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ratione soli in the owners of such land, who may of course let or grant the right to others. By the same Act (as amended by the Game Licenses Act, 1860) all persons killing, taking, or pursuing game are required to take out a yearly excise licence, which stands in the place of the former game certificate ; and persons who (having no such licence) deal in game, are required to take out an excise licence for this latter purpose. By the Gun Licenses Act, 1870, an excise licence of 10s, has been imposed on every person using or carrying a gun, being, semble, persons who have not at the time a valid licence to kill game. And we may here usefully observe, that the revenue from gunlicences, dog-licences, licences to kill game, and certificates to deal in game, has now been granted to the county councils by s. 20 of the Local Government Act, 1888.
There are also many penal provisions, intended for the better preservation of game (9), and for the protection of landowners against poaching (whether by night or otherwise), and generally against unlawful trespasses in pursuit of game ().
In the Game Act, 1831, “ game” is defined generally as including hares, pheasants, partridges, grouse, heath or moor game, black game, and bustards (s); though the Game Licences Act, 1860, and the Poaching Prevention Act, 1862, are also directed to deer, woodcock, snipe, quail, landrail, and rabbits. As regards hares and rabbits, special provisions relative thereto are contained in the Hares Act, 1848, and the Game Licences Act, 1860, the short effect of which is, that, in the absence of special agreement to the contrary, any occupier of inclosed lands (or any owner thereof with the right of killing game thereon) may kill hares on such land without an excise licence ; and any one may pursue hares with greyhounds,
beagleš, or other hounds without an excise licence, subject of course to any question of trespass ; and no licence need be obtained by one who is merely assisting another in the pursuit of game which his employer is duly licensed to kill (t). Also, under the Ground Game Act, 1880, the right of the occupier (u) to kill hares and rabbits (i.e., ground game), concurrently with the landowner or other person entitled under him to such game, is made a right inseparable from his occupation ; and he cannot contract himself out of this concurrent right. But he may let his ordinary rights (not arising under the Act) to any third party (ie). In consequence of the great decrease in the number of hares in this country arising from the almost indiscriminate slaughter thereof which appears to have resulted from the last-mentioned Act, a close season for these animals, extending from March to July, both months inclusive, has now been introduced, by the Hares Preservation Act, 1892.
The various provisions of the Game Acts, the general effect of which has been in part above stated, do not interfere in any way with the rights of forest, park, chase, or warren ; and the following distinctions, with reference to the acquisition of title in birds and beasts of game, are therefore to be known and observed, that is to say :First, if a man starts any such bird or beast on his own ground, and follows it into another's and kills it there, the property remains in himself (y); but if (being a trespasser) he starts it on another man's land, and kills it there, the property belongs to him in whose ground it is killed (2), and this, even though the trespasser may have sold the dead game to a third person (a). But, secondly,
if a stranger starts game in one man's chase or free warren, and hunts it into another's liberty, the property. continues in the owner of the chase or warren (6). These distinctions seem to show, that although in general property is acquired by occupancy, yet the title by occupancy cannot prevail against the better claim either of him in whose grounds the animal is both started and killed (and who therefore may be said to be entitled ratione soli); or of him in whom, as having a right of free warren, there is already a qualified property in the game, ratione privilegi. In conclusion upon this head, we may observe, that the person who is owner of the game will be liable in a civil action for damages, should he cause damage to a person to whom he has leased the land by overstocking it with game (C).
3. [A third species of title grounded on the right of occupancy, is the title by accession. According to the Roman law, if any corporeal object received an accession, whether by natural or by artificial means, -as by the growth of vegetables, the pregnancy of animals, the embroidering of cloth, or the conversion of wood or metal into vessels and utensils,—the owner of the original corporeal object remained the owner of it in such its altered or improved condition (d). But if, by reason of such operation, the original object was changed into a different species, -as by making wine, oil, or bread out of another's grapes, olives, or wheat,—then in such a case the original object became the property of the operator, who was only required in that case to make a satisfaction to the original proprietor for the materials used (e). These doctrines of the Roman law were, as regards England, implicitly adopted, and (it is sometimes said) even copied, by Bracton (1'); and they have since been confirmed by
(b) Sutton v. Moody, ubi sup.
(c) Furrer v. Nelson (1885), 15 Q. B. D. 258.
(d) Inst. 2, 1, 25, 26, 31 ; Dig. 6, 1, 5.
(e) Inst. 2, 1.
[many decisions of the English courts (9). For, with respect to accession by breeding from animals, in particular, it has been held, that the brood of all tame and domestic animals belongs to the owner of the dam or mother, the English law thus agreeing with the civil, that partus sequitur ventrem in the brute creation, though for the most part, in the human species, it disallows that maxim. And therefore in the laws of England (h), as well as of Rome, “ si 'equam meam equus tuus prægnantem fecerit, non est tuum sed meum quod natum est.” An exception to this rule obtains, however, in the case of swans, for the young cygnets belong equally to the respective owners of the cock and hen birds (i); but here the reasons of the general rule cease, and cessante ratione legis ressat et ipsa ler. For the male is well known by his constant association with the female, and the owner of the one doth not suffer more disadvantage, during the time of pregnancy and nurture, than the owner of the other.
4. A fourth species of title grounded on occupancy is the title by confusion, being a title which arises where the goods of two persons become so intermixed that the several portions can be no longer distinguished. And here the English law partly agrees with, and partly differs from the Roman. For if the intermixture be by consent, then, by both laws, the proprietors have an interest in common, in proportion to their respective shares (k). But if the intermixture be without consent, as where one man intermixes his corn or hay with that of another man, or casts gold into another's melting-pot or crucible, without the knowledge or approbation of the latter, the civil law,
(9) Year Books, 5 Hen. 7, 15; 12 Hen. 8, 10; Bro. Ab. Propertie, 23; Moore, 20 ; Popham, 38.
(h) Bro. Ab. Propertie, 29.
(i) Case of Svans (1592), 7 Rep. 17.
(k) Inst. 2, 1, 27, 28 ; Buckley v. Gross (1863), 3 B. & S. 566.
[though it gave the sole property of the whole to him who had not interfered with the mixture, yet allowed a satisfaction to the other for what he so improvidently lost. But our law gives, in such a case, the entire property, without account, to him whose original dominion is invaded without his own consent (1).] However, this rule of the English law applies only to cases where the confusion is such as to render it impossible subsequently to apportion the respective shares ; for if the goods continue to be distinguishable, as in the instance of articles of furniture thrown together, the confusion makes no alteration in the property (m). Or if the quality of the articles is uniform, and the original quantities are known, as in the case of £500 of trust money mixed with £300 of the trustee's own money, the party by whose act the confusion took place would still be entitled to claim his proper quantity, subject only to the quantity of the other proprietor being first made good out of the whole mass (n).