King v. Russell.

(2) The provisions of this section apply to several fisheries in navigable and tidal rivers (Embleton v. Brown, 3 El. & B. 234).

Larceny Act, sect. 25.-"If any person shall at any time be found fishing, against the provisions of this Act, the owner of the ground, water, or fishery where such offender shall be so found, his servant or any person authorised by him, may demand from such offender any rod, line, hook, net, or other instrument for taking and destroying fish which shall then be in his possession, and in case such offender shall not immediately deliver up the same, may seize and take the same from him for the use of such owner: provided that any person angling against the provisions of this Act between the beginning of the last hour before sunrise and the expiration of the first hour after sunset, from whom any implement used by anglers shall be taken, or by whom the same shall be delivered up, shall by the taking or delivery thereof, be exempted from the payment of any damages or penalty for such angling."

Any person angling."-This does not include fishing with nightlines (Barnard v. Roberts, 23 I. L. R. 439).

In the King (appellant) v. Russell (respondent) (1909), 2 I. R. 25, it was decided that it is an offence under sect. 35 of 5 & 6 Vict. c. 106 for a person to expose for sale, or have in his custody or possession, salmon caught by net during the close season for net fishing, notwithstanding that at the time of his exposing them for sale angling for salmon by rod and line was lawful.

Under the Malicious Injuries Act, aiders and abettors are punishable as if they were principal offenders (sect. 56), and the malicious intent. is to be inferred from the conduct of the parties, as malice against the owner of the fishery in particular need not be alleged or proved (sects. 58 and 60). A person found committing an offence under this Act can be apprehended without warrant by any peace officer or the owner of the property injured, or his servant, and forthwith taken before a justice to be dealt with according to law (sect. 61). Apart from this section, proceedings to restrain pollution can also be taken in the County Court nnder the Rivers Pollution Acts, 1876 and 1890. It would appear that the owner of a fishery in a river is in the same position as regards the right to bring an action to restrain pollution as a riparian proprietor [Fitzgerald v. Firbank (1897), 2 Ch. 96; Pirie v. Kintore (1906), A. C. 478].

In an action against a sanitary authority for pollution by discharge of sewage the Public Authorities Protection Act, 1893, will not hinder the plaintiff from recovering damages for more than six months' injury, if the injury has been continuing up to six months of the issue of the writ [Harrington v. Derby Corporation (1905), 1 Ch. 205].

CHAPTER IX

SECTION I-GAME.

THE Game Laws of Ireland are a portentous code extending to thirty or forty statutes. The principal Acts are 10 Will. III. c. 68 and 27 Geo. III. c. 35.

Barton.

Where there is a right to shoot over lands there is attached to such Mr. Justice a right everything necessary for its enjoyment [Caldwell v. Kilkelly (1906), 1 Ir. R. 443-per Mr. Justice Barton]. So in Boyle v. Holcroft (1905, 1 Ir. R. 245), a tenant was restrained from erecting barbed wire along the bank of a river on which the landlord had reserved the right of fishing, when plain wire would equally have served the purpose. But so long as the occupier is reasonably engaged in cultivating the lands, the owner of the sporting rights must usually be content with the lands as he finds them. "For example," says Mr. Justice Barton," he cannot complain if the tenant in the ordinary course of cultivation drains swampy ground, with the result that snipe depart; or discontinues growing turnips, with the result that partridges disappear" [Caldwell v. Kilkelly (supra, 447)].

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Damage by game.-A person is not as a rule liable for damage done by game or rabbits which are bred on his land. Pollock, B., says: Each person is entitled to bring on his land any quantity of game which can reasonably and properly be kept on it; and so that nothing extraordinary and not natural is done" (Farrer v. Nelson, 15 Q.B.D. 258).

General right of taking game.-The rights of taking game were chiefly modified by two statutes :

(1) The Ground Game Act, 1880; which gave the occupier an inalienable right to kill hares and rabbits (subject to some limitations).

(2) The Land Law (Ireland) Act of 1881, which gave to the landlord of a statutory tenancy a concurrent or exclusive right of shooting, according to the terms of the fair rent order or agreement.

Sect. 10 of 27 Geo. III. c. 35 deals with persons not authorised entering on the lands of other persons, to look for game.

Under this section it has been held (Morden v. Porter, 7 C. B., N.S., 641) that the authorisation must precede the trespass.

Entry.-In R. v. Pratt (4 E. & B. 860) it was decided that "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."

Trespass in pursuit of game.-Some difficulty had arisen upon this matter, but in the case of Horn v. Raine (1898, 67 L. J. Q.B. 533) it was decided by Lord Russell, L.C.J., and Channell, J., that when the

Geo. III. c.135.

defendant, being on his own land, fired at and killed a bird on his neighbour's land, and then went to pick it up, he was rightly convicted by the justices.

In R. v. Passy (7 C. & P. 282) several persons had gone out together for purposes of poaching. Some of them entered the lands, and others remained outside to give the alarm. It was held that all could be

convicted of entering.

Land. 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 held that any person who used the road for other than the lawful purpose of passing and repassing thereon is a trespasser (R. v. Pratt, 4 E. & B. 860).

Under this section a prosecution lies at the information of one of the public as a common informer [R. (Connolly) v. Tyrone JJ. (1902), 2 I. R. 78].

27 Geo. III. c. 35, s. 11, runs as follows:

"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."

The decision in Kingston v. O'Neill (6 L. R. I. 101) has been so often dissented from that it is difficult to think it can be binding. Apart from other cases, in Headfort v. Farrelly (1894, 2 I. R. 12), the evidence was that shots were heard from a plantation in which pheasants usually were, and the defendant was afterwards seen coming out with a gun in his hand, and ran away on seeing the keeper. The King's Bench Division considered that the magistrates 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 the inference from the evidence that the offence had been committed.

In Tyrell 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.

In Blake v. O'Shea (30 I. L. T. R. 102) it was held that where nets were set to catch plover primarily, but which were capable of catching and did in fact catch grouse, the King's Bench would not set aside the conviction.

Sect. 12 runs :—

"Provided also that nothing herein contained shall subject any person or persons duly qualified to take or kill game, his or their servants or necessary attendants, to any of the penalties hereby inflicted for following or pursuing their four-footed game into the lands of other persons.'

Sect. 23 deals with the right of appeal.-This section only gives the right of appeal to the defendant who has been convicted [R. (Kane) v. Tyrone JJ., 40 I. L. T. R. 181].

Dogs. From several cases (Janson v. Browne, 1 Camp. 41; Vere v. Cawdor, 11 East, 568, and others) it seems to be the law that a person is only justified in shooting a dog hunting game on his land, where it is the only method by which the life of the game which is being actually hunted

can be preserved. It is lawful to set spring-guns and traps for the protection of game (Jordan v. Crump, 8 M. & W. 782), provided that the bait is not such as to attract dogs from the high road or any place where they may lawfully be (Townsend v. Watkin, 2 East, 277).

But it must be remembered that such things should be protected in such a way as not to cause injury to any person, though he may be a trespasser (24 & 25 Vict. c. 100, s. 31).

The Poisoned Flesh Prohibition Act, 1864, prohibits the laying of poisoned meat under a penalty of £10 unless a notice is posted on the lands, and notice in writing is given to the nearest police station.

It should be noted that a conviction under that Act is not a bar to a civil action for the recovery of the value of the dog (Lawler v. McKenna, 39 I. L. T. R. 160).

The Malicious Damage Act, 1861, sect. 41, provides that any person unlawfully and maliciously killing, maiming, or wounding any dog, shall on conviction before a magistrate be committed to jail for a term not exceeding six months with, or without, hard labour, or else forfeit and pay, over the amount of injury done, any sum not exceeding £20; and for a second offence-imprisonment only-for a term not exceeding twelve months.

POACHING.

The principal Act concerned in poaching offences is 25 & 26 Vict. c. 114. Sect. 2 of that Act is as follows:

"It shall be lawful for any constable or peace officer in any county, borough, or place in Great Britain and Ireland, in any highway, street, or public place, to search any person whom he may have good cause to suspect of coming from any land where he shall have been unlawfully in search or pursuit of game, or any person aiding or abetting such person, and having in his possession any game unlawfully obtained, or any gun, part of a gun, or nets or engines used for the killing or taking game, and, also, to stop and search any cart or other conveyance in or upon which such constable or peace officer shall have good cause to suspect that any such game or any such article or thing is being carried by any such person, and should there be found any game or any such article or thing as aforesaid upon such person, cart, or other conveyance to seize and detain such game, article, or thing; and such constable or peace officer shall in such case apply to some justices of the peace for a summons citing such person to appear before two justices of the peace assembled in petty sessions, as provided in the eighteenth and nineteenth of Her present Majesty, chap. 126, sect. 9, as far as regards England and Ireland, and before a sheriff or any two justices of the peace in Scotland; and if such person shall have obtained such game by unlawfully going on any land in search or pursuit of game, or shall have used any such article or thing as aforesaid for unlawfully killing or taking game, or shall have been accessory thereto, such person shall, on being convicted thereof, forfeit and pay any sum not exceeding five pounds, and shall forfeit such game, guns, parts of guns, nets and engines, and the justices shall direct the same to be sold or destroyed, and the proceeds of such sale, with the amount of the penalty, to be paid to the treasurer of the county or borough where the conviction takes place; and no person who, by direction of a

justice in writing, shall sell any game so seized shall be liable to any penalty for such sale; and if no conviction takes place, the game or any such article or thing as aforesaid, or the value thereof, shall be restored to the person from whom it had been seized."

Public place.-In Clarke v. Crowder (L. R. C. P. 641) public place is defined to be any place in which a constable would be in the ordinary execution of his duty. In the same case, Bovill, C.J., said that there were four matters requisite before the jurisdiction of justices under this section could arise-(1) The accused must be found in a highway, street, or public place; (2) a constable or peace officer must have good ground to suspect that he is coming from land where he has been unlawfully in search or pursuit of game; (3) he must have in his possession some game unlawfully obtained, or a gun or part of a gun, or net or engine for taking or killing game; (4) the game or other article or thing must have been found on him, and by that I understand it must have been either heard, seen, or felt on him. It must then and there have been perceived by the finder's senses, and not inferred by conjecture. If it be found without searching, I agree there need not then be a search."

The facts of the case were as follows:-The accused were seen by the constable on the road holding up their coat-laps, their pockets being large and bulky. They ran from the police, and were followed to the house of one of them, where they were found with their pockets empty, but in the house were a number of living and dead rabbits and several nets. It was held that, as there was no search on the highway, the justices had no jurisdiction.

Unlawfully. Without the consent previously obtained of the person who had the right to give permission to take such game or rabbits (Morden v. Porter, 7 C. B., N.S., 641).

Seize and detain such game, article, or thing.-In Lloyd v. Lloyd (14 Q.B.D. 725) it was held that the seizure need not take place on the highway. But (per Smith, J.) the justices would not have power to convict if after a search on the highway the constable let the suspected person go away, and afterwards went after him and seized and detained the game.

And if such person shall obtain such game by unlawfully going on such land in search or pursuit of game.-The mere finding of the articles is presumptive evidence of guilt unless the parties suspected give a reasonable account of how he came by them (Brown v. Turner, 32 L. J., N.S., M. C. 106).

The burden of proof is accordingly on the accused. In R. v. Cheshire JJ. (40 J. P. 148) it was held by the Queen's Bench that a licensed game dealer was rightly convicted where he was stopped by a constable who found a number of rabbits in his cart, which he stated he had bought from a man who was known to be a poacher, but who had certain lands on which he might lawfully have taken them, the poacher refusing to state where he got them.

In another case, Evans v. Boteril (11 W. R. 621), where the accused were found on a public road at 6 A.M., with bags containing several