IN PARTICULAR were disafforested by the statute of charta de foresta. 4 Inst. 303; Mame. PLACES. Parlien. Chase. Park. Free warren. 242. But nevertheless the purlicu, 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 hunt them fairly and not forestall them in their return towards the forest. Manw. 292. But a purlicu 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 forest in his woods or lands in the parlicu, in such case he hath property in them against any other man ratione soli (the king 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. And 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 King'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 forest, 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. Man. 49, 147. Beasts of chase are, the buck, doe, fox, martern, and roe. Manu. 144. And according to Lord Cole all bcasts of venery 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 King'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 King'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. Juc. 755. If any one erect a park without the King'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, 932, 933. Deer in a park shall go to the heir, and not to the executor. 1 Inst. 8, grant of the King, for the preservation of the beasts and fowl of the warren, IN PARTICULAR viz. hares, conies, partridges, and pheasants. Manw. 44. 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. 2a, 114b; Cro. Jac. 155; but it may be by misuser; Keilw. 148, n.; Cro. Eliz. 54. In an action of tresspass for entering a free warren, and which is sustainable even against the owner of the soil, though damages are under 40s., the plaintiff is entitled to full costs; 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 aliendo solo." Besides, the hare which was hunted was the personal property of the owner of the free warren; and if any injury be done to personal property, that will take it out of the statute, and entitle the plaintiff to full costs. Lord Dacre v. Tebb, 2 Black. Rep. 1151; 2 Chit. G. L. 21, 1166. 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 Cawder, 11 East, 568. And see further as to such powers, post, 945, 946. An action lies for hunting in a free warren, though no game be taken. Lord Dacre v. Jebb, 2 Bla. Rep. 1151; 1 Saund. 346b; 5 Taunt. 442. Trespass in a free warren will not lie for shooting grouse. Duke of Devonshire v. Lodge, 7 B. & Cres. 36. PLACES. tions as to these franchises. General Observations]—It is not lawful for any person to make any chase, General observapark, 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 King'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 King's hands. Manw. 56. In Rex v. Sir William Lowther, 2 Ld. Raym. 1409; 1 Stra. 637; it was moved for leave to file an information in nature of a quo warranto against Sir William Lowther, to show 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 Lisburne; and see, supra. Twenty years undisturbed exercise of a claim of free warren or park will afford presumptive evidence of right in the party so enjoying it. Bealey v. Shaw, 6 East, 215; Weld v. Hornbay, 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. 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. 54; Bro. Ab. Warren, tit. Extinguishment. Unity of possession and grant does not destroy the prescriptive right. 3 Dyer, 326. See Chit. G. L. 23. A person may have common in a chase, as well as in a 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 chese, 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 PLACES. IN PARTICULAR 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. (2.) In places not franchised. Manors. Hare and rabbit warrens. Decoys. 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 Buc. Abr. 326. 2d. PLACES NOT FRANCHISED]-These places may consist of manors, warrens, decoys, preserves and private grounds in general. Manors]-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; 11 Mod. 74; and see Broncne v. Taylor, 10 Fast, 189. The lord of a manor, as such, is authorised to kill game within it. 1 Walk. 45; Mallock v. Eastly, 7 Mod. 482. By different statutes lords of manors are empowered to authorise gamekeepers to preserve and kill game within the manor. See post, 885 to 890, and Chit. G. L. 24, 25. The lord has no power, as such, to kill the dog of a qualified person running after game in the manor; Vere v. Lord Cawdor, 11 East, 568; though he would have such power if the dog was used by an unqualified person. Kingsworth v. Bretton and another, 5 Taunt. 416; 1 Marsh. 106, S. C. The lord cannot delegate the power he has under the 5 Ann. c. 14, s. 4, of taking game from an unqualified person to another person. Bird v. Daley 7 Taunt. 560. Hare and Rabbit Warrens]-A hare or rabbit warren, 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 King, ante, 876. A person may keep as many hares or rabbits as he likes, though they may be injurious to his neighbour, for being animals fera nature, the latter may kill them when on his own land. 5 Rep. 105; Cro. Flix. 547; foore, 153; Cro. Car. 387; Sir W. Jones, 356, S. C. The legislative provisions giving these warrens some privileges, or rather protecting them from depredations, will be found, post, 935. Decoys]-A decoy is a place set apart for the taking of wild fowl, and 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, 374. And in the case of Carrington v. Taylor, 2 Camp. 258; 11 East, 571, 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 IN PARTICULAR the owner. Such an action would not lie for frightening rooks from a rookery. PLACES. Hunnam v. Mockett, 2 B. & Cres. 934; 4 D. 5 R. 518, S. C. Preserves and Private Grounds]-Preserves and private grounds have no Preserves and pripeculiar common law privileges relating to the game within them. It has vate grounds. therefore been held, that no action will lie for frightening game from a pre serve against a person who shoots near it, but upon his own land. Currington v. Taylor, 2 Camp. 258; 11 East, 514, n. We have already seen what property in general the owner of a preserve or Property in game. private ground has in the game therein, ante, 874, 5. Such owner has in general a property in the game ratione sole whilst upon it, and if started and killed there by a third person, such property is not divested, ante, 874. 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 occupier of a private ground or preserve may in general prohibit every one, except the owner of a chase or free warren, or him to whom he has granted right of entry, from sporting over his grounds; and if he be himself not disqualified, he has the exclusive privilege of killing game thereon, ante, 874. If a person give leave to another to hunt over his grounds, it would not give him the liberty of shooting there. Per Gibbs, C. J. Moore v. Lord Plymouth, 7 Taunt. 627; 1 Moore, 346, S. C. III. Who are Qualified to kill Game, or use Dogs, tc. to kill it. By the common law any person might kill game, unless in the particular By common law. places as already noticed in the preceding section. But this general right was soon taken away by statute. By statute the qualification by estate for killing game in the reign of King Qualification. Richard II. was 40s. a year; in the reign of King James I. it was advanced to 10l. a year, and after that in some instances to 401. a year; and at last, in the reign of King Charles II., it was raised to 100l. a year. Not that the laws have become gradually more severe, but as the value of money decreased, the qualification was raised in proportion, the estate continuing nearly the same; for an estate of 40s. a year in the reign of King Richard II. was not much inferior to an estate of 100l. a year in the reign of King Charles II. And the penalty for destroying the game was even more severe then than it is now. As those ancient laws relating to the game are still in force, and are generally enacted so to be by the subsequent statutes, it will be necessary, in order to have a thorough knowledge of this matter, to insert them in their order, because the penalties on each being different, the prosecutor or justices may choose upon which of them they will convict an offender. Thus, by stat. TO KILL. WHO QUALIFIED 5 Anne, c. 14, hereafter following, if a person not having 1001. a year shall keep or use dogs or engines to destroy the game, he shall forfeit 51.; but if such person have not 40s. a year, he may upon stat. 13 Rich. II. st. 1. c. 13, be punished by a year's imprisonment; and so of the rest: provided that no person be prosecuted upon more than one act for one offence. 40s. a year. c. 13 (1333.) The first qualification relating to the game was in the 13th year of the 13 Rich, 2. st. 1, reign of Rich. II., by which it is enacted, that no layman which hath not lands or tenements of 40s. a year, nor clergyman if he be not advanced to 10!. a year, shall have or keep any greyhound, hound, nor other dog to hunt; nor shall use ferrets, hays, nets, hare-pipes, nor cords, nor other engines, for to take or destroy hares, nor conies, nor other gentlemen's game, on pain of a year's imprisonment. And the justices of the peace (that is, in their sessions) shall inquire of the offenders in this behalf, and punish them by the pain aforesaid. 13 Rich. II. st. 1, c. 13. 10. a year. 1 Jac. 1, c. 27. (1694.) 401. a year. 3 Jac. 1, c. 13. (1605.) 401. a year. 7 Jac. 1, c. 11. The next qualification by estate or degree to kill game was by statute 1 Jac. I. c. 27, s. 3, whereby it is enacted, "that all and every person and persons which from or after the 1st day of August (1604) shall have or keep any greyhound for coursing of deer or hare, or setting-dog or dogs, or net or nets, to take pheasants or partridges, except such person or persons which shall be seised in their own right, or in the right of their wives, of lands, tene ments, or hereditaments of the clear yearly value of 107. by the year or more, over and above all charges and reprises, of some estate of inheritance; or of lands, tenements, or hereditaments in his own right, or in the right of his wife, for term of life or lives, of the yearly value of 301. over and above all charges and reprises, or be possessed of goods or chattels to the full value of 2007. to his own use; or be the son or sons of any knight, or of any baron of parliament, or of some person of higher degree, or the son and heir apparent of any esquire; and being thereof convicted, as aforesaid, shall by the said justices of the peace be committed and imprisoned in manner and form as in and by this present act before is expressed, specified and declared; except such person and persons so offending and thereof convicted as aforesaid do forthwith pay or cause to be paid to the churchwardens of the said parish where the said offence shall be committed, or the party apprehended to the use of the poor of the said parish, the sum of 40s. of good and lawful money of England;" (a) [or after one month after his commitment he become bound by recognizance with two sureties before two justices in 207. a piece not to offend again in like manner.] The next qualification relates to deer and conies only, and is provided for by the 3 Jac. I. c. 13, s. 5, by which it is enacted," that if any person not having manors, lands, tenements, or hereditaments of the clear yearly value of 401. or not worth in goods 2007., shall use any gun or bow, or cross-bow, to kill any deer or conies; or shall keep any buckstall or engine-hayes, gatenets, purse-nets, ferrets, nets, or coney dogs, (except he have grounds inclosed, and used for the keeping of deer or conies, the increasing of which said conies shall amount to the clear yearly value of 40s., or keepers or warreners in their parks, warrens, or grounds belonging to their charge,) in such case any person having lands, tenements, or hereditaments of the clear yearly value of 100/. in fee simple, fee tail, or for life, in his own right or the right of his wife, may take from such person to his own use for ever such guns, bows, crossbows, buckstalls," &c. &c. The next qualification (which relates to pheasants and partridges only) is by stat. 7 Jac. I. c. 11, s. 7, and is as follows; "every free warrener, every lord of a manor, and every freeholder seised in his own or his wife's right of lands, tenements, and hereditaments of the clear yearly value of 401. of some estate of inheritance, or of lands, tenements, and hereditaments in his own or (a) This latter paragraph is part of the section 2 of the same act, but it seems doubtful whether it refers only to the offences described in that section, viz. the shooting at, killing, and destroying the game therein described, or can be incorporated with the 3d section, inasmuch as the condition of the recognizance is to be "not to kill, &c. by any of the means in that section 2 aforesaid." |