to, he was acquainted with the danger he incurred, and being capable of exercising a judgment contributed to the accident by his own wilful or grossly careless conduct. The statute subjects all who knowingly and wilfully permit such engines to remain upon their property to the same penalties, though they may not have been in possession at the time they were set, it is therefore their duty immediately to remove them. Even when injury does not ensue, the offence is committed, the setting of the engine being the act which is prohibited. From the words contained in the statute, "with the intent that, the same, or whereby the same may destroy or inflict grievous bodily harm, upon a trespasser or other person coming in contact therewith," the object of setting such instruments becomes a very material point. The employment of them is not absolutely forbidden, it is only their employment for this particular purpose. There are, therefore, cases in which a person might be justified in using them, but the greatest caution should be taken in doing so, for if they were set in a spot where injury to human beings, would be the necessary, or even probable, consequence as the law presumes that every man who possesses discretion (and none other are liable to criminal impeachment) contemplates the probable effects of his actions, he will be responsible, although his real intention was widely different. This qualification of the general provision would of itself have sufficed to exclude vermin traps and gins from the operation of the Statute, but in order to preclude any question, a special clause declares, that nothing therein contained shall extend to them.-Whether dog spears could under any circumstances, independently of the difficulties which would arise with respect to the object for which they are set, be deemed to be forbidden, may well be controverted, since the term, "other engines," according to an acknowledged rule of law, must be confined to such as are of a description similar to those previously specified, and spikes on a gate or wall would be brought within the denunciation, by so comprehensive a construction. Before the passing of the Act, the liability of the person who set them on his own land, to make satisfaction for any loss they might produce, had formed the subject of one of the most elaborate discussions in our Courts in the following case. Mr. Deane, was shooting with a pointer on land adjoining to a wood belonging to Mr. Clayton, in which he had set dog spears. A hare being started, the dog chased it into the wood, notwithstanding Mr. Deane's efforts to restrain him, and there met his death. Upon this an action was brought to recover the value of the dog, and the jury instead of returning another celebrated verdict of, Served him right," awarded £15 damages, and thereupon the claim. to any regal redress was debated. Two Judges were of opinion that the plaintiff was entitled to maintain the action, and two that he was not, and consequently no judgment was entered. Very recently this matter has undergone revision in the Court of Exchequer in a case,* where the plaiutiff was passing along a footpath with a sheep dog, which ran after a rabbit and was severely injured by a spike. Although the pleadings admitted these instruments to be calculated to do grevious bodily harm, the Court unanimously decided that, as they were not placed for this purpose, they did not infringe the act, that the setting of them was perfectly lawful, and the accident occasioned by them was the act of the dog and not of the defendant, and the plaintiff alone was to blame for not keeping his dog on the path.-In this instance the plaintiff was aware that dog spears were set, but this circumstance did not form the ground of the judgment. It is, however, for many reasons desirable that notice of the setting of any such engines should be given, for if a party had any right to suffer his dog to range, he might most probably maintain an action, unless he was aware of their existence. With this decision in favour of dog spears, which are avowedly used to injure animals the property of others regarded as valuable and generally protected by the law, of course there can be no reason for doubts, whether a person would be liable for mischief if done by traps &c. designed for vermin. Still notwithstanding the immunity thus granted by the law to parties who by such means destroy animals which are guilty of a trespass, it will not permit them to be allured from spots where they have a right to be, and therefore, when a defendant had caused traps baited with highly scented meats to be set so near to the plaintiff's land that his dogs could wind them, he was deemed to have acted illegally.† To place baits too, so near to a public road as to attract dogs passing along it, or to draw a trail from it, would subject the party to an action for any mischief, but if the influence did not extend beyond his own territory, he could not be held responsible. In many cases of this nature, it may appear hard that the death of the dog should be the penalty of its transgression, but this arises solely from the impossibility of tempering the force to the wrong committed, and therefore, wherever an opportunity is afforded to a person of regulating it, the law will not permit him to use any greater violence than the protection of his property absolutely demands. Hence the owner of lands cannot shoot a dog which is merely trespassingt, and * Jordin v Crump, 8. M. & W. 782. doubts have even been expressed, whether he would be justified in taking such a step, when the life of the game belonging to him is put in jeopardy, and no other means of preserving it are presented. The better opinion seems to be, that in such an extreme case, the party might destroy it*, but if the game pursued had been started on the land of a third person, he could not do this, for he would have no property in it, neither while alive, nor after its death. The rule which thus requires the apportionment of the force to the wrong, would apply to instances where a dog or a cat, which is recognised as a valuable animal happens to be caught in a trap; unless the injury sustained was so great as to preclude all chance of its surviving, or it could not be otherwise extricated, it ought not, in strict law, to be destroyed. An exception has been admitted in the case of a free warren, the warrener being allowed to kill dogs, which HAUNT, or are hunting in, though not such as merely trespass on the warrent. The lord of a manor, and his regularly appointed gamekeepers have peculiar privileges, and the latter, if not the former, may seize within the limits, dogs which may be there used by any uncertificated person for the destruction of game. It is not necessary that the person should come within the precints, if he sends the dog within them for such a purpose, the seizure would be justifiable as long as it remains there, but he cannot follow it beyond them. Immediately upon the seizure, the property in the animal becomes vested in the lord, and he may dispose of it or destroy it.§ The original owner ceases to have any interest, and cannot complain. The owner or occupier of lands, however, has no such right in any case, his only remedy is to distrain the dog as it is termed in law French, "damage faisant," and to retain it as a pledge for procuring recompense for the trespass it has committed. Should the owner of the dog tender at once sufficient amends, he is entitled to its restoration, but in default of this, the party who seizes must convey it to some place of security, within the same county and hundred, and there impound it. After it has been once thus secured, the tender of amends is too late, the only remedy for the owner is to replevy it, and to enter into an obligation with sureties to pay any damages, together with the costs, which a jury may award, or to surrender it. The distreinor is at liberty to select any place he pleases, provided it be secure, and therefore the common pound would be improper in such a case. The dog should be there carefully kept, for if it escapes and is lost from want of caution, or any harm happens to it through negligence or maltreatment, he will be responsible. * Wright v. Ramscot, 1 Wm. Saund. 84. † Wadhurst v. Daunne, Cav. Jac. 45. 1 and 2 Wm. IV. c. 32, sec. 13. § Kingsworth v. Brellon, 5 Taunt. 416. || Com. Dig. Distress, B. 4. ¶ Pilkington's case, 5 Co. 76. NO. XVIII.-VOL. III.-NEW SERIES. 3 D As it is a mere pledge, he is not permitted in any way to work it, and formerly, he could not have sold it. By a recent statute, however*, which compels persons making distresses to provide the creatures with food, after the lapse of seven days, he may, upon giving three days' public printed notice, openly sell it at any public market and repay himself his expenses of keep and sale, rendering the surplus, if any, to the owner. Instead of doing this he is enabled, if he prefers it, to recover from the owner, any sum not exceeding double the value of the food provided, which a magistrate shall think proper to award to him, but he cannot resort to both remedies. This seizure may be made by any person authorized by the occupier of the land, and as the possession of a certificate by the person using the dog, affords no protection against it, a gamekeeper, where he is in doubt, may always adopt it with safety on the land of his master, or of other persons who will give him permission. He cannot, however, do so elsewhere, and a person who has the bare right of sporting over land, would not be justified, without a similar permission from the occupier. This licence, therefore, is of a much more limited character than that which belongs to a gamekeeper appointed by the lord of a manor, and it is subject to a further qualification, that if the dog was taken up by the owner, it could not be distrained, as an attempt to seize it under those circumstances, might lead to a breach of the peace. With respect to traps, and other engines used to destroy game, a gamekeeper may take them, if set by uncertificated persons, in any part of the manor, and they will then belong absolutely to the lord, but other parties (and if they are set by a certificated person then gamekeepers likewise) can only take them where they have leave, and then they are only entitled to retain them as a pledge. As to guns, they never can be taken away from a trespasser, except by a regularly appointed gamekeeper of a manor, and perhaps the lord himself, where the parties using them are uncertificated. The right of searching poachers is utterly illegal, unless they have game which has been recently killed upon them. OF THE SEASONS, TIMES, AND MEANS ALLOWED FOR KILLING GAME ALSO OF The seasons during which game may be killed are prescribed by the third section of the recent act+, which provides that partridges shall not be taken or killed between the first day of February and the first day of September; pheasants between the first day of February and the first day of October; black game between the tenth day of December and the twentieth day of August, except in Somersetshire, Devonshire, or the New Forest, and in those places between the tenth day of * 5 and 6 Will. 4, c. 59, sec. 4. +1 and 2 Will. 4, c. 32, sec. 3. December and the first day of September; grouse, between the tenth day of December and the twelfth day of August; and bustards between the first day of March and the first day of September. Upon the days thus specified, game may be killed, the partridge season, for instance, terminating at twelve o'clock on the night of the first of February, and commencing at twelve o'clock on the night of lhe thirtyfirst of August. The statute provides that whoever takes or kills these various species of game within the prohibited periods shall, on conviction before two justices, forfeit for every head, a sum not exceeding £1, together with the costs. By the mere pursuit of these birds the penalty, therefore, is not incurred, there must be an actual killing or taking to bring the case within the enactment. A taking, however, does not necessarily imply a manucaption, the simple deprivation of their natural liberty suffices, and, consequently, if a person sets a snare or net for such a purpose, as soon as game is caught, though he be absent, the offence is complete. However young the birds may be, they are protected. It will be observed, that hares are not included in the statute, and as game certificates may now be procured to extend over the entire year, they may be killed at any period. In order more effectually to prevent the destruction or capture of game during the fence months, the bare possession of it, after a sufficient period has elapsed to allow for the sale and consumption of what has been taken during the season, is rendered illegal. A penalty not exceeding £1 for every head and costs, may be levied by two justices upon every person licensed to deal in game, who, after the expiration of ten days (one inclusive and the other exclusive), from the day on which it becomes unlawful to kill them, buys, or sells, or knowingly has in his house, shop, stall, possession, or controul, any of these birds. Any other person who buys, or sells, or knowingly has them in his house, possession, or controul, after the expiration of forty days from such time is liable to the same penalty, with an exception, which does not extend to dealers of birds usually kept in a show or breeding place. In every case where the possession is rendered illegal, any person may seize or destroy these birds+ without rendering himself liable to an action or other proceedings at the suit of the party, and any contract entered into respecting them is absolutely void; and if, for instance, a dealer sells them he can maintain no action for the price. Under the statute which was previously in force, possession the day after the termination of the season was rendered an offence, and to avoid absurd consequences, the judges felt themselves compelled to construe the provision as relating only to game killed out of the season, and doubts 2 and 3 Vic. c. 35, sec. 3 and 4. + Helps v. Glemster, 8 B. and C. 553. + Du Bost v. Beresford, 2 Camp. 511. |