The Express.
London, England, 1852-07-28 00:00:00

IMPORTANT DECISION IN REGARD TO

THE SEIZURE OF GAME.

About the 17th day of October het, Robert Scott,
stocking-maker in Jedburgh, purchased a quantity of rune
with a view of forwarding it to a gave-dealer in Newcas-
tle. For this purpose it was put into the hands of Thomas
Turnbull, earner in Jetliner), to take to the Kelso station.
When the carrier arrived at the station, the boxes were
wised by Mr. Everett, the superintendent of police. and his
enistant. An application was presents& to the Sheriff of
Rozburghshire fur restoration of the pews, es the ground
that it beam the property of the pane. wie killed it, or
purchased it, end emid see be seised by any informer, and
in this Nee tie were espeetelly, es the Statute did not for-
feit the gems. Attar a reseed Imo made up, the sheriff sub-
stitute FISSISONI the udgmen
illowieg jt ;
Having reeemed emesideration el the closed record,
finds thekundler the admitted leek on the record, the
pursuer hes no title to pursue the present action. There-
fore mesh* the defences, and emoilsics the defender, end
finds him entitled to expenses, and appoints an account to
be given in end taxed, sad deeems."
The pursuer appealed to the sheriff, but his lordship ad-
hered to the interlocutor of his substitute, adding the
following note:
As °nerved by the sheriff substitute in his note, the
sheriff is of opinion that an individual having property
illegally in his possession is not entitled to restitution,
upon the same being seized, on teat ground, by a person
properly authorised to do so; in this case, the genie might
he necessary in nwdum probationia. Had been delivered
back to the pursuer lie could not be in a better position
than before, and upon being again found with it in his pos-
-1 session, so as to avoid being prosecuted for the greater
penalty; the pursuer pleads that he had • license to sell
game, but this is not produced, and had it been the fact,
and he thereby authorued to have the game in his posses-
sion, he would not have pleaded guilty at the Justice of
Peace Court, but produced it as showing his right to have
the rime legally in his possession."
The pursuer advocated the cause, and, after a debate,
Lord Robertson pronounced the following judgment :
Edinburgh, July 14, 1852.—The Lord Ordinary having
heard ponies procurators on the closed record and whole
process, finds—first, that on the 21st of October, 1861, the
respondent presented to the justices of pests of the county
of Roxburgh en application directed against the advocator
and James Wright, charging them with an infringement of
the set 13 Geo. 111., e. 64, in respect that, on the 16th of
that month, they " bad both and each, or one or other of
them, in their custody, within or near the house in or near
Canoogate or Duck-row or Jedburgh aforesaid, now or
lately occupied by the said Robert Boot*, or upon the
public street in Jedburgh, called Queen-street, or within or
near a courtyard or cart shed, or other enclosure or pre-
mises, situated behind and near to the house occupied by
Thomas; Turnbull, carrier or cadger in Jedburgh, situated
in or near High-etreet in Jedburgh, or elsewhere in Jed-
burgh, to the complainer unknown, and did, time and place
aforesaid, carry in two boxes or other packages, thirty-fin
or thereby barn, ate., without the leave or order of a person
qualified to kill game in Scotland, for carrying such hares
or other game, or for having the same in their possession
or custody, the said Robert Scott end James Wright
being themselves unqualified to kill game in Scotland, in
contravention of said statute," find that the said petition
therefore prayed fur the imposition of • fine of 20s. against
each of the said parties, but did not assert any right of
property in the gams or call for any forfeiture thereof,
as not belonging to the said parties or either of them.
3rd. Finds that on the 23rd of the said month the advocator
pleaded guilty of the offence of having the game in his
possesaiou, he not being a qualified person, end after-
wards paid the fine. 4th. Finds that on the lot of
November, 1851, the advocator presented an application to
the sheriff, praying to have the game delivered back, as
having been illegally taken possum of by the respondent
on the 17th of October, or to have the value thereof de-
cerned for, and finds that, in answer to this complaint, the
respondent maintained Nat the game was seised as having
been unlawfelly in the pomade° of the advocator, con-
trary to the said act; that he not being a person qualified
to kill game, or having leave from any such person, was
liable in the ponslties thereof ; that the respondent was en-
titled to seize the game in mann proWionis of that
offence, land that the advocator was not entitled to re-
cover, as his property, game which it was • statutory
offenceto have in his paranoia, but finds that no plea
was urged to the effect that the ease was not 'staidly in
his possession or did not belong to him, but was the property
of another person, to whom the bons containing the same
were addressed. 6th. Finds that, although the advocator was
not a qualified person under the act 1621, e. 31, he not
having a plough of land in heritage, and although he had
incurred the penalty of the aforesaid act 13 Geo.-111. es. 54,
was yet entitled to assert and hold a right of property in
the said rune, and that the respondent was not entitled as
a common informer to seize and retain the same at his own
band, and to deny restitution thereof to the advocator,
there being no forfeiture of the same by any statute ; and
therefore advocates the clause, alters the interlocutor of the
sheriff complained of, repels the defences or answers to the
application hitherto maintained in the inferior court, as
well as in this court, end deans. But in respect of a mo-
tion on the part of the respondent, for leave to add a plea in
law to the record, to the effect that the game in question
was the property and in the lawful possession of the party
to whom the boxes containing the same were addressed ;
appoints the man to be celled, in order that the respondent
may state whether he acquiesces In the preceding findings,
and that parties may be heard on the competency or pro-
priety of allowing such a plea to be new added with or
without payment of the expenses hitherto incurred—all
questions as to expenses being in the meantime reserved.
(Signed) P. Rossanox.
Note.—The advocator not being a person qualified to
kill game, pleaded guilty to the offense of having game in
his posses ion, on 16th October, 1861, contrary to the Act
18 oeo. 111, c. 64, and paid the penalty of 20e, That
act contains no forfeiture of the gum' and no authority
to the superintendent of police, who is is the position of
common informer, or any other memos informer, to
seize it. A person killing peak whether qualified or not,
or whether doing so within his own prepeirty or not, al-
though liable in penalties dither tee ea lefitiogement of the
game laws or for ponies, earl, ok amain law, is the
proprietor of the game so kiDed by Mr. Lord Stair says,
B. 11., T. I, see. 63, in referees' liethe mode of acquiring
property in things which being to no ene—" All those
ways of appropriation are by pessiellel R eleallatiell, end
thus are all free creatures appeprieted, as fowls of the sir,
wild beasts of the earth, Maker the sm. with distinc-
tion, upon whose ground they an taken • wed the sun
may be hindered to arms within the growl of ethers,
there being now no right of passage mien seesuat af heat-
ing, hawking, or lifg tee, though in lOW nations the
use of some of time lief matures le prohibited to any
but to the soveredge power) yet the personal restraint
hindereth not, bat be who mime any wild mature
in another marls Wands, it his own, thresh he
be punishable for tali es, sail positive law may make
a part of the meatpinii the kneel what he bath edam"
lirekino,-M IL, T. 11, see. 10, eke eye :—" The dr-
' trine stossermay is eke agreeable Was law of Merland
in sack mamba 111•11010 IS have astiseed la their oat-
ginal state, rid an peremed Sever to has hod as owner,
whether arra er issakeets. Thus pa =sifted in
obi e, sr pebbles ad on the abed, te the Wm.
Thee dm we awake the pew* et wild besets,
:=47lam, es aeon as we re appetherd them,
upon our own gronsde, et over of those of
=ether, for they tor Wing to as wherever they
asp be, while they reels Wok , and ow-
sweestly nanst berme the ebbs lobo ha seises
diem The eight al Midas , set alarm la, in-
deed. reelesred Is many mins seder panskies, by the
dada to be kindir mentiened. T. 8, men S. Bat all
sees. slas It abseil bo eau& in break of these eats,re WOW isr meek preprty, *lles seam*
of lw, to Ida trio had embed ft. The peCUriden, thew
for, la than steenese ma have no NW WIWI des to in-
flict a lee on the *sparer, anise whine the anheation
of whoa Is caught makes a part of Ws doestory ..1
Mr. NO% in his trestles on the gams in
1818, miles to the set of 18 Cheeps 111,, e. and to the
netoriens Mt that, notwithermani Ms ewes, the markets
me pileethiremlir
thwllth=s endi he dietinedy says:
—" :oensimellied perms
fromr or haying game in his without the
leave order of ass who fa qualified, yet the gams white
be lao a violation of dr law sakes no pert of
the bul immedimely brooms own
amisdes pewee*, wind * le has or wank the
planalse a • quadded preen to bunt wee his
realm, ea his leave or ardor to have game la his pormaion."
Mr. Dare, in his weak es the same oddest, publisbed I.
1860, and in :sheens, ee the moo slaw% Warm at pegs
68:—" It h. of ewrre,neesessesey kr the osaistion of an
unikalilled person Wee this reties diet be shall also have
Mow Ws game heed Ids preweles. It is also gamed
remarked, that the laddeure does net email to the
which may be so dined, sad that Wan a passe beer toe
sesdelal of
higher pawky, he
raw"meet gswisedy lave leen Mt*
• id
MI brim We use, an warbled tight id property in
dr pm le Med by as wgeeliied press, ea in peseemiss of
soaliri =nee. saw exist. Gino Is sr selne sesseereskee,
an orlon web' Me fre Ike prise of game bought
seapeediest% shop, and eenisrel asi a sorrier would
nee be eadded sr eves Justified la aiitrbag it to the per-
Nee Is whom it is eibusoL But this mama be main-
Mimed; end If Wars be so Menton of the gar', there is
sues* asthing yid& intilas a sommon informer to take
peemesien of Is at he own *W. According to the ree-
Pradulefl Rae mere pomention be sufikdent to
weeder the teeny Odds in the penalty, he himself would be
liable in that nmalty, by taking posseetion, as much as the
Pere from whom he took it. The property is certainly
set that of the informer; for there is ne isrfeitare for his
lielmi4 net en behalf of the crows. Unies, therefore, the
right of property is in nobody, it is la him who holds it,
and whe got It without violenee se theft frees another,
whether an infringement of the set of Gees lIL car not. If
so, and dr informer had so right to ides the gems under
the sedate, where we the swam law right to take it
in imams prolootionio, be whisk psrgees, indeed, it was
set in the best epees emential f The lesseessisa of the ad-
reeriler, threats, wee illegally. breelbeed wish, and the
role applies, reatieles awe amnia reseilmindin.

It
Nelested at the debate that the property and pos-
meeion, it la soy one, was in the party to whom the game
was addressed, who was also unqualified. To this the
newer seemed asembrive, that no such plea 1M raised is
the iskither Nut, of by way of additional plea, when the
Noted woe sok anted in. their court. The Lord Ordinary
yes great desk in any view of allowing such a plea to be
added IS a MN late this. But, at all events, until It is
=sod Not a Nett of property in, and power of, yin-
may I* os to pm by an unqualified
peas, maid le oory hits to whether it is in one

person or another. After this is settled, the Lord Ordinary
will bear the respondent on the suggestion made at the bar.
(Ind.)
t P. R.
On the ease being called y has lordship, the motion was
not persisted in, and the respondents intimated their inten-
tion to earry the judgment into the Inner House.—North
British Mall.