said Act hath been found to be an useful • law for the preservation of the game of this kingdom; Be it therefore enacted by the Queen's most excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal and Commons in this present Parliament assembled, and by the authority of the same, That ihe said recited Act and all the clauses matters and things therein contained shall stand in full force and virtue and be continued and deemed
and taken to be a perpetual law subject nevertheless to the additions or Lords of Ma- alterations hereinafter in this Act contained : That is to say, Whereas nors shall ap- by the said recited Act any lord or lady of a manor might appoint several point but one gamekeepers in the same manor and every one of the gamekeepers só Gamekeeper in appointed might kill any game in the same manor; for the preventing one Manor, therefore of the destruction of the game of this kingdom, which may whose Name
happen by appointing several gamekeepers in the same manor with aushall be entered thority to kill the game therein; Be it further enacted by the authority with the Clerk aforesaid, Tbat from and after the first day of May one thousand seven of the Peace.
hundred and eleven no lord or lady of a manor shall make constitute or appoint above one person to be a gamekeeper within any one manor with power or authority to kill or destroy the game thereof; and that the name of such person se to be authorised to kill the game shall from time to time be entered with the clerk of the peace for the time being of the county riding or division wherein such manor doth lie, such entry to be made and viewed without fee or reward, and a certificate thereof to be granted by the clerk of the peace upon payment of one shilling for the same ; and in case any other gamekeeper whose name shall not be so entered as aforesaid who shall not be otherwise qualified by the laws of this kingdom to kill game shall presume to kill any hare pheasant partridge moor heath game or grouse, or if any gamekeeper or gamekeepers or other person or persons whatsoever, not being qualified in his own right to kill game, shall sell or expose to sale any hare pheasant partridge moor heath game or grouse, the respective offender or offenders herein shall for every such offence incur-such forfeitures pains and penalties as are inflicted by the said recited Act upon higlars carriers innkeepers or victuallers for buying or selling of game; such forfeitures to be recovered by such means and in such manner and form and within such time and to such uses as are prescribed by the said Act; any thing in the said recited Act or in any other law or statute to the contrary thereof in any wise notwithstanding.
II. And be it further enacted by the authority aforesaid, That if any No. XXX. hare pheasant partridge moor heath gaine or grouse shall be found in the shop house or possession (1.) of any person or persons whatsoever, not
9 Anne, qualified in his own right to kill game or being entitled thereto under c. 25. sone person so qualified, the same shall be adjudged deemed and taken to be an exposing thereof to sale within the true intent and meaning of this and the said recited Act;(2.) any thing in this or in the said recited
If any Hare,
&c. be found in Act to the contrary thereof in any wise notwithstanding.
the Shop, &c. of any unqualified Person, &c. it shall be judged an exposing to Sale. III. And be it further enacted by the authority aforesaid, That if any Killing any person or persons whatsoever shall take kill or destroy any hare pheasant Hare, &c. in partridge moor heath game or grouse in the night-time, the person or the Night, to persons 90 offending shall likewise for every such offencc incur such for incur the like feitures pains and penalties as aforesaid, to be recovered likewise by such Forfeitures. mcans within such time and to such uses as aforesaid.
IV. ' And whereas very great numbers of wild fowl of several kinds 10 Geo. 2. c.32. . are destroyed by the pernicious practice of driving and taking them with • hayes tunnels and other nets in the fens lakes and broad waters where • fowls resort in the moulting time, and that at a season of the year when
the fowl are sick and noulting their feathers and the flesh unsavoury • and onwholesome, to the prejudice of those that buy them and to the great damage and decay of the breed of wild fowl;' Be it therefore fur- No Person ther enacted by the authority aforesaid, that if any person or persons shall, between whatsoever, between the first day of July and the first day of September, 1 July and as they sball yearly happen, shall by hayes tunnels or other nets drive 1 Sept. take and take away any wild duck teal widgeon or any other fowl commonly any Wild Duck, reputed water fowl, in any of the fens takes broad waters or other places &c. by Hayes, of resort for wild fowl in the moultiny season, such person or persons &c. on Forfeiwho shall so offend and thereof shall be convicted before any one or more ture of 58, for of her Majesty's justices of the peace for the county where such offence each Wild shall be committed by the oath of one or more credible witness, shall for Fowl, &c. every wild duck teal or other water fowl so taken as aforesaid forfeit and pay the sum of fire shillings; one moiety thereof to be paid to the informer and the other moiety to the poor of the parish where such offence shall be committed; the same to be levied by distress and sale of the offender's goods by warrant under the hand and seal of the justice and justices of the peace before whom the offender shall be convicted, rendering the overplus if any be above the penalty and charge of distress ; and for want of distress the offender or offenders shall be committed to the house of currection for any time not exceeding one month nor less than fourteen days, there to be whipt and kept to hard labour; and the justice or justices of the peace before whom such person or persons so uffending shall be convicted shall order such hayes nets or tunnels that were used in driving and taking the said wild fowl as aforesaid to be seized and immediately destroyed in the presence of such justice or justices.
[ No. XXXI. ) 3 George I. c. 11.-An Act to explain
and amend several Laws therein mentioned, for the bet
ter Preservation of the Game. 1. WHEREAS by an Act made in the fifth year of the
reign of her 3 George I. late Majesty Qirecn Anne, intituled • An Act for the better ' preservation of the Ganre,” it is enacted, that it shall and may be law- 5 Ann, c. 14. ful for any lord or lady of his or her respective lordship or manor by and
(1.) Judgment for Plaintiff in an Action for Lord, has not such a Possession as will subject having in Possession, although objected that the him to a Penalty. Warnford v. Kendall, 10 E. 19. Statute only makes it Evidence of an exposing to (2.) And by relation to Stat. 5 Anne, the PeSale. Jones v. Bishop, Say. 191. A Servant em- nally is incurred for every Hare, &c. Bluet v. ployed to detect Poachers, taking up a Hare killed Needs, Com. Rep. 522. by strangers, for the purpose of taking it to the