3S0 rjGHT OF TENANT TO KILL RABBITS. 



case was left to the jury, the Court telling them that the criminal 

 offence of the prisoner — if any — was embezzlement and not larceny, and 

 that if in their opinion, the prisoner, being the servant of Smith, cap- 

 tured and killed the rabbits, although against the orders of his master, 

 they so came into the possession of the prisoner for and on behalf of his 

 master, and the prisoner converting them to his own use was guilty of 

 embezzlement. The jury found the prisoner guilty of embezzlement, 

 and he was sentenced to four months' imprisonment, with hard labour. 

 But the Court reserved for the opinion of the Superior Court the ques- 

 tion whether the prisoner by capturing and killing the rabbits against 

 liis master's orders did so bring them into the possession of his master 

 that he could by appropriating them to himself be guilty of embezzling 

 them. The enactment on which the question turned is one of the 

 Common Law Consolidation Acts — 24 & 25 Vic. cap. 96, sec. 68 — as to 

 larceny or embezzlement by servants : — 



"Whosoever being a servant, or being employed for the purpose or 

 in the capacity of a servant, shall fraudulently embezzle any chattel, 

 money, or valuable security which shall be delivered to, or received, or 

 taken into possession by him, for or in the name, or on the account of 

 his master or employer, shall be deemed to have feloniously stolen the 

 same fi'om his master, although it was not received into his possession 

 otherwise than by the actual possession of his servant." 



The Court held that the prisoner could not be convicted of embezzle- 

 ment, because the killing and taking away were one continuous act. 

 The conviction was therefore quashed, but the Court expressed no 

 opinion as to whether the prisoner might have been convicted of 

 larceny. 



Tenant killing raihits where, " game^'' reserved to landlord. — Spker 

 & Others (appts.) v. Barnard (resp.) decided that where a tenant occu- 

 pies land under a lease, which reserved to the landlord the exclusive 

 liberty to shoot, hunt, fish, and sport over the land, the tenant may 

 lawfully employ his servants to kill rabbits on the land. This was a 

 case stated by Justices in Petty Session. When the appellants were 

 called on to plead, their solicitor handed in a written notice, by which 

 they denied that they had committed any trespass, but admitted that 

 they were at the place by direction of Jesse Spicer (who proved the 

 fact), the occupier of the land, in search of rabbits, under a bond fide 

 claim of right, but, if such right were disputed, they submitted that the 

 magistrates had no jurisdiction to decide on the hearing of an informa- 

 tion for a penalty, but must leave the landlord to his action at law. 

 The justices convicted the appellants, on the ground that they appeared 

 to have been guilty of the otience, and that the defence set up by them 



