$6. IN GEN ERAL. Double profecution. for the fame by action of debt, or on the cafe, bill, plaint, or information, in any court of record, wherein no effoign, protection, wager of law, or more than one imparlance fhall be allowed; and the plaintiff, if he recover, fhall have double cofts: Provided that all fuits to be brought by force of this act shall be brought before the end of the next term, (by 26 Geo. II, c. 2, extended to the end of the fecond term), after the offence committed; and that no offender fhall be profecuted for the fame offence both ways; and, in cafe of a fecond profecution, he who is thus doubly profecuted may plead in his defence the former profecution pending, or the conviction, or judgment thereupon. LORD SWINTON inferts this ftatute in his Abridgment, with a query as to its application to Scotland. But the ftatute is expreffed generally.. Its object is to "render more effectual the laws for preservation of the game." It does not qualify this by faying" in that part of Great Britain called England." The English phrafeology that occurs in it, is no reafon for reftricting it, being common to nine-tenths of the British ftatutes, confeffedly intended to apply to Scotland. Had the act made it lawful to fue before the court of king's bench, or other English court nominatim, that neceffarily would have excluded Scotland. But as it uses the word court of record, in general, that certainly may include the court of feffion or justiciary, although court of record is not a technical expreflion of our law. And thofe other terms, effoigns, &c. muft, fo far as they are inapplicable to our practice, be held pro non fcriptis; but they afford no fafe ground to deny the application of any statute to Scotland, as they occur in fo many inftances of general ftatutes, from the framers of them not adverting that English law terms are a peculiar language, not intelligible, nor explicable, nor convertible, in foreign courts of law. 86. IN GEN ERAL. BRITISH flatutes, which mention no particular limitation, must be qualified by the ftatute 31 of Elizabeth, c. 6, which declares all penal actions, at the inftance of a private party, LIMIT muft be brought within a twelvemonth. In this confuetudinary jurifdiction which the juftices of peace exercife in game queftions, the ordinary review takes place from the feffions to the quarter feffions, and thence to the higher courts, according to the rules formerly mentioned. In general, with respect to the mode of proof in actions brought upon the game acts, it was decided, that, in an action for the penalty under the act 1707, against shooting hares, it is competent to prove the complaint by a reference to the defender's oath; and this has ever fince been underflood to be law. ATIONS OF -REVIEW. -MODE OF PROOF. It was determined by the late lord-juftice.clerk Macqueen, Reference that this reference to oath is competent in the cafe likewife to oath. of the British statutes touching the stamped certificate, when the penalty is fued for by a civil action before the court of feffion. Whether the fame thing obtains in the cafe of a profecution for the penalty before the juftices, has been the fubject of judicial controverfy, but has not yet been decided by the fupreme court d. June 1787, the procurator-fifcal of the county of Edinburgh against David Willon. Book i, c. 7. allowed a reference to the culprit's Solicitor of ftamps against Wil- fions; and being thereafter brought kie and others, June 1797. On a complaint, at the inftance of the procurator-fifcal of the county of Roxburgh against a man for killing game without a license, the juftices under review of the court of feflion by fufpenfion, it was pleaded, that a §7. WILD ANI MALS CONFINED. VII. As horfes, fheep, poultry, and other creatures, domitæ naturæ, are property, and of course the subjects of theft, fo the fame thing obtains in the cafe of wild ani mals fo confined, that they cannot efcape, but may easily at any time be caught, as rabbits in a house, young pigeons in a dovecote, they being then as much property as their carcafes after flaughter. A PARTICULAR ftatute has extended the fame law to wild animals, not in such a state of perfect appropriation, but rather in a kind of middle ftate; as deer in a park, rabbits in a warren, doves in a dovecote, fish in a pond. Animals in that state alfo are confidered as property; and the taking or killing them is held and punished as theft. The act 1474, c. 60, enacts, that "na man hunt, fchute, nor flay deer, nor reas, in utheris clofes or parks, or take out cunninges out of utheris cunninghires, or ony fowles out of utheris doucottes, or fifh out of utheris puiles or ftankes, but fpecial licence of the owner's, under the pain of dittay, and to be punished as theft." So alfo the act 1535, c. 13, to oath; and as the whole jurifdic tion is ftatutory, there is no authority for going beyond the words of the ftatute. The fifcal contended, that the mention of these two modes of proof, viz. by one witness, and the party's confeffion, did not exclude reference to oath, that being compe tent by the common law of Scotland in the cafe of fuch fort of offences. The question was not decided. It ftands on an order to give in duplies, dated 27th Dec. 1803. See Book i, nue, where the English law is made c. 6, § 4. 67. WILD ANI MAIS which, to the above enumeration, adds the ftealing of hives and bees, and further extends the fame punishment "to them are airt, pairt, or gives affistance to fik mifdoers." And CONFINED. fome ftatutes appoint fuch tranfgreffors to be punished in certain cafes with pecuniary or petty corporal pains; yet fays Mr. Hume, the "clear refult of the whole feems to be their raising such offences to the rank of theft, and an authority for inflicting death in the cafe of flagrant and repeated guilt c." Rabbits, accordingly, though they leave the warren, and make depredations on the adjoining ground, cannot be deftroyed, being ftill confidered as property'. A PARTICULAR ftatute has alfo interpofed for the protection of hawks and hounds. It forbids to steal hounds or hawks," maids, or wild out of nefts," or even to take the eggs out of the hawk's neft in another man's ground, under the penalty of 10l. Scots "." § 8. MUIRBURN SCOTTISH MENTS. VIII. FOR the fafety of the game, various regulations were enacted touching muirburn, that is, the practice of fetting fire to the heath, in order to clear the fields. It was enact̃- ENACTed by a ftatute of Robert III, that "their fal be na muirburne, or burning of hedir, bot in the moneth of March; Time. and not thereafter induring the time of fomer or of harvest, under the paine of 40s. to the lord of the land quhair the Penalty. $ 8. MUIRBURN SCOTTISH ENACT- -BRITISH MENTS. burning is "." Muirburn was afterwards prohibited by the act 1424, c. 20 °, from the month of March, till the corn be cut down, under the pain of 40s. Scots to the lord of the land, or otherwife of forty days imprisonment; and failing the lord of the land, power was given to the juftice-clerk to bring the trefpaffers before the juftice: by the act 1479, c. 75, from the last day of March until Michaelmafday, under the pain of 51. Scots against those who are convicted in the justice ayrd by the act 1493, c. 48, muirburn, in forbidden time, was declared to be a point of dittay; the person who commanded the thing to be done, was made liable in a penalty of 40s. Scots to the king, "because it is clearly understandin that the puir bodies that dwellis in maillinges are bot fervandes to their maifters that awe the maillinges, and dois it for their command." The perfon who did the thing was liable in another fine or unlaw; by the act 1535, c. 11, the fine or unlaw was for the firft offence 51. Scots, for the fecond 10l. and for the third 20l. f: by 1685, c. 20, it was forbidden after the last of March, and the masters were made liable for all upon their lands §. " BUT thefe Scottish acts, as well as the 6 Geo. III, c. 32, are fuperfeded by the British ftatute 13 Geo. III, c. 54, by which this matter is now regulated. By this ftatute it is enacted, that any person who fhall make muirburn, or fet fire to any heath or muir, from the 11th April to the 1ft November, in any year, shall forfeit 40s. fterling for the first offence, 51. for the fecond, and 1ol. for every fubfequent offence; and in cafe of not paying within ten days after conviction by a final judgment, fhall fuffer imprisonment for fix weeks for the first offence, two months for the fecond, three |