(a) Abbott J. was absent upon the special com mission. Rex v. Turner. subject the defendant to the penalty, he has done enough; and the proof of qualification is to come in as matter of defence. As to the objection, that this evidence is consistent with the supposition, that the game was in the waggon of the defendant, without his knowledge, I think the fact of its being in his waggon raises a presumption the other way, that it was there with his knowledge. If the defendant could have shewn, by evidence satisfactory to the justices, that he did not know it, that would have presented a very different case; but where the witness has proved that the defendant had it in his custody and possession in his waggon, surely such evidence, being unanswered, warrants this conviction. HoLROYD J. (a) It is a general rule, that the affirmative is to be proved, and not the negative, of any fact which is stated, unless under peculiar circumstances, where the general rule does not apply. Therefore it must be shewn, that this is a case which ought to form an exception to the general rule. Now, all the qualifications mentioned in the statute are peculiarly within the knowledge of the party qualified. If he be entitled to any such estate as the statute requires, he may prove it by his title deeds, or by receipt of the rents and profits or if he is son and heir-apparent, or servant to any lord or lady of a manor appointed to kill game, it will be a defence. All these qualifications are peculiarly within the knowledge of the party himself; whereas the prosecutor has, probably, no means whatever of proving a disqualification. If this be so, instead of saying that the general rule of law ought not to apply to this case, it seems to be the very case to which the rule ought peculiarly to apply. The other objections do not appear to me to be well founded; and, therefore, I think this conviction ought to be affirmed. Conviction affirmed. An unqualified person, by the orders and in the presence of his master, a qualified person, set on his master's grounds a trap for hares, Using Snares to Destrop. Walker v. Mills, E. 1 G. 4. 2 Brod. & Bing. 1. Debt to recover penalties, on 5th Anne, c. 14. § 4., and 9th Anne, c. 25. § 2., for using a snare to destroy game (the defendant not being qualified), and for exposing a hare to sale. Plea, general issue. The following facts were proved before GARROW B., at the last Sussex assizes. The defendant, a cottager in the employ of a qualified person, was on Sunday morning found with a hare in his possession, which he had just taken out of a trap placed on &c. and afterhis master's property. The master stated, that the trap was placed wards, finding a hare therein, there on the Thursday preceding, by his direction, and in his precarried it, ac- sence, for the purpose of catching hares and rabbits which had cording to order annoyed him; that the defendant had received orders from him to bring to his (the master's) residence, whatever might be caught in the trap, and that the defendant had accordingly brought the hare in question to him on the Sunday morning on which it was seen in the defendant's possession. The learned judge thought that the defend- the point new, but having directed the jury that this resembled the case of a qualified person attended by persons unqualified, assisting him in the operations of sporting; that the defendant was acting as servant to his master, and under his directions; and that, therefore, the possession of the hare by the servant must be taken to be the possession of the master; the jury found a verdict for the defendant. On motion for a new trial, it was contended to his master, who was not present when the hare was found: Held, ant was not liable to the penalties for using snares to destroy game, or for exposing game to sale. that the result of the various cases on this subject was, that the Walker v. Mills. right of a person qualified to kill game did not extend to the protection of persons unqualified, unless the qualified person were actually present; and that a qualified person had no right to send out one unqualified to kill game for him; that the master, in this case, though present at the setting of the trap, was absent when the hare was caught and found in the defendant's possession, and that such possession constituted an exposure to sale, under the 9th Anne, c. 25. § 2.; and Molton v. Cheeseley (1 Esp. 123.) was cited. DALLAS C. J. Cases of this sort frequently run into very nice distinctions, and I would not hastily lay down a general rule which might afterwards be open to objection. If I had any doubt I would look into the cases that have been referred to; but I have none: nor have I any hesitation in saying, that this action is most improperly brought. For what are the circumstances of this case? The defendant was the servant of a qualified man, who, finding his land annoyed by hares and rabbits, ordered this trap to be set, with a view to their destruction. I take it to be perfectly clear, that a qualified person has a right to order a trap to be set for such a purpose, even in his absence; but, in this case, the qualified person was present, and superintended the setting of the trap. In this trap the hare was afterwards caught, and the catching was a catching by the master on his own land. Then as to the possession, the master ordered, that whatever was caught should be brought to him: the hare was brought the moment it was taken, and the possession of the servant in the act of taking the hare to his master, was under the master's direction, and the same as the possession of the master. Burrough J. Actions of this kind do a great deal of mischief; there was no pretence for charging this defendant with an illegal taking or possession. RICHARDSON J. The trap being set by the master's order, and in his presence, the hare was in effect caught by him. As to the possession, it was proved that he ordered his servant to bring to him whatever might be taken; so that the case falls within the principle of Warneford v. Kendall (10 East, 19). The learned judge also referred to Spurrier v. Vale (10 East, 413). Percons going Armed by Night to Destroy, xc. [See stat. 57 G. 3. c. 90. § 1. 2 Burn, 534.] If several prisoners are out together, and any one of them is armed, the others are liable to be convicted under stat. 57 G. 3. c. 90. If several persons are together, and any all are within Rex v. Smith, O'Flannaghan, and Preston, MS. C. C. R. The one is armed, prisoners were tried before HOLROYD J. at the summer assizes the statute. for the county of Oxford, July 1818, on an indictment upon the stat. 57 Geo. 3. c. 90., for a misdemeanor in unlawfully entering a park at Bletchington, and being found there armed with guns, between 6 o'clock in the evening and 7 o'clock in the morning, to wit, about one o'clock of the 30th January 1818, with intent to kill game against the form of the statute. The second count stated the offence to be in a certain inclosed ground. There was evidence to show that the three prisoners, and another man, came together into a spinney (which was an inclosed piece of ground at Bletchington, within a larger piece, which was called a park, and was also walled round) in the night time between the hours stated SUPP. Rex. v. Smith and others. Vide 1 East's - in the indictment for the purpose, and with the intent, to kill But if several are out together, and one has arms without the knowledge of the others, the others are not liable to be convicted under this act. Johnson and Southern went into a close in the night to kill game; Johnson had a loaded pistol, but Southern did not know it. On case, the judges thought Southern not liable to be convicted under this act. Rex v. Johnson and Southern, MS. C. C. R. Decided in E. T. 1821. Form of a Conviction on Stat. 5 & 6 Anne, c. 14. § 4., for keeping and using a Lurcher to kill and destroy the Game. - 2 Burn, 506. County [or, as) BE it remembered, that on the the case may be] of A. I., of in the year of our Lord in the county of in the county of labourer, labourer [or, as the case may be], I. P. esquire, one of his majesty's justices of the peace for the said county of and informed me that A.O., of in the county of being a person not then having lands or tenements, or any other state of inheritance in his own right or in his wife's right of the clear yearly value of one hundred pounds per annum, or for term of life, nor then having lease or leases of ninety-nine years, or for any longer term, of the clear yearly value of one hundred and fifty pounds, nor then being a son and heir apparent of an esquire or other person of higher degree, nor then being the owner or keeper of any forest, park, chase or warren, being stocked with deer or conies, for his necessary use, in respect of such forest, park, chase or warren, nor then being lord of any manor, lordship or royalty, nor then being gamekeeper of or to any lord or lady of any lordship, manor, or royalty, duly made, constituted, or appointed by writing under his or her hand and seal to take, kill, or destroy the game, or any sort of game whatsoever, in or upon any lordship, manor or royalty, nor then being a person duly appointed and deputed by any lord or lady of any manor, to be a gamekeeper to any manor with authority as gamekeeper to kill game within any manor, for the use of such lord or lady, or for his own use, or for the use of any other person or persons whatsoever, nor then being a person in any manner whatsoever duly qualified, empowered, or authorized by the laws of this realm, either to take, kill, or destroy any sort of game whatsoever either for himself or for any other person or persons whatsoever, nor to keep or use any greyhounds, setting-dogs, hays, lurchers, tunnels or any other engine for the destruction of the game of this kingdom, within three months now last past, that is to say, the day of at in in the said county of did unlawfully keep and use [or, "keep" or use, as the case may be] a lurcher, to kill and destroy the game, contrary to the form of the statute in such case made and provided: Whereupon the said A. O., after being duly summoned to answer the said charge, appeared before me on day of in the said year the said county of· -, and having heard the charge contained in the said information, declared he was not guilty of the said offence; [or, as the case may happen to be] did not appear before me pursuant to the said summons [or, did neglect and refuse to make any defence against the said charge]. Nevertheless I, the said justice, did proceed to examine into the truth of the charge contained in the said information; and on the said day of· at aforesaid, one credible witness, to wit, A. W., of in the county of· , upon his oath, deposeth and saith, [if A. O. be present, say in the presence and hearing of the said A. O.] that within three months now last past, to wit, on the said A. O., at the in the year — in the said county of· the day of aforesaid, in any manner whatsoever duly qualified, empowered, or authorized by the laws of this realm to take, kill, or destroy any sort of game either for himself or for any other person or persons whatsoever, or to keep or use a lurcher for that purpose [if more than one witness be examined, state the evidence given by each; or, if the defendant confess, instead of stating the evidence, say]; and the said A. O. acknowledged and voluntarily confessed the same to be true. Therefore, it manifestly appearing to me that he, the said A. O., is guilty of the offence charged upon him in the said information, I do hereby convict him of the offence aforesaid; and do declare and adjudge that he, the said A. O., hath forfeited the sum of five pounds of lawful money of Great Britain, for the offence aforesaid, to be distributed according to the form of the statute in that case made and provided. Given under my hand day of in the year of our Lord one and seal the thousand eight hundred and Gaming (Wagers.) [See stat. 9 Ann. c. 14. § 1.-2 Burn, 589.] As dated ac EDWARDS v. Dick, H. 1 & 2 G. 4. 4 B. & A. 212. In an action sumpsit by plaintiff, as indorser, against the defendant as against the drawer and indorser of a bill of exchange. The bill was drawer of a bill December 1st, 1819, and was drawn by defendant upon, payable at a particular place, cepted by Lord R., for the sum of 240l., payable at three months, is no defence and the dishonour nor is it any that no notice of at Mr. Newland's chambers, New Inn. Plea, general issue. At the trial at the sittings after last Mich. Term, before BAYLEY J., has been given it appeared that the bill had been duly presented and dishonoured; to the acceptor; but no notice had been given to the acceptor of its dishonour. defence that the It was also proved that it had been drawn and accepted in bill was accepted discharge of a debt for money won at play, but that the plaintiff for a gaming had received it from the drawer in payment of a bona fide debt. debt, if it be in- The learned judge was of opinion, that neither of these circumstances formed any defence to the present action, and the plaintiff obtained a verdict. On motion to enter a nonsuit, the Court held that the stat. 9 Ann. c. 14. § 1. did not extend to this case, and therefore refused the rule. ABBOTT C. J. said, For the purpose whom the action of preventing fraud we cannot permit the defendant to set up his is brought. own gaming as a defence. dorsed over by the drawer for a valuable consideration, to a third person, by See stat. 12 G. 2. c. 28. § 5.— 2 Burn, 593. The notice of appeal is not necessarily to be in writing, but a verbal notice, if reasonable as to time, is sufficient. — Rex v. The Justices of Surry, title "Appeal," ante, p. 28. A licensed auctioneer going from town to stage-coach, and sending waggons, and selling the same on commission, by retail or by auction, at the different towns, is a trading per Hawkers and Pedlars. [2 Burn, 656.] The only statute now in force relating to Hawkers and Pedlars, appears to be the 50 G. 3. c. 41. [In 2 Burn, 658-9, dele stat. 29 G. 3. c. 26. § 16.] REX v. Turner, E. 2 G. 4. 4 B. & A. 510. Conviction of defendant under stat. 50 G. 3. c. 41. (2 Burn, 656.) The oftown in a public fence charged in the information was, that the defendant heretofore, to wit, on, &c., at, &c., was a pedlar and trading person, going from town to town, travelling with horses, exposing to sale goods by public goods; and that he did, on the day and in the year last aforesaid, as a pedlar and trading person, go from town to town, travelling with horses at, &c., and did then and there, as a pedlar and trading person, going from town to town, and travelling with horses, expose to sale goods, to wit, China, &c. The defendant having appealed against the conviction, the sessions confirmed it, subject to the opinion of the court of K. B. on the following case. The defendant had no hawker's licence, but was a licensed auctioneer, having only two usual places of abode, the one at Bath, and the other at Cheltenham. At Cheltenham he was the agent for the real workers or makers of the goods, for the purpose of selling such goods, as well by private contract as by public auction. The real workers or makers of the several goods mentioned were not in partnership, but were distinct employers of the defendant for the sale of their several property. In the beginning of the month of March, 1820, certain goods, consisting of cabinet ware, &c., were sent by the several real workers, or makers of them, to the defendant at Cheltenham, with a request from them, that he would cause the same to be conveyed by public carriers' waggons from Cheltenham to the city of Worcester, and would himself proceed thither in son within the take out ahawk- licence. |