Page:EB1911 - Volume 11.djvu/460

Rh In England and Ireland the winged game above named and hares may not be killed on Sundays or Christmas Day. It is illegal to sell or expose for sale hares or leverets in March, April, May, June and July. It is illegal throughout the United Kingdom to buy or sell winged game birds after ten days from the beginning of the close season as fixed by the English law (1831, s. 4; 1860, s. 13). This prohibition applies to the sale of live game, British or foreign, and to the sale of British dead game. It is illegal to lay poison for game or rabbits except in rabbit holes, and it is illegal to kill game by firearms at night. Wild birds not within the list above given but of interest for sport are protected by close times fixed under the Wild Birds Protection Acts, which may vary in each county of each kingdom.

Licences.—Besides the restrictions on the right to take or kill game which arise out of the law as to ownership or occupation of the lands on which it is found, there are further restrictions imposed by the laws of excise. From the time of Richard II. (1389) until 1831 the right of persons other than gamekeepers properly deputed by the lord of a manor to take game was made to depend on the social rank of the person, or on the amount of his interest in land, which ranged from a 40s. freehold (in 1389) to £100 a year (1671). These restrictions were abolished in 1831, and the right to kill game was made conditional on the possession of a game certificate, now called a game licence in Great Britain (act of 1831, ss. 6, 23). By s. 4 of the Game Licences Act 1860 “any person, before he shall in Great Britain take, kill or pursue, or aid or assist in any manner in the taking, killing or pursuing, by any means whatever, or use any dog, gun, net or other engine for the purpose of taking, killing or pursuing any game, or any woodcock, snipe, quail, landrail, or any coney, or any deer, shall take out a proper licence to kill game under this act”—subject to a penalty of £20. There are certain exceptions and exemptions as to royal personages, royal gamekeepers, and with reference to taking woodcock or snipe by nets or springes, by coursing or hunting hares or deer, or killing deer, rabbits or hares (Hares Acts 1848, Game Licences Act 1860) in certain enclosed lands by the owners or occupiers. A licence is not required for beaters and assistants who go out with holders of a game licence. The licence is granted by the Inland Revenue Department. The issue is regulated by the Game Licences Act 1860 as amended by the Customs and Inland Revenue Act 1883. The licences now in use are of four kinds:— In the case of gamekeepers in Great Britain for whom the employer pays the duty on male servants, the annual licence fee is £2, but the licence extends only to lands on which the employer has a right to kill game. A licence granted to a person in his own right and not as gamekeeper or servant is effective throughout the United Kingdom. The game licence does not authorize trespass on the lands of others in search of game nor the shooting of game, &c., at night, and is forfeited on a conviction of game trespass (1831, s. 30; 1860, s. 11). Persons who have game licences need not have a gun licence, but the possession of a gun licence does not qualify the holder to kill game or even rabbits.

The sale of game when killed is also subject to statutory regulation. Gamekeepers may not sell game except under the authority of their employer (1831, ss. 17, 25). Persons who hold a full game licence may sell game, but only to persons who hold a licence to deal in game. These licences are annual (expiring on the 1st of July), and are granted in London by justices of the peace, and in the rest of England by the council of the borough or urban or rural district in which the dealer seeks to carry on business (1831, s. 18; 1893, c. 73, s. 27), and a notice of the existence of the licence must be posted on the licensed premises. A licence must be taken out for each shop. The following persons are disqualified for holding the licence: innkeepers, persons holding licences to sell intoxicants, owners, guards or drivers of mail-carts, stagecoaches or public conveyances, carriers and higglers (1831, s. 18). This enactment interferes with the grant of game licences to large stores which also have licences to sell beer. The licensed dealer may buy British game only from persons who are lawfully entitled to sell game. Conviction of an offence under the Game Act 1831 avoids the licence (s. 22). The local licence must also be supplemented by an excise licence for which a fee of £2 is charged. Licensed dealers in game are prohibited from selling game killed in the United Kingdom from the tenth day after the beginning of close time to the end of that period. The provisions above stated under the act of 1831 applied only to England, but were in 1860 extended to the rest of the United Kingdom, and were in 1893 applied to dealers in game imported from abroad. The main effect of the system of licences is to prevent the disposal of game by poachers rather than to benefit the revenue.

Deer.—Deer are not included within the definition of game in any of the English game laws. Deer-stealing was very seriously punished by the old law, and under an act of 9 George I. c. 22, known as the Waltham Black Act, passed because of the depredations of disguised deer-stealers in Epping Forest, it was under certain circumstances made a capital offence. At present offences with reference to deer are included in the Larceny Act 1861. It is a felony to hunt or kill deer in enclosures in forests, chases or purlieus, or in enclosed land where deer is usually kept, or after a previous conviction to hunt or kill deer in the open parts of a forest, &c., and certain minor provisions are made as to arrest by foresters, forfeiture of venison unlawfully possessed and for unlawfully setting traps for deer. These enactments do not prevent a man from killing on his own land deer which have strayed there (Threlkeld v. Smith, 1901, 2 K.B. 531). In Scotland the unlawful killing of deer is punished as theft.

Eggs.—The owner or occupier of land has no property in the eggs of wild birds found on his lands unless he takes them up. But under s. 24 of the Game Act 1831 a penalty of 5s. per egg is incurred by persons who unlawfully (i.e. without being, or having licence from, the person entitled to kill the game) and wilfully take from the nest or destroy in the nest the eggs of any game bird, or of a swan, wild duck, teal or widgeon. Similar provisions exist in Ireland under an act of 1698, and by the Poaching Prevention Act 1862 (United Kingdom) power is given to constables to search persons suspected of poaching and to take from them the eggs of pheasants, partridges, grouse or black game. And the Wild Birds Protection Acts deal with the eggs of all wild birds except game and swans.

Damage to Crops by Game.—Where an occupier of lands has not the right to kill game or rabbits he runs the risk of suffering damage by the depredations of the protected animals, which he may not kill without incurring a liability to summary conviction or for breach of the conditions on which he holds the land. At common law the owner of land who has reserved to himself the sporting rights, and his sporting tenants, must use the reserved rights reasonably. They are liable for any damage wilfully or unnecessarily done to the crops, &c., of the occupier, such as trampling down standing crops or breaking hedges or fences. They are not directly liable to the occupier for damage done to the crops by game bred on the land or frequenting it in the ordinary course of nature; but are not entitled to turn down game or rabbits on the land. And if game or rabbits are for the purposes of sport imported or artificially raised on land, the person who breeds or brings them there is liable for the damage done to the crops of adjoining owners or occupiers (Farrer v. Nelson, 1885, 15 Q.B.D. 258; Birkbeck v. Paget, 31 Beav. 403; Hilton v. Green, 1862, 2 F. & F. 821).

Recent legislation has greatly increased the rights of the occupiers of land as against the owners of sporting rights over it. As regards hares and rabbits the occupier’s rights are regulated by the Ground Game Act 1880 (which is expressed to be made “in the interests of good husbandry and for the better security of capital and labour invested in the cultivation of the soil”). By that act the occupier of land as incident to and inseparable from his occupation has the right to kill and take hares and rabbits on the land. The right is indefeasible and cannot be divested by contract with the owner or landlord or even by letting the occupier’s sporting rights to another. But where apart from the act the right to kill game on the land is vested in a person other than the occupier, such person has a right concurrent with the statutory right of the occupier to take hares and rabbits on the land. The act does not extend to common lands nor to lands over which rights of grazing or pasturage for not more than nine months in the year exist. Consequently over such lands exclusive rights of killing ground game still continue, and the law appears not to apply in cases where a special right of killing or taking ground game vested before the 7th of September 1880 in any person (other than the landlord) by statute, charter or franchise (s. 5). The mode of exercise of the occupier’s right is subject to certain limitations. The ground game is only to be taken by him or by persons whom he has duly authorized in writing, who must be members of his family or his servants or bona fide employed by him for reward to take ground game. The written authority must be produced on demand to persons having concurrent rights to take and kill the ground game (s. 1 (1) (c)). Firearms may not be used by night, nor may poison be used, nor may spring traps be set except in rabbit holes (s. 6); nor may ground game be killed on days or seasons or by methods prohibited by statute in 1880 (s. 10).

In the case of moorland and unenclosed lands (which are not arable and do not consist of small detached portions of less than 25 acres) the occupier may between the 1st of September and the 31st of March kill and take ground game; but between the 1st of September and the 10th of December firearms may not be used (1880, s. 1 (3); 1906, s. 2). In the case of such lands the occupiers and the owners of the sporting rights may between the 1st of September and the 10th of December make and enforce for their joint benefit agreements for taking the ground game. The Agricultural Holdings Act 1906 (operating from 1909) deals, inter alia, with damage to crops by deer and winged game, but does not apply to damage by hares or rabbits. The tenant of agricultural land is entitled to compensation for damage to his crops exceeding 1s. per acre over the area affected if caused by game, “the right to kill or take which is vested neither in him nor in any one claiming under him other than the landlord and which the tenant has not permission in writing to kill” (s. 2). The right of the tenant is indefeasible and cannot be