Kenyon v Hart
| Jurisdiction | England & Wales |
| Judgment Date | 03 February 1865 |
| Date | 03 February 1865 |
| Court | Court of the Queen's Bench |
English Reports Citation: 122 E.R. 1188
IN THE COURT OF QUEEN'S BENCH AND THE EXCHEQUER CHAMBER
S. C. 34 L. J. M. C. 87; 11 L. T. 733; 11 Jur. N. S. 602; 13 W. R. 406.
[249] kenyon, Appellant, hart, Respmdtiit. Friday, February 3rd, 1865.- 1 & 2 W. 4, c. 32, s. 30. Trespass in search of game. Information. Trespass by balloon.-1. Stat. 1 & 2 W. 4, c. 32, s. 30, which imposes a penalty for trespass in search or pursuit of game, means in search or pursuit of live game. -2. A. standing on his own land, a pheasant rose up on it, and Hew to the close of B. A. fired a gun and struck it while over that close, whereupon the bird fell dead, and A. entered and picked it up: Held, that ttii.-i was not a trespass in search or pursuit of game within stat. 1 & 2 W. 4, e. 32, s. 30, unless the facts were such as to shew that the firing at the bird, the entry on the close of B., and the picking up of the bird, all formed part of one continuous transaction.- 3. Quiere, whether it is a trespass to pass over land in a balloon? [S. C. 34 L. J. M. C. 87 ; 11 L. T. 733; 11 Jur. N. S. G02; 13 VV. It. 406.] Case stated under stat. 20 & 21 Vicfc. e. 43. At a Petty Sessions of the Peace, holden at Aahford, 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 [250] 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 stat. 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 be 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 meru act of tillering the land for 6 B. 48.281. KENYON V. HART 1189 the purpose of picking up the pheasant, which was then dead, was not such a trespass in pursuit of game as is contemplated by stat. 1 & 2 W. 4, c. 32, s. 30. The question for the opinion of the Court was whether they were right iti point of law. The case turned on stat. 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 there fore 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 [251] 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 parson shall, for the purpose of prosecuting for each of the two offences 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 stat. 1 & 2 W. 4, c. 32, s. 30. [tie cited Middletan v. Gale (8 A. & E. 155).] [Oomptou J. This section is directed against poaching, against persons who go upon the laud of others in pursuit of game. If the bird had beeu 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? 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 [252] 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 Loom?, Appi., Bailey, liespt. (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...
To continue reading
Request your trial