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 s. 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. 14.2

If the possession be made out to the satisfaction of the jury, it is incumbent on the defendant to shew that it was a justifiable possession, Where a qualified person sends out his huntsman with his hounds, and a hare is killed, which the huntsman takes up, no penalty is incurred for killing the game, and such possession is justifiable, although the master does not accompany the huntsman.

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

z 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.

a Per Bayley, J. in Hemmings v. Hal-
sey, B. R. H. 3 & 4 Geo. 4.
b Hawke v. Jacka, Cornwall Summ.
Ass. 1823. Best, J. M. S.

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.

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.

By stat. 58 Geo. 3. c. 75. it is enacted, "that if any person, whether qualified or not qualified to kill game, buying any hare, pheasant, partridge, moor, heath-game, or grouse, and being convicted before any one or more justice or justices of the peace, acting for the county or place where such offence shall be committed, by the oath of one or more witnesses, shall, for every hare, &c. so bought as aforesaid, forfeit and pay the sum of 57. one half to be paid to the informer, and the other to the poor of the parish where such offence shall be committed; the same to be levied by distress and sale of the offender's goods, provided that such conviction be made within six calendar months after the offence committed." By sect. 2. any person buying, selling, or offering to sell, or having unlawfully in his possession, any hare, &c. and making discovery of any person that hath within six calendar months bought or sold any such game, so as any one shall be convicted by virtue of this or any other stat. shall be discharged from all penalties to which he may be liable before

c See post. n. (12.)

d See Portman v. Okeden, Say. R. 179.

e S. 6.

and at the time of making such discovery, provided that nothing in this act shall discharge such discoverer from any penalties in respect of a prosecution actually pending, or a conviction or judgment had against him, at the time of making such discovery, and the 3rd sect. of the same act authorizes any other person to recover the whole of the penalty to his own use by action of debt, or on the case, in any of his Majesty's courts of record, wherein the plaintiff, if he recover, shall have double costs, and no part of the said penalty recovered in such action shall be paid to the use of the poor of the parish, provided that no such action shall be brought but within six calendar months next after the offence committed." See Mr. Coleridge's remark on the foregoing statute, 4 Bl. Comm. p. 175.

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 5%. for every bird."

By stat. 13 G. 3. c. 55. a similar provision is made for the preservation of black game betwen 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 20%. nor less than 10. and for every subsequent offence, a sum not exceeding 30%. nor less than 20%. 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

f Stat. 39 G. 3. c. 34. s. 3.

g Stat. 2 G. S. c. 19. s. 1.

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 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

h S. 12.

It

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

the form of the statute (14), whereby and by force of the statute (15), an action hath accrued, &c.

In an action on stat. 5 Ann. c. 14. for keeping and using a dog to kill game, it must be stated in the declaration what sort of a dog it was'.

In an action on the stat. 9 Ann. c. 25. for exposing a hare to sale, it is sufficient to allege that the defendant, not being a person qualified in his own right to kill game*, nor being entitled thereto under a person so qualified, had a hare in his possession; for, by s. 2. if a hare be found in the possession of such person, it shall be deemed an exposing to sale. But see Warneford v. Kendall, ante, n. (11) as to the circumstances, under which possession of game shall not be deemed an offence against this statute.

i Reason v. Lisle, Comyn's R. 576. k Jones q. t. v. Bishop, Say. R. 64.

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 I East, 643. R. v. Earnshaw, E. 52. G. 3. 15 East, 456. But it is sufficient, if the qualifications be negatived in the information and adjudication; it is not necessary to negative them in the evidence. R. v. Turner, 5 M. & S. 206.

(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.

(15) Formerly, I believe, it was usual to say, "whereby and by force of the statutes;" but, in the case of Ě. of Clanricarde v Stokes, 7 East, 516. the court were of opinion, that upon a supposition that it was necessary that the court should refer to the statute giving the remedy, for which it was admitted that no express authority could be found, yet they thought, that in the case before the court, the stat. 2 G. 3. c. 19. alone gave the remedy, without reference either to the stat. 8 G. 1. or the stat. 26 G. 2. inasmuch as it gave the whole penalty to the informer, and not merely the other half in addition to the one half given by the stat. 8 G. 1. and consequently, that the declaration, concluding by reason whereof, and by force of the statute, was correct.