II. & III. INJU- will be recoverable if the single value exceed 6l. 13s. 4d. (b) CHAP. IV. If the tithe were duly set out, but the occupier turn in his cattle and they damage the tithe, he may be sued in trespass for such injury, (c) and he has a right to remove the tithe by the ordinary way, (d) and if obstructed he may sue for that injury or remove the obstruction. (e) If there were by agreement a composition to take money instead of tithe in kind, then the same will be recoverable in an action of assumpsit or debt, as in the ordinary case of contract; (f) or for tithe not exceeding 10%. we have seen there is a summary remedy before two justices.(g) On the other hand, the occupier is, according to the custom of the parish, to give due notice to the tithe owner to attend and see the tithe, or, in the absence of particular custom, he is to set out the tithe himself, and give notice to the tithe-owner of having done so, and of his intention to carry his crop, and request the tithe-owner to come and see the tithe as set out; (h) and if the latter do not duly attend, the occupier is to set out the tithe himself, and leave the entire crop in the field for a reasonable time, so as to enable the tithe-owner to compare the tithe with the residue before he removes any part of the crop in the field.(i) If the tithe-owner do not remove the tithe within a reasonable time, (k) the occupier may distrain the same damage feasant, () or he may support an action on the case, but not trespass, for the neglect and consequential damage to growing grass, &c.; (7) but he cannot legally turn cattle into the close where the tithe remains, and if he should do so, and they damage the tithe, he will be subject to an action of trespass to compensate the damage. (m) The remedies for injuries to other incorporeal real property, Remedies for such as Franchises, Rights to hold Courts, Markets, Fairs, injuries to Free-warren, &c. &c., are in general an action on the case, but POREAL property. OTHER INCOR CHAP IV. as these do not very frequently occur in practice, we shall II. & III. INJU RIES TO REAL merely refer to the books where they are principally noticed. (n) PROPERTY. III. Of CRI- FENCES to Real tions and Pu nishments. III. When considering each kind of Real Property, we have stated most of the modern enactments for preventing and punishing injuries and offences affecting them when of a criminal nature; as in respect of what Buildings the offence of Burglary, (o) or in the nature of Larceny, (p) or Malicious Injuries, (q) as Arson, (r) &c. may be committed, or for which the Hundred may be liable to make compensation, (s) and what offences in inclosed yards, gardens, orchards, nursery grounds, hothouses, greenhouses, and conservatories, or in ground adjoining or belonging to a dwelling-house, are particularly and how punishable. (t) We have also noticed Forcible Entries and Detainers, (u) and what criminal Injuries to Mines are punishable; (x) also what injuries committed in Hare and Rabbit Warrens and Preserves, or in respect of Game, are declared penal. (y) Also what criminal injuries to Water, Watercourses, Fisheries, Fish-ponds, and Dams, and Oyster-beds, (z) Navigable Rivers, Creeks, Canals, Quays, Docks, and Wharfs, (a) SeaBanks and Walls, Ports and Harbours, Lighthouses, Beacons, and Sea Marks, (b) are punishable, and how. We have also shown the criminal injuries to Hedges and Fences, (c) to Bridges, (d) Highways, (e) Toll-gates, and Weighing Engines, Rail Roads, &c. (f) Other criminal injuries which affect the private interests of individuals have also been noticed. It will be observed, that the recent enactments repeal (g) and afterwards consolidate and re-enact, in an amended form, most of the former punishments of offences against real property, and introduce new provisions, so that most of the offences which either partake of the crime of Larceny, or of Malicious Injuries, as respects real property, will be found in the statutes 7 and 8 Geo. 4, c. 29 and 30, and the pecuniary compensation recoverable from the Hundred in the statute 7 and 8 Geo. 4, c. 31. But there are still several parts of the ancient Common Law, and several ancient as well as modern enactments to repress offences CHAP. IV. to real property still in force, and not affected by these recent II. & III. INJU acts, such as the common law indictment for forcible entries, and the statutes against such offences, also the statutes against night poaching, against game, and a few other provisions. RIES TO REAL 1. At common law a forcible entry is still an offence which 1. Forcible may be prevented by force, though a dangerous instrument Entries. must not be used, (h) or is indictable, merely charging that the offenders with force and with a strong hand broke and entered the messuage, &c.; (i) but a mere entry by several persons on land, and without using dangerous weapons, nor committing any attack on the person or other actual breach of the peace, is not indictable, being considered as a mere trespass remediable by action of trespass. (k) And though a conviction has taken place for indecorously firing a gun loaden with shot and breaking church windows, no person being therein at the time or put in terror, the propriety of such conviction may be questionable. (1) The statutes against forcible entries also enable justices to proceed summarily against offenders and restore possession by a proceeding which is pointed out in the last chapter of this volume, and which, from the speedy redress they afford, deserve to be acted upon, though now in a great measure obsolete. Another statute against forcible entries affords not only punishment, but compensation and restitution of possession, upon conviction under an indictment; but that remedy is only given to the freeholder, and not to a mere occupier, and as the prosecutor would be interested in the result, he would not be a competent witness. (m) 2. With respect to night poaching, the 9 Geo. 4, c. 69, s. 1, 2. Night poachenacts that if any person by night, (that is, between an hour after ing. sunset and an hour before sunrise,) unlawfully take or destroy any game, (n) or any rabbit, in any lands, whether open or inclosed, or shall by night unlawfully enter or be upon the land, whether open or inclosed, with any gun, net, engine, or other instrument, for the purpose of taking or destroying game; (n) such offender shall, upon conviction thereof before two justices of the peace, be committed for the first offence to the common gaol or house of correction for any period not exceeding three (h) Ante, 373. (i) 8 T. R. 78, 299; 1 Saund. 296. (k) 3 Burr. 1698, 1731. (1) 2 Chitty's Crim. L. 23. (m) Rex v. Williams, 9 Bar. & Cres. VOL. I. 549; Rex v. Bevan, R. & M. C. N. P. (n) Defined in 13th section to be hares, D D RIES TO REAL CHAP. IV. calendar months, there to be kept to hard labour, and at the exII. & III. INJU- piration of such period shall find securities by recognizance, or in Scotland by bond of caution, of himself in 10%. and two securities in 57. each, or one surety in 107., for his not so offending again for the space of one year next following; and in case of not finding such sureties, shall be further imprisoned and kept to hard labour for the space of six calendar months, unless such sureties are sooner found. The punishment of a second offence is six months imprisonment, and to be kept to hard labour, and to find sureties; and for a third offence the offender is liable to transportation. The 2d section, where any person shall be found upon any land committing any such offence, authorizes the owner or occupier of such land, and other specified persons, 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 him 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, cross-bow, fire-arms, bludgeon, stick, club, or any other offensive weapon whatsoever, towards any person thereby authorized to seize and apprehend him, he shall, whether it be his first, second, or any other offence, be guilty of a misdemeanor, and shall be liable, at the discretion of the court, to be transported for seven years, or to be imprisoned and kept to hard labour in the common gaol or house of correction for any term not exceeding two years. The 4th section limits the summary proceeding to six, and indictment to twelve, calendar months; and the 5th, 6th, and 7th sections give the form of conviction and proceedings on appeal, and take away any removal by certiorari. Upon this enactment it will be observed, that the omission of the words "forest, chase, park," &c. in this act, which were in the prior act, is immaterial, as they would unquestionably be included under the comprehensive words, open or inclosed grounds." (o) The word "found" in this act means "having been seen or discovered;" (p) and if gamekeepers attempt to apprehend persons armed with offensive weapons, who are poaching in the night, and one of the gamekeepers be shot by one of the poachers, this will be murder in all, unless it be shown that either of the poachers separated himself from the rest, so as to establish that he did not join in the act; (g) and where gamekeepers had seized two persons (0) Rex v. Parkhurst, Russ. & R. C. C. 503. (p) At.-Gen. v. Delane, 1 Pri. R. 385. (q) Rex v. Edwards, S Car. & P.; Rex v. Whitehouse, Russ. & R. C. C. 99. II. & III. INJU- who were poaching in the night, and they, having surrendered, CHAP. IV. called to a third, who came up, and he killed one of the keepers, this was held to be murder in all, though the two struck no blow, and though the keepers had not announced in what capacity they had apprehended them. (r) The same act, s. 9, enacts "that if any persons, to the number of three or more together, shall by night (s) unlawfully enter or be in any land, whether open or inclosed, for the purpose of taking or destroying game (t) or rabbits, any such persons being armed with any gun, cross-bow, fire-arms, bludgeon, or any other offensive weapon, each and every of such persons shall be guilty of a misdemeanor, and, being convicted thereof, shall be liable, at the discretion of the court, to be transported beyond seas for any term not exceeding fourteen years nor less than seven years, or to be imprisoned and kept to hard labour for any term not exceeding three years." In an indictment upon the 9th section of this act, as well as under the repealed act, 57 Geo. 3, c. 90, it must be expressly averred, not only that the offender did by night unlawfully enter divers closes, but also that they were there by night, armed with guns and offensive weapons, for the purpose of taking and destroying game; and where the allegation was merely that the defendants entered by night, and that they were then and there armed, &c., without repeating " by night,” the indictment was holden insufficient. (u) Punishments under it. 3. The Game Act, 1 & 2 W. 4, c. 32, (repealing all the previous 3. Game Act, acts relating to game,) contains several enactments, principally 1&2 W. 4, c. 32. of a penal rather than a criminal nature, and most of which we have indeed already noticed, (v) but which it may be useful here to consider together. The object of the statute 9 Geo. 4, c. 69, was to prevent and punish night poaching, whereas the game act was principally to prevent and punish (but not to compensate) day poaching; and the 34th section defines day-time, as respects this act, to commence at the beginning of the last hour before sunrise, and to conclude at the expiration of the last hour after sun-set; so that the two acts leave not an instant of time uncovered. The second section defines "game" to include, for all purposes of that act, hares, pheasants, partridges, grouse, heath or moor game, black game, and bustards; as to Rexv.Whitehouse, Russ.&R.C.C.99. Id. ibid. (u) Davies and others v. The King, 10 Bar. & C. 89. (v) Ante, 186 to 188. |