1840. WICKHAM V. HAWKER. Exch. of Pleas, his servants can justify by that license: but if it is a license of profit, and not of pleasure, it is otherwise; for if one give leave to me to carry over his land with my cart, my servants can justify by his license; and so if one gives me license to have a tree in his wood, my servants may justify the cutting of the wood, and the entry, for I shall have profit by that: and so was the opinion of the Court: and then the defendants said the Duchess gave license to the Earl to hunt, kill, and take with him the deer at his pleasure, and then they said that the Earl came there and they with him, and by his command, hunted and took away: and that was held good. This case is cited, with others, in Manwood, c. 18, s. 3, p. 107, and the result is, that, if there be a personal license to an individual to hunt at his pleasure, 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 license 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 license is to hunt, kill, and carry away, he may hunt with servants or by servants. And e converso, if there be a license for him and his servants to hunt, "by these words, for him and his servants, shall be understood a license of profit; for these words imply that the grantee hath a property in the thing hunted, because that by such a license the grantee may justify for his servant to hunt, which is more than a license of pleasure (a)." This being the rule of law on the subject, the point to be decided here is, whether the liberty granted is a mere personal license of pleasure, or a grant of a license of profita profit à prendre. The liberty of fowling has been decided, in one case, to be a profit à prendre, and may be prescribed for as such (6). The liberty to hawk is one species of ancupium (c), the taking (a) Manwood, 108. (b) Davies's case, 3 Mod. 246. (c) Manw. c. 18, s. 10, p. 117. 1840. WICKHAM ย. HAWKER. of birds by hawks, and seems to follow the same rule. The Exch. of Pleas, 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 license given to one individual, either on one occasion or for a time, or for his life, it would amount only to a mere personal license of pleasure, to be exercised by the individual licensee. But this is a grant by deed, to persons, "their heirs and assigns;" it is clearly intended that not merely the particular individual named, but any to whom they or their heirs choose to assign it, should exercise the right; which seems to us to shew that it is an interest, or profit à prendre, which is intended to be granted. Whether the liberty is to be exercised by the licensee or his servants, or by the licensee or his assigns, makes no difference in this respect; both shew that not a personal license, but a license of profit, was intended to be granted. The case in the Year Book, 11 Hen. 7, fol. 86, bears materially on this view of the case. It is there said, "if one license me and my heirs to come and hunt in his park, I must have a writing (that is, a deed) of that license, for a thing passes by the license, which indures in perpetuity: but if he license me, one time to hunt, this is good without deed, for no inheritance passes." It appears to us, that the liberties to hawk, hunt, fish, and fowl, granted to one, his heirs and assigns, are interests, or profits à prendre, and may be exercised by servants in the absence of the master; and further, we think that the addition "with servants or otherwise " does not limit the privilege, and exclude the exercise of it by servants. "Words tending to enlarge are not (unless the intention is very plain) to be taken to restrain (a).” (a) Earl of Cardigan v. Armitage, 2 B. & C. 209. Exch. of Pleas, 1840. WICKHAM V. HAWKER. We therefore think that this issue must be found for the defendant. The only remaining question is, how the verdict ought to be entered on the issue on the second special plea to the declaration. The jury found that the usage had existed, and the right had been exercised, for sixty years; but whether they found that it had been exercised for sixty years by the occupiers of the manor, as such, which was a necessary fact to be found in order to support the pleas, though the existence of such a manor was not in issue, has been made a matter of dispute by the counsel at the bar, whose statements as to what passed materially differ. The inference from the Judge's note, and the impression of the learned Judge who tried the cause, is, that the jury meant to find that the right was exercised by the occupiers as lords of the manor, and we do not therefore think it right to grant any new trial to have this doubt cleared up, especially as the question relates only to the costs of the issue, and does not decide the cause. We need hardly add, that we think there was evidence for the jury in support of the plea. The verdict, therefore, on this issue will be entered for the defendants. That on the second plea to the new assignment remains as found by the jury, for the plaintiff. Rule accordingly. On this judgment being pronounced, Butt moved for a rule to shew cause why judgment should not be entered for the plaintiff non obstante veredicto, on the several issues on which the Court had directed the verdict to be entered for the defendants.-On the second plea to the declaration, and the first plea to the new 1840. WICKHAM v. HAWKER. assignment, he contended that the reservation could not Exch. of Pleas, operate as such, but could only create a liberty in gross, and that in the pleas the liberty was claimed as appurtenant to the manor. The third plea to the declaration was framed upon the statute 2 & 3 W. 4, c. 71, s. 5, which in express terms applies only to rights which can be claimed by the occupiers of a tenement, in respect of it; in other words, as appurtenant to it. The right set out in this plea was one that in its nature could only be a right in gross -the claim being for the liberty by the occupiers of a manor to sport over lands not within the manor; and a grant of such a right could only operate (whatever words were used) to create a liberty in gross (a). The Court took time to consider whether a rule should be granted: and now PARKE, B., said that the Court were clearly of opinion that a good title was deduced, on the face of the pleadings, to the liberty claimed by the defendants, and therefore there must be no rule. Rule refused. DANIEL WILKINSON and ARCHIBALD WILKINSON V. LINDO. ASSUMPSIT. The first count was upon a policy of insurance made by the plaintiffs, under the name and style of D. & A. Wilkinson, as well in their own name, as for and in the name or names of all and every other person or A declaration insurance on goods on board a on a policy of ship, at the suit of D. W. & A. W., alleged that the policy was made by them as well in their own name as for and in the name of every other person to whom the same did appertain; and it averred that one T. Z. and the plaintiff A. W., or one of them, were or was then, and from thenceforth until the loss, interested in the goods. To this declaration the defendant pleaded a release by D. W. for himself and his partner A. W. The plaintiffs replied, setting out on oyer the deed of release, by the recital in which it appeared that the intention of the parties was to release only the sums set opposite their respective names in the schedule thereto annexed; and the declaration averred, that the money so released was due upon other and different contracts than those mentioned in the declaration:-Semble, that the replication was bad, as amounting to an argumentative denial of the release mentioned in the plea. Held, also, that the plea was a good answer to the action. (a) See Flight v. Thomas, 10 Ad. & Ell. 590; 2 P. & D. 531. VOL, VII. G M. W. Exch. of Pleas, persons to whom the same did or should appertain, in the 1840. WILKINSON v. LINDO. sum of £100, upon the goods in the ship Glenaladale, on a voyage from Llanelly to Jamaica. And the declaration averred, that one Thomas Lee, and the plaintiff A. Wilkinson, or one of them, were, or was, then and from thence continually afterwards until and at the time of the loss thereinafter mentioned, interested in the said goods in the said policy of insurance mentioned, &c., to the value of the monies by them ever insured or caused to be insured thereon and that the said insurance was made for the use and benefit and on the account of the person or persons so interested. The declaration then averred an average loss by perils of the sea, whereby the assured were obliged to throw three-fourths of the goods overboard. There were also counts for money had and received to the use of the plaintiffs, and on an account stated with the plaintiffs. Plea, that after the accruing of the causes of action in the declaration mentioned, and before the commencement of this suit, to wit, on &c., the said Daniel Wilkinson, by his certain indenture, sealed with his seal, and now shewn to the Court here, did for himself and his partner the said other plaintiff, Archibald Wilkinson, acquit, release, and for ever discharge the defendant of and from the said several causes in the declaration mentioned, and each and every of them, as by the said release, reference being thereunto had, will fully appear. Verification. The replication craved oyer of the indenture, which was set out as follows:-This indenture made &c. between the several persons who, by themselves, their partners, or agents, shall execute these presents, being creditors of Elias Hiam Lindo, of &c., of the one part, and the said E. H. Lindo, of the other part. Whereas the said E. H. Lindo is indebted to the several other persons parties thereto in the several sums of money set opposite to their respective names in the schedule hereunder written; and he hath by divers losses and untoward circumstances become unable to pay |