other persons to interfere. has obtained judgment at law, a court of equity 4. Powers of will give him no other satisfaction than the bare value of the price of the game that is killed?” But if there be any attempt to make an unjust use of such a bond, a court of equity will interfere to prevent the plaintiff from recovering at law; and therefore in the last mentioned case, where the defendant had recovered 100%. the penal of the bond, and 401. costs, merely for a trifling breach of the condition, committed under particular circumstances, Lord Hardwicke decreed that the plaintiff in equity should be relieved against the verdict, and that the defendant should refund the 100%. recovered on the bond, and the 401. costs, but without costs in equity on either side. If in a lease the lessor reserve to himself a pond or the game generally, he will be entitled to have all the fish and the game, and it will be lawful for him to enter for the purpose of taking it (h). And though a court of equity might relieve against a forfeiture for a single violation of a covenant not to sport, and a clause of re-entry reserved thereon, it would be otherwise if the tenant were obstinately to persist in such infraction of his contract. (h) Year Book, 14 Hen. 8. p. 1. post, Appendix, 811. See the form of a covenant to preserve game, and of the landlord's covenant to indem nify against costs of actions CHAPTER VIII. OF THE PUNISHMENTS OF CRIMes relatinG HAVING in the preceding chapters consi- I. CRIMINAL 1. OF OFFENCES PUNISHABLE CRIMINALLY, AND COURSE OF PROCEEDING. IN treating of the property in game, we have freFIRST,INDICT- quently had occasion to observe, that at common law, &c. independently of any legislative provi- MENT AT COMsion, there is not in general a sufficient property in It is a game in any individual, or even in the king, to support an indictment or criminal prosecution against a person for taking it, and that the punishment on offenders must be looked for only in those express legislative provisions that have been introduced for protection of game. common doctrine established by many decisions and the opinions of the best elementary writers, that larceny cannot at common law be committed of animals feræ naturæ, and unreclaimed, as deer, hares, rabbits, &c. though in a forest, chase, or warren, nor of old pigeons out of the house, or wild fowls, at their natural liberty, although a person may have an exclusive right, ratione loci aut privilegii to take them, if he can, in those places (a). Thus we find in the Year Books (b), that it was always holden that the taking of old pigeons at large, or of fish in an open river, or of a hare or pheasant, unless reclaimed, and so known to be by the party stealing them, is not a felony. On this ground it was held in a modern case (c), that an indictment for stealing a pheasant generally of the goods and chattels of H. S. is bad, for, by all the judges, in cases of larceny of animals feræ naturæ, the indictment must shew that they were (a) 2 East. Pl. Cr. 607. (b) 18 Edw. 3. p. 8. post, Appendix, 772. and Jenkins, 5th Century, 204. post, Ap pendix, 812.-Year Book, 19 Hen. 8. p. 2. post, Ap. (c) The King v. Rough, 2 MON LAW. PROCEEDINGS. FIRST, INDICT MENTAT COM MON LAW. 1. CRIMINAL either dead, tame, or confined, otherwise they must be presumed to be in their original state; and it is not sufficient to add of the goods and chattels of such an one. So in another case (d), for stealing fish out of a certain pond used for keeping fish, though the court held the indietment good upon the statute, yet they said if the indictment had been at common law for a felony, it should have described what sort of a pond it was, that it might appear on the face of the indictment, that the taking fish out of such a pond was felony. And in another case (e), it was held the felony cannot be committed at common law by taking oysters off oyster lays in an arm of the sea, though not produced there, but brought there for sale. But if animals feræ naturæ, are dead, or reclaimed and known to be so, or confined and may serve for food, it is indictable even at common law, to steal them. For larceny may be committed of deer so enclosed in a park that they may be taken at pleasure; fish in a trunk or net,or, as it should seem,in any other enclosed place which is private property, and where they may be taken at the pleasure of the owner at any time; or of pheasants or partridges in a mew; young pigeons, or old ones when shut up; young hawks in a nest or even old ones or falcons re (d) Hudson's case, 2 East. Pl. Cr. 611, post, Appendix, 1177. (e) Rex v. Walford, 5 Esp. Rep. 62. post, Appendix, 1324. This offence is since by 48 Geo. 3. c. 144. declared to be felony, post Appendix, 693. claimed, and known by the party to be so. So I. CRIMINAL PROCEEDINGS. MON LAW. of peacocks and swans marked or pinioned, or FIRST, INDICT swans unmarked if tame, kept in a moat, pond or MENT AT COMprivate river; but if they range out of the royalty it is no felony to take them, though marked, because it cannot be known that they belong to any person. Nor can larceny be committed of the eggs of these, or of hawks, because the Stat. 11 Hen. 7. c. 17. has appointed a less punishment, namely, fine and imprisonment (f). This doctrine we find established in the Year Books, (g) as far as relates to the taking of young pigeons, or young hawks, or of fish in a pond. And though for some purposes several persons, by associating in the commission of an illegal act, may become indictable for a conspiracy; yet several persons cannot be indicted at common law for conspiring to destroy game; and therefore in a late case (h) it was held, that an indictment will not lie for conspiring to commit a civil trespass upon property, by agreeing to go into a preserve, the property of another, for the purpose of snaring hares, though alleged to be done in the night, by the defendants, armed with offensive weapons for the purpose of resisting any endeavours to apprehend or obstruct them. |