Keilw. 149. b. Year-book, 34 legii, and suspends it; for in that case the property of the wild animals is in the person having the warren, not in the proprietor of the soil. 24. The grantee of a free warren acquired also a right to appoint a person to watch over and preserve the game, called a warrener; who is justifiable in killing any dogs, polecats, or other vermin which he finds disturbing or destroying the game. And by the statute 21 Edw. 1. st. 2. intituled De Malefactoribus in Parcis, every forrester, parker, or warrener, is authorised to kill persons trespassing in forests, parks, or warrens, who resist and refuse to yield themselves. 25. The Crown does not appear to have ever enjoyed Hen. 6. p. 28. the prerogative of granting free warren to one person over the lands of another. But still a person might have free warren over another's land by prescription. Rex v. Talbot, 26. In a case upon a quo warranto, the defendant Cro. Car. 311. claimed fee warren in R. and pleaded that he was seised in fee of the manor of R., whereof the locus in quo, &c., was parcel; and so prescribed to have free warren, within all the said manor, and the demesnes thereof, so that none should chase any game in the said manor and the demesnes thereof without his leave. Issue was taken that he and all those whose estate, &c. had no. free warren within the said manor and demesnes; and found for the defendant. It was objected that this prescription was not good, viz. to have free warren in the manor, and in the demesnes of the manor; for though he may prescribe to have it in his own demesnes, yet he could not prescribe to have it in the lands of others his freeholders. To this it was answered by Roll, (counsel for the defendant) that a prescription to have free warren in his manor was good, as well in the lands of the freeholders as in the demesnes. For being by prescription, it should be intended that this liberty was, before there were any freeholders; whose estates were afterwards extracted out of the demesnes of the manor. No judgment was given but Roll's doctrine is admitted in several cases stated in Brooke's Ab., and also in a case reported Fowler v. Seaby Bulstrode. 27. Other circumstances might also give rise to a right of free warren over another person's land. Thus a person having free warren over certain lands may alien them reserving the warren. But if he aliens the lands without the warren, and without reserving it to himself, it is determined and gone; for the alienor has parted with. his right to the land, discharged of all things, so that he cannot have it; nor does the alienee take it, because it is not granted to him, but only the land. 28. A warren may be appendant to a manor, or in gross; it being said that a warren in gross in a patentee does not pass by a bargain and sale of the manor, for a warren is not parcel of, or any member of a manor; though it may be appertaining by prescription. And in a note in Dyer it is said that there is a difference be-; tween a warren used to a manor from time immemorial, and a warren appendant: for in the first case it shall not pass by a grant of the manor, cum pertinentiis, because it is not parcel; whereas in the other it shall pass, but not without the words cum pertinentiis. 29. A person may have a warren by prescription in a forest: but in that case there must be an allowance of: it in eyre, that is, in the court of the forest, and then a grant is presumed; otherwise not. grave, Bulst. 254. Bro. Ab. tit. 30 b. pl. 209. Bro. Ab. tit. Grant. 144. Cro. Eliz. 547. 306. pl. 209. case, W. Jones, 30. Thus where Sir R. Harrison claimed a warren, Harrison's in Windsor forest, at the justice seat, but it not being 250. allowed in eyre, he was fined ten shillings, and the warren was ordered to be destroyed. 31. Lord Coke says, a man may have a chase as be- 4 Inst.318. longing to his manor, in his own woods, as well as a warren or park in his own grounds. For the chase, warren, or park, are collateral inheritances, and not issuing out of the soil, as common does. Therefore if a person has a chase in another's grounds, and purchases the ground, the chase remains. 32. The origin and general nature of manors has. A manor. Dissert, c. 3. § 1. &c. Bro. Ab. tit. 2 Wooddeson 37. Dissert. c. 2. 6 Mod. 151. Skin. R. 192. been already stated; and it has been shewn that they are feudal seignories, accompanied with royal franchises, their essence consisting in the lord's right to hold a court for the administration of justice; which is part of the King's prerogative, and must therefore have been ori ginally derived from the Crown. 33. A manor consists of the demesnes, that is, the lands whereof the lord is seised, whether in his own occupation or in that of his lessees for years, copyholders, or customary tenants; together with the wastes; and also of the rents and services reserved upon the grants in fee simple originally made to the tenants, or at any time before the statute Quia Emptores, and of the reversion of those parts of the demesnes that were granted out for life or in tail. 34. Although the presumption be that the lord of the manor is entitled to the soil of the wastes, situated within the manor; yet any other person may exclude him, był proving acts of ownership. 35. Before the statute Quia Emptores a lord of a manor might have granted part of the demesnes to hold' of himself, as of his manor, reserving fealty, rent, and suit of court. But if, since that statute, a lord of a manor conveys away a portion of his demesnes in fee, they cease to be a part of the manor, and can never after become parcel of it. Nor can the lord reserve to himself the ancient services, for the alienee will hold of the next superior lord. And in a modern case where a Crew, Willes' lord of a manor conveyed part of the demesnes to a person and his heirs, to hold of the grantor, as of his said manor, by fealty and suit of Court, it was resolved that the grantee did not hold of the manor, and was not a freeholder thereof. It is however observable that this was a conveyance in fee simple. Had it been only for life, or in tail, it would have been otherwise. Tit. 10. c. 6. § 16. Chetwood v. R. 614. 36. Although the lands which were granted out in fee by the original founder of a manor, to be held of the manor, by fealty, and suit and service to the lord's Court, are not parcel of the manor; yet they are comprised within its boundaries, and subject to its jurisdiction, for they originally constituted part of it. And if they escheat to the lord, they again become parcel of the manor. It is the same as to lands granted by lords An. 12 Mod. of manors, prior to the statute Quia Emptores. R. 138. lord as to game. Cowell, Inst. Lib. 2. tit. 2. § 37. Whenever the Crown granted a tract of land Rights of the with a jurisdiction, it became a manor, or a feudum nobile; and a right of hunting over it followed as a regular consequence, being one of the franchises included in the royalty, in conformity to the general practice then existing upon the continent. For by the customary law of France, every possessor of a fief had a right of hunting over the lands comprised within it. Qui a fief droit de chasse was a maxim there; and appears to have been adopted here, upon the introduction of feuds. (a) a Loisel Inst. § lib. 2. tit. 2. 51. 38. If the right of hunting and killing the game on a manor was not included in the franchise or royalty, it must have remained in the Crown, so that no one could sport there; by which the game must have increased Ante, § 4. to such a degree as to become a nuisance. The lord's right to hunt and kill the game upon his manor did not however give him any property in it before it was killed : that still remained in the crown; and was, in an infinite number of instances, afterwards conferred on the pro- Ante, §21. prietors of manors, by grants of free chase and warren. 39. That the possession of a manor gave a right to hunt over it appears from some of our most ancient law writers. In Kitchin's Jurisdictions, first published in 1580, under the title Charge in Court Baron, is the following passage :-" Also if any trespass be made in any demesne of the lord, that is to say, in the corn, grass, meadows, pastures, woods, hedges, or waters; (a) Aucupationes, venationes, et piscationes, cum fundo, transire, nemo unquam dubitavit, ita ut qui feudum accepit, aucupari venari piscari in eo possit, et etiam alium externum prohibere, ne aucupandi, venandi, aut piscandi, causâ ingrediatur. Craigii Jus Feudale, lib. or if any hawk or hunt within the demesnes of the lord, 40. Thus by the statute 23 Eliz. c. 10. s. 2. it is enacted that no manner of persons shall take or destroy pheasants or partridges in the night time, upon pain of forfeiture for every pheasant twenty shillings, and for every partridge ten shillings: one half of the said forfeitures to be to the chief lord or lords of the liberties, lordships, or manors, upon which the same shall be so taken or killed; and the other moiety to the informer. From which it may be inferred that the lords of manors were then deemed to have some kind of right to the pheasants and partridges upon their manors. 41. By the statute 22 and 23 Châ. 2. c. 25. reciting that divers disorderly persons had betaken themselves to the stealing and killing of conies, hares, pheasants, and other game, to the great prejudice of noblemen, gentlemen, and lords, of manors, and other owners of warrens; (a) it is enacted that all lords of manors and other royalties, not under the degree of an esquire, may, by writing under their hands and seals, authorize one or more gamekeepers within their respective manors to take all guns, bows, greyhounds, setting-dogs, &c. ren. (a) The word warren here means a rabbit warren, not a free warVide s. 4. of this statute. : |