NIGHT POACHING. 309 



to give ovidmco for Jdniself {Cattell, a]ipellant, v. Treson, respondent). And 

 2)er Crompfon J. : " It has been said that if an action of trespass were 

 brought the defendant might be a witness, but that is not the same 

 thing ; the action is for damages to the plaintiff and to the land, 

 but this proceeding is a punishment for taking game, and the penalty 

 goes to the poor. Again, consider the absurdity of i3utting a poacher into 

 the box and compelling him to answer so as to criminate himself" {lb.) 



Stat. 9 Geo. IV. c. f!9, s. 1, gives a summary conviction if any person 

 " shall by night unlawfully enter or be in " any land, whether open or 

 enclosed, with any gun, net, &c., " for the purpose of taking or destroy- 

 ing game or rabbits ; " but the conviction under sec. 1, in Fletcher v. 

 Calthrop, setting forth that one Fletcher did by night "unlawfully enter 

 certain enclosed land " " with a net for the purpose of taking game, to 

 wit partridges and jjheasants contrary to the form," &c., was held bad for 

 not stating the intent to be to take, game there. But in the case of Reg. 

 V. Western, 1 L. R. C. C. 122, it was held that an information under this 

 statute is good though it does not allege that the entry was for the pur- 

 pose of taking game there. 



In Reg. v. Whitaker, it was held by seven judges out of twelve, ParTce 

 B., Pattoson J., Rolfr B., Cresswell J., and Piatt B. diss., that under the 

 9 th section of 9 Geo. IV. c. 69, if several persons are indicted for entering 

 enclosed land hg night, armed for the purpose of talcing game, it is not ne- 

 cessary to pi-ove that all entered the enclosed land; it is enough if some 

 are proved to have entered the land, and the rest are shown to have been 

 engaged with them in a common object, and to have been near enough 

 to render assistance. Sending on a dog, to drive hares into a net set in 

 the fence, was ruled by Patteson J. not to be an entering of the land 

 within this section {Reg. v. NicMess). If persons to the number of 

 three or more are together in one party ai'med by night in any land for 

 the purpose of destroying game there, and the land consists of several 

 closes, and one of such persons be in one close, and another in a 

 different close of the land, they may be convicted under the above 

 section ; and the conviction will not be affected by the circumstance 

 that one of the closes is an enclosed field, and another an open waste, 

 and that each is in the occupation of different tenants {Reg. v. Uezzell). 

 And^er ParTce B. : " The words 'open or inclosed' lands were inserted 

 to prevent parties from supposing that they might destroy game on 

 waste land with impunity " («'&.). 



To constitute the offence of trespassing upon land in search or pursuit 

 of game under 1 & 2 Will. IV. c. 32, s. 30 (which enacts that if any 

 person shall commit any trespass by entering or being in the daytime 

 upon any land in search of or pursuit of game, or woodcocks, snipes, 



