penalties. As this defect in the statute, making no distinction as to the quantity of game destroyed, tended to encourage offenders in their violation of the law, a provision was introduced by the Statute 9 Ann. c. 25. (d) subjecting to a separate penalty of 57. for every head of game a person may have in his possession (e); and thus the provisions of the legislature are become complete. The Statute 5 Ann, points out the mode of recovery, and the penalty thus incurred, which must be proceeded for by information, and conviction within three months (f), or by action within six months (g); but this will more properly form the subject of inquiry in a subsequent chapter, upon the mode of recovering penalties in gene ral. The statutes having pointed out a particular penalty, no indictment is sustainable either for killing a hare (h) or for having nets, or guns, in possession to kill game (i), or for a conspiracy to enter a preserve for hares, for the purpose of snaring them, though alleged to be done by the defendants in the night, armed with offensive weapons, for the purpose of opposing resistance to any endeavours to obstruct them (k). If an (d) Post, Appendix, 483. The particular provisions of this statute are considered in a subsequent chapter. (e) Bluet v. Needs, 2 Comyns Rep. 522. post, Appendix, 1058. (f) 5 Ann. c. 14. s. 2, The King v. Tolley, 3 East. Rep. 467. post, Appendix, 1317. (g) 12 Geo. 3. c. 19. s. 5. post, Appendix, 605. and Lee v. Clark, 2 East. 333. post, Appendix, 1305. (h) Rex v. Buck, 2 Strange, 679. post, Appendix, 1047. (i) Rex v. Towning, and others, Andrews, 303. post, Appendix, 1077. (k) The King v. Turner, 13 East. 228. post, Appen. dix, 1372. Penalty on officers or ing game. unqualified person should, in sporting, by accident shoot another, it is no greater offence in him than in a qualified person (/). Besides the general provision of the Statute 5 soldiers kill. Ann. c. 14. which subjects all unqualified persons to a penalty for keeping or using dogs, or engines, for the destruction of game, there is a regulation in the annual mutiny act, intended, as the act professes, for the better preservation of game in or near the place where any officers or soldiers may be quartered. The statutes (m) Penalties on inferior make no distinction whether the officer or soldier be qualified or not, but enact "That if any "officer or soldier shall, without leave of the "lord of the manor, under his hand and seal first " had and obtained, take, kill, or destroy, any "hare, coney, pheasant, partridge,, pigeon, or ་་ any other sort of fowls, poultry, or fish, or " game, every such officer shall forfeit 51. for "each offence, and the officer commanding in "chief upon the place shall, for every such of"fence committed by a soldier under his com"mand, forfeit 20s. recoverable and distributable "as there directed." The Statute 4 and 5 W. & M. c. 23. s. 10. in tradesmen, troduces another provision, tending to prevent in inferior stations from destroying persons game. It recites, "That great mischiefs do en apprentices, &c. (1) Foster, 259.-1 Hale's Pl. Cr. 475.-1 East. Pl. Cr. 260. 269. (m) The annual mutiny act, the clause is generally the same as in 47 Geo. 3. c. 32. s. 69. post, Appendix, 675. inferior &c. "sue by inferior tradesmen, apprentices, and Penalties on "other dissolute persons, neglecting their trades tradesmen, "and employments, who follow hunting, fish- apprentices, "ing, and other game, to the ruin of them"selves, and damage of their neighbours;" and it then enacts, "That if any such persons as "aforesaid shall presume to hunt(n), hawk, fish, "or fowl, (unless in company with the master of "such apprentice duly qualified by law,) such person or persons shall be subject to the penal"ties of this act, and shall or may be sued or "prosecuted for their wilful trespass in such "their coming on any person's land, and if found guilty thereof, the plaintiff shall not only re"cover his damages thereby sustained, but his "full costs of suit, any former law to the contrary notwithstanding." This Statute, it is observable, not only subjects the party to full costs of suit, however small the damages, and so far as relates to trespasses committed by such persons, repeals the Statute of the 22 and 23 C. 2. c. 9. which deprives the plaintiff of full costs unless he recover 40s. damages (0), but also directs that he shall be subject to the other penalties of the act. The latter are seldom proceeded for, but the former provision is frequently enforced. In the leading case (p) upon (n) It is not necessary to prove that the defendant killed game, it will be sufficient to prove that he hunted, Shadow v. Painter, Carth. 424. Post, Appendix, 983. (0) Bennet v. Talbois, 1 Lord Raym. 149. post, Appendix, 982. (p) Buxton v. Mingay, 2 Wils. 70. post, Appendix, 1125. Penalties on this subject, where a surgeon and apothecary, tradesmen, who was not qualified, hunted in company with apprentices, a person who was duly qualified, and an action inferior &c. of trespass was brought against the former, the Court was equally divided in opinion on the question, whether he was an inferior tradesman or not within the meaning of this statute. Noel, J. said, "I think it would be hard for me to say that every tradesman in this kingdom, (though never so rich in money,) who hath not a qualification in lands, shall pay full costs in a case like this; nor can I prevail upon myself to say that the defendant, because he is merely stated to be an apothecary, is therefore an inferior tradesman, or a dissolute person. It was argued for the plaintiff, that amongst tradesmen, as such, there can be no line drawn with respect to who are superior and who are inferior, but that they are all upon an equal footing as tradesmen; and that therefore the legislature, by the words in2 'ferior tradesmen,' meant such as were not qualified; but I think if this construction was to prevail, it would bring every gentleman, as well as rich tradesman, who have not a qualification, within the meaning of this clause. It was argued for the defendant, that a qualification was not necessary to authorize a person to go a hunting. I shall say nothing to that point; but I do think a person going out with a gentleman qualified to kill game, cannot be convicted for killing game as an unqualified person. It is said, that if the qualification be not the truc distinction no inferior tradesmen, &c. line can be drawn between superior and inferior; Penalties on but I answer there is a known distinction universally agreed to between tradesmen with respect to apprentices, Superior and inferior, as master, journeyman, and apprentice; and this is a natural subordination which answers the act of parliament in every respect, for journeymen and apprentices are plainly inferior, and within the mischief intended to be remedied. I agree that the statute says, 'unless in company with a master qualified,' and that every apprentice being out a hunting, not in company with a master qualified, is within the statute, I think the jury at the trial ought to determine under the particular circumstances of every case of this kind, whether the defendant be or be not an inferior tradesman or dissolute person, and it is too much for me to say that this defendant, who is an apothecary and surgeon, is an inferior tradesman or a dissolute person. If judgment in this case should be for the plaintiff to have his full costs, it would lay a foundation for an infinite number of suits." Bu Bathurst, J. who was of a different opinion, said, "That this was a question of law, and not of fact, and that the judges and not the jury are to determine who are inferior tradesmen or dissolute persons within this law. In order to find out the true construction of this statute, we must take the intent of the makers into consideration, which was plainly to secure the game from being destroyed by persons neglecting their lawful em |