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before mentioned, or any person assisting such gamekeeper or servant, to seize and apprehend such offender upon such land, or in case of pursuit being made in any other place to which he may have escaped therefrom, and to deliver bim as soon as may be, into the custody of a peace officer, in order to his being conveyed before two justices of the peace. And in case such offender shall assault or offer any violence with any gun, crossbow, fire-arms, bludgeon, stick, club, or any other offensive weapon whatsoever, towards any person hereby authorized to seize and apprehend him, he shall, whether it be his first, second, or any other offence, be guilty of a misdemeanor, and being convicted thereof, shall be liable, at the discretion of the court, to be transported beyond the seas for seven years, or to be imprisoned and kept to hard labor in the common gaol or house of correction, for any term not exceeding two years; and in Scotland, [ *508 ) whenever any *person shall so offend, he shall be liable to be punished in like manner.”
On an indictment under this statute, the prosecutor must prove ; 1st, that the defendant was found upon some land committing one of the offences specified in the 9 Geo. 4, c. 69, s. 1, ante, p. 503 ; 2d, that he is himself either the owner or occupier of the land, or person having a right of free warren or free chase, or land of the manor, or gamekeeper, or servant of any of the above named persons, or a person assisting such gamekeeper or servant; 3d, the assaulting or offering violence, with a gun, &c. at the time of the attempted apprehension.
A gamekeeper, or other person lawfully authorized, may apprehend poachers without giving notice of his purpose. Payne's case, 1 Moo. C. C. 378 (a); post, title, Murder; Davis' case, 7 C. and P. 785 (6); and without any written authority for that purpose. ‘Price's case, 7 C. and P. 178 (c). But they must be upon the land or manor of his master, for he cannot apprehend them upon the lands of others without authority. Davis' case, supra.
Although the foregoing section is confined to the offences specified in the first section, yet offenders, under the ninth section, may also be apprehended, for though a greater punishment is inflicted where several are out armed, they are still guilty of an offence under the first section. Ball's case, 1 Moo. C. C. 330 (d), see title Murder.
By the game amendment act, 1 and 2 Wm. 4, c. 32, s. 31, trespassers in search of game may be required to quit the land, and to tell their names and abodes, and in case of refusal may be apprehended and taken before a justice. See Long's case, 7 C. and P. 314 (e).
(a) 2 Eng. C. C. 378. (6) Eng: Com. L. Rep. xxxii
. 736... () Id. 486. (d) 2 Eng. C. C. 330. (e) Eng. Com. L. Rep. xxxii. 522.
When an offence at common law
Proof of the game
508 Proof of the winning at one time or
509 509 | Statute 18 Geo. 2, c. 34
When an offence at common law.] Gaming, says Hawkins, is permitted in England, upon every possible subject, excepting where it is accompanied by circumstances repugnant to morality or public policy, or where, in certain special cases, it is restrained by positive *statutes. [ *509) Hawk. P. C. b. 1, c. 92, s. 1. But where the playing is, from the magnitude of the stake, excessive, and such as is now commonly understood by the term “gaming,” it is considered by the law as an offence, being in its consequences most mischievous to society. 1 Russell, 406. The principal statutory provisions against gaming are those contained in the 9 Anne, c. 14, s. 5, and the 18 Geo. 3, c. 34, s. 8.
Statute 9 Anne, c. 14.] By the 9 Anne, c. 14, s. 5, "if any person or persons whatsoever, at any time or times after the said first day of May, 1711, do or shall, by any fraud or shift, cosenage, circumvention, deceit, or unlawful device, or ill practice whatsoever, in playing at or with cards, dice, or any the games aforesaid (i. e. cards, dice, tables, or other games whatever,) or in or by bearing a share or part in the stakes, wagers, or adventures, or in or by betting on the sides or hands of such as do or shall play, as aforesaid, win, obtain, or acquire to him or themselves, or to any other or others, any sum or sums of money, or other valuable thing or things whatsoever, or shall at any one time or sitting, win of any one or more person or persons whatsoever, above the sum or value of 101. ; that then every person or persons so winning by such ill practice as aforesaid, or winning at any one time or sitting above the said sum or value of 101. and being convicted of any of the said offences upon an indictment or information to be exhibited against him or them for that purpose, shall forfeit five times the value of the sum or sums of money, or other thing so won as aforesaid ; and in case of such ill practice as aforesaid, shall be deemed infamous, and suffer such corporal punishment, as in cases of wil. ful perjury ; and such penalty to be recovered by such person or persons as shall sue for the same, by such action as aforesaid.”
Upon an indictment under this statute, the prosecutor must prove; 1st. the playing at or with cards, or dice, or at any of the games previously mentioned, or bearing a share or part in the stakes, &c., or the betting on the sides of the players; 2d. the winning, obtaining, or acquiring ; 3d. of some sum of money or other valuable thing; and 4th. that this was done by fraud, shift, &c.
Proof of the game.] A horse race above 101. is within the statute. Goodburn v. Marley, 2 Str. 1159. Although for a legal plate. Blaxton v. Pye, 2 Wilt. 309. So a foot race. · Lynall v. Longbothom, 2 Wils. 30. So also, as it seems, a wager on a game at cricket. Jeffreys v. Walter, 1 Wils. 220. Indeed, Abbott, C. J., was of opinion, that the statute applied to all games, whether of skill, or chance, and that it was the playing for money which made them unlawful. Sigel v. Jebb, 3 Stark. N. P. C. 1 (a).
Proof of the winning at one time or sitting. The statute makes the winning of 101. at one time or sitting, a nullity. To lose 10l. at one time, is to lose it by a single stake or bet; to lose it at one sitting, is to [ *510 ] lose it in a course of play where the company never *parts, though the person may not be actually gaming the whole time. The statute 18 Geo. 2, c. 34, (a law made in pari materia,) may serve to explain this. To lose 101. at any one time, or 201. within twenty-four hours, is equally penal by that statute. Per Blackstone, J., Bones v. Booth, 2 W. BI. 1226. Where the playing continued from Monday evening to Tuesday evening, without any intermission, except an hour or two for dinner, this was held to be one sitting within the statute. Ibid. The defendant may be convicted of winning a less sum than that stated in the declaration. Darley's case, 1 Stark. N. P. C. 359 (6).
Statute 18 Geo. 2, c. 34.] By the 18 Geo. 2, c. 34, s. 8, "if any person, after the commencement of this act, shall win or lose at play, or by betting, at any one time, the sum or value of 10l., or within the space of twenty-four hours, the sum or value of 201., such person shall be liable to be indicted for such offence, within six months after it is committed, either before his Majesty's justices of the King's Bench, assize, gaol delivery, or grand sessions, and being thereof convicted, shall be fined five times the value of the sum so won or lost; which fine, (after such charges as the Court shall judge reasonable allowed to the prosecutors, and evidence out of the same,) shall go to the poor of the parish or place where such offence shall be committed.
As to gaming house, see title, Nuisance.
(a) Eng. Com. L. Rep. xiv. 143. (b) Id. ii. 126.
Upon prosecutions for nuisances to a highway, the prosecutor must prove, 1st, that the way in question is a common highway ; 2d, the obstructing of it, or other nuisance (1).
Proof of the way being a highway.] Every way which is common to the public is a highway. Thus a bridge may be a common highway. 2 Ld. Raym. 1174. So a footway. Logan v. Burton, 5 B. and C. 513(a); for it is a public highway for foot passengers; Allen v. Ormond, 8 East, 4. So a public bridle-way. R. v. Inhab. of Salop, 13 East, 95. So a towing-path, used only by horses employed in towing vessels, is a highway for that purpose. Per Bayley, J., R. v. Severn and Wye Railway Co., 2 B. and A. 648. And a railway inade under the authority of an act of parliament; which provides that the public shall have the beneficial enjoyment of it, is also a highway, to be used in a particular manner. R. v. Severn and Wye Railway Co., 2 B. and A. 646.
A river which is common to all the King's subjects, has been frequently held to be a highway; and if its course change, the highway is diverted into the new channel. 1 Rol. Ab. 390; Hammond's case, 10 Mod. 382; Hawk. P. C. b. 1, c. 76, s. 1.
It must appear that the highway was a way common to all the King's subjects ; for, though numerous persons may be entitled to use it, yet, if it be not common to all, it is not a public highway. Thus a private way, set out by commissioners under an inclosure act, for the use of the inhabitants of nine parishes, and directed to be repaired by them, does not concern the public, nor is of a public nature, but merely concerns the individuals who have a right to use it. Richards's case, 8 T. R. 634.
In general the proof of any particular way being a highway, is from the use of it by the public as such for such a number of years, as to afford
(1) 1 Russell, C. & M. 307, n. A.
(a) Eng. Com. L. Rep. xii. 303.
evidence of a dedication by the owner of the soil to the public (1), The particular manner in which it has been used, says Mr. Starkie, as where it has been used for some public purpose, as conveying materials for the repairs of other bighways; (R. v. Wandsworth, 1 B. and Ald. 63,) or upon any occasion likely to attract notice, is very material; for such instances of user would naturally awaken the jealousy and opposition of any private owner, who was interested in preventing the acquisition of any right by the public; and consequently, acquiescence affords a stronger pre1 *512 j sumption *of right, than that which results from possession and user in ordinary cases. 2 Stark. Ev. 380, 2d ed. A road may be dedicated to the public for a certain time only, as by the provisions of an act of parliament, and upon the expiring or repeal of the act, its character as a public highway will cease. Mellor's case, 1 B. and Ad. 32 (a). Where commissioners for setting out roads have exceeded their authority, in directing that certain private roads which they set out shall be repaired by the township, if the public use such roads, it is a question for the jury whether they have not been dedicated to the public. Wright's case, 3 B. and Ad. 681 (6). In the same case Lord Tenterden held, that when a road runs through a space of fifty or sixty feet, between inclosures set out by act of parliament, it is to be presumed that the whole of that space is public, though it may not all be used or kept in repair as a road.
Unless there be some one who was capable of dedicating the soil to the public, it seems that a use of it as a highway by them, and repairs done by the parish, under a mistaken idea of their liability, will not create such liability, though it would be otherwise if the repairs were done with a full knowledge of the facts, and with an intention of taking upon themselves the burthen. .
R. v. Edmonton, 1 Moo. and R. 24. Trustees in whom land is vested for public purposes, may dedicate the surface to the use of the public as a highway, provided such use be not inconsistent with the purposes for which the land is vested in them, R. r. Leake, 5 B. and Ad. 469 (C); 2 Nev, and M. 583.
In determining whether or not a way has been dedicated to the public, the proprietor's intention must be considered. If it appear only that he has suffered a continual user, that may prove a dedication, but such proof may be rebutted by evidence of acts showing that he contemplated only a license resumable in a particular event. Thus where the owner of land agreed with an iron company, and with the inhabitants of a hamlet repairing its own roads, that a way over his land, in such hamlet, should be open to carriages, that the company should pay him 58. a year, and find cinder to repair the way, and that the inhabitants of the hamlet should load and lay down the cinder, and the way was thereupon left open to all persons passing with carriages for nineteen years, at the end of which time a dispute arising, the passage was interrupted, and the interruption acquiesced in for five years; it was held that the evidence showed no dedication, but a license only resumable on breach of the agreement. Barraclough v. Johnson, 8 A. and E. 99.
Where on an indictinent for obstructing a highway, a principal question
(1) Ward o. Folly, 2 Southard, 582. Galatian v. Gardner, 7 Johns. 106. Todd o. Rome, 2 Greenl. 55. Georgetown v. Taylor, 2 Bay. 282. State o. Wilkinson, 2 Verm. 480. But see Hinckley o. Hastings, 2 Pick. 162. Comm. o. Low, 3 Jd. 408. Odiorne o. Wade, 5 Id. 421.
(a) Eng. Com. L. Rep. xx. 337. (6) Id. xxiii. 159. (c) Id. xxvii. 107.