SlG THE GAME LAWS. 



ham) gave a certificate, under the 8 and 9 W. 3. c. 11, for 

 costs, declaring, that the species of trespass for which the action 

 was brought, (notwithstanding the defendant had not been pre- 

 viously warned to keep off the plaintiff's lands) was wilful and 

 malicious, and the plaintiff in consequence entitled to costs, al- 

 though the damages were under forty shillings. 



In the case of Warneford v. Kendall, the possession of game 

 by a servant, employed to detect poachers, who took it up after 

 it had been killed by strangers on the manor, in order to carry 

 it to the lord, is not a a possession within the penalty of the 

 game laws. Lord Ellenborough, C. J. the question is, whether 

 the possession of the defendant were such as to constitute an 

 offence ? He did not claim the hare as his property, nor acquire 

 the possession of it for himself, but for his master, on whose 

 manor it was taken ; and if this be an offence, no case can be 

 stated in which an unqualified person can innocently come in 

 contact with game. It may as well be said, that if a qualified, 

 man returning home with a bag of game was to fall from his 

 horse, another could not lawfully take up the bag in order to 

 assist the owner. The case of Molton v. Cheeseley (the fact 

 then proved was, that a pheasant had by accident been killed by 

 the defendant's dog, and the defendant had carried it away, and 

 two penalties were sought to be recovered, one for having the 

 pheasant in his possession not being qualified, the other for 

 keeping a dog to kill game. Mr. Justice Duller is said to have 

 ruled, that the plaintiff could go for one penalty only, and that 

 two penalties could not be recovered under this statute for the 

 same act done by the defendant) must have been imperfectly 

 stated. Grose, Le Blanc, and Bailey, justices, assented, and 

 the former observed, that the possession of the game by the de- 

 fendant, was rather for the purpose of protecting the game than 

 in breach of the lawsYor preserving it. Rule absolute. East's 

 Rep. p. 19. 



