destroy or drive off the conies; nor, consequently, can he destroy the burrows, which is in effect destroying the conies." But, perhaps, it would be held at the present day, that a party not authorized by law to kill rabbits is not justified in killing them upon the ground that they are damaging his property. As to the offence of killing &c. hares and rabbits in warrens, see post, Sect. XVII. 5. Property in, and laws as to, game in particular places, as manors, &c. Decoys.-A decoy is a place set apart for the taking of wild fowl, and Decoys. is it seems so far a privileged place, that a party may be sued for knowingly firing a gun or making a noise so near it as to frighten away the fowl, for it is maintained at considerable expense and trouble, and is a means of carrying on a trade. (Keble v. Hickringill, 11 Mod. 74, 130; 11 East, 574, S. C.) And in the case of Carrington v. Taylor, (2 Camp. 258; 11 East, 574, S. C.), it was held, that firing at wild fowl, to kill and make profit of them, by one who was at the time in a boat on a public river or open creek where the tide ebbs and flows, so near to an ancient decoy on the shore, about 200 yards, as to make the birds there take flight, the defendant having before fired at a great distance from the decoy, which brought out some of the birds from thence, though he did not fire into the decoy pond, was evidence of wilful disturbance of and damage to the decoy, for which an action on the case was maintainable by the owner. Such an action would not lie for Rookery. frightening rooks from a rookery. (Hannam v. Mockett, 2 B. & Cres. 934; 4 D. & R. 518, S. C.) A man has a right to set up a decoy on his own ground, notwithstanding it is near to another in his neighbour's land. (Per Holt, C. J., in 11 East, 576; Deac. G. L. 63). Preserves and Private Grounds.]—Preserves and private grounds have Preserves and no peculiar common-law privileges relating to the game within them. private grounds, It has therefore been held, that no action will lie for frightening game from a preserve against a person who shoots near it, but upon his own land. (Carrington v. Taylor, 2 Camp. 258; 11 East, 574, n. See Deac. G. L. 63). by the common law. We have already seen what property in general the owner of a pre- Property in game serve or private ground has in the game therein, ante, 212. Such owner has in general a property in the game ratione soli whilst upon it, and if started and killed there by a third person, such property is not divested. (Ante, 213). But it would be otherwise if not killed there. And in a case where a sportsman and his dogs put up a hare in the grounds of one person and pursued it into the lands of another, and a labourer just before it would have been taken, being quite exhausted, took it for the benefit of the hunters, and the owner of the soil took it from the hands of the labourer and killed it, it was held that the sportsman might support an action of trespass against the owner of the soil, Lord Ellenborough observing, on a motion for discharging a rule for a new trial thereon, "I did not understand at the time the rule was granted that the plaintiff, through the agency of his dogs, had reduced the hare into possession; that makes an end of the question, even though the labourer had first taken hold of it before it was actually caught by the plaintiff's dogs; yet it now appears that he took it for the benefit of the hunters, as an associate of them, which is the same as if it had been taken by one of the dogs. If, indeed, he had taken it up for the defendant before it was caught by the dogs, it would have been different, or even if he had taken it as an indifferent person in the nature of a stakeholder." (Churchyard v. Studdy, 14 East, 247, 250). The owner of land in his own occupation may in general prohibit every one from killing game thereon, except the owner of a chase or free warren, or him to whom he has granted the right to do so. The occupier of a private ground or preserve has also similar rights 5. Property in, A grant of a mere grant. by the common law; but these are narrowed, as we shall presently see, by the 1 & 2 Will. IV. c. 32. A demise or grant of a mere right of hunting, shooting, or fishing, or the like, being of an incorporeal hereditament, must be by deed. (Bird v. Higginson, 2 Ad. & Ell. 696; Year-book, 11 Hen. 7, fol. 86; see Wickham v. Hawker, 7 M. & W. 63, per Parke, B.) But one may give leave to another to hunt or shoot, by parol, (Id.); and the licence until revoked would afford a good justification. A reservation and exception (so called) of the liberty of hawking, hunting, fishing, and fowling, is not legally a reservation or exception, exception, when a but a privilege or right granted to the lessor. (Doe d. Douglas v. Lock, 2 Ad. & Ell. 705). Therefore where, by deed, A. and B. conveyed to D. and his heirs certain lands, excepting and reserving to A., B., and C., their heirs and assigns, liberty to come into and upon the lands, and there to hawk, hunt, fish, and fowl; it was held that this was not in law a reservation properly so called, but a new grant by D. (who executed the deed) of the liberty therein mentioned; and therefore it might enure in favour of C. and his heirs, although he was not a party to the deed. (Wickham v. Hawker, 7 Mee. & W.63). What rights ac quired by a grant "If there be a personal licence to an individual to hunt at his pleaor licence to sport. sure, he cannot take away to his own use the game killed, or go with servants, still less send servants to kill for him, or assign his licence to another: but if the person is meant to have a property in the game which he kills, it is otherwise; and, therefore, if the licence is to hunt, kill, and carry away, he may hunt with servants, or by servants. And, e converso, if there be a licence for him and his servants to hunt, by these words, for him and his servants,' shall be understood a licence of profit; for these words imply that the grantee hath a property in the thing hunted, because that by such a licence the grantee may justify for his servant to hunt, which is more than a licence of pleasure." (Per Parke, B., in Wickham v. Hawker, 7 M. & W.78; Manwood, 108). A liberty "to fowl" is a profit à prendre. Liberty "to hawk." "To fish." "To hunt." "The liberty of fowling has been decided in one case to be a profit à prendre, and may be prescribed for as such." (Davies' case, 3 Mod. 246). The liberty to hawk is one species of aucupium (Manw. c. 18, s. 10, p. 117), the taking of birds by hawks, and seems to follow the same rule. The liberty of fishing appears to be of the same nature; it implies that the person who takes the fish, takes for his own benefit: it is common of fishing. The liberty of hunting is open to more question, as that does not of itself import the right to the animal when taken; and if it were a licence given to one individual, either on one occasion for a time, or for his life, it would amount only to a mere personal licence of pleasure, to be exercised by the individual licence." (Wickham v. Hawker, 7 M. & W.79; per Parke, B.) A liberty to hunt over premises will not give the liberty of shooting there. (Per Gibbs, C. J., in "To hawk, hunt, Moore v. Lord Plymouth, 7 Taunt. 627; 1 Moore, 346, S. C.) A grant to a person, his heirs and assigns, of "free liberty, with servants or otherwise, to come into and upon lands, and there to hawk, hunt, fish, and fowl," is a grant of a licence of profit, and not of a mere personal licence of pleasure; and therefore it authorizes the grantee, his heirs and assigns, to hawk, hunt, &c. by his servants &c. in his absence." Such a liberty, therefore, is a profit à prendre, within the Prescription Act, 2 & 3 Will. 4, c. 71, s. 2. (Id.; Wickham v. Hawker, supra; Davies' case, 3 Mod. 246). As to the effect of a grant to one and his heirs of a liberty to sport, see Pickering v. Noyes, 4 B. & Cres. 639; 7 D. & R. 49, S. Č. fish and fowl." "To sport." Landlord to have the game under existing leases except in certain cases. shall By the 1 & 2 Will. 4, c. 32, s. 7, "In all cases where any person occupy any land under any lease or agreement made previously to the passing of this act, except in the cases hereinafter next excepted, the fessor or landlord shall have the right of entering upon such land, or of authorizing any other person or persons who shall have obtained an annual game certificate to enter upon such land, for the purpose of kill- Sect. 9 provides that the act shall not affect any of his Majesty's forest rights, &c. (See ante, 214). Sect. 10. "Nothing herein contained shall be deemed to give to any Nor to affect owner of cattlegates or rights of common upon or over any wastes or cattle-gates or commons any interest or privilege which such owner was not possessed of right of common. before the passing of this act, nor to authorize such owner of cattlegates or rights of common to pursue or kill the game found on such wastes or commons; and that nothing herein contained shall defeat or diminish the rights or privileges which any lord (d) 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 (ante, 222) 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." Sect. 11. "Where the lessor or landlord shall have reserved to himself the right of killing the game upon any land, it shall be lawful for (a) Before the passing of this act it was usual to insert in leases a clause, "saving and excepting to the person in reversion, and all other persons by him appointed, &c., full and free liberty of hunting, hawking, fowling, &c. in or upon the said demised premises." Without a clause of this nature, the landlord had no right to enter for the purpose of killing game. If he did, the tenant, whether qualified or unqualified, could maintain trespass against him; (1Chit. G. L. 161; Bac. Ab. Trespass, H. 3; Liford's case, Rep. 48); and if the tenant was quali 11 fied, he himself had a right of sporting (See over the demised lands. The above (d) By section 2, "the words 'lord (e) As to the rights of the lord of the manor, see ante, 218. Lord of manor to have game on waste (e). Landlord, having reserved the right to the game, may authorize others to kill it. Term "lord of manor," &c. to include "lady of manor," &c. 6. Who may kill, &c. 1 & 2 Will. 4, c. 32. Where landlord, When several penalties may be incurred or not. Who are autho &c. him to authorize any other person or persons who shall have obtained an annual game certificate to enter upon such land for the purpose of pursuing and killing game thereon" (a). Sect. 12 imposes a penalty on the occupier of land killing &c. game, or authorizing another to do so, where the right of killing game upon land is by this act given to the lessor or landlord, in exclusion of the right of the occupier, or where such exclusive right is specially reserved by, or granted to, or belongs to, the lessor, landlord, or any person whatsoever other than the occupier. (See post, 225). It would seem that a party is only liable, under this section, to a penalty for pursuing game, when no game is killed or taken; and it is also apprehended, that if a party kill game with a gun, or the like, he would only be liable, under this section, to a penalty for killing game, and not also to a penalty for taking it; or, if he took game with a trap, or similar instrument, that he would not be liable to a penalty for killing game as well as to a penalty for taking it. In fact, that it is the meaning of the above section, that a party shall only be liable to one penalty for one act. If a contrary construction were put upon this section, a party who killed game with a gun, would be liable to three penalties, one for pursuing game, another for killing it, and another for taking it, which evidently cannot be the meaning of this section. (See Collyer on the Game Acts, p. 13, n.). VI. Who may kill or take Game; Penalty, &c. for killing it, &c., without being authorized. By the common law any person might kill game unless in the parrized to kill game, ticular places as already noticed in the third section of this title, ante, 212. But this general right was soon taken away by statutes, which rendered it necessary that a party should have some qualification either in respect of estate or personal dignity. These statutes, however, which will be found enumerated, ante, 210, have been totally repealed by the 1 & 2 Will. IV. c. 32, s. 1, and by this statute, every one is now at full liberty to kill game on his own land, or on that of another person, with the leave of the person entitled to the game upon the land, provided he takes out the necessary certificate for that purpose; and provided he be not an occupier of the land, the right of killing game on which is by that act given to the lessor or landlord in exclusion of the right as the occupier, or where such exclusive right is especially reserved by, or granted to, or belongs to, the lessor, landlord, or some other person other than the occupier. This may be collected from the 6th, 12th, and 23rd sections of Certificated persons may kill game, subject to Proviso as to gamekeepers. that act. Thus, by the 1 & 2 Will. IV. c. 32, s. 6, "Every person who shall have obtained an annual game certificate (b) shall be authorized to kill the law of trespass. and take game, subject always to an action, or to such other proceedings as are hereinafter mentioned (c), for any trespass by him committed in search or pursuit of game: Provided always, that no game certificate on which a less duty than 37. 13s. 6d. is chargeable under the acts relating to game certificates shall authorize any gamekeeper to kill or take any game, or to use any dog, gun, net, or other engine or instrument for the purpose of killing or taking game, except within the limits included in his appointment as gamekeeper; but that in any case where such gamelimits of a beyond keeper shall kill or take any game, or use any dog, gun, net, or other engine or instrument for the purpose of killing or taking game, beyond such limits as aforesaid, he may be proceeded against under this act, or Gamekeepers not to act ment. (a) Vide ante, 221, 222, as to a grant of a right of sporting, &c. (b) By section 5 of this act, post, 235, it is not to affect the existing otherwise, in the same manner to all intents and purposes as if he had no game certificate whatsoever." (See post, 238). Sect. 12. "That where the right of killing the game upon any land is by this act given to any lessor or landlord, in exclusion of the right of the occupier of such land, or where such exclusive right hath been or shall be specially reserved by or granted to, or doth or shall belong to, the lessor, landlord, or any person whatsoever other than the occupier of such land, then and in every such case, if the occupier of such land shall pursue, kill, or take any game upon such land, or shall give permission to any other person so to do, without the authority of the lessor, landlord, or other person having the right of killing the game upon such land, such occupier shall, on conviction thereof before two justices of the peace, forfeit and pay for such pursuit such sum of money not exceeding two pounds, and for every head of game so killed or taken such sum of money not exceeding one pound, as to the convicting justices shall seem meet, together with the costs of the conviction." Penalty for killing or pursuing game ficate. without a certi Sect. 23." If any person shall kill or take any game (ante, 212), or use (a) any dog (b), gun, net, or other engine or instrument for the purpose of searching for or killing or taking game, such person not being authorized so to do for want of a game certificate, he shall, on conviction thereof before two justices of the peace, forfeit and pay for every such offence such sum of money, not exceeding five pounds, as to the said justice shall seem meet, together with the costs of the conviction: Provided Penalty to be always, that no person so convicted shall by reason thereof be exempt- cumulative. ed from any penalty or liability under any statute or statutes relating to game certificates, but that the penalty imposed by this act shall be deemed to be a cumulative penalty." (See post, 239). This being a penal act should accordingly be construed strictly. (See Enactment should Haywood v. Horner, 5 B. & Ald. 317). A minor may be convicted for all offences under the game laws: he is answerable for all crimes, offences, and trespasses, when he is of sufficient age to distinguish moral right from wrong. (Christian, G. L. 191). So a married woman, uncertificated, may be convicted of an offence within the act. (See Christ. G. L. 191). In the case of Peshall v. Layton, (2 T. R. 712, decided before the 1 & 2 Will. IV. e. 32), Lord Kenyon, C.J., said, that where several unqualified persons offended by going out together and killing a hare, only one penalty can be recovered, though the prosecutor has his election which he will sue. So, in the case of R. v. Bleasdale and another, (4 T. R. 809), which was a conviction on the repealed stat. 5 Anne, c. 14, s. 4, for using a greyhound to destroy game without being qualified, for which the defendants were convicted in 51. each, the court, without hearing any argument, said the conviction could not be supported, for that it was only one offence, and that the magistrates should only have convicted them in one penalty; and they said that this point had been several times decided, in Hardyman v. Whitacre (c) and in other cases: and the conviction was quashed. Therefore, though several persons may join in using a dog, or killing a hare, &c., this is but one offence, for there is in reality but one act done by all; but as there is some difference between the wording of the present enactment and the 5 Anne, c. 14, s. 4, this is not free from doubt; it might be urged that "any person" may mean each and every person. At all events, if each were using a gun or dog, or each setting a snare, they would each be subject to a penalty; because each would then be guilty of a distinct, separate, substantive act. (See Christ. G. L. 161). (4) In the repealed stat. of 5 Anne, c. 14, s. 4, the words were "keep or use. (6) In the repealed stat. of 5 Anne, c. 14, s. 4, the words were, "any greybound, setting dogs, hays, lurchers, VOL. III. tunnels, or other engine." (c) Bull. N. P. 189. This case of Hardyman v. Whitacre is more fully reported in a note to Barnard v. Gostling, 2 East, 573. be construed strictly. An infant subject to the penalty. Feme covert. Several persons. |