4. Property in, hunt them fairly, and not forestall them in their return towards the and laws as to, forest. (Manw. 292). game in franchised places.

Chase.

Park.

Free warren.

And

But a purlieu man may not hunt in every man's lands within the purlieu, but in his own lands only; and therefore if he find the beasts of the forests in his woods or lands in the purlieu, in such case he hath property in them against any other man ratione soli (the Queen only excepted). And if he begin the hunting in his own lands, then by reason of that property he may pursue his hunting through any man's woods or lands, so that he doth not enter into any forest, chase, park, or warren. if he kill the beast in another man's land, and out of such privileged place, he may take and carry away the same by reason of the first property. But if the beast recover the forest, he must call back his dogs, for they are then the Queen's wild beasts again. And if he do not call back and rebuke his dogs, and they kill the beast in the forest, he is a trespasser, though himself never came within the bounds thereof. But if in hunting towards the forest the dogs fasten on it before it is within the bounds thereof, and the dogs still hanging on are drawn by the deer into the forest, and it is killed there, then by reason of the first property, which he had ratione soli, and also by the pursuit and possession thereof before it entered the forest, he may lawfully enter and take it. (Manw. 294).

Chase]-A chase (from chasser, to chase) is a privileged place for receipt of deer and beasts of the forests, and is of a middle nature betwixt a forest and park. It is commonly less than a forest, and not endowed with so many liberties, as officers, laws, courts, and yet is of a larger compass than a park, having more officers and game than a park. Every forest is a chase, but every chase is not a forest. It differeth from a park in that it is not inclosed; for if it be inclosed, it is a good cause of forfeiture; though it must have certain metes and bounds, but it may be in other men's grounds as well as in one's own. (Manw. 49, 147).

Beasts of chase are, the buck, doe, fox, marten, and roe. (Manu. 144). And according to Lord Coke all beasts of venery or hunting are beasts of chase. (Co. Lit. 233. a.)

Park.]-A park (from the French word parquer, to inclose) is a large parcel of ground privileged for wild beasts of chase by the Queen's grant, or by prescription. (Read, Game.)

A park must be inclosed; for if it lie open, it is a good cause of seizure into the Queen's hands, as a thing forfeited; and the owner cannot have an action against those that hunt in his park, if it lies open; (Id.); sed quære, if it be a ground of forfeiture. (See Leicester's case, Cro. Jac. 755).

If any one erect a park without the Queen's grant, a quo warranto may be issued and the park destroyed. (Bro. Ab. tit. Action sur le Statute, pl. 48). There may indeed be a park in reputation erected without lawful warrant, and the owner may bring his action against persons killing his deer. (Wood's Inst. 207).

The beasts of park properly extend to the buck, doe, fox; but in a common and legal sense to all the beasts of the forest. (Read, Game.) The owner or keeper of a lawful park may shoot any dog running after deer in it. (1 Saund. 84, n. 3).

As to chasing &c. deer in parks, and breaking park palings, see post, Sect. XVI.

Deer in a park shall go to the heir, and not to the executor. (1 Inst. 8).

Free Warren.]-A free warren is a place privileged by prescription or grant of the Queen, for the preservation of the beasts and fowl of the warren, viz. hares, conies, roes, partridges, rails, quails, pheasants, wood

cocks, mallards, and herons. (Manw. 44. See The Attorney-General v. Parsons, 2 C. & J. 279).

A grant by the Queen of free warren in land of which she is seised in fee, is a grant of free warren in gross. (Morris v. Dimes, 3 Nev. & Man. 671; 1 Ad. & E. 654).

Free warren cannot be parcel of a manor, and therefore will not pass by a grant of the manor with the appurtenances, though it be held with the manor. (Id.) A warren can only be appertaining to a manor by prescription. (Íd.)

Free warren in possession of which a grantor is seised in fee will not pass by a grant of a manor and all free warren (or other term comprehending free warren) belonging to or in anywise appertaining to the manor, or therewith or at any time theretofore usually held and occupied and enjoyed, or accepted, reputed, deemed, taken or known as part, parcel, or member thereof. ́ (Îd.)

A free warren may lie open, there being no necessity of inclosing it. (Read, Game).

Conies in a warren shall go to the heir, and not to the executor. (1 Inst. 8).

A free warren is not forfeited by nonuser, (Co. Lit. 2. a., 114. b.; The case of Leicester Forest, Cro.Jac. 155); but it may be by misuser. (Keilw. 148, n.; Cro. Elia.548).

The owner of a free warren may lawfully kill any dog which is used to haunt the warren. (Wadhurst v. Damone, Cro. Jac. 45; Wright v. Ramscot, 1 Saund. 84, n. 3; Vere v. Lord Cawdor, 11 East, 568). And see further as to such powers, post, 233.

An action lies for hunting in a free warren, though no game be taken. (Lord Dacre v. Tebb, 2 Bla. Rep. 1151; Patrick v. Greenway, 1 Saund. 346 b; Merest v. Harvey, 5 Taunt. 442).

Trespass in a free warren will not lie for shooting grouse. (Duke of Devonshire v. Lodge, 7 B. & Cres. 36; 9 D. & R. 876, Š. C.)

In an action of trespass for entering a free warren, and which is sustainable even against the owner of the soil, brought before the 3 & 4 Vict. c. 24, (see post, 253), it was held that the plaintiff was entitled to full costs, though he recovered less than 40s.; for, as observed by Blackstone, J., "In actions, instituted merely for breaking free warren, it is impossible the title to the soil can ever come in question; for though both may concur in one person, yet the title to the free warren is always collateral to that of the land; for a man may have a free warren in alieno solo."

General Observations on Franchises or Royalties relating to Game.] It is not lawful for any person to make any chase, park, or warren, in his own freehold, or elsewhere, to keep in it any wild beasts or birds of forest, chase, park, or warren, without the Queen's grant or warrant so to do; and if any man do, he is to be punished in a quo warranto, and the franchise to be seized into the Queen's hands. (Manw. 56). In Rez v. Sir William Lowther, (2 Ld. Raym. 1409; 1 Stra. 637, S. C.), it was moved for leave to file an information in nature of a quo warranto against Sir William Lowther, to shew by what authority he had made and set up a warren. But it was denied by the court: because they said it was of a private nature only. And the like motion had been denied before, in the case of the Lord Lisburn; and see ante, 213; post, 220. Twenty years' undisturbed exercise of a claim of chase, free warren, or park, would always, before the 2 & 3 Will. IV. c. 71, s. 2, as in the case of other rights to real property, have afforded presumptive evidence of right in the party so enjoying it; and see now that statute. (Bealey v. Shaw, 6 East, 215; Weld v. Hornby, 7 East, 199; Goodtitle v. Baldwin, 11 East, 488; Yard v. Ford, 2 Saund. 175, n. 2; and see Gray v. Bond, 2 B. & Ald. 667; Pickering v. Noyes, 4 B. & Cres. 639; 7 D. & R. 49, S. C.)

4. Property in, and laws as to, game in fran

chised places.

General observations as to these

franchises or royalties.

5. Property in, and laws as to, game in particular places, as manors, &c.

The interest in them is therefore affected by rules differing from those which regulate other real property. (Chit. G. L. 22).

Franchises of the above description may be destroyed by a reunion with the crown from which they issued, or by the surrender of the person entitled to them, or by his forfeiture in consequence of a breach of trust upon which they were granted, as by misuser. (3 Cruise, 301; Keilw. 148; Cro. Eliz. 548; Bro. Ab. Warren, tit. Extinguishment). Unity of possession and grant does not destroy the prescriptive right. (4 Inst. 318; 3 Dyer, 326. See Chit. G. L. 23).

A person may have common in a chase, as well as in the forest, but a forest is governed by the forest law, and a chase and park by the common law. (4 Inst. 314; Manw. 52).

And by the common law (says Blackstone) no person is at liberty to take or kill any beasts of chase, but such as have an ancient chase or park; unless they be also beasts of prey. (2 Bla. Com. 416).

If I find a pheasant in my lands, and I let my hawk fly, I may follow the flight into another man's land by reason of the first property which I had in the pheasant ratione soli; and if my hawk kill the pheasant in another man's land, I may enter and take it, by reason of that property and pursuit: and in that case, I shall not be punished as a trespasser for taking and carrying away the pheasant, but only for entering the ground. But if the pheasant fly into a warren, (which is a privileged place for birds of warren), and the hawk kill it there, the falconer shall not have the pheasant, but the owner of the warren. And the law is the same in the cases of all wild beasts of the forest and chase. (Manw. 389).

If conies are hunted out of the warren, or deer out of the park, and the warrener or parker pursues them, he may retake them; for, in parks and warrens, officers are established by authority to have an eye over the game, and to keep it within the boundaries; so that the property is not altered by driving it out of the inclosures, unless it be also out of the pursuit of the officers; for as long as he that is thus trusted doth pursue it, it is not in its natural liberty, but is still belonging to the park or warren. (3 Bac. Abr. 326).

Manors.

V. Property in, and Laws as to, Game in Manors, Warrens, Decoys, Preserves, and Private Grounds.

Manors (a)].-There are but very few privileges with respect to game in manors, and those privileges are allowed only by statute. (See Chit. G. L. 23). The lord of a manor cannot sport in another's soil, whether a freeholder or copyholder, though within his manor, without being subject to an action of trespass. (2 Bla. Com. 39, 419; Keble v. Hickringill, 11 Mod. 74; and see Bourne v. Taylor, 10 East, 181; et per Cur., in Pickering v. Noyes, 4 B. & Cres. 639).

In regard, however, to the waste lands within the manor, the lord has the right of sporting over them; but his right is not a mere liberty; it is a right enjoyed by him in respect of the ownership of the soil. (Greathead v. Morley, 3 Scott, N. R. 538, per Tindal, C. J.; post, 219); and he has at common law the same remedy against trespassers as if such lands were inclosed. Where the lord of a manor brought an action against a party for trespassing on the waste, and remaining there after notice to depart; and it was objected that the waste was not that kind of property so

(a) See Doe d. Beck v. Heakin, 6 Ad. & Ell. 495; 2 Nev. & P. 660, S. C., as to what is evidence of a manor; et vide post, 232. And see Brisco v.

Lomax, 3 Nev. & P. 308; Nichols v. Parker, 14 East, 381, as to what is evidence of the boundaries of a manor.

strictly sacred from a trespass, as inclosed land within the manor; the objection was overruled, and the lord was held entitled to recover. (Addington's Penal Statutes; Deacon, G. L. 60).

And where an allotment of a certain moor or common was made to I., under an act for the inclosing of the same, and certain waste lands &c. within a manor, in which act there was a proviso, that nothing therein contained should be construed or adjudged to defeat, lessen, or prejudice the right, title, or interest of the lord of the manor, his heirs and assigns, or any of them, of, in, and to the seignory and royalties incident and belonging to the said manor respectively, but that the said lord, his heirs and assigns, and all succeeding lords of the said manor for the time being, should and might from time to time, and at all times thereafter, have, hold, and enjoy all courts, &c., fairs, markets, tolls, stallages, rights, royalties, with free warren and liberty of hunting, hawking, fishing, and fouling, &c., to the said manor, or to the lord or lords thereof for the time being, incident, belonging, or appertaining, in as full, ample, and beneficial a manner to all intents and purposes as he or they could or might have enjoyed the same if that act had not been made; it was held, that the right of hunting or fowling over the allotment of the moor or common was not reserved to the lord of the manor by such provisosuch right not being a mere license or liberty incident to him as lord, but a mode of direct enjoyment of his own property. (Greathead v. Morley, 3 Scott, N. R. 538).

5. Property in, and laws as to, game in particular places, as manors, &c.

1 & 2 Will. 4, c. 32,

Also by sect. 10 of the 1 & 2 Will. IV. c. 32, "nothing herein contained shall defeat or diminish the rights or privileges which any lord (a) s. 10. of any manor, lordship, or royalty, or reputed manor, lordship, or royalty, or any steward of the crown of any manor, lordship, or royalty appertaining to his Majesty, may, before the passing of this act, have exercised in or over such wastes or commons; and that the lord or steward of the crown of every manor, lordship, or royalty, or reputed manor, lordship, or royalty, shall have the right to pursue and kill the game upon the wastes or commons within such manor, lordship, or royalty, or reputed manor, lordship, or royalty, and to authorize (b) any other person or persons who shall have obtained an annual game certificate to enter upon such wastes or commons for the purpose of pursuing and killing the game thereon."

By sect. 14, lords of manors may grant deputations. (See post, 231). Also by sect. 13, lords of manors are empowered to appoint and authorize gamekeepers to preserve and kill game within the manor. (See post, 230).

The lord of a manor, having power to authorize his gamekeeper to Power of the lord seize all such dogs, nets, and other engines, as may be used within the to seize dogs, &c. manor by any person not authorized to kill game for want of a certificate, has also authority, as it would seem, to make such seizure himself; on the principle of omne majus continet in se minus. But neither himself, nor his gamekeeper, has any right to seize the dogs of a person who has a certificate; and still less to destroy them, notwithstanding the liability of their owner for the trespass. (Vere v. Lord Cawdor, 11 East, 568, post, 233). With respect, however, to the seizure of dogs used by persons having no certificate, it seems that he has the same right to destroy such dogs as a magistrate was held to possess under the 5 Anne, c. 14, in regard to the dogs of unqualified persons. (Kingsworth v. Bretton, 5 Taunt. 416; Roy v. Duke of Beaufort, 2 Atk. 190; 2 Bla. Com. 417). For the 13th section of the new statute authorizes the seizure of the dog, for the use of the lord of the manor; and such an authority, it has been held, implies a right to destroy it. (Deac. G. L. 60, post, 233).

By the 4 & 5 Vict. c. 35, s. 82, intituled "An act for the Commutation 4 & 5 Vict. c. 35. of certain manorial Rights in respect of Lands of copyhold and customary

(a) The act includes ladies of manors, &c., see 223, n. (d). (b) See post, 222.

5. Property in, and laws as to, game in particular places, as manors, &c.

Hare and rabbit warrens.

tenure, and in respect of other Lands subject to such Rights, and for facilitating the Enfranchisement of such Lands, and for the Improvements of such Tenure," it is enacted, "That no commutation under this act shall operate to affect any rights of lords of manors to escheats, fairs, markets, appointments, franchises, royalties, rights, liberties, and privileges of chase and free warren, hunting, hawking, fowling, and of chasing and killing game, and beasts of chase and free warren, and all ancient piscaries, fisheries, and rights of fishing, or any rights in any mines and minerals or quarries within or under the said lands and hereditaments, or any other manorial rights whatever, unless expressly commuted under this act Provided always, that nothing in this act contained shall operate to authorize or empower any lord of any manor to inclose any common or waste lands, or any part thereof." (See other clauses of this act, title Manor, Vol. V.)

Hare and Rabbit Warrens.]—Hare and rabbit warrens, not being free warrens, have not any peculiar privileges as to game, except those given by statute.

We have already seen such a warren may be made without any license from the Queen. (Ante, 217). A person may keep as many hares or rabbits as he likes, though they may be injurious to his neighbour, as they are animals feræ naturæ, and as he has no interest in them when off his land. (3 Bac. Abr. 326; Boulston v. Hardy, 5 Rep. 105; Cro. Eliz. 547, S. C.; Moore, 45, S. C.; Hursley v. Wilkinson, Cro. Car. 387; Sir W. Jones, 356, S. C.)

Formerly it was held that a person who had a right of common might kill them when they were out of the warren, and were destroying the common; but that he could not have an action on the case against the lord, for that would have created a multiplicity of actions. (Boulston v. Hardy, Cro. Eliz. 548; Hadesden v. Gryssel, Cro. Jac. 195; Hursley v. Wilkinson, Cro. Car. 388).

But it was also held that if the lord had a right to put conies upon the common, and by an excess in the number surcharged the common, and by the number of burrows made by the conies prevented the commoner's cattle from depasturing the common, an action in such case was the proper remedy, and that the tenant might not of his own accord fill up the burrows and remove the nuisance. As in the case of Cooper v. Marshall (1 Burr. 259). By Ld. Mansfield, C. J.-"The question in this case is not, whether the act of the lord be or be not hurtful, or how far it may be so: but the question turns upon the remedy, whether it is abateable, whether the commoner can do himself justice? It may be prejudicial to the commoner, yet not injurious; it may be both prejudicial and injurious, yet not abateable. The lord by his grant of common gives every thing incident to the enjoyment of it, as ingress, egress, and the like; and thereby authorizes the commoner to remove every obstruction to his cattle's grazing the grass which grows upon such a spot of ground; because every such obstruction is directly contrary to the terms of the grant. A hedge, a gate, or a wall, to keep the commoner's cattle out, is inconsistent with a grant which gives them a right to come in. But the lord still remains owner of the soil, and is not debarred from exercising any act of ownership. The commoner has no right to meddle with the soil. In the present case, the lord has done nothing contrary to the grant. He hath not obstructed the commoner from entering and putting in his cattle. The lord has a right to put conies upon the common. The conies themselves naturally make the burrows. So that they are incident to the right of putting on the conies. If the lord surcharges, the commoner is injured in his right of common, it is true: but what is the commoner's remedy? Not to abate; not to be his own judge in a complicated question, which may admit of nicety to determine. There is a certain line to be drawn. The lord has a right so far, but no farther. Yet the commoner cannot