convicted upon the oath of one or two credible witnesses, by the justice or justices of the peace where such offence is committed, the person so convicted shall forfeit 51.; one half to be paid to the informer, and the other half to the poor of the parish where the same was committed;" (the subsequent part of this section prescribes the like mode of execution as is prescribed in the second section, and then proceeds to enact, "that J. P. within their districts, and lords and ladies of manors, within their manors, may take away any such hare, &c. from any such higgler, &c. or other person not qualified to kill the same; and may take to their own use such dogs, nets, or other engines in the power or custody of persons not qualified to keep (10) the same;")" and lords and ladies of manors may, by writing, under hand and seal, empower their gamekeepers upon their manors to kill any game; but that such gamekeepers who shall under colour of authority kill or take game, and afterwards sell the same to any person, without the consent of their lords, and shall be convicted thereof

Cheeseley, 1 Esp. N. P. C. 123, it was proved that a pheasant had been killed by accident by the defendant's dog; and the defendant had afterwards carried it away. Two penalties were sought to be recovered, one for having the pheasant in his possession, not being qualified, the other for keeping a dog to kill game. Mr. Justice Buller is said to have ruled that the plaintiff could go for one penalty only, "for that both offences being by the same act, the plaintiff could recover but one penalty under the same statute." The wording being equivocal, it was considered at first, as if by the word act was to be understood statute; which, it was agreed on all hands, could not have been ruled by the learned judge, who probably said that two penalties could not be recovered under this statute for the same act done by the defendant. N. A farmer who keeps a setting dog for his landlord, is not to be considered as keeping a dog for the destruction of the game within this statute. Reed v. Phelps, B. R. E. 52 G. 3. There was not any evidence in this case of the dog having ever been used by the party for killing game. See 15 East, 271.

(10) A justice of the peace under this stat. cannot seize the gun of a gamekeeper, although he is sporting for the purpose of killing game in another manor than that for which he has received his deputation; for the power of seizure under this act extends to those persons only who are not qualified to keep engines for the destruction of the game, and gamekeepers are qualified to keep such engines any where. Rogers v. Carter, C. B. 2 Wils. 387. It was admitted, however, in this case, that if the gamekeeper had actually killed game beyond the limits of his own manor, he would have been liable to the penalties of this statute. A magistrate, who con

upon complaint by the lord of the manor, upon the oath of one or more witnesses before a J. P., shall be committed to the house of correction for three months, &c."

By a subsequent statute," if any hare, pheasant, partridge, &c. shall be found in the shop, house, or possession (11) of any person not qualified in his own right to kill game, or being entitled thereto under some person so qualified, the same shall be adjudged to be an exposing to sale within the meaning of this act and the statute 5 Ann. c. 14." And by 6. 3." if any person shall take, kill, or destroy any hare, &c. in the night time, the person so offending shall, for every such offence, incur the forfeitures" mentioned in the stat. 5 Ann. c. 14'.

By the preceding statutes, the penalties are given half to the common informer, and half to the poor of the parish,

s Stat. 9 Ann. c. 25. s. 2.

t See further provisions for the preservation of game during the night

time, and on Sunday and Christmas day, 13 G. 3. c. 80. and 56 G. 3. c.

130.

victs an unqualified person of killing game under the statute 5 Ann. c. 14. and causes his dog to be brought for the purpose of seizing it, may order the dog to be killed without any formal adjudication of seizure. Kingsnorth v. Bretton, 5 Taunt. 416.

(11) The plaintiff declared in debt for the 51. penalty given by this stat. against the defendant for exposing to sale a hare, not being qualified in his own right to kill game, nor entitled thereto under any person so qualified. At the trial, it was proved that the plaintiff went out coursing, and killed a hare on Shipston manor, when the defendant, who was employed as a carpenter and woodman by Mr. Earl, the lord of the manor, and had directions from him to detect poachers, came up and took the hare from the dog, and carried it away, notwithstanding the plaintiff claimed it, to Mr. Earl's steward according to his instructions. It was holden, that the possession of the defendant was not such as constituted an offence and subjected him to the penalty under the statute; Ld. Ellenborough C. J. observing, that the defendant did not claim the hare as his property nor acquire the possession of it for himself, but for his master, on whose manor it was taken; and if this were an offence, no case could be stated in which an unqualified person could innocently come in contact with game. It might as well be said that if a qualified man returning home with a bag of game were to fall from his horse, another person could not lawfully take up the bag, in order to assist the owner. Grose, J. added, that the possession of the game by the defendant was rather for the purpose of protecting the game, than in breach of the laws for preserving it. Warneford v. Kendall, 10 East, 19.

upon summary conviction. But by stat. 8 G. 1. c. 19. s. 1. it is enacted, that for the recovery of the penalties, an action of debt may be brought in any of the king's courts of record before the end of the next term after the offence committed, and the plaintiff, if he recover, shall be entitled to double costs. It is, however, expressly provided by this statute, that the party shall not be prosecuted twice for the same offence, i. e. both by action and upon summary conviction. The time limited by the last mentioned stat. 8 G. 1. c. 19. for bringing such action, viz. " before the end of the next term after the offence committed," having been found inconvenient, and in many cases not sufficient, it was enacted by stat. 26 G. 2. c. 2. that such action might be brought "before the end of the second term" after the offence committed."

It having been found difficult to maintain the action of debt given by the statute 8 G. 1. c. 19. because the evidence of the rated inhabitants* of the parish (to the poor of which the moiety of the penalty was directed by stat. 5 Ann. c. 14. to be applied) was disallowed; the interference of the legislature was again deemed necessary, and it was enacted by stat. 2 G. 3. c. 19. s. 5. " that any person might sue for and recover the whole of the penalty for his own use by action of debt, or on the case, to be brought within six months", i. e. lunar months, after the offence committed, in any of his Majesty's courts of record at Westminster, and that the plaintiff, if he recovered, should have double costs, and that no part of the penalty should be paid or applied to the use of the poor of the parish wherein the offence was committed." It is to be observed, that this statute gives the whole penalty to the informer, and not merely the other half, in addition to the one half, which was recoverable by him in an action of debt under stat. 8 G. 1. c. 19.

IV. Of the Statutes relating to the Destruction of the Game at improper Seasons of the Year-Stat.

2 G. 3. c. 19.-13 G. 3. c. 55.-39 G. 3. c. 34.

-Declaration-Evidence.

"PERSONS taking, killing, destroying, carrying, selling, buying, or having in their possession or use, any partridge within the kingdom of Great Britain, between the first day of February and the first day of September; or any pheasant between the first day of February and the first day of October, excepting pheasants taken in the season allowed, and kept in a mew or breeding place, are subject to a penalty of 51. for every bird."

By stat. 13 G. 3. c. 55. a similar provision is made for the preservation of black game between the 10th of December and the 20th of August, and red game between the 10th of December and the 12th of August; but the penalty imposed on persons offending against this last-mentioned statute is, for the first offence, a sum not exceeding 201. nor less than 10. and for every subsequent offence, a sum not exceeding 301. nor less than 207. recoverable by action of debt, at the suit of any person, in any of the King's courts of record at Westminster, or great sessions in Wales; the action to be commenced within six CALENDAR months after the act committed, to which defendant may plead the general issue, and give the special matter in evidence. It is provided further, by this statute, that if the plaintiff be nonsuited or discontinue, or if there be a verdict for defendant, or judgment against plaintiff on demurrer, the defendant shall be entitled to treble costs.

Declaration.

In an action on the statutes for the preservation of the game, it is usually stated in the declaration, that the defendant, six months next before the commencement of the action (12), kept a gun, or snare, &c. as the case may

z Stat. 39 G. 3. c. 34. s. 3.
a Stat. 2 G. 3. c. 19. s. 1.

b S. 12.

(12) It is usual, but not necessary, to allege, that the action was commenced within the limited time; it must, however, be proved

be, for the destruction of the game, the defendant not being a person qualified by the laws of the realm (13) so to do contrary to the form of the statute (14), where

at the trial to have been so commenced. If the time has lapsed, the defendant may take advantage of it on the plea of nil debet. It will be proper to remark, that by stat. 26 G. 2. c. 2. the action must be commenced before the end of the second term after the offence committed; and by stat. 2 G. 3. c. 19. s. 5. within six months (by which must be understood lunar months). In Lee v. Clarke*, it was objected, on error after verdict, 1st, that the declaration alleged the action to have been commenced within six calendar months instead of lunar months; and 2dly, that it was not averred that the action was commenced within two terms, as well as within six months. In support of this objection, it was contended, that though the last statute (2 G. 3. c. 19.) says within six months, yet that would not in all cases extend the time given by the former statute, so that the latter only operated as a repeal pro tanto, and both statutes were still in force, and must be taken to have limited the action to be commenced within six months, provided it did not extend beyond two terms; that the words in stat. 2 G. 3. c. 19. were negative words, and not words of extension. But the court over-ruled the objections, observing that the allegations were not material, and that the court could not presume, that the fact was not proved to have happened within the time prescribed by law for the commencement of the action.

(13) It is not necessary in actions to negative the qualifications specially. Bluet q. t. v. Needs, Comyn's R. 522. The modern practice is in conformity to this decision, against the authority of which, however, Foster, J. in R. v. Jarvis, inclined. See 1 East's R. 647. n. A different rule holds in the case of convictions on this statute, for there the qualification must be specifically negatived. R. v. Jarvis, H. 30 G. 2. B. R. cited by Kenyon, C. J. from Dunning's note in 1 East, 643. R. v. Earnshaw, E. 52 G. 3. 15 East, 456.

(14) Where an action is founded on a statute, it is necessary in some manner to shew that the offence on which the party proceeds, is an offence against the statute; and if it be not shewn, it will be error after verdict. Lee v. Clarke, 2 East's R. 333. In proceedings on the stat. 5 Ann. c. 14. it is to be observed, that that statute alone creates the offence and gives the penalty. This statute was originally a temporary law, but before it expired, it was made perpetual (by stat. 9 Ann. c. 25.) Consequently, in such case, the allegation that the defendant committed the offence contrary to the form of the statute is proper. Adjudged on motion in arrest of judgment, E. of Clanricarde v. Stokes, 7 East, 516.

* 2 East, 333.