other parishes to elect an auditor, as must be done where they are combined. With respect to the argument, that an auditor, under section 46. of the old statute, would not have all the powers given by the 7 & 8 Vict. to auditors appointed under that act, we do not consider that any substantial inconvenience is likely to arise therefrom, considering the ample powers given to the auditors by other statutes; and even if there was some inconvenience, that consideration can only apply where the words of the enactment are capable of two meanings; whereas, we consider the words of this enactment not capable of the meaning so contended for. Therefore,

CASE stated under the 20 & 21 Vict. c. 43. upon a conviction of the appellants, for a trespass in pursuit of coneys, under section 30. of the 1 & 2 Will. 4. c. 32.

The information charged the appellants with having, on the 20th of December 1858, at the parish of Pluckley, in the county of Kent, unlawfully committed at certain trespass by being in the daytime upon a certain piece of pasture land in the possession and occupation of Jesse Spicer, and the property of Sir E. C. Dering, Bart., there in search of coneys, without the licence or consent of the owner of the land so trespassed upon, or of any person having the right of killing the game upon such land, or of any other person having any right to authorize the said

appellants to enter or be upon the said land for that purpose; upon the hearing of the information the appellants were convicted in the penalty of 21.

In the year 1855 Jesse Spicer agreed to take of Sir E. C. Dering from year to year the farm in which the land upon which the trespass was said to have been committed, was situate, " upon the same terms, conditions and covenants as were contained in the general covenants of the Surrenden leases." Those leases contained, inter alia, these words: "and also except unto the landlord and his friends, gamekeepers and servants, the exclusive liberty to shoot, hunt, fish and sport over the said premises."

On the day in question, Jesse Spicer employed and directed Skinner (one of the appellants) to take and kill rabbits by means of ferrets and nets upon the said land, and for Skinner's trouble in that respect he had previously agreed to pay with a dinner, and he had also directed and did pay him 3s. 6d. and provided him his son (another of the appellants) and his bailiff (who was also an appellant) to assist Skinner in so taking and killing the rabbits, and it was whilst so engaged that the offence was alleged to have been committed. Skinner was a person expert in ferreting and taking rabbits, and had frequently been employed in doing so both by Jesse Spicer and by Sir E. C. Dering. The three appellants were seen to use the ferrets and catch two rabbits.

Denman, for the respondent.-If it is said that Spicer had the right of killing the rabbits, and that the appellants, as his servants, had the same right as he had, the answer is, that that is a question of fact, and that the Justices were justified in taking the view of the case which they have taken. The conviction was right, for the appellants were guilty of a trespass within the meaning of section 30. That section makes it an offence to commit a "trespass by entering or being in the daytime upon any land in search or pursuit of game, or woodcocks, snipes, quails, landrails, or coneys," &c.; and it is provided, "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 licence 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," &c. The question turns principally upon that proviso; and it is admitted, by the appellants, that Sir E. Dering had reserved the right of killing the game.

[HILL, J.-The tenant is liable under section 12, if he kills game where the right of killing it is reserved to the landlord, and that section does not mention coneys. Then, if a servant kills coneys in obedience to the desire of his master, is he in a worse position than his master would be? LORD CAMPBELL, C.J.-This was not done as an act of sporting, but for the purpose of protecting the produce of the land. The tenant may kill rabbits for that purpose, and then the maxim, qui facit per alium, facit per se, applies. CROMPTON, J.-You should put it in the lease and tie up the tenant if you wish to prevent him from killing the rabbits. It is a matter of contract between the landlord and the tenant; under the 12th section the tenant had a right to kill the rabbits himself, and why should he not communicate that right to his servants?]

The Justices have found that the appellants committed a trespass. Sir E. Dering is the legal occupier of the land, and these rabbits belonged to him. The leave and licence of the tenant is no defence to the information, and the appellants had nothing but that leave and licence to justify them in doing what they did.

[HILL, J.-No doubt section 30. shews that the tenant cannot give leave and licence to sport, but the statute does not take away the right to kill the coneys.]

In 2 Black. Com. 394, it is said, "a qualified property may also subsist with relation to animals feræ naturæ, ratione impotentiæ, on account of their own inability, for here the owner of the land has it in his power to do what he pleases with them," &c.

[LORD CAMPBELL, C.J.-We must suppose that this was an employment by the tenant of the appellants for the purpose of killing the rabbits as he himself might have done. He had the right of killing them for the protection of his crops.]

But there is nothing in the case to shew that these men were employed for that purpose, and it may well have been a day's sport for the amusement of the son of Spicer, the tenant.

LORD CAMPBELL, C.J.-I am of opinion that this conviction must be quashed. The fair inference to be drawn from the facts stated in the case is, that Spicer employed the appellants to kill the rabbits for himself, not that he was giving them a right to have a day's sport upon the land, but to do that which he himself was entitled to do. Under section 12. he was entitled to give them such directions; the legislature intended by that section to give him power to kill rabbits himself, and if we were to put another construction upon that provision, the act would be most oppressive in its operation. I think that having the right he was justified in employing other people to do that which he himself might do. This is not a case where when there had been a reservation of the right of sporting, leave and licence is given by the tenant to sport over the land, but where a direction was given by the tenant to other persons to kill the rabbits. Therefore, I think, that the information is not supported, and that this was not such a trespass as was intended by section 30.

ERLE, J.-I am of the same opinion. Upon the facts stated, raising the important question which we have to decide, we are to consider the case as if the tenant had himself gone out to kill the rabbits upon the land. If he had done so, I am of opinion that he would not come within section 30. as committing a trespass, by entering or being in the daytime upon land, and killing game. I think that there is clear

distinction between the tenant himself killing rabbits upon the land occupied by him, and the case of other persons coming upon the land by his leave and licence for the purpose of searching for and pursuing the game or rabbits there. They would be liable to the penalty constituted by section 30, but that leaves it open to the tenant to kill the rabbits. The 30th section applies to persons coming upon the land, and searching for and pursuing game and rabbits; and by section 12, if the tenant was to kill game upon the land, he would be liable for the penalty provided by that

section. I cannot help thinking that the 12th section was intended to be confined to game as defined in the 2nd section of the act, and that section 30 was intended to apply to trespassers coming upon the land, that is, to persons other than the tenant himself. Those persons are to be liable to the penalty, notwithstanding that they have obtained the leave and licence of the occupier of the land trespassed upon; and they are a class distinct from the tenant and persons employed by him, as his servants, to kill the rabbits. The landlord will not be left without reasonable protection if we put this construction upon the act, for his rights ought to be a matter of contract between him and his tenant, at the time the land is handed over, and the rent stipulated for. tenant may then say, I will not agree to pay the rent you require, unless you consent to make some stipulation with respect to the rabbits.

The

CROMPTON, J.-I am of the same opinion; and I found my judgment upon the construction of the statute. It appears to me that the legislature intended, in section 30, to provide against persons coming to commit trespasses upon the land, and that the provisions in section 12, as to the occupier being liable to a penalty for killing game, are quite different. Section 30. applies to persons coming upon the land; and it is provided that they shall not be protected by the leave and licence of the occupier; but then section 12, applying to the occupier, uses the word * game," which, by section 2, is to be deemed to include hares, pheasants, partridges, grouse, heath or moor game, black game and bustards; and which, therefore, does not include rabbits, as they are not named. They are therefore left in the same position as small birds; and the occupier is not liable to a penalty, under section 12, for killing them. It is said that we are bound by the finding of the Justices; but it was not intended that the facts should be found so as to exclude us from giving our opinion upon the question asked of us. If the tenant could kill the rabbits himself, he could do it also by his servants, for it cannot be said that he is bound to do it by his own hand; he would require some one to assist him if he himself went out to kill them, and if he sends

out his servants to do the act, it is just the same as if he did it himself. The evidence shews that the appellants were so sent by him; for it is, in my opinion, a strong fact, that he sent for the established rabbit-killer of the district, and that he paid him 3s. 6d. for his day's work, and provided him with his dinner. I think that this was the act of the occupier himself; that it falls within section 12, and therefore that the conviction of the appellants was wrong.

HILL, J.-I am of the same opinion. The question which we have to determine is, whether, when there is a reservation to the landlord of the right of killing game, and the tenant employs men to kill the rabbits for him, such men are liable to the penalty, under the 30th section. I think that they are not liable. "Game" is defined in section 1, and the word does not include rabbits. Contracts may be made between the landlord and the tenant, and if in a case where the right of killing game is reserved, or granted to, or belongs to the landlord, the tenant kills game, he is liable to the penalty imposed by section 12; but then it is necessary to shew that it was game which he killed, for that section does not include rabbits. Section 30. goes much further, extends to rabbits, and provides that the leave and licence of the occupier of the land trespassed upon shall not be a sufficient defence. The tenant, therefore, has no power to give leave and licence to persons to commit trespasses by entering and being upon the land in search of, &c.; that is, he cannot authorize them to sport upon the land; but it leaves altogether untouched the power of the tenant to kill rabbits, or the power of any person employed by him to do so. The tenant cannot give leave and licence to any person to do the acts prohibited by section 30, but he may employ a servant to kill the rabbits; and if he does so, the servant employed by him is not liable to the penalty. If there be a contract between the landlord and tenant, the latter will be liable for a breach of it; but he is not liable under this statute.

Conviction quashed.

1859. April 21.

}

Conviction

MARTIN, appellant, v.
PRIDGEON, respondent.

Summons for one Offence, Conviction for a different one-Variance -10 & 11 Vict. c. 89. s. 29.-21 Jac. 1. c. 7.-11 & 12 Vict. c. 43. s. 1.

The appellant was summoned before Justices on a charge of being drunk and guilty of riotous behaviour under the 10 & 11 Vict. c. 89. s. 29. The Justices convicted him of drunkenness under the 21 Jac. 1. c. 7:- Held, that the conviction was bad.

CASE stated by Justices under the 20 & 21 Vict. c. 43, for the opinion of this Court.

At a Petty Sessions holden at Torquay, in the county of Devon, on the 17th of January 1859, the appellant appeared to answer to a summons obtained by the respondent, for that "he, the said John Martin, on the 12th of January instant, in the public street at Torquay, within the district of Tormoham, was drunk and guilty of riotous behaviour, contrary to the statute," an offence punishable under the Public Health Act, 1848, as applied to the district of Tormoham, by a fine of not exceeding 40s., or by imprisonment of not exceeding seven days.

The charge of drunkenness only was proved to the satisfaction of the Justices, that of riotous behaviour not being sustained. The Justices thereupon convicted the appellant of the offence of drunkenness only, under the 21 Jac. 1. c. 7, which enacts, that every person who shall be drunk, and thereof shall be convicted before one Justice or mayor, on view, confession, or oath of one witness, shall forfeit for the first offence 5s., &c.; and they imposed a fine of 5s., to include costs, which was forthwith paid.

But the appellant, being dissatisfied with the decision of the Justices, as being erroneous in point of law, on the ground that the wording of the summons shewed that the charge was intended to be laid under the first-named statute, and consequently that it was not competent for the Justices to convict under the last, applied to the Justices to state a case. The facts NEW SERIES, XXVIII.-MAG. Cas.

and the grounds of the determination are set forth as above.

Coleridge, for the respondent. - The Justices had power to convict the appellant of the offence of drunkenness only. The question turns upon the construction to be put upon the 1st section of 11 & 12 Vict. c. 43, which contains the following proviso: "that no objection shall be taken or allowed to any information, complaint or summons, for any alleged defect therein in substance or in form, or for any variance between such information, complaint or summons, and the evidence adduced on the part of the informant or complainant at the hearing of such information or complaint, as hereinafter mentioned; but if any such variance shall appear to the Justice or Justices present and acting at such hearing to be such that the party so summoned and appearing has been thereby deceived or misled, it shall be lawful for such Justice or Justices, upon such terms as he or they shall think fit, to adjourn the hearing of the case to some future day." The Justices had, therefore, ample power to convict the appellant, and it cannot be said that they were bound to adjourn the case, for there was nothing to mislead.

[CROMPTON, J.-That proviso was intended to meet the case of a variance; but here the appellant has been summoned for one offence and the Justices have convicted him of another and a different one.]

But the appellant cannot complain of the conviction, for he could not have been misled by the fact of the summons containing something more than the offence of which he is convicted.

[CROMPTON, J.-This is not a variance. That word points at some difference between the allegation in the summons or information, and the evidence adduced in support of it; but here the appellant was summoned for an offence punishable in one way, and has been convicted of one punishable in another and a different way. Why was not a summons drawn up which would meet the offence which could be proved? LORD CAMPBell, C.J.-The conviction is for a different offence, and under a different act of parliament.]

2 A

Sawyer, for the appellant, was not called

upon.

Per Curiam (1).-The conviction must be quashed.

1859. April 21.

Conviction quashed.

THE QUEEN v. THE OVERSEERS
OF THE TOWNSHIP OF
HUNSLET.

Borough Rate-Distress-MandamusMunicipal Corporations Act, 5 & 6 Will. 4. c. 76. s. 92, 7 Will. 4. & 1 Vict. c. 81.

A borough rate having been levied on the township of H, and paid, was subsequently increased by the town council of the borough of L, of which the township of H. formed part.

The township of H. having refused to pay this increased rate, -Held, that (assuming the rate to be valid) the town council might enforce payment by distress under the provisions of 7 Will. 4. & 1 Vict. c. 81; and the Court refused a mandamus to compel the township to pay such increased

rate.

Maule had obtained a rule, calling on the overseers of the township of Hunslet, in the borough of Leeds, to shew cause why a writ of mandamus should not issue, commanding them to pay an increased rate of 691. 6s. 8d. to the treasurer of the borough of Leeds.

It appeared that the township of Hunslet is one of eleven out-townships of the borough of Leeds. The town-council of the borough, on the 30th of March 1857, resolved that the borough fund was insufficient for the payment of expenses to be incurred in carrying into effect the provisions of the Municipal Corporations Act, 5 & 6 Will. 4. c. 76, and accordingly levied a rate of 3d. in the pound, amounting to 5,8471. 8s. 7d.; the amount assessed on the township of Hunslet being 4431. 4s. The requisite warrant to the chief constable, and also the chief constable's precept, were issued, and the respective amounts to which the out-townships were assessed were levied and paid to the treasurer of the borough. The overseers of

(1) Lord Campbell, C.J., Erle, J. and Crompton, J.

the parish of Leeds, being dissatisfied with this rate, appealed to the Quarter Sessions of the borough, held on the 25th of June following, no notice of this appeal having been given to the out-townships; and on the 31st of December following an order was made, to which the township of H. was no party, to amend the rate by increasing the rateable value of the property in Hunslet, so as to make the amount payable by that township 512l. 10s. 8d. A warrant was accordingly issued to the chief constable, and he issued his precept, requiring payment of 691. 6s. 8d., the amount of the increase. The overseers of Hunslet having refused to pay the increased rate, this application was for a mandamus to compel them to pay.

West shewed cause.-The town council appears to have proceeded under the 92nd section of 5 & 6 Will. 4. c. 76. That act was amended by 7 Will. 4. & 1 Vict. c. 81, which by section 1. gives power to the Mayor or two Justices to issue a warrant of distress to levy such rate. The town council have mistaken their remedy, and are not entitled to a mandamus. Moreover the rate is invalid.

[LORD CAMPBELL, C.J.-If you establish your first point, we need not consider the question of the validity of the rate.]

He referred to Fernley v. Worthington (1), Cobb v. Allan (2), Jones v. Johnson (3).

Maule was then called upon by the Court to support his rule. - Unless a mandamus be granted, the town council cannot enforce payment of the rate. They cannot do so by warrant of distress. The statutes referred to do not provide for this There is a difficulty in applying the 7 Will. 4. & 1 Vict. c. 81, in consequence of the appeal.

case.