to a penalty for each head of Game he takes possession of.

Mr. Justice Buller seems to have thought, that if he uses a gun for one day, and kills several head of Game, which he takes possession of, he cannot be convicted both of using the gun, and of the possession of the Game.

But there is much confusion introduced into this case at Nisi Prius, both by the Reporter of it, and afterwards by Mr. East, who supposed that the penalties were imposed by the same statute; which in fact is not the case.-Molton v. Cheeseley, 1 Esp. Rep. 123. 10 East 19.

The Judge, seems to have thought it hard that the same act of the defendants should have produced several penalties; but the using the gun is one action, and taking possession of the Game is another: the first penalty is imposed by the 5 Ann. and the second by the 9 Ann. In short, it must be considered as a hasty, inadvertent dictum, which ought not to have been perpetuated.

In one case, the defendant, who was employed as a carpenter and woodman by Mr. East, the lord of the manor, and had directions from him to

detec

detect poachers, came up and took the hare from the dog, and carried it away, notwithstanding the plaintiff claimed it, to Mr. East's steward, according to his instructions. In an action for the penalty for having the hare in his possession ;-Lord Ellenborough, Chief Justice, said, the question is, Whether the possession of the defendant were such as to constitute an offence, and subject him to the penalty under the statute? He 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 be an offence, no case can be stated in which an unqualified person can innocently come in contact with Game. It may as well be said, that if a qualified man returning home with a bag of Game were to fall from his horse, another could not lawfully take up the bag in order to assist the owner.-Warneford v. Kendall, 10 East 19.

1

CHAP.

CHAP. XIII.

CONVICTIONS BEFORE JUSTICES OF THE PEACE.

1

THE two common offences for keeping dogs and engines for the destruction of Game by the 5 Ann. c. 14., and the 9 Ann. c. 25. for buying and selling, and for an unqualified man to have Game in his possession, which the statute declares shall be deemed to be an exposing thereof to sale, could only be prosecuted and punished before justices of the peace till the 8 Geò. I. c. 19.; by which it was enacted, that the informer might have his choice whether he would prosecute before a justice of the peace, or sue for the penalty in any of his Majesty's Courts of Record. See the next Chapter.

The prosecution and conviction before justices of the peace existed several years before the action was introduced: I shall for that reason consider it first.

The

The best summary of the law upon convictions, perhaps, is to be found in a note by Serjeant Williams to Saunders.-Saunders's Reports, 1 vol. p. 262.

I shall therefore introduce as much of it here as is applicable to a conviction under the Game Laws. This is a very intricate subject; though it ought to be the simplest and easiest possible, for the sake of all magistrates, few of whom have studied the law as a profession; and the difficulty of this subject is particularly distressing to young inexperienced justices, who frequently must be obliged to act alone.

The conviction generally means the record of all the proceedings upon which an offender has been found guilty of the offence, and is adjudged to pay the penalty, or undergo the punishment prescribed by some Act of Parliament. Serjeant, Williams has said, that if a statute does not require that the information should be upon oath, it is conceived that it would not be bad upon that

account.

It is held, that a conviction ought to be founded upon a preceding information or complaint.-Rex v. Puller, 1 Lord Raym. 509.

It has been held, that when the conviction was founded upon a conviction taken at a time past, it is better to state it in the time past, viz. that the informer came and gave the justice to be informed. -Rex v. Hall, 1 Term. Rep. 320.

It is now fully settled, that in convicting upon the statute of Ann, the information must negative every one of the qualifications in the preceding statute, 22 & 23 Car. II.-Rex v. Marriott, 1 Str. 66. Rex v. Hill, 2 Lord Raym. 1415. Bluet v. Reeds, Comyns 522. Rex v. Jarvis, 1 Burr. 148. Rex v. Little, ibid. 613. Rex v. Wheatman, Dougl. 345. 3d edit.

There is no case in which it has been directly decided, that the evidence should negative every particular qualification, and that it cannot be so from the nature of the case.-Rex v. Crowther, 1 Term Rep. 126. Rex v. Stone, 1 East 689.

But when the exemption is contained in a proviso in a subsequent section, or Act of Parliament, it is a matter of defence; and therefore it is not necessary to state in the conviction, that the defendant is not within such proviso.-Rex v. Hall, 1 Term Rep. 320.

But