penalties. by shooting, he may be convicted in five penalties, Cumulative —the excise penalty of 207., under 23 & 24 Vict. c. 90, s. 4, and 51. cumulative under 1 & 2 Will. 4, c. 32, s. 23; 27. in England under s. 30, or Scotland under 2 & 3 Will. 4, c. 68, s. 1, for the trespass, and 57. under s. 3 of 1 & 2 Will. 4, c. 32, for taking on the Sunday; and possibly to a fifth also, if a bird of game, and it be taken out of season, of 11. for every head of game taken under s. 3. In Scotland, it is 57. per head under 13 Geo. 3, c. 54, s. 1, and so it is in Ireland by 27 Geo. 3, c. 35, s. 4, and 37 Geo. 3, c. 21, s. 2, and, if without a gun licence, in the excise penalty of 107., under 33 & 34 Vict. c. 57, s. 7. The Poisoned destruction of game by placing poison or poisonous 26 & 27 Vict ingredient, or poisoned grain, seed, meal, or flesh, c. 113. on grounds or exposed situations, is prohibited by various penalties in the game and other acts (r). Persons not having the right to the game can- Taking eggs. not in England take the eggs of any bird of game, or of any swan, wild duck, teal or widgeon out of the nest on any land, or have such eggs in possession, without incurring a penalty of not exceeding 5s. for each egg. There is no such provision in Scotland, but there is in Ireland (s). (r) In England, 1 & 2 Will. 4, c. 32, s. 3; 11 & 12 Vict. c. 29, s. 5; in Scotland, 11 & 12 Vict. c. 30, s. 4; as to Ireland and other parts, by the Poisoned Grain Prohibition Act, 1863, 26 & 27 Vict. c. 113, s. 3; 27 & 28 Vict. c. 115; see post, Chap. X., p. 196. (8) As to England, 1 & 2 Will. 4, c. 32, s. 24, Chap. X. As to Ireland, 27 Geo. 3, c. 35, s. 4, imposes a penalty of 51.; see post, Chap. XXI. grain, &c. Occupier. Night poaching. Hares and rabbits. Tabular list of the penalties. penalties. Occupiers in England, who are not entitled thereto, are specially made liable to a penalty for taking game, or giving permission to others to do so (t). The taking of game or rabbits by night, in any part of the kingdom, whether on land or on roads, is punishable by long imprisonment in addition to sureties not so to offend again, which are increased on a second and subsequent conviction (u). So, likewise, is the unlawful taking of hares and rabbits in warrens and breeding grounds by day or night punishable summarily as well as indictable (Chap. XVI.). A tabular list of the various penalties and punishments enacted by the several acts, cited or set out as to England, is given in Chapter XXV., the proceedings to recover which are treated of in Procedure for the following manner :-for those under the 1 & 2 Will. 4, c. 32, and in actions, a separate chapter (XIII.) is given; for those which are described as excise penalties (recoverable only on the information of a duly-authorized officer of inland revenue), Chapter XVIII. embodies a succinct view of the practice. By their instructions, officers of the inland revenue detecting persons violating the law are to inform the collector or supervisor, who is to investigate the circumstances and state the facts to the Board for directions as to proceedings against offenders. While for offences under the other English statutes the procedure is shortly sketched Inland revenue cases. (t) 1 & 2 Will. 4, c. 32, s. 12, Chap. VII., p. 123. (u) 9 Geo. 4, c. 69, s. 1; 7 & 8 Vict. c. 29, s. 1; see post, Chap. XIV., p. 256. out in the chapter where the offences are stated. Scotland and Tabular lists of the penalties in Scotland and Penalties in Ireland, and the procedure there for their recovery, Ireland. are given in separate sections of the chapters (XX. and XXI.) as to the Game Laws in those parts of the kingdom. shooting. A right of shooting is a tenement, analogous to Rating of a right of common or piscary (which was not rateable), and was a separable right from the mere agricultural use of land, but the hirer of it is now rateable in respect of it distinct from the land (a); and, therefore, where the landlord retains that right, he and not the tenant is liable to be rated in respect of it; but if a tenant pays an increased price in respect of his land for the privilege of killing and taking game on it, the overseers in making out the rate will take that circumstance into consideration (y). In Scotland it has been Scotland. decided that the tenants of shootings are liable to the poor assessment (z). (*) 37 & 38 Vict. c. 54, see post, Chap. XXIV. (y) Reg. v. Inhabitants of Thurlstone, 1 E. & B. 302; 28 L. J. (N. S.), Q. B. 183; 32 L. T., N. S. 275; 23 J. P. 565; 5 Jur., N. S. 820; Arch. P. L. 210; Reg. v. Williams, 18 J. P. 502; Reg. v. Guardians of Battle, L. R., 2 Q. B. 8; 36 L. J., Q. B. 56; 12 Jur., N. S. 996; 15 L. T., N. S. 180; 8 B. & S. 12; Hilton v. Bowes, L. R., 1 Q. B. 359; 37 L. J., Q. B. 122; 14 14 L. T., N. S. 512; 7 B. & S. 12. (*) See Irvine on Scotch Game Laws, 2nd ed. 38. game rests upon the common law, CHAPTER I. OF PROPERTY IN GAME, AND OTHER BIRDS AND Ownership of THE right of property in, or the actual ownership of, "Game," as defined in the preceding chapter, and other wild and half-tamed animals, rests upon the common law alone, and not upon the exceptional legislation called the "Game Laws;" and is distinct from the right to shoot or take it. The subject, however, is somewhat complicated and perplexing, but being ably treated of in many learned and elaborate works (a), our observations must, to some extent, be confined to an epitome of previous writers, with sometimes their identical expressions and arrangement of the matter, to which are added some of the modern decisions on the subject. As a general proposition, beasts and birds of game being included in the class of wild animals -the animals feræ naturæ of the civil or Roman law-are not, properly speaking, the property of anybody; they belong to nobody until they are caught; they are their own master, are free to come and go, and are incapable of identification, (a) Woolrych, G. L. 43; Paterson, G. L. 16. until cap and so the characteristics of the right of property Not property are absent. This rule is, however, subject to tured. various qualifications; and, for the purpose of ascertaining ownership, all beasts and birds are divided into wild and tame animals; and these, as regards the offence of larceny, are classed into those which are fit and those which are not fit for food. We will first treat of game in its wild state as most material. 66 66 66 property re cognized in game. The Committee of the House of Commons upon A qualified the "Game Laws," whose Report is dated July, 1846, rightly said, in the first resolution of their report, "That the common law of England has always distinctly recognized a qualified right of property in game, and that from a very early period "it has been found necessary, by statutory enactment, to make some special provision against "the attempt to steal or destroy a species of pro"perty peculiarly exposed to depredation." The common law of England treats game as property Property sub sub modo-as a special or secondary kind of property-and the statute law recognizes the possession of it, protects it from trespassers, licenses the killing of it and sometimes its sale, but never Game not treats it in its wild state as susceptible of larceny; larceny. and, indeed, if it were by an act declared for all purposes to be property, its essential character would not be thereby changed, and there would still be no means of identifying it except in very rare cases, unless some new test of proprietorship were provided. Thus Wilde, B., in the case of modo. subject of |