10. Dealing in game. 2 & 3 Vict. c. 35. Licensed dealer must take out a 21. certificate. Penalty 201. for dealing without certificate. Collectors to make out list of licensed dealers. in same way as under acts relating to game certificates. under and subject to the provisions and regulations thereof; provided always, that of the holding of any such special sessions seven days' notice shall be given to each of the justices acting for the division or district in which such session is intended to be held; provided also, that every license to deal in game, at whatever time the same hath been or shall be granted, shall continue in force from the granting thereof until the first day of July then next following, and no longer, anything in the said last-recited act, or in such license, to the contrary notwithstanding" (a). By 1 & 2 Will. IV. c. 32, sect. 19, "Every person who shall have obtained any license to deal in game under the provisions of this act shall annually and during the continuance of his license, and before he shall be empowered to deal in game under such license, obtain a certificate according to the form in the schedule (B.) annexed to this act, on payment of the duty of two pounds, which is hereby granted and made payable to his Majesty for every such certificate, which certificate shall be in force for the same period as such license; and the said duty shall be paid to the collector or collectors of the assessed taxes for the parish, township, or place in which the person so licensed shall reside, in like manner as the duties on game certificates are by law payable; and every receipt to be given by any collector receiving such duty shall be free of stamp duty, and shall be delivered to the person requiring the same on payment to the collector of one shilling, and no more, over and above the said duty for the certificate; and such receipt shall be exchanged for a certificate under this act, in like manner as receipts for the duty in respect of killing game are by law required to be exchanged for game certificates; and if any person obtaining a license under this act shall purchase or sell or otherwise deal in game, as a licensed dealer under this act, before he shall obtain a certificate in exchange for a receipt as herein directed, such person shall for every such offence forfeit and pay the penalty of twenty pounds." Sect. 20. "The collector or collectors of the assessed taxes in every parish, township, or place wherein any person shall reside who shall have obtained such annual license and certificate, shall in each year make out a list, to be kept in his or their possession, containing the name and place of abode of every such person, and shall at all seasonable hours produce such list to any person making verbal application to inspect the same, and shall be entitled to demand and receive for such inspection the sum Duties chargeable of one shilling; and the duties hereby granted as aforesaid in respect of certificates to be obtained by persons licensed to deal in game shall be assessed, charged, raised, levied, and collected by the respective commissioners and justices of the peace, and the several other officers acting in the execution of the several acts relating to the assessed taxes, in the same manner, and under the same rules, regulations, and provisions, (except as herein varied), as the duties on game certificates are by the said acts directed to be assessed, charged, raised, levied, and collected (b); and that the penalty of twenty pounds hereby imposed shall be sued for, recovered, and levied, either in the district in which the offence shall be committed, or in the district in which the offender shall reside, and be applied in the same manner, and under the same rules, regulations, and provisions, as penalties on persons doing acts without payment of the game duty, or neglecting to obtain game certificates, are by the said acts Penalty recoverable in same way. (a) As to how justices should act in granting or refusing the license, and the remedies against them for an improper grant or refusal, see ante, “Alehouse," p. 97, &c. Vol. I. (b) It should seem, therefore, that the commissioners or collectors of taxes may demand the certificate of a person dealing in game; but the penalty of 207., which might follow a refusal to produce it, (see 52 Geo. III. c. 93), accompanied with a refusal to tell the party's Christian name, surname, and place of residence, would not attach without such last refusal. (Molton v. Rogers, 4 Esp. 215, and Collyer on Game Act, 19, ante, 239, n. (b). directed to be sued for, recovered, levied, and applied, to all intents and purposes whatsoever as if such rules, regulations, and provisions were specially repeated and re-enacted in this act." Sect. 21. "Persons being in partnership, and carrying on their business at one house, shop, or stall only, shall not be obliged by virtue of this act to take out more than one license in any one year to authorize them to deal in game at such house, shop, or stall." Sect. 22. "If any person licensed by virtue of this act to deal in game shall during the period of such license be convicted of any offence whatever against this act, such license shall thereupon become null and void." Penalty for selling game without certificated persons selling to unlicensed persons (a). license, and on Sect. 25. "If any person not having obtained a game certificate (except such person be licensed to deal in game according to this act) shall sell or offer for sale any game to any person whatsoever; or if any person authorized to sell game under this act by virtue of a game certificate shall sell or offer for sale any game to any person whatsoever, except a person licensed to deal in game according to this act; every such offender shall, on conviction of any such offence before two justices of the peace, forfeit and pay for every head (b) of game so sold or offered for sale such sum of money, not exceeding two pounds, as to the said justices shall seem meet, together with the costs of the conviction." Sect. 26. "It shall be lawful for any innkeeper or tavernkeeper, Exceptions as to without any such license for dealing in game as aforesaid, to sell for consumption in his own house, such game having been procured from some person licensed to deal in game by virtue of this act, and not otherwise." game Sect. 27. "If any person, not being licensed to deal in game according to this act, shall buy any game from any person whatsoever, except from a person licensed to deal in game according to this act, or bona fide from a person affixing to the outside of the front of his house, shop, or stall, a board purporting to be the board of a person licensed to deal in game, every such offender shall, on conviction thereof before two justices of the peace, forfeit and pay for every head (b) of game so bought such sum of money, not exceeding five pounds, as to the said justices shall seem meet, together with the costs of the conviction." Sect. 28. "If any person being licensed to deal in game according to this act shall buy or obtain any game from any person not authorized to sell game for want of a game certificate, or for want of a license to deal in game; or if any person, being licensed to deal in game according to this act, shall sell or offer for sale any game at his house, shop, or stall, without such board as aforesaid being affixed to some part of the outside of the front of such house, shop, or stall, at the time of such selling or offering for sale, or shall affix or cause to be affixed such board to more than one house, shop, or stall, or shall sell any game, at any place other than his house, shop, or stall where such board shall have been affixed; or if any person not being licensed to deal in game according to this act shall assume or pretend, by affixing such board as aforesaid, or by exhibiting any certificate, or by any other device or pretence, to be a licensed to deal in game; every such offender, being convicted thereof before two justices of the peace, shall forfeit and pay such sum of money, not exceeding ten pounds, as to the said justices shall seem meet, together with the costs of the conviction." innkeeepers. &c. person Sect. 29. "The buying and selling of game by any person or persons employed on the behalf of any licensed dealer in game, and acting in the usual course of his employment, and upon the premises where such deal (a) In Help v. Henister, (8 B.& Cres. 553; 3 M. & R. 12, 8. C.), it was held that a contract for the sale of live pheasants was void, as being in contraven tion of the 58 Geo. III. c. 75, and that As to buying and selling game by licensed dealer. servants of a 11. Trespass in pursuit of game. 1 & 2 Will. 4, c. 32. 5 & 6 Will. 4, c. 20. Reciting 1 & 2 Will. 4, c. 32, s. 25. Sect. 27. Indemnity to persons prosecuting for offences committed against the recited enact ments. ing is carried on, shall be deemed to be a lawful buying and selling in every case where the same would have been lawful if transacted by such licensed dealer himself: Provided also, that nothing herein contained shall prevent any licensed dealer in game from selling any game which shall have been sent to him to be sold on account of any other licensed dealer in game." By stat. 5 & 6 Will. IV. c. 20, s. 20, reciting, that by the 1 & 2 Will. IV. c. 32, it is, amongst other things, enacted, "that if any person not having obtained a game certificate (except such person be licensed to deal in game according to the said act) shall sell or offer for sale any game to any person whatsoever, or if any person authorized to sell game under the said act by virtue of a game certificate shall sell or offer for sale any game to any person whatsoever, except a person licensed to deal in game according to the said act, every such offender shall, on conviction of any such offence before two justices of the peace, forfeit and pay for every head of game so sold or offered for sale such sum of money not exceeding two pounds as to the said justices shall seem meet, together with the costs of the conviction; and it is by the said last-mentioned act also enacted, that if any person not being licensed to deal in game according to the said act shall buy any game from any person whatsoever, except from a person licensed to deal in game according to the said act, or bona fide from a person affixing to the outside of the front of his house, shop, or stall a board purporting to be the board of a person licensed to deal in game, every such offender shall, on conviction thereof before two justices of the peace, forfeit and pay for every head of game so bought such sum of money not exceeding five pounds as to the said justices shall seem meet, together with the costs of the conviction; and whereas it is expedient to protect and indemnify in the manner hereinafter mentioned persons who inform and prosecute for offences committed against the provisions of the said recited act;" it is enacted, "that from and after the passing of this act every person who shall inform and prosecute or give evidence against any other person or persons for any offence committed or to be committed against any of the said last-recited enactments shall be indemnified, freed, and discharged from all and every penalty and penalties which he or she may have incurred or become liable to under the aforesaid enactments, or any of them, for or by reason of any transaction or dealing which he or she may have had with the person or persons against whom he or she shall so inform and prosecute or give evidence as aforesaid, provided the information or prosecution which the person so informing and prosecuting as aforesaid shall have instituted, or upon which the person shall give evidence, shall have been commenced before the institution of any proceedings against him or her for the recovery of any such penalty or penalties which he or she may have incurred or become liable to as aforesaid." XI. Trespasses in Pursuit of Game. And herein we will notice, 1st, what will amount to a trespass2dly, the Remedies for Trespasses-and, 3dly, the Means of preventing them. (1). WHAT A TRESPASS. We have already noticed the rights of persons as to the game upon their own premises, in their own occupation or in the occupation of their tenants; also, the rights of persons as to game as owners of franchises or lords of manors, &c., ante, 212, &c. The land of every owner or occupier is inclosed and set apart from that of his neighbour, either by a visible or tangible fence, as one field is separated from another by a hedge, wall, &c., or by an ideal, invisible boundary, existing only in contemplation of law, as when the land of one man adjoins to that of another in the same open or common field. Hence every unwarrantable entry upon the land of another is termed a trespass by breaking his close. (2 Selw. N. P. tit. Trespass). It seems that if a person discharge a gun from the outside of a field into it, so as that the shot strike the soil, he is guilty of breaking and entering the field. (See Pickering v. Rudd, 4 Campb. 220; 1 Stark. N. P. 58, S. C., per Ellenborough, C. J.) And it seems that an action on the case would lie against the party though the shot did not strike the soil, if the shooting was done maliciously, and with intent to frighten the game from a preserve; (Keeble v. Hickeringill, 11 East, 574, note a) (a); though not, if the shooting be to frighten rooks from a rookery, because these birds being considered in law as destructive and noyful fowl, and not known as an article of food, it is held that a party can have no property in them in their wild state, nor show any absolute right to have them resort to his trees. (Hannam v. Mockett, 2 B. & C. 934; 4 D. & R. 518, S. C.) If A. gives B. leave to go on a field, in which A. has no right, and B. goes there, this will not make A. liable as a co-trespasser with B.; but if A. orders and authorizes B. to go on the field, and he does so, A. is a joint trespasser with B.; the latter being an authority, the former a leave and license only. (Robinson v. Vaughton, 8 Car. & P. 252). 11. Trespass in pursuit of game. In general no man can come upon another's close to kill or take game Pursuing game. without being liable to an action of trespass. (2 Bac. Ab. 613; 2 Bla. Com. 417; 2 Bla. Rep. 900). And in general no person, though he find game upon his own land, has a right to pursue, nor can he justify pursuing it into the land of another, either to kill or take it when killed, or for any other purpose. (Deane v. Clayton, 7 Taunt. 489, ante, 213, n.) And in Baker v. Berkeley, 3 C. & P. 32, it was held that if a stag, hunted by the hounds of B., run into the barn of A., B. and his servants have no right to enter the barn to take the stag; and if they do, they are trespassers. The common law allows persons to enter the lands of others to follow beasts of prey, as a fox or a badger, for the purpose of destroying them as such, for the destruction of them is to the public benefit. (Gundry v. Feltham, 1 T. R. 334). But the digging and breaking the ground to unearth them is held to be unlawful, and the owner of the ground may maintain an action of trespass in that case. (Cro. Jac. 321). With respect to the case of Gundry v. Feltham, Mr. Christian observes, that the judgment was only justified by the pleadings, which admitted that the riding after the fox, in that case, was the only means of killing it. (Christian's G. L. 114). But in the case of The Earl of Essex v. Capel, at Hertford Sum. Ass. 1809, where the subject was properly pleaded upon the record, Lord Ellenborough, C. J. directed the jury to find for the plaintiff, if they thought from the evidence that the defendant pursued the fox for his own pleasure and amusement, and if they thought the good of the public was not his sole governing motive. (Christian's G. L. 114; Chit. G. L. 31, S. C.) As to the provisions against trespassers, in the 1 & 2 Will. IV., not applying to persons hunting, &c. see post, 252. Pursuing beasts of prey, as foxes, &c. As to who is entitled to enter upon land to kill game, and particularly Landlord's right as to a landlord's right to do so, see ante, 212, &c., 222, &c. As to trespassing on a highway in pursuit of game, see post, 250. (2). THE REMEDIES FOR TRESPASSES. to enter on land of tenant, &c. On highways. The remedies for trespasses in pursuit of game may be by proceedings (2). Remedies for (a) The same case is also reported in 11 Mod. 74, 130; 3 Salk. 9; and Holt's Rep. 14, 17, 19; but Sir E. H. East's account of this case is much the most trespasses. 11. Trespass in pursuit of game. Trespassing in day-time upon lands in search of game (b). Five or more persons commiting trespasses. Party may set up same defence as to an action. Where the occu pier, not being en titled to the game, allows another to kill it, party en titled to the game may enforce penalty. Entering and being on land but one offence under this section. A party in pursuit of game on a highpasser under it. under the 1 & 2 Will. IV. c. 32, by action of trespass, by action on a bond or agreement, &c., by suit in equity, or by indictment (a). Remedies for Trespasses under the 1 & 2 Will. IV. c. 32.]-By sect. 30, reciting, that "after the commencement of this act, game will become an article which may be legally bought and sold, and it is therefore just and reasonable to provide some more summary means than now by law exist for protecting the same from trespassers;"" it therefore enacts, "that if any person whatsoever shall commit any trespass by entering or being, in the day-time (b), upon any land in search or pursuit (c) of game or woodcocks, snipes, quails, landrails, or conies, such person shall, on conviction thereof before a justice of the peace, forfeit and pay such sum of money, not exceeding two pounds, as to the justice shall seem meet, together with the costs of the conviction; and that if any persons to the number of five or more together 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, each of such persons shall, on conviction thereof before a justice of the peace, forfeit and pay such sum of money, not exceeding five pounds, as to the said justice shall seem meet, together with the costs of the conviction." "Provided always, that any person charged with any such trespass shall be at liberty to prove, by way of defence, any matter which would have been a defence to an action at law for such trespass; save and except that the leave and license of the occupier of the land so trespassed upon shall not be a sufficient defence in any case where the landlord, lessor, or other person shall have the right of killing the game upon such land by virtue of any reservation or otherwise, as herein before mentioned; but such landlord, lessor, or other person shall, for the purpose of prosecuting for each of the two offences herein last before mentioned, be deemed to be the legal occupier of such land, whenever the actual occupier thereof shall have given such leave or license; and that the lord or steward of the crown of any manor, lordship, or royalty, or reputed manor, lordship, or royalty, shall be deemed to be the legal occupier of the land of the wastes or commons within such manor, lordship, or royalty, or reputed manor, lordship, or royalty." Entering and being on the land constitute only one offence under this enactment. (R. v. Mellor, 2 Dowl. 173; see Newman v. Bendyshe, 10 Ad. & Ell. 11; and post, 272). It seems that a party may be a trespasser within the meaning of this way may be a tres enactment, by entering or being upon a highway in search or pursuit of game; as the public have only the right of using a highway for the purpose of passing and re-passing along it, and, if they use it for any other purpose, they become trespassers; (Vide post, title Highway"); and the enactment is not confined to trespasses upon inclosed land, but extends to trespasses upon any land in search or pursuit of game, &c. And a fortiori the enactment extends to trespassers upon the waste land at the side of a highway. In whom the soil 66 (a) The Malicious Trespass Act, 7 & 8 Geo. IV. c. 30, s. 24, for the summary punishment of malicious trespassers, and giving a magistrate power to award 57. satisfaction, (see "Malicious Injuries to Property," Vol. V. p. 45), exempts persons committing trespasses not wilful and malicious in hunting, fishing, or in the pursuit of game. The 1 & 2 Will. IV. c. 32, repeals the 4 & 5 Will. & Mary, c. 23, s. 10, relative to inferior tradesmen, &c. sporting; also the 11 Henry VII. c. 17, s. 1, imposing a penalty for trespassing; and the 23 Eliz. c. 10, s. 4, relative to hunting amongst growing corn. (b) See what is to be deemed daytime for the purposes of this act, post, 252. (c) As to what is sufficient evidence of this, see ante, 226. |