have the power of appointing a game-keeper. No one can appoint a game-keeper, but the lord of the manor himself.

Lord Kenyon has declared, that a man cannot convey to another the power of appointing a gamekeeper, without a conveyance also of the manor itself. Such a power is a mere emanation of the manor, and inseparable from it.

If the lord of a manor promise to another, that he shall have the deputation of the game-keeper, the game-keeper appointed by the person to whom the promise is made is not protected.

But if there is a fair colourable title to a manor, the Courts will not permit the right to it to be tried in a penal action against the game-keeper.

In the same case it was decided, that if the defendant obtains a verdict in a penal action from a mistake in the law, the Court will grant a new trial.-Calcraft v. Gibbs, 5 T. R. 19.

The Court will not permit the parties, even by agreement, to try the title to the manor, or the boundaries of a manor; but if there is a fair colourable title, by an exercise of these manorial rights,

the

the Judge will direct a verdict for the defendant, the game-keeper. Hawkins v. Bailey, N. P. Blunt v. Grimes, N. P. before Buller, J. 4 T. R. 681.

I have gone over all the statutes, and all the decisions respecting game-keepers, and I do not find one word authorising a game-keeper to take and carry away the Game from the free-warren, or the freehold of any person lying within the boundaries of the manor; but he is qualified to use dogs and guns within the manor, as every qualified gentleman is authorized to use them in that, and in every other manor, and no farther, except that upon his master's land and waste he may kill for the use of those who are specified in his deputation.

Besides the authority given to game-keepers as already described, the 5 Ann. c. 14. s. 4. enacts "that it shall be lawful to any justice of the peace within his county, or jurisdiction, and the lords or ladies of manors within their manors, to take away any Game from any higgler, chapman, inn-keeper, victualler, carrier, or any unqualified person; and likewise to take dogs, nets, or other engines, which shall be in the custody of any persons not qualified by the laws to keep the same to their own proper use."

A justice

A justice of the peace, or a lord of a manor, has no power to enter a house himself by any

statute.

If the lord of a manor is also a justice of the peace, and he takes away Game, guns, dogs, or engines, under this statute, and an action is brought afterwards against him; he must have notice of the action, and the cause of the action, conformably to the 24 Geo. II. c. 44.-Briggs v. Sir Frederick Evelyn, Hen. Blac. 144.

Outer doors cannot be broken open in the execution of civil process, but they may for a breach of the peace: but, under a warrant to search the houses of unqualified men, outer doors cannot be broken open. In such a case the Court declared,

566

By such a warrant no house can be broken open : nor can the King grant a warren in another's soil but by prescription; but every man hath freewarren in his own soil, and all other Game."The King v. Birt, 2 Keble, 530. anno 1671.

All that the Court then declared is unquestionably the law at present; the introduction of gamekeepers into the system of the game laws was certainly never intended to make any alteration in the property of Game.

CHAP.

CHAP. XI.

OFFENCES BY KEEPING OR USING DOGS AND ENGINES FOR THE DESTRUCTION OF GAME.

THE HE statutes for the preservation of the Game are very numerous; and, in many instances, much attention is necessary to ascertain what is the law of the present day. But to these statutes we may apply one of the laws of the Twelve Tables of Rome, Quod populus postremum jussit, id jus 'ratum esto; Let the last ordinance of the people be held to be the law in force: so the last act of parliament must be considered the existing law. For qualification frequently follows qualification, and penalty follows penalty, without the least notice of the former statutes upon the subject. Every justice of the peace will, therefore, act wisely in adopting as his guide the last legislative enactment upon the subject.

The present Qualification Act does not introduce any penalty. He, therefore, who offended against

that

that statute, was subject to the penalties specified in the statutes of James I.

When a statute prohibits an act to be done, without describing the offence or the punishment, it is a misdemeanor by the common law, and the offender is subject to fine and imprisonment at the discretion of the Court.

The Court of King's Bench held, that an indictment cannot be supported for killing Game contrary to the general Qualification Act, because the 5 Ann. c. 14. has appointed a summary proceeding before justices of the peace.-The King v. Buck, 2 Strange, 679.

Before the statute of Queen Ann, the offender was subject to the penalties under the statutes of James I.

The 4 & 5 W. and M. c. 11. subjected inferior tradesmen, apprentices, and dissolute persons, to certain penalties for killing Game; but it was decided that they were not within the statute, if they were qualified. The Queen v. George, 6 Mod. 40.

All these penalties are, therefore, abrogated and superseded by the 5 Ann. c. 14. and the 9 Ann. c. 25. s. 4. by which it is enacted, "That if any person or

persons