their intention purposely to exclude the father; but in fact they have done it. The blunder has been adopted, perhaps, without meaning it; for it should seem strange that in fixing the qualifications, they should begin with property, then go to a derivative qualification, and then return to a very large de scription of original ones, namely, quality and degree. In a grammatical sense also, it must be taken to be in the genitive case, in the same manner as if the word of had been actually in serted. It is not necessary to say any thing upon the other head: if it were, I should agree with my lord. Buller J. said that the case of The K. v. Utley, did not pass with so little argument as Willes supposed, for he remembered it was argued very fully; and the grounds of their decision were, 1st. The constant form of convictions on the game laws, which ought to have great weight with the court; 2dly, from a comparison of the several acts relating to game. Upon full consideration,in my opinion that judgment was right: 1st. taking this clause in a grammatical sense, had the exception extend ed no farther than to other persons of higher degree, still I should have thought that the word of was intended, and that the word other was to be understood in the genitive case; but I am confirmed in my opinion by the manner in which the clause proceeds; for the words immediately following are, and the owners and keepers of forests, parks, chases, and war. rens: now had the preceding part of the sentence, or other persons of higher degree, been intended to have been taken in the nominative case, why did the legislature alter the mode of expression? For where they speak of other persons to be exempted in their own right, they change the words. Again it is asked, What reason is there for accepting the eldest son aloue, and not the younger? The only reason that can be giren is, because he is the presumptive heir to the real estate, which Is a further argument; for supposing that landed qualification was the immediate object of the statute, and in fact this act of Cur. 2. had that principally in view, for it repeals the personal qualification of the statute of Jac. 1, and leaves no other but that of land, with the exception in favour of the heir ap parent, on account of his right of succession. I have no doubt that the legislature took it for granted, that esquires themselves would be qualified in respect of their land, and for the reasons assigned extend.d the qualification to their eldest sons, and we are bound to take the act as they have made it; a casus omissus can in no case be supplied by a court of law, for that would be to make laws; nor can I conceive that it is our province to consider, whether such a law as has been passed is tyrannical or not: it has been said that this act is only pointed against persons of low degree, as appears from the preamble: to consider the preamble of an act is, to be sure, in general a good mode to come at the meaning of the legislature, but it does not assist us in this case; for we gather from the enacting part of the statute, that a person who has a freehold of 991. per ann. or a leasehold for 99 years of 149% per ann. is not qualified: but can it be said that either of these is a mean or vulgar person? As to the other question, whether a doctor of physic, of the defendant's description, is qualided? I think he is not on another ground; but on this head I refer generally to what my lord has said.-Judgment for the plaintif. 1 Term Rep. 41. As to the SECOND POINT, I shall first give the FORM OF A CONVICTION for keeping dogs, or engines, on the 5 Ann. c. 14. 8. 4.and from thence show, what has been deemed requisite in the conviction of offenders; for in these convictions much nicety is required, in order that the court may see that the offence is within the jurisdiction of the justice, and that he has pursued his authority *. The form of such conviction may be as follows: to wit. } remembe Monmouthshire, BE it remembered, that on the 25th day year in the said husbandman, within three months now last past, to wit, on the day of in the said of the reign of our said sovereign lord the king, that now is (the said O O not having then lands or tenements, or some other estate of inheritance in his own or his wife's right, of the clear yearly value of 1001. nor for term of life, nor any lease or leases for ninety-nine years or any longer term, of the clear yearly value of 1501. nor then being the son and heir apparent of an esquire, or other person of higher degree, nor then being the lord of any manor or royalty, nor then being the owner or * See the case of Hoole v. Avery Cowper, 827. The stating of the information in the record of the conviction in the past tense, came, &c. will not vitiate the conviction, and it will in fact bè better to state it in that manner.-See Vol. I. p. 561. Vol. II. Q ૧ What ought to be the form of the conviction ummons. keeper of any forest, park, chase, or warren; nor then being year of the reign aforesaid, in the being daly sum of our said sovereign lord the now king at county of aforesaid, he the said O O Appearance. moned as aforesaid in this behalf, before me the said justice ap peareth, and is present in order to make his defence against the said charge contained in the said information; and having heard the same, he the said O O is asked by me the said justice, if he can say any thing for himself, why he the said ○ ○ should not be convicted of the premises above charged upon him, in Pjea or defence. form aforesaid. And thereupon he says, that he is not guilty of the offence for pleadeth and saith that (as the defence may be] whereupon 1 the said justice, at the same time and place, that is to say, on the said second day of Oct. in the year aforesaid it, aforesaid, within the said county of do proceed to examine into the truth of the said complaint contained in the suid information, in the presence and hearing as well of the said II as of the said O O, and thereupon on the same day and year last mentioned, at aforesaid, in the county aforesaid, W W of.. a credible witness in this behalf comes in his proper person before me the said justice to prove the said charge contained in the said information against the said O 0, and is now here by me the said justice storH, and does before me the said justice take his corporal sath Hearing. Evidence. See note in p. 578, supra. + If the defendant does not appear, or if he confesses the charge, his precedent must be varied according to the forms set forth under the flue Conviction. upon the holy gospel of God to speak the truth, the whole day of place where hares usually lie, with three greyhound dogs, and one spaniel dog, with a pole or stick in his hand (or as the evidence is). And thereupon the said O O is now by me Defendant nege the said justice asked what he hath to say why he should not be lects to show his convicted by me the said justice of and for the said offence, but certificate. the said O O doth not produce to or before me any evidence on his behalf to show and prove that he is not guilty of the offence aforesaid, nor doth he show or prove that he the said ○ ○ then, to wit, on the said day of in the year aforesaid, had lunds or tenements, or some other estate of inheritance in his own or his wife's right, of the clear yearly value of 1001. or for term of life, or lease or leases for ninety-nine years, or some longer term, of the clear yearly value of 1501. or that he then was the son and heir apparent of an esquire, or other person of higher degree, or the lord of some manor, or royalty, or the owner or keeper of some forest, park, chase, or warren, of that he then was a gamekeeper of a lord or lady of a manor, and qualified by the laws of this realm to kill game; or a gamekeeper of such lord or lady, and truly and properly a servant to such lord or lady, or immediately employed and appointed to take and kill the game for the sole use and im. mediate benefit of such lord or lady, or that he was in any other manner qualified, empowered, licensed or authorized by the laws of this realm, to take, kill, or destroy any sort of game, or to keep or use any greyhounds for that purpose. Whereupon, and upon hearing and duly examining the whole Adjudication; matter aforesaid, it manifestly appears to me the said justice, that the said Ọ O) was not, on the said aforesaid, in any manner qualified, empowered, licensed, or authorized, by or according to the laws of this realm, to keep or use any greyhounds to kill and destroy the game, and that the said Ŏ is guilty of the premises above charged upon him, in and by the information aforesaid. It is therefore considered and adjudged by me the said justice, that the said day of OO be convicted, and he is accordingly, on the said day of October, in the year aforesaid, at aforesaid, in the county aforesaid, before me the justice aforesaid, by the testimony of the said W W, a credible witness as aforesaid, acco ding to the form of the statute aforesaid, convicted of the offence charged upon him, in and by the said information. And I do hereby adjudge that the said OO for the said of fence hath forfeited the sum of 51. of lawful money of Great Britain, to be distributed as the statute in that case made and provided doth direct. In witness whereof I the said jus tice to this present record of conviction have set my hand and scal, at aforesaid, in the county aforesaid, the said second year of the reign of our sovereign day of October, in the lord the king that now is. II of in the said county of yeoman,] The name of the informer must be set forth in order that it may ap. pear that the witness is not the same person, it having been set. tled that the informer cannot be a witness when he is entitled to any part of the penalty, and several convictions have been quashed for that reason. The K. v. Stone. 2 Ld. Raymond 1545. The K. v. Blaney, Andr. 240. And it is no objection to a conviction before a justice of the peace, on the game laws, that the information is not qui tam. Rex v. Lovett, 7 Ter. Rep. 152. Before me JP, esq. one of the justices.] No indictment will lie for killing a hare, for the statute having appointed a summary proceeding before justices of the peace, the particular remedy must be pursued *. The K. v. Buck, 1 Strange 679. That one OO within three months now last past.] As the conviction on the stat. 5 Ann. c. 14, must be made within three months: If the hearing of the matter be adjourned over that time, though with the consent of the defendant, a conviction afterwards will be bad. Rex v. Tolley, Ea. 43 Geo. 3. 3 East's Rep. 467. The said Ô O not having then lands or tenements, &c.] The statute of Car. 2. having allowed a number of exemptions from the general prohibition to keep or use guns, bows, greyhounds, and the like, and the statute of 5 Ann. c. 14, inflicting a penal ty for keeping or using the same, on any person not qualified; it is now fully settled, that, on a conviction under the 5 Ann. all the qualifications mentioned in 22 & 25 Car. 2. must be particularly stated and set forth in the information, and expressly nagatived according to the form in the foregoing conviction. Formerly, indeed, in the case of The Q. v. Matthews,10 Ann. it seems that the court was inclined to think otherwise; for accord See a full exposition of this doctrine in p. 509 supra. |