Proceed with offence against the principal or principals as in the last form, and then: and that you [or he the said F. G.], unlawfully then and there did aid and abet the said A. B. to do and commit the said offence, contrary, &c.

Proceed as in the form No. 21, ante, p. 66, to the asterisk,* and then: forest [or park, or chase, or warren] of her majesty the Queen, there called in search [or pursuit] of game there, without being duly authorized so to do, contrary,

&c.

CHAPTER VI.

UNLAWFULLY TAKING GAME, &C. IN THE DAY-TIME.

previously

WE have already shown who can take game (ante, Enactments p. 3), what licences are necessary to be obtained to given. kill or take game by owners and occupiers of lands, gamekeepers and other persons; the exemptions, and the mode of obtaining the licences (ante, pp. 24—40); that game cannot be taken out of season, or on a Sunday or Christmas-day (ante, pp. 13–15). We shall in other Chapters give the enactments as to the unlawful taking of eggs of birds of game (VII.), taking game by night (XI.), killing deer (XII.), and killing hares, &c., in warrens (XIII). Here it is proposed to give some provisions which are cumulative upon all these.

if

c. 32.

By 1 & 2 Will. 4, c. 32, s. 23, it is enacted,—"That 1 & 2 Will. 4, any person shall kill or take any game,— -or use any Penalty for dog, gun, net, or other engine or instrument, for the killing game of searching for or killing or taking game,purpose such person not being authorized so to do for want of a game certificate,1 he shall, on conviction thereof

This enactment does not apply to woodcocks, snipes, quails, landrails or conies, nor to hares killed by an owner or occupier thereto authorized, or to those persons who are exempted from taking out a licence by 23 & 24 Vict. c. 90, s. 5, ante, pp. 29, 30; nor to deer; but the person killing woodcocks, snipes, quails, landrails, or conies, or deer, without the new and substituted excise "licence to kill game," is liable to the penalty of 201. by 23 & 24 Vict. c. 90, s. 4, ante, p. 28, but not to be surcharged any duty, see note, ante, p. 28. See the proviso to this section,

without a certificate.

1 & 2 Will. 4, before two justices of the peace, forfeit and pay for

c. 32.

This penalty to be cumula

tive.

every such offence such sum of money not exceeding five pounds, as to the said justices shall seem meet, together with the costs of the conviction:2

"Provided always, that no person so convicted shall by reason thereof be exempted from any penalty or liability under any statute or statutes relating to game

infra. As to the act constituting the offence: if a man standing in one parish or county shoot at game in another, he uses the gun in the district in which he stands (R. v. Allsopp, 1 Show. 339). As to when the game is dead, see note 3, ante, p. 14. See also 23 & 24 Vict. c. 90, s. 11, ante, p. 36, as to forfeiture of licence on conviction of a trespass, and the cases noticed under 23 & 24 Vict. c. 90, s. 4, ante, p. 28. It will lie on the defendant to prove that he is qualified by a licence, or exempted from taking it out (1 & 2 Will. 4, c. 32, s. 42, post (Chap. X.), p. 101. See also note 6, ante, p. 60.

2 Vide Chap. X., post, as to the mode of recovery of this penalty; and p. 72, the statements of the offences. It is said to be clear that where there is a repetition of several acts on the same day in pursuit of the same object, the penalty is single, as if an unlicensed person kill several hares, partridges, &c., or use a dog, and also a gun upon the same day, he is only liable to one penalty under this section (Locke, G. L. 8, 32; Oke's "Synopsis," 7th ed., pp. 107, 108, 148, 149). But, query, is he not liable to one penalty for the taking of game, and another for using a dog at another time for the purpose of taking game, if committed on the same day within the same or another jurisdiction, but on different persons' lands or occupations? It would appear from Brooke v. Milligan (3 T. R. 509; Locke, G. L. 8; see Paley, 4th ed., p. 221), that he would be, as the offences are distinct and separate (Reg. v. Matthews, 10 Mod. 26). With respect to the amount of the penalty which may be imposed on offenders where there are several joining in the commission of this offence by using one dog, gun, &c., or killing a hare, it has long been a moot point whether or not it is a joint offence punishable with one penalty of 51. divisible amongst the whole, or a several offence in which the full penalty may be imposed on each. It is scarcely necessary to refer to the old cases on this point, because in most of them a strained and forced construction has been put upon the statutes under which they were given, and the current of recent decisions all incline the other way. We think there is no such distinction between a joint and several offence as has been contended: it is entirely unintelligible; for, where the offence arises from the joint act of the parties, each person, we apprehend, is liable for all the consequences (as, in fact, each case is distinct, depending

c. 32.

certificates, but that the penalty imposed by this act 1 & 2 Will. 4, shall be deemed to be a cumulative penalty." 3

Officers in killing, &c.,

the army

game or fish

leave.

By the Annual Army Mutiny Act, 24 Vict. c. 7, s. 88, it is "for the better preservation of game and fish in or near places where any officers shall at any without time be quartered," enacted,-"That every officer who shall, without leave in writing from the person or persons entitled to grant such leave, take, kill or destroy any game or fish in the united kingdom of Great

on the evidence against each person), unless the act creating the offence plainly intends otherwise. The true test in these cases is the wording of the statute, as laid down by Alderson, B., in Reg. v. Dean, 12 Mees. & W. 39 (which, however, was an excise case against partners, where each was held liable for the same offence), wherein he says,-" You must look at the statute to see whether every person is to be punished, or every offence is to be punished. If every offence is to be punished there is to be one penalty only, however large the number of persons that committed it; but if there are several penalties on each person, it is obviously otherwise." The more recent case of Reg. v. Justices of Staffordshire (32 L. T. 105; 23 J. P. 486), which was upon convictions in several penalties under this particular section of 1 & 2 Will. 4, c. 32, favours our view that each is liable to the full penalty (Oke's "Synopsis," 7th ed., pp. 148, 149). Indeed the clause itself appears, to us to point to the intention of the legislature that every person, and not every offence, should be punished. It would be manifestly absurd to parcel out a penalty of 5l., where there were, say, twenty offenders, when by many sections of this act (1 & 2 Will. 4, c. 32, ss. 30, 32), the legislature has increased the penalty where the offenders go in a party of five or more. How would it be in a case where the statute imposes a term of absolute imprisonment? Could it be apportioned too? Whichever view may hereafter be decided to be the law, some of the parties may, it is conceived, be treated as aiders and abettors in the offence under 11 & 12 Vict. c. 43, s. 5, and so liable to the same penalty as the principal who uses the dog, gun, &c.; for it seems to be admitted that if each did a separate substantive act forbidden by this section, each would be liable (Christian's G. L. 161; Bell, G. L. 192; 25 J. P. 28).

3 The other penalty referred to in this proviso is 201. See note, supra.

The term "game" must be understood in its usual signification as defined by 1 & 2 Will. 4, c. 32, s. 2, ante, p. 14, note 2, and, therefore, does not include woodcocks, snipes, quails, landrails or conies; but the offender would be liable to the trespass penalty in respect to them (s. 30, ante, p. 58).

24 Vict. c. 7. Britain and Ireland, shall for every such offence forfeit the sum of five pounds.'

The like,

officers in the

marines.

995

The Annual Marine Mutiny Act (24 Vict. c. 8, s. 91), is a precisely similar enactment to the above, as to officers in the royal marine forces."

29. Killing or taking game with

FORMS.T

For that you [or he the said A. B.] on &c., at &c., unlawfully did kill [or take] certain game, to wit, one [partridge], you [or he the said A. B.] not being then and there authorized so to do for want of a licence to kill game, con4, c. 32, s. 23). trary, &c.

out a licence (1 & 2 Will.

30. Using a dog, snare,

For that you [or he the said A. B.] on &c., at &c., unlaw&c., to take fully did use a certain dog, to wit, a [lurcher] (and not being a greyhound), for the purpose of then and there searching for [or taking, or killing],

game (Id.)

[or a certain gun, for the purpose of then and there killing],

5 Sect. 90 of this act applies the provisions of the 11 & 12 Vict. c. 43 to the recovery of this penalty in any part of the kingdom, before one or more justice or justices, except that in default of distress the period of imprisonment is increased from three to six calendar months. The information must be laid within six calendar months of the offence (11 & 12 Vict. c. 43, s. 11; Oke's "Synopsis," 7th ed., p. 98), and, on conviction, the penalty and costs are to be levied by distress (Id. ss. 19, 20, 21), and, in default of distress, six calendar months' imprisonment without hard labour, unless sooner paid (24 Vict. c. 7, s. 90). One moiety of the penalty is payable to the informer, and the remainder or, if the offence be proved by the informer, the whole of it is to be paid to the general agent for the recruiting service in London; and the conviction is to be reported by the justice to the secretary at war within four days (Id. s. 91). Vide statement of offence, p. 73.

4

6 Vide notes and 5, supra. 24 Vict. c. 8, ss. 93, 94, contains similar enactments as in the note 5, with this difference, that the conviction may be before "any justice in or near to the place where the offence shall be committed, or where the offender may at any time happen to be," that the imprisonment may be with or without hard labour, and that the conviction is to be reported to the secretary of the admiralty.

7 These forms are to be used in filling up the general forms in Chap. X., post, pp. 105-107.