offence under this section (Allen v. Thompson, L.R., 5 Q.B. 336). Apparently a dog would not be an engine within this section, as not being ejusdem generis. (e) This means the time of sunsetting and sunrising at the place where the offence was committed (Gordon v. Cann, 63 J.P. 324). In Collier v. Nokes, 1849, 2 C. and Kir. 1012, Wilde, C. J., is reported to have said that he could not judicially notice at what hour the sun set in a particular locality. But contra Taylor on "Evidence," 10th ed., p. 16: "It is not necessary to prove the course of time or of the heavenly bodies." And see Tutton v. Darke (1860), 5 H. and N. 647. A similar offence is dealt with in the Night-Poaching Act (1828), 9 Geo. IV. c. 69 (post, p. 37). (f) The authorization must precede the taking (Morden v. Porter, 7 C.B.N.S. 641). (g) This apparently does not include taking for the purpose of hatching. As to the eggs of other wild birds, see The Wild Birds Protection Act, 1894, post, p. 133). V. And be it enacted by the authority aforesaid, that from and after the said first day of June, one thousand seven hundred and eighty-seven, every person who shall use any dog, gun, snare, net, or other engine, or who shall set or fix any snare, net, or other engine, to take, kill, or destroy any hare, rabbit, pheasant, partridge, quail, land-rail, moor-game, heath-game, or grouse, snipe, or woodcock in the night, unless qualified to take or kill game, and upon his or her own land, or duly authorised so to do, shall for every such offence being thereof lawfully convicted upon an indictment to be preferred against him, her, or them, at the general sessions to be held for the county, county of a city, or county of a town, where such offence shall be committed, forfeit a sum of £10, and suffer such other punishment by imprisonment or whipping as the justices before whom such offence shall be tried shall direct. (a) (a) Section repealed by Statute Law Revision Act, 1879. 9 Geo. IV. c. 69, post, p. 37. See now having in pos property of per VI. And be it further enacted by the authority aforesaid, that Higglers, &c., if any higgler, chapman, carrier, victualler, or alehouse-keeper session any shall from and after the passing of this Act have in his, her, or game, except their custody or possession any hare, pheasant, partridge, moor- sons qualified, game, heath-game, grouse, landrail, or quail, or shall buy, sell, or £5. offer to sell, any hare, pheasant, partridge, moor-game, heath-game, grouse, landrail, or quail, every such higgler, chapman, innkeeper, victualler, alehouse-keeper, or carrier, unless such game in the hands of such carrier be sent by person or persons qualified to kill the game, shall, upon conviction of such offence before a justice of the peace, forfeit the sum of five pounds. (a) (a) Repealed by Statute Law Revision Act, 1879. VII. And be it further enacted by the authority aforesaid, that Game in a shop, if any hare, pheasant, partridge, moor-game, heath-game, grouse, &c., penalty £5. SECTIONS 7-9. Recital of 10 Wm. III. Qualification for keeping dogs. Higglers, &c., with whom game is found which has not been got from hare, &c., 5. landrail, or quail, shall be found in the shop, house, or possession of any poulterer, salesman, fishmonger, cook, or pastry-cook, the same shall be adjudged, deemed and taken to be an exposing thereof to sell within the true intent and meaning of this Act, and the offender on conviction thereof before the justice of the peace shall forfeit the sum of five pounds. (a) (a) Repealed by Statute Law Revision Act, 1879. VIII. And whereas by an act passed in the tenth year of the reign of his late Majesty King William the Third, entitled, "An Act for the Preservation of the Game, and the more easy conviction of such as shall destroy the same," it is enacted, that no person or persons shall have or keep any setting-dog or bitch, except under the qualifications and regulations therein particularly mentioned: (a) be it enacted by the authority aforesaid that from and after the said first day of June, one thousand seven hundred and eighty-seven, no person or persons shall have or keep any pointer, hound, beagle, greyhound, or land-spaniel, other than and except such person or persons as by the said Act may have or keep any setting-dog or bitch, and under and subject to the same qualifications, regulations, and penalties. (a) See sect. 10 of 10 Wm. III. c. 8 (ante, p. 11), and the note thereon, see also sect. 2 of that Act and note thereon, ante, p. 5. IX. And be it enacted by the authority aforesaid that from and after the said first day of June, one thousand seven hundred and eighty-seven, every higgler, cleever, carrier, stage coachman, or chappersons qualified man, in whose possession any hare, pheasant, partridge, quail, landto kill game, rail, moor-game, heath-game, or grouse, shall be found, and every forfeit for each person not being qualified to take or kill game, who shall sell or expose to sale, or who shall have in his or her possession any hare, pheasant, partridge, quail, landrail, moor-game, heath-game, or grouse, and shall not prove to the satisfaction of any of his Majesty's justices of the peace of such county, county of a city, or county of a town where the offence shall be committed, or where the offence shall be found, before whom he or she shall be brought, that he, she, or they came fairly and honestly by the same, and bought or received the same from some person or persons qualified to take or kill game, shall forfeit for every such hare, pheasant, partridge, quail, landrail, moor-game, heath-game, or grouse, a sum not exceeding five pounds, and that it shall and may be lawful for any made by persons person or persons being thereunto authorised by warrant under the hand and seal of his Majesty's justices of the peace for any county, county of a city, or county of a town within their respective jurisdictions, to search the houses, outhouses, or other places of any Search to be authorized. SECTIONS 9, 10. be seized. higgler, cleever, tavern-keeper, or innkeeper, carrier, stage coachman, or chapman, not qualified to take or kill game, who shall be suspected upon good and sufficient ground to have or keep in his custody or possession any hare, pheasant, partridge, quail, landrail, moor-game, heath-game, or grouse; and that it shall be law- All found to ful for any of his Majesty's justices of the peace within their respective jurisdictions to take and seize any hare, pheasant, partridge, quail, landrail, moor-game, heath-game, or grouse, which he shall find in the possession of person or persons not qualified to take or kill game, and that every such person in whose possession such game be found, if he or she shall not prove to the satisfaction of such justice that he or she came fairly and honestly by the same, and bought or received the same from some person or persons qualified to take or kill game, shall forfeit for every such £5 for each not legally hare, pheasant, partridge, quail, landrail, moor-game, heath-game, come by. or grouse, a sum not exceeding five pounds (a). (a) Repealed by Statute Law Revision Act, 1879. authorized shall other persons to X. And be it enacted by the authority aforesaid that from Persons not and after the said first day of June, one thousand seven not enter upon hundred and eighty-seven, no person or persons, not being the lands of duly authorised, (a) shall go or enter (b) upon the land (c) of look for game, any other person or persons to look for, set, spring, start, penalty £10. follow, shoot, course, hunt, hawk, or otherwise pursue, take, or destroy any sort of game, woodcock, snipe, duck, (d) teal, or widgeon, and that each and every person and persons offending in any of the particulars herein set forth shall, for every such offence, forfeit a sum not exceeding ten pounds. (e) (a) The authorization must precede the trespass (Morden v. Porter, 7 C.B. N.S. 641). (b) There must be personal entry, and it will not be sufficient to support What is suffia conviction if the defendant remained on his own land and sent his dog cient entry. into his neighbour's cover. "The offence contemplated by the Legislature was that the offender should be personally on the land on which the trespass is alleged to have been committed" (R. v. Pratt, 4 E. & B. 860; 24 L.J.M.C. 113). In Osbond v. Meadows, 12 C.B.N.S. 10, 26 J.P. 439, where the defendant, being on his own land, fired at and killed a bird on his neighbour's land, and then went to pick it up, it was held that he could be convicted of trespass in pursuit of game. In Kenyon v. Hart (1865), 11 Jur. N.S. 602, the defendant having put up a pheasant on his own land, fired at it and killed it after it had crossed the boundary, and then crossed the fence to look for it. In that case the defendant was acquitted, the Queen's Bench distinguishing Osbond v. Meadows on the ground that the pheasant was not when killed on the actual land. This distinction seems open to question if we bear in mind the maxim "cujus est solum, ejus est usque ad coelum." In Horn v. Raine, 67 L.J.Q.B. 533 (1898), it was held by Russell, C.J., and Channell, J., where the facts were similar to those in Osbond v. Meadows, save that some hours SECTIONS 10-12. Entry may be on road. Common informer. Evidence. Not deemed looking for game without having a dog, &c. Evidence neces sary for conviction. Qualified persons may pursue their elapsed before the defendant went to pick up the game, that the justices had rightly convicted. Where several persons go out together for the purposes of poaching, some of whom enter the lands while others remain outside to give the alarm, all may be convicted of entering (R. v. Passy, 7 C. & P. 282 (1836)). (c) This may be the public road, as the soil of a road belongs to the owners on either side as far as the centre, and it has been decided that any person who uses the road for other than the lawful purpose of passing and repassing thereon is a tresspasser (R. v. Pratt, 4 E. & B. 860; Harrison v. Duke of Rutland, [1893] 1 Q.B. 142; Hickman v. Massey, [1900] 1 Q.B. 752; Mayhew v. Wardley, 14 C.B.N.S. 550. (d) This is wider than the corresponding English statute 1 & 2 Wm. IV., c. 32, s. 30, which does not include duck, teal, or widgeon; it does, however, include rabbits. (e) £10 Irish equals £9 48. 74d. sterling. A prosecution under this section lies at the information of one of the public as a common informer (Middleton v. Gale, 8 A. & E. 155; Morden v. Porter, [1860] 29 L.J.N.S. 213; Bruce v. M'Alister, [1881] 8 L.R.I. 195; Madigan v. Street, 27 I.L.T. & S.J. 241; R. (Connolly) v. JJ. Tyrone, [1902] 2 I.R. 78. In R. (M'Carron) v. Donegal JJ., 40 I.L.T.R. 197, it was held that a conviction under this section "for that the defendant, without being duly authorised, did go and enter upon the lands of the complainant, provided with a gun, to look for, set spring, start, follow, shoot, course, hunt, or otherwise pursue, take, or destroy game (following the words of the section), was bad, as alleging alternative offences. As to evidence necessary for a conviction, see note (a) to sect. 11, infra. XI. Provided always that no person shall be construed to be within the meaning of this Act as looking for game, unless such person shall appear to be provided with a dog or dogs, gun or guns, net or nets, or some other implements for taking or destroying game. (a) (a) In Kingston v. O'Neill, & L.R.I. 101, it was held that the fact that the defendant was seen with greyhounds on lands where hares had been frequently seen was not sufficient for a conviction; but this decision has been dissented from in Irvine v. Osborne, 25 I.L.T. R. 36; R. (Palmer) v. Reilly, 30 L.R.I. 302; and Headfort v. Farrelly, [1894] 2 I.R. 12. In the last case the evidence was that shots were heard from a plantation in which there were usually pheasants, and the defendant was subsequently seen coming out with a gun in his hand, and ran away on seeing the keeper. The opinion of the Queen's Bench was that the justices were not correct in point of law in determining that the evidence before them was not sufficient to sustain a conviction, provided that they drew from the evidence the inference that the offence had been committed. In Tyrrell v. Flanagan, [1901] 2 I.R. 423, it was held that it was not necessary to prove that the defendant fired at game, or had game in his possession (and see Dyer v. Park, 38 J.P. 294). In Blake v. Shea, 30 I.L.T.R. 102, the Queen's Bench held that where nets were set to catch primarily plover, but were capable of catching, and did, in fact, catch, grouse, they would not set aside the conviction. XII. Provided also, that nothing herein contained shall subject any person or persons duly qualified to take or kill SECTIONS 12-16. game, his or their servants, or necessary attendants, to any of the penalties hereby inflicted for following or pursuing their four-footed game (a) into the lands of other persons. (b) four-footed (a) Hares and deer. (b) At Common Law no one is justified in trespassing on his neighbour's land, and the occupier could always, as now, bring his action for trespass. It was, indeed, held in a very old case (Gundry v. Feltham, 1 T.R. 334) that a person was justified in following a fox with hounds into his neighbour's land, since it was for the public good that so noxious an animal should be destroyed; but this is no longer the law (see Paul v. Summerhayes, 14 Cox C.C. 202). Under sect. 5 (5) of the Land Act of 1881 (post, p. 127), the landlord has the right of hunting, &c., over the lands of a tenant who has had a fair rent fixed. The effect of the section now being noted is not to take away from the Occupier his civil action (see sect. 13), but only to deprive him of the right of taking summary proceeding under sect. 10, if the trespassers are qualified to kill game. game into lands of others. recovered. XIII. Provided always that such other person or persons Damages to be may have such remedies and such redress against persons so following their game, for any damage they shall do to such other persons as such other persons may have or be entitled to by law, anything herein contained to the contrary notwithstanding. XIV. and XV. (a) (a) These sections, which dealt with granting rewards for the destruction of vermin, were repealed by 3 and 4 Wm. IV. c. 78, sect. 84, and Statute Law Revision Act, 1879. Dogs of persons not qualified to keep setting dogs or hounds committing the destroyed by rant. XVI. And be it enacted by the authority aforesaid that from and after the said first day of June, one thousand seven hundred and eighty-seven, where any dog or dogs of whatever species, belonging to any person or persons not qualified or matters herein authorised to keep setting dogs or hounds (a) shall be known may be to destroy any sort of game, or to kill or wound sheep, or virtue of a bite horses, to the annoyance of travellers on the highways, justice's waror which in any other respect shall prove a nuisance on information thereof given upon the oath of one credible witness before a justice of the peace for the county, county of a city, or county of a town, where such dog or dogs shall happen to be, it shall and may be lawful for such justice to summon the owner of such dog or dogs to appear before him, and after a full inquiry, to issue his warrant for destroying such dog or dogs as shall be informed against, |