£24 
GAME. 
this is only an'invenfion to fupport a conviftion in gene¬ 
ral terms, which would be bad if the particular fadts 
were alleged. Pratt J. Where the judices have a fum- 
niary jurifdidtiou, and no appeal lies, as in this cafe, we 
mult keep them up Ihfftly to the law : and I ihould be 
glad if v/e could make them fet out the whole particu¬ 
larly. The cafe tvas adjourned. And afterwards Pen- 
gelly ferjeant mentioned two cafes, Q^. and Hayward, 
K.- 12 An. There it was, not being qualified, licenjed, er 
GUthorifed to keep any engine, and it was qua/lied. The other 
was in the lame term, and qualhed, becaufe no qualifi¬ 
cations w'ere mentioned. And towards the end of the 
term this convidlion was quafhed ; and the principal rea- 
fon declai-edto be, becaufe the witnefies had taken upon 
themfelves to judge of the qualifications, i &lr. 66. 
Case of K. and Hill, Hilary T. 12 Geo.—Defendant 
was convidled, for unlawfully keeping a lurcher and a 
gun to kill and deftroy the game, not‘being qualified by the 
laiot of this realm Jo to do. And the conviction, being re¬ 
moved into the king’s-bcnch by certiorari, was qualhed; 
becaufe it was only averred generally, that he was not 
qualified, and did not aver that tlie defendant had not 
the particular qualifications mentioned in the ftatute, as 
to degree, ellate, and the reft. 2 Ld. Raym. 1415. 
A perfon was likewife convifted before a juftice upon 
the ftatute, for keeping a gun, not having lool. per an¬ 
num; and the conviction, being removed into the court 
of king’s-bench, was qualhed, for not faying when the 
defendant had not lool. a-year; for it might be he had 
fuch qualification at the time when he kept the gun, 
though not at the conviction ; and the oft'ence and time 
ought to be certainly alleged. 3 Mod. 280. 
Case of K. v. Jarvis, HU. T. soGeo. II.—Thisconvic- 
tion fet forth, that defendant did unlawfully keep and 
life, and had in hiscuftody 'and poffellion, one letting dog 
and letting net, for the deftruction of the game; and 
that he the laid Jarvis was not then anywife qualified, 
impowered, licenfed, or authorifed, by or according to 
the laws of this realm, to kill game. It was moved to 
qtiaih this conviCtion. And by L. Mansfield, Ch. J. 
It is now fettled by the uniform courfe of authorities, 
that the qualifications mult be all negatively fet out: 
otherwife the juftices have no jurifdiCtion over the per- 
lons killing game, or keeping dogs or engines for the 
deftruCtion of it. The obiter faying in 10 Mod. (if it was 
a book of better authority than it is) would lignify no¬ 
thing, when the determinations are the other way. There 
is a great difference between the Jmrview of an aft of 
parliament and a provifo in an aCt of parliament. In 
the cafe of K. v. Marriot, where the witnefs fwears 
only generally, it was holden infufiicient: and the juf¬ 
tices who convict upon the evidence of the witnefs can 
have no other or further ground to go upon, than what 
the witnefs fwears. In the cafe of K. v. Hill, it is the 
very point eltabliflied and fettled, that the general aver¬ 
ment is not lufticient, and that it mull be averred that 
the defend.mt had not the particular qualifications men¬ 
tioned in the ftatute. In the cafe of Bluet, qui tarn, and 
Heeds; {Com. R. 522.) the general averment of the de¬ 
fendant’s not being qualified, was holden to be fufii- 
cient upon an action, though infutlicicnt upon a con¬ 
viCtion ; for in tlie e.xamination of the queltion at the 
trial of an aCtion, the qualification may be gone into : 
the diltinCtion is obvious between an attlon and a con¬ 
viction. In the prefent cafe, the witnefs fwears gene¬ 
rally, that the defendant W'as not qualified. The juf¬ 
tices adjudge it generally, only. The ftream can go 
no higher than the fpring head. So fhe conclulion, 
which the juftices draw from the teftimony of the wit¬ 
nefs, muft be as general as that teftimony. In the cafe 
of K. V. P'ckels, M. 19 Geo. II. it was laid down as a 
rule, that the want of the particular qualifications re¬ 
quired by the 22 and 23 Car. II. c. 25, ought to be ne¬ 
gatively fet out in convictions. And the only queltion 
there was, Whether it was neceffary to add the inferred 
or argumentative qualification, collected from the 5 An, 
c. 14, but not mentioned in the 22 and 23 Car. II. c. 25, 
of his not being lord of a manor ? Exceptioprobat regvlami 
Nor W'as the general rule at all doubted or difputed in 
that cafe. In indictments upon the 8 and 9 Will. c. 26, 
for having a coining prefs, every thing which fiiews that 
the.defendant had no authority, muft be negatively fet 
out; and fo it was done in the indictment of Belh, 
which was lately argued before all the judges. I take 
the point to be fettled, by the conftant tenor of all the 
authorities: and I think upon very good reafon, if 
there was need to enter into the reafon at large, after it 
has been fully fettled already.—Mr. J. Denifon con¬ 
curred, and faid, it was a clear cale, and that it was 
lully fettled and eftablilhed, that in thefe convictions, 
the want of the particular qualifications mentioned in 
the 22 and 23 Car. II. ought to be negatively fet out. 
If not, the juftices have no jurifdiCtion to convict the 
defendant as an offender. And the evidence and adju¬ 
dication ought both of them to be, that he had not the 
qualifications which are fpecified in that aCt, nor any of 
them. Indeed you are not obliged to go further than 
the words of this aCl of parliament of the 22 and 23 
Car. II. and that was the cafe of K. v. Pickels. But 
however in that cafe, the prefent point was eltabliflied, 
and taken to be indifputable. There is a known dif- 
tinCtion between exceptions in a ftatute by way of pro- 
vilb (which need not be fet forth) and thofc in the 
purview of the aCft: and to this point there is a very 
ftrong cafe (K. v. Bell, Fofi. 430.) upon an indictment 
tor having coining inftruments in his cuftody. It was 
faid that in a conviction it is fufficient to purfue the 
words of the aCt of parliament; but I think that is not 
fo, and there are many cafes where that has been ruled 
otherwife. Among other inftances, it was determined 
in K. V. Chapman, E. T. 28 Geo. II. upon a conviCtion 
of a perfon for robbing an orchard; which the court 
held not fufficient; but it ought to have appeared of 
what and how the orchard was robbed, that they might 
judge whether it were a robbery within the meaning ol 
tlie 43 Eliz. c. 7.—Mr. J. Fuller alfo concurred, and 
faid, that on negative acts of parliament, the point is 
fully fettled and eltabliflied, that the particular qualifi¬ 
cations mentioned in the purview of them, mull be ne¬ 
gatively fpecified in convictions made upon them.— 
And by the court unanimoufly, the conviction was 
qualhed. i Burr. 148. 
Case of K. v. Filer, HU. T. 8 Geo.—ConviCtion for 
keeping a lurcher to deftroy game, not being qualified. 
Exception was taken, that it was not Ihewn he ujed the 
dog to deftroy game ; and it may be he only kept it for 
a gentleman who was qualified, it being common to put 
out dogs in that manner. But by the court, the ftatute 
is in the disjunctive, keep or ufie\ fo that the bare keeping 
a lurcher is an offence ; and lo it was determined in the 
cafe of K. v. King, E. 3 Geo. which was a conviCtion 
for keeping a gun ; and it was not doubted by the court, 
whether the keeping was not enough to be ihewn, but 
the only queltion tney made was. Whether a gun was 
fuch an engine as is within that ft.itute ? and in that 
cafe a difference was taken, as to tlie keeping a dog, 
wliich could only be to deftroy the game; and the_ 
keeping 'Agun, which a man might do for the defence of 
his hotife. And the conviCtion was confirmed, i Str. 426. 
Case of K. v. Hartley, EafierTerm, 22 Geo. III. — 1 his 
was a conviction oii 5 Anne, for keeping and ujing a grey¬ 
hound to kill and deftroy the game.—On a rule to (hew 
caufe why this conviction Ihould not be qualhed, Cham- 
bre took two objections : That it was not fully and Iiif- 
ficiently dated, that there had been an ufi.ng of the grey¬ 
hound (that is) how, and in what manner, and for what 
purpofe. 2d, That it was not exp^efsly and politively 
averred, that he had kept and wieA a greyhound At all; being 
only fet forth, that he kept and ufed a dog called a grey¬ 
hound, but Uiat it might be called fo, and yet be ano- 
