Power to appoint gamekeepers.

The stat. 48 Geo. 3, c. 93, s. 2, enabled "any lord of any manor" to appoint a gamekeeper, which it seems included only a manor in its strict legal sense, and not a reputed manor (q). It is useless, however, to discuss this question; for now any lord or lady of a manor, or reputed manor, or any steward of the crown of any manor belonging to the crown may, by writing under hand and seal, or in case of a body corporate, under the seal of such body corporate, appoint one or more gamekeeper or gamekeepers to preserve or kill the game within the limits of such manor or reputed manor, for the use of such lord or steward thereof, and may authorize such gamekeeper or gamekeepers within such limits to seize and take for the use of lord or steward, all such dogs, nets, and other engines and instruments for the killing or taking of game as shall be used within such limits by any person not authorized to kill game for want of a game certificate(r). Any lord or lady of a manor, or reputed manor, or any steward of the crown of any manor belonging to the crown, may appoint and depute any person whạtever to be a gamekeeper for any such manor or reputed manor, and may authorize such person as gamekeeper to kill game within the same for his own use, or for the use of any other person or persons who may be specified in such appointment or deputation, and may give to such person all such powers and authorities as may by the act 1 & 2 Will. 4, c. 32, be given to any gamekeeper of any manor (s). The owner of land in Wales of the clear annual value of 5007. may appoint a gamekeeper to preserve or kill the game thereupon (t). All appointments of game(q) See 3 Byth. Prec. 376; 1 Chitty's G. L. 25.

(r) 1 & 2 Will. 4, c. 32, ss. 2, 13.

(s) Ibid. ss. 2, 14.

(t) 1 & 2 Will. 4, c. 32, s. 15.

keepers must be registered with the clerk of the peace (u). The lord may pursue and kill game upon the wastes and commons, and authorize any certificated person to enter thereon for the purpose of pursuing and killing game (x).

manor.

In an action for a penalty for using a gun to kill Title to game without a qualification, the evidence of the real title to a manor is admissible for the purpose of rebutting the presumption of the existence of a colourable title in the person under whom the defendant (a gamekeeper deputed by the lord of the manor) claimed to act(y).

The evidence of a colourable title necessary to make a deputation a defence to an action on the game laws, must be such as affords a fair presumption of the existence of a manor, and of a serious claim to the manor on the part of the person under whom the defendant claims to act, otherwise it ought not to be left to a jury (≈).

The power of a lord of a manor to hunt or shoot Lord's right. over a waste or uninclosed common within his own manor is not merely a "licence or liberty" incident to him as lord; it is a mode of direct enjoyment of his own property. The soil of the waste or common is his, subject only to the right of the commoners to take the herbage by the mouths of their cattle, and the right in the lord to walk or ride over it in every direction and at all times, is the same right which he has over his other demesne lands, and not a mere liberty or easement (a).

(y) Hunt v. Andrews, 3 B. & Ald. 341; Pickering v. Noyes, 4 B. & C. 639; 7 D. & R. 49.

(z) Rushworth v. Craven, M'Clel. & Y. 417.

(a) Greathead v. Morley, 3 Man. & G. 156; 3 Scott, N. R. 538.

Free warren.

An inclosure act directed one eighteenth part of the moor, commonable and waste lands inclosed to be allotted to the lord of the manor in full satisfaction of his right to the soil of such lands, with a proviso that the act should not defeat, lessen or prejudice (inter alia) the lord's liberty of hunting, hawking, fishing and fowling, &c. to the said manor or to the lord thereof, incident, appertaining or belonging. It was held that the right of hunting and fowling over allotments made to third persons under the act was not reserved to the lord of the manor by the saving clause, such right not being a mere licence or liberty incident to him as lord, but a mode of direct enjoyment of his own property (b).

A

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. grant by the crown of free warren in land, of which it is seised in fee, is a grant of free warren in gross, and will not pass by a grant of the manor with the appurtenances; nor 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" (c).

(b) Greathead v. Morley, 3 Scott, N. R. 538; 3 Man. & G. 156. It has been held, that a person passing with a dog through a wood, in which he knows dog spears are set, has not any right of action against the owner of the wood for the death of, or injury to, his dog, who, by reason of his own natural instinct, and against the will of his master, runs off the path against one of the dog spears, and is killed or injured. (Jordin v. Crump, 8 Mees. & W. 782.)

(c) Morris v. Dimes, 1 Ad. & E. 654; 3 Nev. & M. 671; Boulston v. Hardy, Cro. Eliz. 547; see Pannell v. Mill, 3 C. B. 625, as to the right to kill birds of free warren under a lease, excepting all royalties.

Warren is not parcel of a manor, but it may be appendant or appurtenant to it by prescription. A warren appendant or appurtenant can exist only by prescription (d).

It appears that a several fishery in a navigable river may pass as appurtenant to a manor (e).

SECT. XII. OF OTHER RIGHTS IN RESPECT OF
MANORS.

It appears in a preceding part of this work that the Wreck. lord of a manor may be entitled to the sea-shore between high and low water marks (f). Although wreck of the sea is the property of the crown by common law right (g), yet, like waifs (h), estrays and treasure trove (i), it may belong to a subject by grant (k) or by prescription (1). Resort cannot be had to parol evidence to support a prescriptive right to wreck if it appear that the property in respect of which the wreck is claimed was in the crown in the time of Charles I., as a jury could not infer that it was from time immemorial (m). It was held to be a good custom for the lord of the manor of Birling, in the parish of East Dean, in Sussex, which lies near the sea, to have the best anchor and cable of a ship wrecked there and cast on lands held of the manor between the flux and reflux of the sea, in consideration of the lord's burying

(d) Morris v. Dimes, 1 Ad. & E. 666, 667; 3 Nev. & M. 671. (e) Rogers v. Allen, 1 Campb. 312.

(f) Ante, p. 16.

(g) Scroggs, 127.

(h) Com. Dig. Waife (F.), 2.

(i) Kitch. 78; 3 Inst. 132.

(k) Biddulph v. Ather, 2 Wilson, 23; Chad v. Tilsed, 2 Brod.

& B. 403.

(2) Co. Litt. 114 b; 2 Inst. 168; Constable's case, (m) Alcock v. Cooke, 2 M. & P. 625.

5 Rep. 106.

Fairs and markets.

the dead and taking care of the living cast ashore, and preserving the shipwrecked goods for the use of the owners (n). But where no custom of salvage was found, a custom was held to be void on the ground of want of consideration, which was set up by the lord of a manor, to the best anchor and cable of any ship or boat sailing on the sea and striking on land held of the manor and perishing, though it was not wreck (o). The lord of the manor is not entitled to salvage for taking charge of wreck against the owner's consent, as where parts of a ship were thrown on land within the manor, and the servants of the owner were there to take charge of them for him (p). The grantee of wreck has a special property in all goods stranded within his liberty, and may maintain trespass against a wrongdoer for taking them away (q).

The franchises of fairs, markets and tolls are annexed to some manors, but can be claimed only by grant from the crown (r) or by prescription (s). Uninterrupted user for twenty years gives a primâ facie right to a fair or market (t), which may be lost by allowing another to be erected in the neighbourhood and used for a long time (u), or by non-user (x). The lord of a manor having a grant of a fair or market may hold it at any convenient place (y), and may re

(n) Simpson v. Bythwood, 3 Lev. 307; Lex Man. 270, 2nd ed. (0) Geere v. Burkinshaw, 3 Lev. 85.

(p) Sutton v. Buck, 2 Taunt. 302.

(q) Bailiffs, &c., of Dunwich v. Sterry, 1 B. & Ad. 831.

(r) Rex v. Butler, 3 Lev. 222; 2 Vent. 344; Rex v. Marsden, 7 B. & C. 49 n.; 3 Burr. 1818.

(s) Co. Litt. 114 b; 2 Inst. 220; Hill v. Smith, 10 East, 476.

(t) Rex v. Smith, 4 Esp. 111; Yard v. Ford, 2 Saund. 172, 175,

n. 2.

(u) Holcroft v. Heel, 1 Bos. & P. 400.

(x) Leicester Forest case, Cro. Jac. 155.

(y) Dixon v. Robinson, 3 Mod. 107; Rex v. Cotterell, 1 B. & Ald.