66 It is defects of English law is defective in not giving some summary and inexpensive remedy against persons for the trespasses thereon. described, viz., those where the trespasser is not searching for game, nor doing any appreciable damage to the land or anything upon it, nor committing any act of vagrancy, which are offences already provided for, because the expensive and dilatory proceeding of an action at law against the class of persons who are mostly addicted to trespassing on another's ground is, to use a common phrase, a remedy worse than the disease." true, the owner or occupier can order the trespassers off, and, if necessary, use just sufficient force to expel them, but he cannot apprehend the trespassers or give them into custody, as there is no general authority to arrest in such cases (see s. 31, ante, p. 102), unless actual breach of the peace has occurred, nor can he shoot their dogs, except they are in the act of damaging some property (s. 13, ante, p. 50), or the owner have a right of free warren, &c., over the land.33 This remedy by action is the exclusive one whenever any title to the land, or to the right of entry thereon to shoot the game, is in question, since then the summary remedy before justices, as we have seen (ante, p. 100, note), cannot be applied. It is advisable to give a personal notice to the indi- Previous novidual trespasser, or a printed caution, wherein the tice not to lands should be particularly described, and any visable." trespass afterwards committed would then be considered wilful. [Vide Forms, p. 114.] trespass, ad If the jury in an action in a superior court give a Costs of verdict for the damage of £5 or greater, the plain- action. tiff is entitled to his costs from the defendant, the 33 In Scotland, a cheap and prompt interdict or injunction is obtainable from the local court (Paterson, xli., 169); and in Ireland there is a summary proceeding before justices against trespassers refusing to leave after being warned, or repeating the offence, if it be done not in hunting, fishing or in pursuit of game (14 & 15 Vict. c. 92, s. 8). See Jordan v. Gibbon, 8 Law T., N. S. 391, that there is no power to give into custody for a mere trespass. Costs of action. trespasser; but if it be below £5 the plaintiff is not so entitled if the judge who tried the cause certifies "that the action was not really brought to try a right besides the mere right to recover damages, and that the trespass or grievance in respect of which the action was brought was not wilful and malicious, and that the action was not fit to be brought" (23 & 24 Vict. c. 126, s. 34). As to the defence in such actions, see Locke, G. L. lxvii. to lxxi., and books on common law practice. 27. General notice not to trespass FORMS. CAUTION. Take notice, that all trespassers on any land on either side of the adjoining highway, for half a mile in (Bell, G. L. length and one mile in depth, on each side of and opposite to this notice, will be prosecuted as wilful trespassers under the Game Act, and otherwise according to law. 313). C. D. Or this as an advertisement: NOTICE.-Notice is hereby given, that all persons found trespassing in search or pursuit of game on the estates of and in the parish of Esq., will be prosecuted. the property of E. F., Steward. 28. Notice to person not to trespass. To Mr. A. B. I hereby give you notice not to enter or trespass upon any a particular of the lands and hereditaments [if given by a tenant, say, in my occupation] belonging to me [and, if so, in my occupation, or in the occupation of E. F. and F. G.], situate at &c., and called for the purpose of pursuing, taking, killing or destroying game [or for the purpose of hunting, hawking, coursing, shooting, fishing or fowling], or for any other purpose or under any pretence or pretext whatsoever : And that in case you shall do so after the service of this notice [or in case after service of this notice you shall enter or trespass upon the said lands and hereditaments, or any part thereof, for any or either of the purposes aforesaid ], you will be deemed a wilful trespasser, and dealt with [or proceeded against accordingly]. this day of Dated at 1863. C. D. CHAPTER VIII. UNLAWFULLY TAKING GAME, &c. IN THE DAY- given. WE have already shown who can take game (ante, Enactments p. 5), what licences are necessary to be obtained previously to 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. 58-79); that game cannot be taken out of season, or on a Sunday or Christmas-day (ante, pp. 46-48). We shall in other Chapters give the enactments as to the unlawful taking of eggs of birds of game IX.), taking game by night (XIII.), killing deer (XIV.), killing hares, &c., in warrens (XV.), and the Poaching Prevention Act, 1862 XVI. Here it is proposed to give some provisions which are cumulative upon all these. 1 & 2 Will. 4, c. 32. Penalty for killing game By 1 & 2 Will. 4, c. 32, s. 23, it is enacted,"That if any person shall kill or take any game, or use any dog, gun, net, or other engine or instrument, for the purpose of searching for or killing or without a taking game,1-such person not being authorized so to do for want of a game certificate, he shall, 2 1 The 11 & 12 Vict. c. 29, s. 5, ante, p. 91, prohibits the using of any fire-arms or gun by night for killing hares or other game. 2 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. 64, 66, nor to deer; but the person killing wood certificate. Sect. 23. c. 32. 1 & 2 Will. 4, on conviction thereof before two justices of the peace, forfeit and pay for 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 : 3 Sect. 23. Penalty where several offenders. cocks, snipes, quails, landrails, or conies, or deer, without 3 Vide Chap. XII., post, as to the mode of recovery of this penalty; and Nos. 29, 30, p. 119, 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 upon the same day kill several hares, partridges, &c., or use a dog, and also a gun, he is only liable to one penalty under this section (Locke, G. L. 8, 32; Oke's "Synopsis," 8th ed. pp. 103, 104, 138, 139). But he is nevertheless 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 (see Bell, G. L. 104; Brooke v. Milligan, 3 T. R. 509; Locke, G. L. 8; Paley, 4th ed. p. 221), as the offences are distinct and separate (Reg. v. Matthews, 10 Mod. 26); and so a trespasser would also, it is apprehended, if the acts were distinct and separate, as for instance, he went on the same day and in the same place, if he once left the place and returned again (Bell, G. L. 145, 146). 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. divis "Provided always, that no person so convicted 1 & 2 Will. 4, shall by reason thereof be exempted from any c. 32. ible 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 Each ofno such distinction between a joint and several offence as has fender liable been contended: it is entirely unintelligible; for where the to full offence arises from the joint act of the parties, each person, we penalty. apprehend, is liable for all the consequences (as, in fact, each case is distinct, depending 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," 8th ed., pp. 138, 139), and so does the last case of Mayhew v. Wardley, supra, note 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 51., 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 (Chap. XII.), 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). Independently of these enactments, by the well known principle |