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England and Wales High Court (Queen's Bench Division) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Queen's Bench Division) Decisions >> Kenyon v. Hart  EWHC QB J102 (03 February 1865)
Cite as: 6 B & S 249, 122 ER 1188,  EWHC QB J102
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122 ER 1188
6 B. & S. 249
Case stated under statute 20 & 21 Vict. c.43.
At a Petty Sessions of the Peace, holden at Ashford, in the county of Kent, an information was exhibited by the appellant against the respondent for having, on the 1st October, 1864, unlawfully committed a trespass by being in the daytime upon certain land in the possession and occupation of Henry Tappenden, in search of game, without the licence or consent of the owner of the land or of any other person having the right to authorize him, &c., contrary to the statute.
On the hearing of the case the appellant on his oath stated,
"I am under-keeper to Sir Richard Tufton, Bart.; on the 1st October last, about half-past ten in the morning, the respondent was out shooting. He shot a cock pheasant and it fell on Mr. Tappenden's field belonging to Sir Richard Tufton ; he went and fetched the bird himself, taking his dog and gun with him; the respondent was on his own land when he shot the pheasant, and it rose off his land. The pheasant was dead when the respondent picked it up, and it lay upon its back."
When the respondent's solicitor was addressing the Court, the chairman recalled the appellant and asked him whether, when the respondent shot the pheasant, it was or was not in the air over the land belonging to Sir Richard Tufton. The appellant replied that it was, and fell a considerable distance within his boundary. The respondent's solicitor objected to the question being put after the appellant had heard the opening of the respondent's case, and contended; First, That no trespass within the meaning of statute 1 & 2 W. 4, c.32, s.30, had been committed, as the pheasant rose off the respondent's land and the respondent was upon his own land when he shot the bird. Second, That the 30th section of the Act did not apply to game when dead. Having heard the evidence of the appellant and the argument of the respondent's attorney, the justices dismissed the case on the grounds that, as the pheasant was raised off the respondent's land and shot by him while he was upon his own land, the mere act of entering the land for the purpose of picking up the pheasant, which was then dead, was not such a trespass in pursuit of game as is contemplated by statute 1 & 2 W. 4, c.32, s.30.
The question for the opinion of the Court was whether they were right in point of law.
The case turned on statute 1 & 2 W. 4, c.32, s.30,
"And whereas, after the commencement of this Act, game will become an article which may be legally bought and sold; and it is therefore just and reasonable to provide. some more summary means than now by law exist for protecting the same from trespassers ; be it therefore enacted, That if any person whatsoever shall commit any trespass by entering or being, in the daytime, upon any land in search or pursuit of game, &c., such person shall, on conviction thereof before a justice of the peace, forfeit and pay such sum of money, not exceeding two pounds, as to the justice shall seem meet, together with the costs of the conviction ; and that if any persons to the number of five or more together shall commit, any trespass, &c., each of such persons shall, on conviction thereof before a justice of the peace, forfeit. and pay &c. .... Provided always' that any person charged with any such trespass shall be at liberty to prove, by way of defence, any matter which would have been a defence to an action at law for such trespass; save and except that the leave and licence of the occupier of the land so trespassed upon shall not be a sufficient defence in any case where the landlord, lessor, or other person shall have the right of killing the game upon such land by virtue of any reservation or otherwise, as hereinbefore mentioned ; but such landlord, lessor, or other person shall, for the purpose of prosecuting for each of the two 6ffences herein last before mentioned, be deemed to be the legal occupier of such land, whenever the actual occupier thereof shall have given such leave or licence ; &c."
KEANE, for the appellant. The respondent committed a trespass by entering upon land in search of game within statute 1 & 2 W. 4, c. 32, s. 30. [He cited Middleton v. Gale (8 A. & E. 155).] [Crompton J. This section is directed against poaching; against persons who go upon the land of others in pursuit of game. ' If the bird had been wounded the case might have been different, but here the bird was dead at the time the respondent committed the trespass. Can a person be said to pursue or search after dead game 7 Blackburn J. You must contend that the enactment extends to game in poulterers' shops.] No doubt the object of the Act was to put down poaching. The sections beginning with sect. 25 relate to game whether alive or dead. [He also referred to sect. 7, Rex v. Marsh (2 B. & C. 717), and Loome, Appt., Bailey, Respt. (3 E. & E. 444).] [Mellor J. In the recital of sect. 30 the words "for protecting the same from trespassers" refer to "game," not the article for sale. Crompton J. I am strongly of opinion that this branch of the statute refers to live game, though the preceding sections refer also to dead game.] In Morden, Appt., Porter, Respt. (7 C. B. N. S. 641, 648-650.), Williams J. comments on sects. 30, 46, as shewing that the framers of the Act contemplated the same sort of trespass in both sections; and "game" must be understood as used in the latter section in the same sense as in the former. [Blackburn J. The proviso in sect. 30 shews that that section refers to live game. Mellor J. Suppose the pheasant had fallen on the highway.] In Reg. v. Pratt (4 E. & B. 860) it was held that a conviction under sect. 30 was supported by evidence of the defendant having, while standing on a public road, sent a (dog into an adjoining cover in the occupation of B., and shot at a pheasant which flew across the road without killing it. [Blackburn J. Yes, but the ratio decidendi was that the road on which the respondent stood when he fired was also the soil and freehold of B. That- case raises the old query of Lord Ellenborough as to a man passing over the land of another in a balloon : he doubted whether an action of trespass would lie for it [His Lordship probably alludes to Pickering v. Rudd, 4 Camp. 219, 220-1 1 Stark; 56, 59. See Broom's Max. 384, 4th ed.]. I understand the good sense of that doubt, though not the legal reason of it. Here the justices do not find whether the pheasant was shot over the land where it was picked up.] In Osbond, Appt., Meadows, Respt. (12 C. B. N. S. 10), where the respondent, being on land over which he had the right of shooting, shot a pheasant which was on the ground in an adjoining close over which another person had the exclusive right of shooting, and went into that close and picked it up, it was held a trespass in search or pursuit of game. [Blackburn J. . In that case the Court held that taking the whole of the transaction together the respondent was within sect. 30; the shooting the bird and going upon the close to pick it up being one transaction ;but I am not satisfied with that reasoning. It amounts to this, that there was evidence for the jury to consider whether the picking up the bird was part of the same transaction as the shooting it: but here the following and picking up the dead bird does not shew that the respondent intended to shoot on his neighbour's land. Crompton J.The information here charges the respondent with committing a trespass "in search of game," how can his personal entry on land in search of the dead bird be connected with the act of shooting or be taken as part of it?] The whole transaction was one act. The words in the statute are "in search or pursuit of game." Now "search" and "pursuit" are different things. A man can only "pursue" living game, but he may "search" for dead game. Here the information is for the latter; in Osbond, Appt., Meadows, Respt., it was for the former.
DENMAN, for the respondent. [Blackburn J. We have not the least doubt that in this section the words "in search or pursuit of game" mean of "living" game.The only question is that raised by Osbond, Appi., Meadows, Respt. (12 C. B. N. S. 10).]In that case the firing and pursuit were fairly taken as one act; here it is not so. The real question is, were the justices bound to convict on this evidence7 [He was then stopped.]
KEANE, in reply. The justices had no right to direct their attention solely to the fact of the respondent's entry on the land, and to dismiss from their consideration the circumstances that the bird was game, that it was killed by a shot from the respondent., and that the shot was fired over the land of another person. [Blackburn J. There may be cases where "pursuit" and "search " are not synonymous, but this is not one of them.]
BLACKBURN J. The justices were right on the point which they have stated for our consideration, and also in confining in the manner they have done the question put to us.
The 30th section of statute 1 & 2 W. 4, c. 32, enacts,
"If airy person whatsoever shall commit any trespass by entering or being, in the daytime, upon any land in search or pursuit of game, &c., such person shall, on conviction thereof, &c. forfeit and pay &c.," and then comes a proviso to remove a doubt, if any could exist:"Provided always, that any person charged with any such trespass shall be at liberty to prove, by way of defence, any matter which would have been a defence to an action at law for such trespass; save and except that the leave and licence of the occupier of the land so trespassed upon shall not be a sufficient defence in any case where the landlord, lessor, or other person shall have the right of killing the game &c."
Looking at the object and spirit of this section we shall see that it was to prevent persons entering land in search or pursuit of game in the sense of living game. I cannot think "game" in this section means game whether living or dead :although in some other parts of the statute, as for instance when it speaks of game at a poulterer's, the word "game" may properly mean dead game. In this my brother Mellor agrees with me, and so also does my brother Crompton, who has left us to go to chambers.
With respect to the second question. No doubt the respondent entered this field without lawful authority, and therefore was a trespasser. It is equally certain that he did so in order to pick up a dead pheasant lying there, of which he was in search,but at the time of his entry upon the land the bird was dead. It is endeavoured to shew that he is guilty under this section from previous facts, viz., that being shooting in his own ground the bird rose and flew over the boundary, that he fired and struck the bird when over his neighbour's land, for we must take it so. But there can be no difference between this being the case of a bird in the air and the case of four-footed game running on the land. In some countries where there are no visible divisions on moors an animal struck may run a yard or two on the other side of a boundary.
It has been held in Reg. v. Pratt (4 E. & B. 860), that if, as here, a person standing on his own land sends a leaden messenger at game on the land of another person, this is not a trespass in pursuit of game. Then, however, it is said the respondent entered the land of the other person to pick it rip, and the case, consequently, comes within the decision in Osbond, Appt., Meadows, Respt. (12 C. B. N. S. 10).
Now, it the first place, that was a decision of the Court of Common Pleas in a case ill which no writ of error could he brought, and it is therefore not binding on us, although we would receive it with respect, and, not dissent from it without consideration. But it is not necessary to enter into that, for the facts are different from the present. There a mail shot a bird in his neighbour's close and then went to fetch it. And as the justices had some doubt,, and the statute was a penal one, they did not convict. The Court say, as I read the decision, that if the justices thought the shooting the bird and the picking it up were all one and the same act, that it was the pursuit of the game continued till consummated by picking up the bird, they might have so inferred. It is not necessary to say that we would have done it-we are not to be understood as either agreeing with or dissenting from their decision. But it is consistent with the facts of the present case that the respondent was astonished when he saw the pheasant fall into his neighbour's land, though when that occurred he perhaps thought it better to go in and take it up. Although the justices ought to consider all the facts of a ease, they are not bound to draw from them every inference that might be drawn. In Osbond, Appt., Meadows, Resyt. (12 C. B. N. S. 10), the justices drew the conclusion that the whole was part of the same transaction, which the Court of Common Pleas said they might have drawn. But the question is, were the justices here right in not drawing the inference? Without saying if they had drawn the opposite inference they would have been wrong, it is enough that the question they ask us is, not about the pheasant having been hit while it was in the air over the neigh-hour's land, but whether the entering the land to pick up the dead pheasant was a trespass within this statute. It was a trespass but not in pursuit of game, and we cannot, as in Osbond, Appt., Meadows, Respt. (12 C. B. N. S. 10), infer that it was all one act.
Mellor J. concurred.
Crompton J. had gone to Chambers.