1

1. Repeal of
statutes by
& 2 Will.
c. 32, &c.

4 W. & M. c. 23.
5 Ann. c. 14.
9 Ann. c. 25.

8

Geo. 1, c. 19.

10 Geo. 2, c. 32.

servation of the game, and for securing warrens not inclosed, and the several fishings of this realm;' and an act passed in the fourth year of the reign of King William and Queen Mary, intituled 'An Act for the more easy discovery and conviction of such as shall destroy the game of this kingdom;' and an act passed in the fifth year of the reign of Queen Anne, intituled 'An Act for the better preservation of the game;' and an act passed in the ninth year of the same reign, intituled An Act for making the act of the fifth year of her Majesty's reign, for the better preservation of the game, perpetual, and for making the same more effectual; and an act passed in the eighth year of the reign of King George the First, intituled 'An Act for the better recovery of the penalties inflicted upon persons who destroy the game;' and an act passed in the tenth year of the reign of King George the Second, intituled 'An Act for continuing an act for the more effectual punishing wicked and evil-disposed persons going armed in disguise, and doing injuries and violences to the persons and properties of his Majesty's subjects, and for the more speedy bringing the offenders to justice; and for continuing two clauses, to prevent the cutting or breaking down the bank of any river or sea bank, and to prevent the malicious cutting of hop binds, contained in an act passed in the sixth year of his present Majesty's reign; and for the more effectual punishment of persons removing any materials used for securing marsh or sea walls or banks, and of persons maliciously setting on fire any mine, pit, or delph of coal or cannel coal, and of persons unlawfully hunting or taking any red or fallow deer in forests or chases, or beating or wounding keepers or other officers in forests, chases, or parks; and for more effectually securing the breed of wild fowl; and an act passed in the twenty-sixth year of the same 26 Geo. 2, c. 2. reign, intituled An Act to amend an act made in the eighth year of the reign of his late Majesty King George the First, intituled An Act for the better recovery of the penalties inflicted upon persons who destroy the game, by enlarging the time within which suits and actions are to

be brought by force of the said act;' and an act passed in the twenty- 28 Geo. 2, c. 12. eighth year of the reign of King George the Second, intituled An Act to explain and amend a clause in an act made in the fifth year of the reign of Queen Anne, intituled An Act for the better preservation of

the game, in relation to the selling or offering to sale any game;' and 2 Geo. 3, c. 19. an act passed in the second year of the reign of King George the Third, intituled An Act for the better preservation of the game in that part of

Great Britain called England;' and an act passed in the thirteenth year 13 Geo. 3, c. 55. of the same reign, intituled An Act to explain and amend the several laws now in being, so far as the same relate to the preservation of the

moor or hill game;' and an act passed in the same year of the same 13 Geo. 3, c. 80. reign, intituled 'An Act to repeal an act made in the tenth year of the reign of his present Majesty, intituled An Act for the better preservation of the game within that part of Great Britain called England, and

for making other provisions in lieu thereof; and an act passed in the 39 Geo. 3, c. 34. thirty-ninth year of the same reign, intituled An Act for repealing two acts passed in the thirty-sixth year of the reign of his present Majesty, which limit the time for killing partridges in England and Scotland, and for amending so much of an act passed in the second year of the reign of his present Majesty, as relates to such limitation within that part of Great Britain called England, by making other provisions for

that purpose; and an act passed in the forty-third year of the same 43 Geo. 3, c. 112. reign, intituled 'An Act for the better preservation of heath fowl, commonly called black game, in the New Forest, in the county of Southamp

ton;' and an act passed in the forty-eighth year of the same reign, intituled 48 Geo 3, c. 93. 'An Act to repeal so much of an act passed in the first year of King James

the First as relates to the penalties on shooting at hares; and also to repeal

an act of the third year of King George the First, relating to gamekeepers ;' and an act passed in the fiftieth year of the reign of King George 50 Geo. 3, c. 67. the Third, intituled 'An Act for the better preservation of heath fowl,

4,

3. Property
in game
in general.

58 Geo. 3, c. 75.
59 Geo. 3, c. 102.

Exemption as to repeal of prior acts, &c.

Commencement

of act.

Scotland and
Ireland.

What deemed game,

Property in game

at common law.

commonly called black game, in the counties of Somerset and Devon;' and an act passed in the fifty-eighth year of the same reign, intituled 'An Act for the more effectual prevention of offences connected with the unlawful destruction and sale of game;' and an act passed in the fifty-ninth year of the same reign, intituled An Act for the further regulating the appointment of gamekeepers in Wales;' and all acts continuing or perpetuating any of the acts or parts of acts hereinbefore referred to, so far only as relates to the continuing or perpetuating the same respectively; shall be and continue in force until and throughout the thirty-first day of October in the present year, and shall from and after that day, as to that part of the United Kingdom called England, be repealed (except so far as any of the said acts may repeal the whole or any part of any other acts, and except as to any offences which may have been committed against any of the said acts before or upon the said thirty-first day, and as to any penalties which may have been incurred thereunder before or upon the said thirty-first day, which offences shall be dealt with and punished, and the penalties recovered, as if this act had not been made, and except as to any matters done by any persons under the authority of any of the said acts before or upon the said thirty-first day, with respect to whom every privilege and protection given by any of the said acts shall continue in force as if this act had not been made (a)); and this act shall commence and take effect (except as is hereinafter excepted) on the first day of November in the present year."

By this enactment all the former acts relating to game are repealed, except as above mentioned. (See Bush v. Green, 5 Scott, 289; 4 Bing. N. C. 41, S. C., per Tindal, C.J.)

By sect 48, Nothing in this act contained shall extend to Scotland or Ireland."

II. What shall be deemed Game.

By section 2 of the 1 & 2 Will. IV. c. 32, "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.”

See a similar enactment contained in the 9 Geo. IV. c. 69, s. 13. As to woodcocks, snipes, landrails, or rabbits, and the requisite certificate for sporting after same, see post, 235, 236.

III. Property in Game in General.

Before we take notice of the provisions of the statute of 1 & 2 Will. IV. c. 32, made for the preservation of game, it may be requisite to observe how the common law stood herein; which depends upon the dif

ference between tame and wild animals.

(a) These words, in their plain and
ordinary signification, import persons
who, prior to the day on which this
statute took effect, had done some act
which was liable to be called in ques-
tion. (See Bush v. Green, 5 Scott, 289;
4 Bing. N. C. 41, per Tindal, C. J.).
"This last exception appears to have
been introduced in consequence of a
doubt existing in the mind of the framer
of the act, as to whether parties might
not have done acts, which, but for the
protection of the former statutes, they
would be responsible for.
I do not say

that the caution was necessary: it might be. But there is no reason why the exception should be extended beyond the apparent necessity of the case." (Ibid. per Coltman, J.). A deputation by a lord of a manor, under one of the old statutes relating to game, appointing a party gamekeeper of the manor, is not a matter done under the authority of the said acts," within the meaning of this last exception. (Ibid.; and see Lidster v. Barrow, 9 Ad. & Ell. 654; and see post, 230, 266).

The tame animals, such as horses, cows, sheep, and the like, are such creatures as by reason of their sluggishness and unaptness for motion do not fly the dominion of mankind, but generally keep within the same pastures and limits, and may be easily pursued and overtaken, if by accident they should escape; and therefore the owner hath the same kind of property in them as he hath in all inanimate chattels, and for the violation thereof may bring an action of trespass.

3. Property in game in general.

Tame animals.

The wild animals, such as deer, hares, foxes, and such like, are those Wild animals. which by reason of their swiftness or fierceness fly the dominion of man; and in these no person can have a property, unless they be tamed or reclaimed by him; and as property is the power that a man hath over any other thing for his own use, and the ability that he hath to apply it to the sustentation of his being, when that power ceaseth, his property is lost; and, by consequence, an animal of this kind, which after any seizure escapes into the wild common of nature, and asserts its own liberty by its swiftness, is no more mine than any creature in the Indies, because I have it no longer in my power or disposal. (See 3 Bac. Abr. 324).

Hence it appears, that by the common law every man had an equal right to such creatures as were not naturally under the power of man, and that the mere caption of or seizure created a property in them. By immediate taking and killing them, they belong to such person in the Taking and killing same manner as any other chattels, and cannot be taken from him; since the first seizure and caption was sufficient to vest the property of them in him.

them.

Also by taking and taming them, they belong to the owner, as do the Taking and tamother tame animals, so long as they continue in this condition, that is, ing them. as long as they can be considered to have the mind of returning to their masters; for while they appear to be in this state, they are plainly the owner's, and ought not to be violated; but when they forsake the houses and habitations of men, and betake themselves to the woods, they are then the property of any man. (Chit. G. L. 6, 7).

Another way of gaining property in them is by inclosure, and then the Inclosing them, beasts must be understood to be mine, as the profits of the soil itself are; and they can no more be taken and carried off than any other profits of the land. Therefore, if deer be inclosed in a park or paddock, or conies in a field or warren, they become so much a man's own that no one ought to kill or take them away. And since in this case it is the inclosure that retains them, (for take away the inclosure, and they are in their natural liberty), therefore the party is said to have a right as he hath to any other profits there inclosed, and a distinct and independent right in every animal. (Chit. G. L. 6, 7; Davies v. Powell, Will. Rep. 46; 3 Bac. Ab. 325).

Another way of gaining property in them is on account of their own Young ones, &c. inability, as when birds build in the trees upon a person's land, or rabbits or other creatures make their burrows or nests, and have young ones there, in which case he has a qualified property in the young ones till they can fly or run away, when the property expires. Till which time it is in some cases trespass, and in others, Sir Wm. Blackstone says, it is felony to take them away, (2 Bla. Com. 394; 2 East, P. C. 607); but as to its being felony may now be doubtful.

Again: every person has, by the common law, a qualified property Ratione soli. in the game whilst upon his own private ground, ratione soli; and if a man start any game upon his own ground, and follow it upon another's, and kills it there, though a trespasser, (post, 249), the property remains in himself, for the property consists in the possession, which possession commences by the finding of it on his own land, and is continued by the immediate pursuit (Keble v. Hickringle, 11 Mod. 75; 2 Bla. Com. 419). So, if a stranger starts game in one man's chase, park, or free warren, and hunts it into another's liberty, the property continues in the owner of the chase or warren, this property arising from privilege, and not being

4. Property in, and laws as to, game in franchised places.

Propter privilegium.

Queen's property in.

Queen's grants.

In general every certificated person

may kill game.

Statute 1 & 2

Will. 4. c. 32, not to affect any existing or future agreements respecting game,

nor any rights

of manor, forest, chase, or warren.

Act not to affect King's forest rights, &c.

changed by the wrongful act of a mere stranger. (Sutton v. Moody, 1 Ld. Raym. 251; 3 Salk. 290, S. C.) Or, if a man starts game on another's private ground, and kills it there, the property belongs to him in whose ground it was killed, because it was started there, the property arising ratione soli. (Sutton v. Moody, 1 Ld. Raym. 250). Whereas, if after being started there, it is killed on the ground of a third person, the property belongs not to the owner of the first grounds, because the property is local-nor yet to the owner of the second, because it was not started on his soil; but it vests in the person who started and killed it, though guilty of a trespass against both owners. (Sutton v. Moody, 1 Ld. Raym. 251; 3 Salk. 290, S. C.; 2 Bla. Com. 419. See Deacon, G. L. 38; post, 221). The 1 & 2 Will. IV. c. 32, s. 7, (as we shall hereafter see), gives to the landlord, in certain cases, a right to the game, in exclusion of his tenant, (post, 222).

It is therefore a maxim of the common law that such goods, of which no one can claim any property, belong to the Queen by her prerogative; and hence it is said all those animals feræ naturæ, which come under the denomination of game, are styled in our laws her Majesty's game; and that which she hath, she may grant to another; and consequently another may prescribe to have the same within such a precinct or lordship. And from hence cometh the right of lords of manors or others unto the game within their respective liberties. But this doctrine, "that the sole property of all the game is vested in the Queen alone," is, it would seem, properly controverted by Mr. Christian in his comment on the commentator. (2 Bla. Com. 419, n. 10. See also Chit. G. L. 3; Schultes' Aquatic Rights; Deacon, G. L. 39).

IV. Property in, and Laws as to, Game in Franchised
Places.

It is proper to premise that the 6th section (post, 224) of the 1 & 2 Will. IV. c. 32, authorizes every person to kill game if he has taken out a certificate, subject only to his liability for committing any trespass in pursuit of it.

It should also be premised, that sect. 8 of that act provides, "that nothing in this act contained shall authorize any person seised or possessed of or holding any land to kill or take the game, or to permit any other person to kill or take the game upon such land, in any case where, by any 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 whatsoever; 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 (a) or owner of any forest, chase, or warren, or of any lord of any manor, lordship, or royalty, or reputed manor, lordship, or royalty, or of any steward of the crown of any manor, lordship, or royalty appertaining to his Majesty." (Vide post, 223).

Also by sect. 9. "Nothing in this act contained shall in any way alter or affect the prerogative, rights, or privileges of his Majesty, his heirs, or successors, nor the powers or authorities now vested in the commissioners of his Majesty's woods, forests, and land revenues, in or relating to any of his Majesty's forests or the boundaries thereof, nor in or relating to the appointment of any stewards, gamekeepers, or other officers of any of his Majesty's forests, parks, or chases, or of any hundred, honor,

(a) By sect. 2, post, 223, n. (d), the term includes a lady of a manor, &c.

manor, or lordship being part of the possessions and land revenues of the 4. Property in, crown, nor the rights, privileges, or immunities of any chief justice in and laws as to, eyre (a), or any warden, deputy warden, or lieutenant of any of his Ma- game in franjesty's forests, or any rangers, verderers, foresters, master-keepers, under-chised places. keepers, or other officers of or in any such forests, parks, or chases, or of any person entitled to any right or privilege under them or any of them, nor the rights or privileges of any persons holding under any grants or purchases from the crown, nor give to any lord of any manor or manors within any forest or the boundaries thereof, nor to any other person whatsoever, any privileges, rights, or powers within any such forest, park, or chase, or the boundaries thereof, which he did not possess, or to which he was not entitled before the passing of this act; but that all the aforesaid prerogatives, immunities, privileges, rights, and powers shall remain as if this act had not been made."

The franchises or royalties relating to game are ranked in the follow- In franchises. ing order, viz.-first, a forest-secondly, a free chase-next, a parkand, lastly, a free warren.

Forests.-A forest (b) is a certain territory of woody grounds and Forests. fruitful pastures, privileged for wild beasts and fowls of forest, chase, and warren, to rest and abide there in the safe protection of the Queen, for her delight and pleasure; which territory of ground so privileged is meered and bounded with unremovable marks, meers, and boundaries, either known by matter of record or by prescription; and also replenished with wild beasts of venery or chase, and with great coverts of vert for the succour of the said beasts there to abide; for the preservation and continuance of which, there are particular officers, laws, and privileges, belonging to the same, requisite for that purpose, and proper only to a forest and to no other place. (Manw. 143). Vert comprehends every thing which bears green leaves in the forest. (Mani. 146).

And the lord having the wood in the tenant's land, which is still customary in many manors, was originally for preservation of the vert, for the sustentation of the lord's game there.

Beasts of forest are properly hart, hind, buck, hare, boar, and wolf; but legally all wild beasts of venery or hunting including those of chase and warren. (1 Inst. 233).

As to the hunting &c. deer in forests, see post, Sect. XVI.

Purlieu.]-Purlieu comes from the French pur, clear, entire, and ex- Purlieu. empt, and lieu a place; that is, a place, entire, clear, or exempt from the forest and signifies those grounds which Henry the Second, Richard the First, or King John, added to their ancient forests, over other men's grounds, and were disafforested by the statute of charta de foresta. (4 Inst. 303; Manw. 242).

But nevertheless the purlieu, as to some purposes, is forest still, and is disafforested as to the particular owners of the land, and for their benefit, and not generally to give liberty to any man to hunt the wild beasts and spoil the vert. And if those beasts escape out of the forest into the purlieu, the king hath a property in them still against any man but against the owners of the woods and lands in which they are; and such owners have a special property in them ratione loci, but yet so that they

(a) By the 57 Geo. III. c. 61, the office of chief justice in eyre, north and south of Trent, was abolished on the termination of the then existing interests, and the duties are to be performed by the first commissioner of his Majesty's woods, forests, and land revenues. (Deac. G. L. 12).

(b) As to forests in general, see Chit. G.L. 14; Manwood, tits. Chase, Forests; Com. Dig. Chase; Deacon, G. L. 43. It seems forestal rights, properly so called, are not grantable to a subject. (Attorney-General v. Marquis Downshire, 5 Price, 269; Manw. Part II. c. 3, 4).