CHAP. IV. II. & III.INJU RIES TO REAL PROPERTY. Woodcocks, snipes, quails, landrails, and conies, they are afterwards in some clauses particularly mentioned. The third section prohibits the killing or taking game, or using any dog, net, or other engine or instrument, for the purpose of killing or taking game on a Sunday or Christmas-day, and subjects the offender to not exceeding 51. penalty and costs on conviction before two justices; and the killing any partridge between the 1st of February and 1st of September, or any pheasant between the 1st of February and 1st of October, or any black game, (except in Somersetshire, or Devon, or in the New Forest,) between the 10th December and 20th August; or in the three excepted places between the 10th December and 1st of September, subjects the offender to forfeit not exceeding 17. for each head of game, on the like conviction. And if any person, with intent to destroy or injure any game, shall put or cause to be put any poison or poisonous ingredient on any ground, whether open or inclosed, where game usually resort, or in any highway, he is to forfeit not exceeding 107. and costs, on like conviction. The 4th section declares illegal, and subjects to pecuniary penalties, dealers having game in their possession ten days after the appointed time, and other persons having in possession forty days after the appointed time, unless in breeding places. The 7th to the 17th section inclusive vest the right to kill game in the owners of land and in lessees, or parties acting under express reservations in leases, or by their permission. The 18th to the 24th section relate to licenses to sell and certificates to kill game. The 24th section enacts that if any person, not having the right or license to kill game upon any land, shall wilfully take from the nest or destroy in the nest upon such land the eggs of any bird of game, or of any swan, wild duck, teal, or widgeon, or shall knowingly have in his house, shop, possession, or controul, any such eggs so taken, he shall forfeit, on conviction before two justices, for every such egg not exceeding five shillings, with costs. The 25th to the 30th section contain regulations and penalties against selling or buying game of persons not duly licensed. The 30th section subjects any person who shall commit any trespass by entering or being in the day-time upon any land in search or pursuit of game, or woodcocks, snipes, quails, landrails, or conies, on conviction before one justice, to a penalty not exceeding 27. with costs; and if five persons or more together commit such trespass, each forfeits not exceeding 51. and costs; and the section then provides that such offender, by way of defence, may prove any matter that would have been an answer to a common law action for trespass; but that the license of the occupier shall not be any defence, unless he had the reserved right of killing the game. And the 31st section contains a strong power, authorizing the person having the right to kill game, or the occupier, &c. to apprehend and detain, not exceeding twelve hours, and take before a justice, such a trespasser found on any land, unless he forthwith quit the land, (w) and also tell his real name and place of abode; or if he give such a general description of the latter as shall be illusory for the purpose of discovery. The 32d section enacts, that if five or more such trespassers together shall be found on any land in search of game, &c. in the day-time, and any of such persons shall be armed with a gun, and shall by violence, intimidation, or menace, prevent or endeavour to prevent any person, authorized as aforesaid, from approaching such persons so found, for the purpose of requiring them or any of them to quit the land whereon they shall be so found, or to tell their or his christian. name, surname, or place of abode respectively as aforesaid, every person so offending by such violence, intimidation, or menace, and every person aiding or abetting such offender, shall, on conviction before two justices, forfeit not exceeding 57. with costs, in addition to the previous forfeiture under the 31st section. Trespassers in pursuit of game in his Majesty's forests, parks, chases, or warrens, are subjected to 21. penalty and costs. The 35th section then provides that the enactments shall not extend to any person hunting or coursing upon any lands with hounds or greyhounds, and being in fresh pursuit of any deer, hare, or fox already started upon any other land, nor to any person bonâ fide claiming and exercising any right or reputed right of free-warren or free-chase, nor to any gamekeeper lawfully appointed and within his limits. It should seem therefore that this act would extend so as to prevent persons with hounds or greyhounds, without leave, from beating or searching for fresh deer, hare, or fox, not already started. The 36th section enacts that when any person shall be found by day or by night (x) upon any land in search or pursuit of game, and shall then and there have in his possession any game which shall appear to have been recently killed, any person (w) As to the meaning of the term "found, &c." see Attorney-General v. Delane, 1 Price R. 383, post, ch. vii. fully. (*) See the meaning of the word "found," ante, 402. This is the only clause in the CHAP. IV. II. & III. INJU RIES TO REAL PROPERTY. L CHAP. IV. RIES TO REAL II. & III. INJU. PROPERTY. 4. Offence of setting SPRING GUNS, and as to dog-spears. entitled to kill game on such land, or the occupier thereof, &c. court. 4. The practice of setting Spring-Guns and Dog-Spears and other dangerous engines, in order to prevent or deter persons from committing or suffering their dogs to commit depredations or injuries to property, will be considered in a subsequent chap (y) See the antecedent enactment, 5 Ann, c. 14, s. 4; and Bird v. Dale, 7 Taunt. 560. (=) Without this express enactment the former recovery or proceeding must have been pleaded specially; and it may still be advisable in some cases to plead specially in order to narrow the evidence or compel the plaintiff to new assign, 3 Burr. 1353; 3 Car. & P. 489; 1 Chit. R. 513, note (ƒ), 545, 613, 672. II. & III. INJU- ter. (a) It may suffice here to notice that the setting spring-CHAP. IV. guns, excepting at night within a dwelling-house, is now expressly declared to be illegal, and would subject the offender to an indictment for a misdemeanor, although no actual injury has ensued; (b) and the right even to set dog-spears is very questionable; (c) and another expedient to prevent trespass will be found in the part of the work referred to. licious injuries to property not exceeding five pounds under & 8 Geo. 4, c. 30, s. 24. 5. The 7 & 8 Geo. 4, c. 30, s. 24, after providing particularly 5. Wilful or mafor malicious injuries to Real Property when of considerable importance, contains the following comprehensive enactments for the punishment of any wilful or malicious damage, injury, or spoil, where the damages do not exceed five pounds, or where the prosecutor is content to treat the damages as limited to that sum; and unless when the prosecutor is himself examined as a witness, he may, by this prescribed summary proceeding before a magistrate, recover pecuniary compensation to that extent. The enactment is, "That if any persons shall wilfully or maliciously commit any damage, injury, or spoil, to or upon any real or personal property whatsoever, whether of a public or private nature, for which no remedy or punishment is hereinbefore provided, every such person being convicted thereof before a justice of the peace shall forfeit and pay such sum of money as shall appear to the justice to be a reasonable compensation for the damage, injury, or spoil so committed, not exceeding the sum of five pounds, which sum of money shall, in the case of private property, be paid to the party aggrieved, except where such party shall have been examined in proof of the offence; and in such case, or in the case of property of a public nature or wherein any public right is concerned, the money shall be applied in such manner as every penalty imposed by a justice of the peace under this act is hereinafter directed to be applied; and if such sum of money, together with costs (if so ordered), shall not be paid either immediately after the conviction or within such period as the justice shall at the time of the conviction appoint, the justice may commit the offender to the common gaol or house of correction, there to be imprisoned only, or imprisoned and kept to hard labour, as the justice shall think fit, for any term not exceeding two calendar months, unless such sum and costs (a) Post, ch. vii. (b) 7 & 8 Geo. 4, c. 18; see form of indictment, Burn's J. 26 ed. tit. Spring Guns. An action lies for any injury, Bird v. Holbrook, 4 Bing. 642, pist, (c) Deane v. Clayton, 1 J. B. Moore, RIES TO REAL CHAP. IV. be sooner paid: Provided always, that nothing herein conII. & III. INJU- tained shall extend to any case where the party trespassing acted under a fair and reasonable supposition that he had a right to do the act complained of, (d) nor to any trespass, not being wilful or malicious, committed in hunting, fishing, or in the pursuit of game; but that every such trespass shall be punishable in the same manner as before the passing of this act." (f) The 25th section enacts, "That every punishment and forfeiture thereby imposed on any person maliciously committing any offence, whether the same be punishable upon indictment or upon summary conviction, shall equally apply and be enforced whether the offence shall be committed from malice conceived against the owner of the property in respect of which it shall be committed or otherwise." The 28th section, for the more effectual apprehension of all offenders against this act, enacts, "That any person found committing (g) any offence, whether punishable upon indictment or upon summary conviction, may be immediately apprehended, without a warrant, by any peace-officer, or the owner of the property injured, or his servant, or any person authorized by him, and forthwith taken before some neighbouring justice." The 29th section requires summary proceedings to be commenced within three calendar months, and enacts that the evidence of the party aggrieved and also that of any inhabitant of the county shall be admitted; and the 30th section directs how the party charged is to be summoned; and if he do not appear, the justice may either proceed ex parte or issue his warrant, or a warrant may be issued in the first-instance. The 31st section subjects abettors of offences punishable summarily to the like penalties. The 32d section enacts that the money forfeited for any injury shall be paid to the party aggrieved, excepting when he has been examined as a witness, and then, or in case he be unknown, to be paid the same as any penalty; and every sum to be imposed as a penalty is to be paid to the overseers of the poor or other officer as directed by the justice, and to the use (d) This was to provide for bona fide claims of right, see Kennersley v. Orpe, Dougl. 517; but it must be some fair and plausible colour of title. Hunt v. Andrews, 3 Bar. & Ald. 341; Calcraft v. Gibbs, 5 T. R. 19; Grant v. Hutton, 1 Bar. & Ald. 134; 1 Burn's J. tit. Convictions, 26 ed. 832, 833. (f) See now the Game Act, 1 & 2 W. 4, c. 32. (g) Ante, 402, n.(p); and see post, ch. vii. fully as to apprehension without warrant. |