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heritable under such entail, and any such issue shall be living at the time of the death of the testator, such devise shall not lapse, but shall take effect as if the death of such person had happened immediately after the death of the testator, unless a contrary intention shall appear by the will. By s. 33, where any person being a child or other issue of the testator, to whom any real or personal estate shall be devised or bequeathed for any estate or interest not determinable at or before the death of such person shall die in the lifetime of the testator leaving issue, and any such issue of such person shall be living at the time of the death of the testator, such devise or bequest shall not lapse, but shall take effect as if the death of such person had happened immediately after the death of the testator, unless a contrary intention shall appear by the will.

By s. 34, this act shall not extend to any will made before 1st of January, 1838, and every will re-executed or re-published, or revived by any codicil, shall, for the purposes of this act be deemed to have been made at the time at which the same shall be so re-executed, re-published, or revived; and this act shall not extend to any estate pur autre vie of any person who shall die before the 1st of January, 1838. By s. 35, this act shall not extend to Scotland.

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CHAP. XXIII.

GAME.

1. Of the Right of taking and destroying the Game at

Common Law, and of the Stat. 182 W. 4. c. 32. II. Of the Appointment and Authority of Gamekeepers. III. Of the Destruction of the Game at improper Seasons of

the Year. IV. Of the Duties made payable in respect of Game Certifi

cates.

I. Of the Right of taking and destroying the Game at Com

mon Law, and of the Stat. 1 8 2 W. 4. c. 32.

It has been asserted by Sir W. Blackstone, in his Commentaries, that by the common law, the sole property of all the game in England is vested in the king alone, and that the sole right of taking and destroying the game belongs exclusively to the king; and, consequently, that no person of whatever estate or degree, has a right to kill game, even upon his own land, unless by license or grant from the king. This position, however, has been questioned by Mr. Christian, in a note to his edition of the Commentaries, vol. 2, p. 419. n. 10. See also Mr. Justice Coleridge's note, vol. 2. p.419. If A. start a hare in the ground of B., and hunt and kill it there, the property continues all the while in B.; but if A. start a hare in the ground of B., and hunt it into the ground of C., and kill it there, the property is in A., the hunter, but A. is liable to an action of trespass for hunting in the ground, as well of B. as C.a. Trespass for a dead hare, the property of plaintiff.a Per Holt, C. J. in Sutton v. Moody, 5 Mod. 375. S. C. Deane v. Clayton, The plaintiff, a farmer, being out hunting with hounds of which he had in part the management, and actually had such management at the time, though the hounds belonged to other persons, the hounds put up a hare in a third person's ground, and followed her into a field of the defendant, where, being quite spent, she ran between the legs of a labourer who was accidentally there, where one of the dogs caught her, and she was taken up alive by the labourer, from whom the defendant immediately afterwards took the hare and killed her. Shortly after the plaintiff came up, and claimed to have the hare as his own, but the defendant refused to give it up, and questioned the right of the plaintiff to be where he then was. The labourer, upon his examination at the trial, swore that when he took the hare from the dogs, he did not mean to take it for his own use, but in aid of the hunters. Verdict for the plaintiff, 40s. damages. Rule for new trial, after argument, was discharged; Ld. Ellenborough, C. Jb. observing, that the plaintiff, through the agency of his dogs, had reduced the hare into his possession. The labourer took it for the benefit of the hunters, which is the same as if it had been taken by one of the dogs. Secus, if the labourer had taken it up for the defendant, before it was caught by the dogs, or if he had taken it as an indifferent person in the nature of a stakeholder. An exception in a conveyance made in the year 1655, of the free liberty of hawking and hunting, does not include the liberty of shooting feathered game with a gun. Rooks are a species of birds feræ naturæ, destructive in their habits, not known as an article of food, and not protected by any statute; hence a person cannot have any propertyd in them, or show any right to have them resort to his trees.

1 Ld. Raym. 251.

2 Salk. 556.

7 Taunt. 489.

The franchise of free warren is of great antiquity, and very singular in its nature. It gives a property in wild animals; and that property may be claimed in the land of another, to the exclusion of the owner of the land. Such a right ought not to be extended by argument and inference to any animals not clearly within it. There is not any book in the law which has mentioned grouse as a bird of warren. Manwood confines his description to two species, pheasants and partridges. Hence it has been holden”, that the owner of a free chase and free warren cannot maintain an action for killing and taking away grouse shot within the limits of the free warren. In a case where it did not appear that, at the time

b Churchward v. Studdy, 14 East, 249. d Hannam v. Mockett, 2 B. & C. 934. c Moore v. Lord Plymouth, 7 Taunt. e Duke of Devonshire v. Lodge, 7 B. 614.

and C. 36.

crown.

of the grant, the locus in quo was applied to purposes of warren, or that any distinct right of free warren independent of the general forest right, was then subsisting on it; and the grant did not contain any words shewing an intention of the crown to create such right, and pass it de novo, it was holden', that free warren would not pass by general words in a grant from the crown of lands within a forest of the

A grant, by the king, of free warren of land of which he is seized in fee, is a grant of free warren in gross.James I. granted to R. T. and his heirs, the king's manor and town of Aulton, and the king's hundred of Aulton, with its rights, and all other things to the said manor and hundred belonging; and also, that they should have free warren and free chase in all their demesne lands in the hundred, manor, town, tenements, and hereditaments, aforesaid, and on all other lands and woods being in the same hundred, &c. although the same demesne and other lands were within the king's forest, &c., it was holdenb that this grant did not confer a right of free warren over the king's lands within the hundred, but that the term “demesne" applied to lands held by R. T. as lord of the manor of Aulton, and that “ other lands” applied to tenemental lands held by R. T. in fee of the king, or of any other lord within the limits of the grant. The term “demesne lands” properly signifies lands of a manor, which the lord either has, or potentially may have, in propriis manibus.

The right of taking and destroying the game can only be exercised on a person's own estate, and not even a lord of a manor (1), or his gamekeeper, can go into any part of the manor, which is not the lord's own estate or waste, without being a trespasser, as any other person would be ; unless a

f Smith v. Carr, B. R. Trin. 53 Geo. of Dampier, J. P. B. D. No. 27.

3, shortly reported in a note to At- Dampier MSS. Lincoln's Inn Library. torney General v. Parsons, 2 Tyrw. g Morris v. Dimes, 1 Ad. & Ell. 654. 243. 2 Cr. & Jer. 270. S. C. will h Attorney General v. Parsons, 2 Cr. be found among the paper books & Jer. 279. 2 Tyrw. 243. S. C.

neous.

(1) Mr. Christian has remarked, that the common opinion, that the lord of the manor has a peculiar right to the game, superior to that of any other duly qualified land-owner within the manor, is erro

He conceives that this opinion owes its rise to the power which lords of manors have of appointing gamekeepers, a power originally given to them by stat. 22 and 23 Car. 2. c. 25., the first statute in which lords of manors are distinguished from other landowners with respect to the game.

right of entry in pursuit of the game be specially reserved to him.

For the qualifications of estate and degree, which were necessary under the old statutes, to entitle a person to keep and use guns, &c. for the destruction of the game, and the construction thereof, the reader is referred to former editions of this work. These with the other acts relating to the game, were repealed by stat. 1 & 2 W. 4. C. 32, the 6th section of which enacts that every person, who shall have obtained an annual game certificate, shall be authorized to kill and take game, subject to an action or such other proceedings as are mentioned in the statute. By s. 2, the word game shall, for all the purposes of this act, be deemed to include hares, pheasants, partridges, grouse, heath or moor game, black game, and bustards.

By s. 7, in all cases, where any person shall occupy any land under any lease or agreement made previously to the passing of this act, excepting in the cases hereinafter next excepted, the lessor or landlord shall have the right of entering upon such land, or of authorizing any other person who shall have obtained any annual game certificate to enter upon such land, for the purpose of killing or taking the game thereon; and no person occupying any land under any lease or agreement, either for life or for years, made previously to the passing of this act, shall have the right to kill or take the game on such land, except where the right of killing the game upon such land has been expressly granted or allowed to such person by such lease or agreement, or except where upon the original granting or renewal of such lease or agreement, a fine or fines shall have been taken, or except where, in the case of a term for years, such lease or agreement shall have been made for a term exceeding twenty-one years.

By s. 8, nothing in this act contained shall authorize any person seised or possessed of, or holding any land, to kill or take the game, or permit any other person to kill or take the game upon such land, in any case where, by any act, deed, grant, lease, or any written or parol demise or contract, a right of entry upon such land for the purpose of killing or taking the game, hath been or hereafter shall be reserved or retained by or given or allowed to any grantor, lessor, landlord, or other person; nor shall any thing in this act contained, defeat or diminish any reservation, exception, covenant, or agreement already contained in any private act of parliament, deed, or other writing relating to the game upon any land, nor in any manner prejudice the rights of any lord or owner of any

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