shall be guilty of felony, and being convicted thereof shall be liable, at the discretion of the Court, to be imprisoned for any term not exceeding two years, with or without hard labour, [and with or without solitary confinement,] (j) and, if a male under the age of sixteen years, with or without whipping.' (k)

By the express words of this section, a demand must be made of the gun, &c., before a seizure; the 16 Geo. 3, c. 30, s. 9, authorised persons entrusted with the care of deer to seize any gun, &c., brought by any person with intent unlawfully to shoot deer, without making a previous demand necessary; but it was held upon that statute that an assistant keeper had no right to seize the person of one so armed, in order to get his gun, without having first demanded the gun. (1)

On an indictment against the prisoner for having unlawfully beaten and wounded an assistant keeper of the Forest of Dean, it appeared that, the prisoners being found in the forest with a gun, the keeper demanded the gun, and, not receiving a reply, collared one of them for the purpose of taking the gun, when the others seized the keeper, and pulled him off the other prisoner, pulled him to the ground, and there held him until the other prisoner had escaped: no other violence was used, nor was the keeper otherwise beaten than by the force necessary to hold him to the ground; and Maule, J., held that the 7 & 8 Geo. 4, c. 29, s. 29, was not satisfied by a mere battery in point of law; it contemplated a beating in the popular sense of the word; and that pulling a man to the ground, and there holding him, was not a beating within the Act. (m)

By 24 & 25 Vict. c. 96, s. 103, a general provision is made for the apprehension and discovery of offenders punishable under this Act, and the 105th and following sections regulate the proceedings in respect of a summary conviction.

By Sec. 98, principals in the second degree, and accessories before the fact, are punishable in the same manner as principals in the first degree; and accessories after the fact (except receivers) are, on conviction, liable to be imprisoned for any term not exceeding two years, and abettors in misdemeanors are liable to be indicted and punished as principal offenders. By Sec. 99, abettors in offences punishable on summary conviction are made punishable as principal offenders.

(1) See note (b), ante, p. 307.

(k) This clause is taken from the 7 & 8 Geo. 4, c. 29, s. 29, and extended to Ireland. (1) R. v. Amey, R. & R. 500. A further question, not decided, was whether an assistant keeper, not appointed or confirmed by the owner of the chase, had authority to

seize guns unless the head keeper were
present: the words any of his assistants,
whether in his presence or not,' in sec. 16,
seem introduced to meet this point.
S. G.

(m) R. v. Hale, 2 C. & K. 326.

C.

CHAPTER THE FIFTEENTH.

OF TAKING OR KILLING HARES OR CONIES IN A WARREN, ETC.(a)

·

THE statutes formerly existing upon this subject are repealed. But by the 24 & 25 Vict. c. 96, s. 17, Whosoever shall unlawfully and wilfully, between the expiration of the first hour after sunset and the beginning of the last hour before sunrise, take or kill any hare or rabbit in any warren or ground lawfully used for the breeding or keeping of hares or rabbits, whether the same be enclosed or not, shall be guilty of a misdemeanor. (b)

With respect to what shall be deemed a taking of a hare, &c., in a case upon the 5 Geo. 3, c. 14, in which the prisoner was indicted for entering a warren in the night-time, and there taking a coney against the will of the occupier of the warren, it appeared that he set wires in the warren at about six o'clock in the evening, and a coney was caught in one of the wires; and that he came again before six o'clock the next morning, when he was seized by the warrener just as he was about laying hold of the wire in which the coney was caught; the coney being then alive: and, upon a case reserved, the judges thought that the taking by the wire was a taking by the prisoner within the meaning of the statute, and that he had been properly convicted. (c)

Sec. 103 of 24 & 25 Vict. c. 96, contains a general provision for the apprehension and discovery of offenders punishable under the Act, and the 105th and following sections regulate the proceedings in respect of summary convictions.

By sec. 98, abettors in misdemeanors are liable to be indicted and punished as principal offenders; and by sec. 99 abettors in offences punishable on summary conviction are made punishable as principal

offenders.

On an indictment under a repealed Act for destroying conies in the night-time in a ground lawfully used for breeding them, it appeared that the prosecutor kept rabbits, which ran about loose in his rick yard, and that the rabbits were destroyed by poison in the night-time; it was submitted that the statute only applied to warrens, and to places similar to warrens, but which could not legally be called warrens. Patteson, J., ‘This place was not used exclusively for rabbits; and it appears that the prosecutor merely kept some rabbits in his rick yard. If the yard had been kept exclusively for rabbits, I should

(a) See other offences against the Game Laws. Vol. i. p. 944. As to the right of occupiers to kill hares and rabbits, see Ground Game Act, 1880, 43 & 44 Vict. c. 47.

(b) This offence is punishable like other misdemeanors, by imprisonment or fine, or both. See vol. i. p. 193. This clause is

taken from the 7 & 8 Geo. 4, c. 29, s. 30. The words in italics are substituted for 'in the night-time.' The offence of killing rabbits in the day-time is by the same section punishable summarily. See vol. i. p. 947.

(c) Glover's case, MS. Bayley, J., and R. & R. 269.

have doubted it; but I think that this case is clearly not within the Act of Parliament. The Act applies to places commonly called rabbit-warrens, and not to places where a few rabbits may be kept.' (d)

Upon the trial of any misdemeanor mentioned in this chapter the jury may, under the 14 & 15 Vict. c. 100, s. 9, convict the prisoner of an attempt to commit the same, and thereupon he may be punished in the same manner as if he had been convicted upon an indictment for such attempt.

(d) R. v. Garratt, 6 C. & P. 369. See note to vol. i. p. 947.

CHAPTER THE SIXTEENTH.

OF UNLAWFULLY TAKING OR DESTROYING FISH.

Offence at common law. It is admitted that larceny at common law may be committed of fish, when confined in a trunk or net; (a) but doubts have been raised whether it may be committed in like manner of fish in a pond. It should seem, however, upon principle, and according to the better opinions, that larceny may be committed of fish in a pond, if the pond be private inclosed property, and of such kind and dimensions that the fish within it may be considered as restrained of their natural liberty, and liable to be taken at any time, according to the pleasure of the owner. (b) But clearly larceny at common law cannot be committed of fish at their natural liberty in rivers or great waters. (c)

Offences by statute. By the 24 & 25 Vict. c. 96, s. 24, 'Whosoever shall unlawfully and wilfully take (d) or destroy any fish in any water which shall run through or be in any land adjoining, (e) or belonging to the dwelling-house of any person being the owner of such water, or having a right of fishery therein, shall be guilty of a misdemeanor; (ƒ) and whosoever shall unlawfully and wilfully take or destroy, or attempt to take or destroy, any fish in any water not being such as herein before mentioned, (g) but which shall be private property, or in which there shall be any private right of fishery, shall, on conviction thereof before a justice of the peace, forfeit and pay, over and above the value of the fish taken or destroyed (if any), such sum of money, not exceeding five pounds, as to the justice shall seem meet: Provided that nothing herein before contained shall extend to any person angling between the beginning of the last hour before sunrise and the expiration of the first hour after sunset; but whosoever shall by angling between the beginning of the last hour before sunrise and the expiration of the first

(a) Ante, p. 246; 2 East, P. C. c. 16, s. 43, p. 610.

Lamb. 2 East,

(b) Staundf. 25 b. 3 Inst. 109. 274. 1 Hawk. P. C. c. 33, s. 39. P. C. c. 16, s. 43, pp. 610, 611. But the indictment should describe the pond, so that it may appear on the face of it, that taking fish out of such a pond is felony, 2 East, P. C. 611.

(c) 3 Inst. 109. 1 Hawk. P. C. c. 33, s. 39.

(d) If fish were inclosed in a net, or hooked on a line, it would seem that the case would come within this clause by analogy to Glover's case, ante, p. 310, although there had been no actual removal of them by the hands of the prisoner. C. S. G.

(e) See R. v. Hodges, ante, p. 223, as to the meaning of the term adjoining.

(f) This offence is punishable, like other

misdemeanors, by imprisonment or fine, or both.

(g) Where a summary conviction on the 7 Geo. 4, c. 29, s. 34, negatived that the water ran through land adjoining or belonging to the dwelling-house of the complainant, it was held sufficient, and that it need not negative that the water ran through land adjoining or belonging to the dwellinghouse or any other person being the owner or having the right of fishing therein. Fuller v. Brown, 3 Sess. C. 603. Where on the hearing of an information under this clause a claim of right is set up by the defendant, such claim, if made bona fide and with some shew of reason will oust the jurisdiction of the justices. R. v. Stimpson and R. v. Peak, 9 Cox, C. C. 356, 4 B. & S. 301. Hudson v. Macrea, 9 L. T. 678, 4 B. & S. 585.

hour after sunset unlawfully and wilfully take or destroy, or attempt to take or destroy, any fish in any such water as first mentioned, shall, on conviction before a justice of the peace, forfeit and pay any sum not exceeding five pounds, and if in any such water as last mentioned, he shall, on the like conviction, forfeit and pay any sum not exceeding two pounds as to the justice shall seem meet; and if the boundary of any parish, township, or vill shall happen to be in or by the side of any such water as in this section before mentioned, it shall be sufficient to prove that the offence was committed either in the parish, township, or vill named in the indictment or information, or in any parish, township, or vill adjoining thereto.' (h)

Sec. 25. If any person shall at any time be found fishing against the provisions of this Act, the owner of the ground, water, or fishery where such offender shall be so found, his servant, or any person authorised by him, may demand from such offender any rod, line, hook, net, or other implement for taking or destroying fish which shall then be in his possession, and in case such offender shall not immediately deliver up the same, may seize and take the same from him for the use of such owner: Provided, that any person angling against the provisions of this Act, between the beginning of the last hour before sunrise and the expiration of the first hour after sunset, from whom any implement used by anglers shall be taken, or by whom the same shall be so delivered up, shall by the taking or delivering thereof be exempted from the payment of any damages or penalty for such angling.' (i)

Sec. 26. Whosoever shall steal any oysters or oyster brood from any oyster bed, laying, or fishery, being the property of any other person, and sufficiently marked out or known as such, shall be guilty of felony, and being convicted thereof shall be liable to be punished as in the case of simple larceny; (j) and whosoever shall unlawfully and wilfully use any dredge, or any net, instrument, or engine whatsoever, within the limits of any oyster bed, laying, or fishery, being the property of any other person, and sufficiently marked out or known as such, for the purpose of taking oysters or oyster brood, although none shall be actually taken, or shall unlawfully and wilfully, with any net, instrument, or engine, drag upon the ground or soil of any such fishery, shall be guilty of a misdemeanor, and being convicted thereof shall be liable, at the discretion of the Court, to be imprisoned for any term not exceeding three months, with or without hard labour, and

(h) This section is taken from the 7 & 8 Geo. 4, c. 29, s. 34, and extended to Ireland. The words in italics are introduced instead of day-time' in the former enactment, in order to remove any doubt as to what is the beginning and end of day-time.

(i) This clause is taken from the 7 & 8 Geo. 4, c. 29, s. 35, and extended to Ireland. A similar substitute for day-time' is made in this clause to that in the preceding clause.

(j) By 29 & 30 Vict. c. 85, s. 1, this Act may be cited as 'The Oyster and Mussel Fisheries Act, 1866.' By s. 2, in this Act the words oysters' and 'mussels' respectively include the brood, ware, halfware, spat, and spawn of oysters and mussels re

spectively. By sec. 16, all oysters or mussel being in or on an oyster or mussel bed within the limits of any such several fishery shall be the absolute property of the grantees, and in all courts of law and equity and elsewhere, and for all purposes, civil, criminal, or other, shall be deemed to be in the actual possession of the grantees. By sec. 20, the portion of the sea-shore to which an order of the Board of Trade under this Act relates (as far as it is not by law within the body of any county) shall for all purposes of jurisdiction be deemed to be within the body of the adjoining county, or to be within the body of each of the adjoining counties if more than one.

(j) See ante, p. 296, for the punishment.