2d. Estate for bishop who has the fee in him, is qualified to kill life. 3rdly. Leases for 99 years or upwards. game, unless his preferment be of the annual value of 150/. The third description of qualification is, " lease or leases of 99 years of the clear yearly value of 150l." We have already considered the effect of the words "lands and tenements" and "clear yearly value," and it remains for us only to inquire what is a lease within the meaning of this statute. The words of the statute seem to require an absolute and certain lease for 99 years, or upwards ; but in a recent case (c) it was decided that an estate of the value of 150 l. per annum, holden by the defendant in his own right under a lease for 99 years, to trustees depending on the contingency of the defendant and others, so long living, is a sufficient qualification to kill game. Though it was objected that this was neither a lease for life, because the lives might survive the term, nor a lease for 99 years certain, because the lives might drop before. But Lord Kenyon said "Leases of this kind have always been deemed sufficient to give a qualification. There is no reasonable probability of any life in being extending beyond 99 years; and the legislature admitting leases of 99 years of a certain value to be a qualification to kill game, did not mean that they should positively endure so long; it is sufficient if they may extend to that period, subject, as in this case, to the contingency of the party's so long living.". (c) Earl Ferrers v.Henton, Appendix, 1270. 8 Term Rep. 506. Post, persons sport. It appears to have been long established, that Unqualified the penalties imposed by the game laws, do not ing with qua attach upon one who, not being qualified, attends lified. and assists one who is so. This was so held in the case of the Queen v. Green (d), where Parker, Ch. J. said, "That such persons ought to be taken as servants to the qualified party." And in Buxton v. Mingay (e), Noel, J. said, "I think a person going out with a gentleman qualified to kill game, cannot be convicted for killing game as an unqualified person." And in the King v. Newman (ƒ), this point was expressly determined; and Lord Mansfield said, "Shall not a gentleman take any body out with him to beat the bushes, and see a hare killed?" And in the more recent case of Molton v. Rogers (g), where it appeared that a gentleman of the name of Slater, who was a qualified person, was out sporting with two greyhounds, and that he was joined by Rogers, the defendant, whose father was qualified, that Rogers, when he came into the field and joined him, had with him a greyhound which belonged to his father: that the dog of Rogers, and one of Slater's, found and killed a hare; that Slater had sent and borrowed the dog from the defendant's father in order to try him. It was urged that by the presence of Slater, and hunting in his company, the defendant Rogers, though unqualified, was protected; that the law put that trust in a (d) Gilb. 231. Post, Appendix, 1012. (e) 2 Wils. 70. Post, Appendix, 1128. (f) Lofft. 178. Post, Appendix, 1162. (g) 4 Esp.Rep. 215. post, Appendix, 1322. persons sport ing with qua litied. Unqualified person qualified, that he would not abuse his qualification, and therefore whilst he was following that which the law allowed, the mere joining of an unqualified person, and partaking of the sport, was no offence. And Lord Ellenborough said, "that every man was not to be considered as using a dog who merely participated in the sport; for if that were so, no man, unless he was qualified, could join in the sport of the field, nor bring a servant with him; he must be himself a principal, such as the owner of the dogs. The ques tion, therefore, is, was this a loan of the dog to the qualified person, and was the defendant only partaking of the sport? If it was so, then, though the dog might be his, he was not liable to a penalty." We must not, however, suppose that this permission can be used by an unqualified person, as a colourable protection for sporting on his own account; and it cannot authorize a person to shoot at game in company with one who is qualified; and if an inferior tradesman, or in other respects a person within the meaning of the statute 4 and 5 W. & M. c. 23. s. 10. (), he will be liable to full costs upon any trespasses he may commit, and to the penalties there mentioned (?), and which will hereafter be fully considered. (h) Post, Appendix, 464. (i) Wickham v. Walker, Barnes. 125. Post, Appendix, 1061.-Buxton v. Min. gay, 2 Wils. 70. Post, Ap. pendix, 1125. See the cases upon this statute, referred to in the Index, tit. Inferior Tradesmen. (75) CHAPTER IV. OF THE PENALTIES AND PUNISHMENTS TO We HAVING thus considered who are qualified to kill game, and to keep dogs and engines for that purpose, and the protection the law affords to those who are merely assisting in the sport; we will now consider the penalties to which an unqualified person is subject for keeping or using dogs or engines for the destruction of game. have seen that there are several ancient statutes(a) imposing penalties on unqualified persons for sporting, which are still in force, but they are seldom resorted to (b). The principal statute The Statute under which unqualified persons are now prose- s. 4. cuted is the 5th Ann. c. 14. s. 4. (c) which enacts, "That if any person or persons, not qualified by "the laws of this realm so to do, shall keep or use "any greyhounds, setting dogs, hays, lurchers, "tunnels, or any other engines, to kill and destroy "the game, and shall thereof be convicted upon (a) Ante, 36 to 39. (b) See an instance in which the Statute 4 and 5 W. & M. c. 23, was proceeded upon, post, Appendix, 1048. (c) Post, Appendix, 479. made perpetual by 9 Ann. c. 25. post, Appendix, 842. 5 Ann. c. 14. The Statute 5 Ann. c. 14. S. 4. Constructions on 5 Ann. c. 14. s. 4. "the oath of one or two credible witnesses, by the justice or justices of peace where such offence is "committed as aforesaid, the person or persons so "convicted shall forfeit the sum of five pounds." The statute then directs the mode of recovering the penalty, which has since been varied in some respects, as will be hereafter considered. We will now examine each part of this enactment: ["If any person or persons-"] Where several unqualified persons go out together and kill a hare, only one penalty can be recovered, for which they are jointly or severally liable as the prosecutor may think fit to proceed (d). For the statute itself has considered several as capable of being joint offenders; for it says, "If any person or persons shall keep or use any greyhound, &c. the person or persons so convicted shall forfeit five pounds;" so that it gives one penalty of 51. to be paid by the person or persons who act against the statute. It has therefore made it a joint offence in all persons concerned, and has made all of them subject but to one forfeiture, and they are consequently within the rule of the common law punishable jointly (e). In Barnard (d) The King v. Bleasdale and others, 4 Term Rep.809. Post, Appendix, 1233. and pr. Lord Kenyon in Peshall v. Layton, 2 Term Rep. 712. Hardyman v. Whitacre, 2 East. 573. post, Appendix, 1313. (e) By the Court in Hardyman v. Whitacre and others, 2 East. 573. and Bull. Ni. Pri. 189. Post, Appendix, 1313. As to when offences must be considered joint, and when several, see 1 New. Rep. 245. and see post, Appendix, 969. 1014. Rex r. Clarke and others, Cowp. 612. and Term Rep. on the Toleration Act. |