G A 
t!ier kind of dog j-that it might be an Italian greyhound, 
or miglu be kept for the protedbion of a houte, or other 
purpofes than to kill or deftroy the game.—By L. Mans¬ 
field. Convidtions mud: certaiidy be j recife, that the 
court may fee whether the offence committed falls within 
the jurifdidlion of the magidrate; and mud be quaflied 
if not fo. In this adl there are two od'ences delcribed, 
a keeping and vjing-, and the legiflatuie mean, that there 
may be a keeping to deftroy, &c. which is not of necef- 
fity to be proved by an ufing to that piirpofe ; if it were 
fo it would be taiitologous, for fuch evidence would be 
a proving of the other od'ence : the keeping therefore of 
a thing prohibited being an offence under the add, it is 
necelfary prima facie evidence of a keeping for the pur- 
pofe prohibited, and it is incumbent upon the defend¬ 
ant to Ihew that it is kept for another purpofe, as that 
in the prefent cafe it is a houfe dog, a favourite dog, 
or a particular fpecies of greyhound : the defeription 
cannot be moie p’ecife, iinlefs fome particular indance 
of ufing is fliewn, which, if keeping of itfelf conditutes 
an odence, cannot be iiec.edary. As to the o'her ob- 
jedlion, that ihe averment is defedtive in dating only 
that this was a dog called a greyhound, I ihi:.k it pofi- 
tive enough : it mud mean the dog or that fpecies gene¬ 
rally known in this country.—The other judges con¬ 
curred.—Rule difeharged and co-nvidtion affirmed. Cal. 
Caf 175. 
In the cafe of K. v. King aforefaid, Paiker Ch. J. 
faid, that walking about with intent to kill game, is 
evidence of nfng the indrument for that purpole. 1 Sejf. 
C. 88. 
And in the cafe of K. v. T. Davis, Hilary T. 35 G. 33. 
which was a conv efien on 'he above datute 5 Aime, 
c. 14, 1. 4, for keeping and ufing a gun for the dedruc- 
tion of game. It appeared on the coavidtion, that on, 
&c. “ one ctedible witn fs, (viz.) R. Pyndar of Had- 
fon, (wliere 'he offence was committed,) upon his oath, 
in the j refence of'he defendc.n', depofeti, that the afore¬ 
faid T. Davis, not having 'he qualifications, &c. (re¬ 
peating them,) did keep and u!e <i certain engine called 
a gwi, with in ent to kill and dedroy the game; and 
that he (the wirncls) was fatisfi-, »' that the faid T. D ivis 
did keep nd ule the faid gun for the purpofe aforefaid, 
from rhe circumdance of his heating a gun go od', and 
obferving that it w .s fired by the f.rid 1 . Davis, who 
was then walking about a piece of ground in the pafifh 
pf bladfon aforefaid, with that apparent intent,” Sec .— 
Erfkine and Lane took two objections to this conviction; 
id, 1 hat the wiincfs was incompetent, becaufe he was 
an inhabit.,nt oi the parifh where the otfence was com¬ 
mitted ; zdly, If competent, that his evidence was not 
fufiicient to fupport the conviction. 1 he evidence is, 
that the detendant “ did keep and ufe a certain engine 
called a gun, with intent to kill and dedroy the game.” 
If this h.td been a dog or a fnare, this evidence perhaps 
would have been fufticient, but the defendant may have 
kept and ufed a gun for a variety of purpofes befides 
that of killing game. Keeping or ufing a gun is not of 
itftlfan otfence within the adf, K. v. Gardiner; it mud 
be kept or ufed with an intent to kill game; and though 
the witiiels has undertaken to Iwear to the defendant’s 
intention, chat is not fufficient, if the reafon on which his 
Oath is founded do not warrant fuch a conclufion; now 
the only reafon alligned by the witnefs is, that the de¬ 
tendant fired a gun, and “ walked about a piece of 
ground with that apparent intent;” to kill game cannot 
be colledted from the mere circumdance of a perfon 
carrying a-gun.—L. Kenyon Ch.J. ((topping Bower, 
contra.) The fird objection is anfwered by the datute 
47 Geo. Ill, C. 29, which was palled to prevent diffi¬ 
culties of this kind, and to enable inhabitants and pa- 
rifhioners to give evidence in profecutions where the 
penalty is given to the parifh, provided it do not ex. 
ceed 20I. With regard to the other objection, here 
was evidence tending to prove the oftence. That being 
VoL. VIII. No, 497. 
M -E. 
the cafe, we h.avc no authority to examine further, and 
fee whether the ccmclufion drawn by the magidrate, be 
or be not the inevitable conclufion from the evidence.- 
It is fuflicient in convictions, if there were fuch evi¬ 
dence before the magidrate as in an aCtion would be fuf- 
ficient to be left to a jury: here we cannot fay that 
there was no evidence of the faCt for the coiifideration 
of the magidrate. In K. v. Gardiner, the detendant 
was only charged “ with having and kecpi:ig a gun, 
being an eTigine for destroying game.”—Grofe J. was 
of the fame opinion. Conviction affirmed. D. and £. 
6 V. 177. 
Case of Hooker t/.Wills,ffi'/. T. 13 Geo. II.—An action 
was brought on tlie 8 Geo. c. 19, for ufing a hound to 
dedroy game. And after a verdict for tiie plaintiff, the 
judgment was arreded ; for the datute of tlie Anne, 
c. 14, has not the word hound, and the words other enginei 
come after nets, and are applicable only to inanimate 
things. And this being a penal law, cannot be extend, 
ed. The datute of tlie 22 and 23 Car. 11 . c. 25, lias 
indeed general words or any oth--;r dogs to defray game p but 
this is not a conviCticn on tluf datute. 2 Str. 1126. 
Nor indeed could it h ve been a conviCbion on that 
fatute for any penalty in certain for killing and dedroy- 
ing the game; for the datu'e < f the 22 and 23 Car. II. 
doth not inflict a general pen.dty upon perfons umjlia- 
lified who fli.dl kill and deftroy the game; but only de¬ 
clares who (hall or fliall not be deemed unqualified •, and 
gives power to loids of ni.mors and their gamekeepers 
to feize the dogs, nets, and other engines, of fuch un¬ 
qualified perfons. But if the defendant did kill the 
game', and had the fame in his cudody, he might have 
been profecuted for the penalty of 20s. for fuch od'ence, 
by the datute of the 4 and 5 Will, hereafter following. 
But then the confequence of all this will be, that it is 
not penal barely to keep a hound on this d.iiute of the 
5 Anne, but if any unqualified perfon fhall do fo, the 
gamekeepers or others, authorifed by a judice’s war¬ 
rant, may feize and keep or dedroy the fame, by the 
aforefaid datute of the 22 and 23 Car. If. 
So in the cafe of Rafon and Lille, Tn'ii. T. iiGeo. II.— 
In an action upon the datute, the plantiffdeclared, that 
tiie defendant did keep and ufe a dog to dedroy the 
game. It was objected, that he ought to have ex- 
prefi'ed what fort of dog ; for it might be a madilf or a 
lap-dog, which might chance to kill game; and the 
datute only mentions greyhounds, fetting dogs, and 
lurchers; and this being a penal law, fhall not be ex¬ 
tended by equity. And of this opinion was the court. 
i).nd judgment was arreded. Com. R. 576. 
Case ofK. v. Gardiner, Trin. T. ii Geo. II.—It was 
moved to quafli a conviction, for unlawfully having and 
keeping a gun, being an engine or indrument for de- 
droying the game. And it was urged, that this is no 
fufficient charge within this aft, or any other of the 
laws relating to the game: for it is not faid that the 
defendant ufed the gun for the dedruftion of game ; and 
a gun is notan indrument fo far appropriatecl. to killing 
game, as that it is criminal for a perfon to have one in 
his cudody only: and it would have been altogether as 
well,^ if it had been faid that the defendant had in his 
cudody a cane for the dedruftion of the g.ime, which 
may poflibly be ufed for that purpofe. 'ihe only of¬ 
fences intended to be prevented by the aft; are, the 
keeping of engines appropriated to, and which can only 
be ufed in, the dedroying of game. A g'un is an en¬ 
gine, not for killing the game, but for the defence of 
a man’s houfe. And the whole court were clearly of 
opinion, th:it this conviftion was not good. For (as 
the.y argued) if the d.itute is to be condrued folargeiv, 
as to extendto the bare having of any indrument that ?;.vi> 
poflibly be ufed irt dedroying game, it will be attended 
with very great inconvenience ; there being fcarce any, 
thoqgh ever fo ufeful, but what m;iy be applied to thiu 
purpofe. And though a gun may be ufed in dedroy- 
3 M ing 
