tors of the deceased, unless they would satisfy certain claims made against the deceased by the gaoler, the Court of Queen's Bench issued a mandamus, peremptory in the first instance, commanding that the body should be delivered up to the executors. (a) And a gaoler is indictable at common law for detaining the body of a person who has died in gaol in order to compel the payment of certain claims made by the gaoler. An indictment stated that a prisoner had died in gaol, and [*638 the body remained in gaol in the *possession of the defendant, then being gaoler; and the executors requested him to deliver up the body to them, and suffer them to take it away, in order that they might bury it: and it thereupon became the defendant's duty to deliver up the body, but that he refused to do so, and unlawfully, and in abuse of his office, without legal authority or excuse, and against the will of the executors, detained the body a long time in gaol, until the defendant unlawfully and indecently buried the body without any rite of Christian burial, or any funeral ceremony or observance, in a place not being a consecrated burialground, or a customary or fit place for burial, (to wit), a yard within the precincts of the gaol. The second count alleged a refusal to deliver up, &c., unless the executors would not account with the defendant concerning certain claims of money, which he pretended to have against the deceased's estate, and pay the defendant what should appear due; that the defendant wrongfully detained, &c., under pretext of such claims, the executors not accounting, &c., until, &c., when he buried, &c. Maule, J., said, at the close of the case, that the notion of a gaolor being authorized to detain a dead body on account of pecuniary claims was a mistake, and that a gaoler doing so was guilty of a misconduct in his public character, for which he was liable to prosecution.(b)

An indictment will lie for wilfully obstructing and interrupting a clergyman in reading the burial service, and interring a corpse; but such an indictment must allege that the person obstructed was a clergyman, and that he was in the execution of his office, and lawfully burying the corpse; and it must also show how the party was obstructed, as by setting out the threats and menaces used. And it is not sufficient to allege that the party did unlawfully, by threats and menaces, prevent the burial.(c)

There is one case in which the too speedy interment of a dead body may be an indictable offence; namely, where it is the body of a person who has died of a violent death. In such case, by Holt, C. J., the coroner need not go ex officio to take the inquest, but ought to be sent for, and that when the body is fresh; and to bury the body before he is sent for, or without sending for him, is a misdemeanor. (d) It is also laid down that if a dead body in prison, or other place, whereupon an inquest ought to be taken, be interred or suffered to lie so long that it putrefy before the coroner has viewed it, the gaoler or township shall be amerced.(e)

*CHAPTER THE THIRTY-EIGHTH.

[*639

OF GOING ARMED IN THE NIGHT-TIME FOR THE DESTRUCTION OF GAME, AND OF ASSAULTING GAMEKEEPERS.

BEFORE proceeding to the proper subject of this chapter, it may be well to say a few words as to the property in game, in order to remove doubts which have

(a) Reg. v. Fox, 2 Q. B. 247 (42 E. C. L. R.).

(b) Reg. v. Scott, Q. B. 248 (42 E. C. L. R.). It is said that it was alleged that there were some necessary allegations wanting in the indictment; but they are not specified. (e) Rex v. Cheere, 4 B. & C. 902 (10 E. C. L. R.); 7 D. & R. 461. See Rex v. How, 2 Str. 699. See the 24 & 25 Vict. c. 100, s. 36, ante, p. 418.

(d) Reg v. Clark, 1 Salk. 377; Anon., 7 Mod. 10; 2 Hawk. P. C. c. 9, s. 23, note (4). (e) 2 Hawk. P. C. c. 9, s. 23. And see an indictment against a township for a misdemeanor, in burying a body without notice to the coroner: 2 Chit. Cr. L. 256.

sometimes been expressed. The law of England has never recognized the very unreasonable doctrine of the Roman law, that any trespasser had a right to the game that he caught or killed on any man's land. (a) It is quite clear that, by the Constitutions of Canute concerning forests, every freeman was entitled to take and dispose of the game on his own land, and that no one had a right to enter on the lands of another for such a purpose.(b) And an examination of the year books and other ancient authorities shows that by the common law the owner of land had a possessory property in the game upon his land, so long as it continued upon that land, and he might maintain an action of trespass against any one who entered upon the land, and killed or took any game thereon and carried it away, and recover damages as well for the trespass as for the value of the game. The property in living game was called possessory, because it depended on the possession of the game by reason of the possession of the land, whereon it was, and as soon as it quitted the land of its own free will the possessory property ceased. But if the game were taken or killed on the land, the property which before was merely possessory became absolute in the owner of the land. Two cases alone need be cited to show how clearly this law was settled. To an action of trespass on a warren and carrying away a pheasant, the defendant pleaded that the pheasant was found on his own land, and he let fly his falcon at it, and the falcon pursued and caught the pheasant in the warren, and the defendant followed and took the pheasant; and it was held that the defendant might lawfully take the pheasant, though he was liable for the entry into the warren. (c) So where C. brought an action of trespass against M. for entering his close and carrying away a dead hart, M. pleaded *that he was the forester of the Queen of the free chase of B., and that

*640] the plaintiff entered the forest and chased a hart out of the forest, and

that the defendant as the forester made fresh pursuit after the hart, and the hart was killed on the land of the plaintiff before the defendant came there, and that the defendant seized the hart for the Queen; it was held that this justification was good; for the hart was the property of the owner of the chase, and the plaintiff had done wrong in chasing the hart out of the forest, and it was not reasonable that he should take advantage of his own wrong. (d) It is to be observed that in wrong.(d)

(a) Just. Inst. L. II., tit. 1, 12.

(b) The law on this subject is stated in different terms in different authors in consequence of different translations having been made of the original Saxon: 4 Inst. 320. The law may be found, Spelm. Glos. tit. Foresta, p. 242, No. 30, Edit. 1687; 4 Inst. 320; 2 Blac. Com. 414, who cites it as chapter 77, and says that it was the ancient law of the Scandinavian continent, citing Stiernhook de jure Sweon. 1, 2, c. 8. Deac. G. L. 40, citing also a license of Canute to the same effect. In 2 Blac. Com. 414, a similar law of Edward the Confessor, chapter 36, is cited. In 4 Inst. 293, a charter of the Empress Maud is cited containing a similar law. From a comparison of these several authorities, the following seems to be substantially correct: Sit quilibet liber homo dignus venatione suâ in silvâ et in agris sibi propriis et in dominio suo, sed abstineat omnis homo a venarüs regis.

(c) 38 Edw. 3, 10. The decision in this case is stated according to the statement of Brook, J., in 12 Hen. 8, 10: "If I let my falcon fly in my own land at a pheasant, and he kills the pheasant in your land, you do not gain any property in the pheasant; but I can take the pheasant, and shall not be punished except for the entry into your land; for it was by my industry and labor, and when my falcon had caught it, it was in my possession." And see 12 Mod. 145, per Holt, C. J., in the next note; and observe that the pheasant was not started in a warren, &c., but simply on the defendant's own land.

(d) 12 Hen. 8, 9. This is the case relied upon by Holt, C. J., in Sutton v. Moody, I Lord Raym. 250; 3 Salk. 290; 2 Salk. 556; Holt 608; Comb. 458; 12 Mod. R. 145; 5 Mod. R. 375. It is clear that there is a mistake in the reports of Sutton v. Moody as to the obiter dictum of Holt, C. J., that "if A. starts a hare in the ground of B., and hunts it into the ground of C., and kills it there, the property is in A. the hunter." There is nothing in the 12 Hen. 8, 9, to support any such dictum; on the contrary, the principle of the decision is directly the other way. For this dictum makes A. derive a benefit from his own wrongful act in hunting the hare out of the land of B.; and it is plain that there is a further mistake, for Holt, C J., having stated that "the privilege of warren gives no greater property in the rabbits to the warrener; for the property arises to the party from the possession" of the land, is made to say immediately after the passage above cited, "if A. starts a hare, &c., in a forest or warren of B., and hunts it into the ground of C., and kills it there, the property remains all the while in B., the proprietor of the warren, because the privilege continues." So that the judgment is contradictory. But I find in 12 Mod. 145, that the dictum was not delivered until after judgment in the case; for Holt,

both these cases the plaintiff claimed the property in the game by reason of its having been killed on his land, and in neither case was any objection made to the declaration.(e) The decisions, therefore, in the Earl of Lonsdale v. Rigg,(ƒ) and Blades v. Higgs,(g) that the owner of land has a property in the game killed upon his land are right according to all the authorities.

[*641

An action lies against the owner of a dog, who, knowing the animal to have a propensity for destroying game, permits it to be at large, and the dog in consequence "breaks and enters the plaintiff's wood, and chases and destroys young pheasants, which had been hatched under hens, and when about eight weeks old had been removed into the wood, together with the coops and hens; the hens being kept in the coops, and the pheasants allowed to run in and out at pleasure, and the property damaged being game, is no answer to the action, because the law recognizes in the proprietor of land a qualified right to game whilst it is upon the land. (99)

The defendant was convicted of having by night unlawfully entered certain open land. the property of Lord Sidmouth, with a net, for the purpose of taking game. The land in question had a hedge on either side of it, and a metalled road running through it; while between the road on both sides and the hedge is waste land varying in extent. The fields on each side belong to Lord Sidmouth, who is lord of the manor. The waste land, except where there are patches of grass, is covered with brambles and furze as high as five feet, and there is no sign of any traffic in or use of the said waste land. The net was found across the road, and fastened to one hedge, and reaching not quite to the hedge on the other side, the defendant standing C. J., says, "when we gave judgment on this case, I mentioned 12 Hen. 8, 9;" and, after stating the point decided, he adds, "they held also that if a man start game in his own ground, and hunt it into his neighbor's ground and there kill it, yet in regard to his first starting and pursuit, the property is still in him; and it may be inferred from that case that if I start game in one man's ground, and hunt it into another man's ground and there kill it, the property is in me, because the party in whose ground it was started having no privilege, he cannot come and take it." So that, probably, all Holt, C. J., really said was that it might be contended that such was the law. It has, however, been supposed that this obiter dictum was deliberately sanctioned in Churchward v. Studdy, 14 East 249. There the plaintiff's hounds put up a hare in a third person's land, and ran it into the defendant's land, where it ran between the legs of a laborer, when one of the dogs caught her and the laborer took her up alive, and the defendant took her from him and killed her, and the laborer swore he took the hare up in aid of the hunters; Chambre, J., acted on the dictum in question, and the plaintiff had a verdict, and a rule for a new trial was obtained "on the supposition that there was no evidence that the hare had been in any manner reduced into the possession of the plaintiff before it had been taken from the laborer by the defendant; and that the laborer was not to be considered as having taken it up for either of the parties;" but when the report had been read, the counsel in support of the rule admitted that he was not aware that the laborer had proved that he had taken up the hare in aid of the hunters, and the rule was discharged. The dictum, therefore, was not discussed at all in this case, and it rests on the loose reports of Sutton v. Moody; and it is difficult to conceive that so great a judge as Lord Holt could ever have uttered so unreasonable a dictum as that a man, by trespassing on another's land and driving his game out of it, could divest his property in it and vest it in himself-omnia in favorem spoliatoris. See per Littleton, 9 Edw. 4, 35.

(e) It would occupy far too much space to do more than refer to some of the old authorities for the benefit of any one who may have to investigate the subject. They are 8 Ed. 4, 5; 3 Hen. 6, 55; 11 Hen. 6, 34; 10 Hen. 6, 16; 18 Hen. 6, 21; 14 Hen. 8, 2; 18 Hen. 8, 2; 10 Hen. 7, 6; where Keble said, "as to these deer being wild beasts and nullius in bonis, according to Bracton, and the property in no one; yet by the common law before the statute of Westminster 1st, if a stranger had killed a deer in my park, although my writ did not mention the value, yet the jurors ought to assess the damages as well for the value of the deer as for the breaking of the close:" 10 Hen. 7, 30; 42 Edw. 3, 2; Abbot of Whitby's case, 8 Edw. 3, Rot. 42, cited 4 Inst. 305; Abbot of Dien's case, 7 Hen. 6, 36, cited 4 Inst. 305; Dyer 326, cited Ibid.; 43 Edw. 3, 8; 43 Edw. 3, 13; 44 Edw. 3, 12; The case of Monopolies, 11 Rep. 87; 4 Inst. 303, 304; Keilw. 30; 2 Roll. Ab. 565.

(f) 11 Exch. R. 654; 1 H. & N. 923.

(9) 12 C. B. (N. S.) 501 (104 E. C. L. R.); 8 Law T. 834; 13 C. B. (N. S.) 844 (106 E. C. L. R.), affirmed in error in Exch. Ch., and aftewards in the House of Lords, 12 Law T. 615. In 12 C. B., Willes, J., is reported to have spoken of "the dictum of Lord Holt in Sutton v. Moody." Now, the only point decided in that case was, that the plaintiff had a property in the rabbits by the possession of the land; what Holt, C. J., therefore said on that subject was on the very point in the cause.

(99) Read v. Edwards, 17 C. B. (N. S.) 245 (112 E. C. L. R.).

between the end of the net and the hedge. Where the net was set, there was nine feet of waste on one side and three feet of waste on the other side of the road, which itself was eleven feet wide. At another point there were eighteen feet of waste on one side and twelve feet on the other side of the road, and at 403 feet distant from the net there were sixty-four feet waste on one side and eight feet on the other side. An accomplice of the defendant had been seen on the waste 163 feet from the net, and he ran along the waste land to the place where the net was set. The Court of Queen's Bench held that this land was not open land within the 9 Geo. 4, c. 69. s. 1.(hh) This case seems to have been argued in anything rather than a satisfactory manner, and the decision can only be supported on the ground that the 7 & 8 Vict. c. 29, had the effect of taking such land out of the 9 Geo. 4, c. 69. The 7 & 8 Vict. c. 29, was a gross legislative blunder. If a road pass over land, no one has any right whatever to use that land for any other purpose than for the purpose of passing over it, and if he do use it for any other purpose, he is a trespasser just as much as if he had gone on a field where there was no road at all. In truth, as to every act done on land over which a road passes other than for the purpose of using it as a road, the land is in point of law just exactly in the same position as if the road did not exist. If in this case an action of trespass had been brought by Lord Sidmouth against the defendant for entering this land, and he had pleaded that he had entered to use the road, which is the only justification he could have set up, he would have been answered by alleging that he entered the land for other purposes, and by proving that he endeavored to take game on the land. This proves that the defendant unlawfully entered. Then the words " open or enclosed" in the 9 Geo. 4, c. 69, s. 1, are plainly used, not for the purpose of limiting the generality of the words "any land," but to prevent any doubt as to unenclosed land being within the clause. See the 57 Geo. 3, c. 90, in note (v), p. 659 of Vol. I.; and the case being clearly within the 9 Geo. 4, c. 69, s. 1, the manifest blunders of the 7 & 8 Vict. c. 20 ought not to have led to this decision. That Act recites that the provisions of the 9 Geo. 4, c. 69, "have of late years been evaded and defeated, by the destruction, by armed persons at night, of game or rabbits, not upon open or enclosed lands, as described in the said Act, but upon public roads and highways, and other roads and paths leading through such lands, and also at the gates, outlets, and openings between such lands and roads, highways, and paths." Now the first remark is that it exhibits gross ignorance of law to suppose that a person killing game on a highway that runs through an enclosed field is not within that Act; but it is still more absurd to suppose that any one killing game on a road other than a highway, i. e. on a private road, is not within that Act, and yet such is the recital of that Act. It adds but little to the absurdity of this Act that, being passed with the clear intention of extending the whole of the 9 Geo. 4, c. 69 to the places mentioned in it, it only extends it to the cases where game or rabbits are actually taken or destroyed, and does not include the cases where everything is done to take or destroy game or rabbits, but none is taken or destroyed; and this leads to the very remarkable absurdity that the Act does not hit the very case at which it was undoubtedly aimed, viz. the offence within sec. 9 of the 9 Geo. 4, c 69, which makes three "persons entering for the purpose of taking game," &c., guilty of a misdemeanor; for it only extends the penalties imposed by the 9 Geo. 4, c. 69 upon persons "taking or destroying" game-not upon persons entering for the purpose of taking or destroying game-to persons "taking or destroying any game or rabbits" in the places mentioned in the 7 & 8 Vict. c. 29. In truth, that Act only empowers justices summarily to convict under sec. 1 of the 9 Geo. 4, c. 69, in cases where game or rabbits are actually taken or destroyed. A more thoroughly blundering piece of legislation cannot be found. It was clearly wholly unnecessary, as the 9 Geo. 4, c. 69, when properly construed, extends to every case, and the proper course is to treat the latter Act as wholly superfluous.

The 9 Geo. 4, c. 69, s. 1, reciting the 57 Geo. 3, c. 90. and that "the practice of going out by night for the purpose of destroying game has nevertheless very much increased of late years, and has in very many instances led to the commission of murder, and of other grievous offences; and it is expedient to repeal the said

(hh) Reg. v. Harris, 12 Law T. 303.

recited Act, and to make more effectual provisions than now by law exist for repressing such practice," enacts "that the said recited Act shall be, and the same is hereby repealed, except so far as the same repeals any other Acts; and if any person shall, after the passing of this Act, by night, unlawfully take or destroy any game or rabbits in any land, whether open or inclosed, or shall by night unlawfully enter or be in any land, whether open or inclosed, (h) with any gun, net, engine, or other instrument, for the purpose of taking or destroying game,(i) such offender shall, upon conviction thereof before two justices of the peace, be committed for the first offence to the common gaol or house of correction for any period not exceeding three calendar months, there to be kept to hard labor, and at the expiration of such period shall find sureties by recognizance, or in Scotland by bond of caution, himself in ten pounds, and two sureties in five pounds each, or one surety in ten pounds, for his not so offending again for the space of one year next following; and in case of not finding such sureties, shall be further imprisoned and kept to hard labor for the space of six calendar months, unless such sureties are sooner found; and in case such person shall so offend a second time, and shall be thereof convicted before two justices of the peace, he shall be committed to the common gaol or house of correction for any period not exceeding six calendar months, there to be kept to hard labor, and at the expiration of such period shall find sureties by recognizance, or bond as aforesaid, himself in twenty pounds, and two sureties in ten pounds each, or one surety in twenty pounds. for his not so(k) offending again for the space of two years next following; and in case of not finding such sureties, *shall be further imprisoned and kept to hard labor for the space of one [*642 year, unless such sureties are sooner found; and in case such person shall so offend a third time, he shall be guilty of a misdemeanor, and being convicted thereof, shall be liable, at the discretion of the Court, to be transported() beyond seas for seven(m) years, or to be imprisoned and kept to hard labor in the common gaol, or house of correction, for any term not exceeding two years; and in Scotland, if any person shall so offend a first, second, or third time, he shall be liable to be punished in like manner as is hereby provided in each case."

Sec. 2. "Where any person shall be found upon any land committing any such offence as is herein before-mentioned, it shall be lawful for the owner or occupier of such land, or for any person having a right or reputed right of free warren or free chase thereon, or for the lord of the manor or reputed manor wherein such land may be situate, and also for any gamekeeper or servant of any of the persons hereinmentioned, or any person assisting such gamekeeper or servant, to seize and apprehend such offender upon such land, or in case of pursuit being made, in any other place to which he may have escaped therefrom, and to deliver him as soon as may be into the custody of a peace officer, in order to his being conveyed before two justices of the peace; and in case such offender shall assault or offer any violence with any gun, crossbow, firearms, bludgeon, stick, club, or any other offensive weapon whatsoever, towards any person hereby authorized to seize and apprehend him, he shall, whether it be his first, second, or any other offence, be guilty of a misdemeanor, and being convicted thereof, shall be liable, at the discretion of the Court, to be transported beyond seas for seven years, or to be imprisoned and kept to hard labor in the common gaol or house of correction for any term not exceeding two years; and in Scotland, whenever any person shall so offend, he shall be liable to be punished in like manner.(n)

(h) See Tapsell v. Croskey, 7 M. & W. 441, as to this word in the Turnpike Act, 3 Geo.

4, c. 126.

(i) It is to be observed that the word "rabbits" is here omitted; so that if poachers enter for the purpose of taking rabbits, but have not either taken or destroyed any, they have committed no offence within sec. 1, and therefore sec. 2 gives no authority to apprehend them Section 9 extends to poachers entering with intent to take both game and rabbits, and is, therefore, in this respect, more extensive than sec. 1. See Rex v. Ball, R. & M. C. C. R. 330, post, p. 647.

(k) See In re Reynolds, 1 Sess. C. 51, that a conviction that the defendant should enter into recognizances that he should not offend again, omitting the word "so" is bad. (4) Penal servitude by the 20 & 21 Vict. c. 3, s. 2, ante, p. 4. (m) And not less than three years by the same clause: Ibid.

(n) By sec. 3, a justice may issue his warrant to apprehend any person charged on the