9 Ann. c. 15. 43 Eliz. c. 14. § 2. And if they shall not be thus assized and marked, then on information to a justice of the peace, mayor, or other head officer, he shall call before him six good and lawful men of the town, and shall swear them truly to inquire and present whether the same be of good and sufficient assize: and if they shall present that any of them is not sufficient, the same so being deficient shall be forfeited, and be delivered to the overseers, to be by them distributed to the poor. And by the 43 El. c. 14. the billets shall be measured within six inches of the midst; and the surplusage which shall happen be tween any two next measures, being above the one, and under the other, shall be taken for the benefit of the buyer. Fuller's Earth. See Woollen Manufacture, Vol. V. 8 G. 1. c. 19. be recovered in general. 26 G. 2. c. 2. Game. THE statutes relating to this title are very numerous, and the sense sometimes a little perplexed, so that perhaps upon a view of the whole it may seem that about four or five new acts, comprehending the several heads here under mentioned, and repealing all the preceding ones, would conduce to render this branch of our laws more intelligible and useful. After having first premised (in order to avoid frequent repetitions Penalties how to throughout this title), that it is enacted by stat. 8 G. 1. c. 19. that where any person for any offence against any law in being at the making of the said act, for the better preservation of the game, shall be liable to pay any pecuniary penalty or sum of money, on conviction before a justice of the peace, the prosecutor may either proceed to recover the same in such manner, or he may sue for the same (before the end of the second term after the offence committed, 26 G. 2. c. 2.) by action of debt or on the case, bill, plaint, or information, in any court of record at Westminster, wherein if he recover he shall have double costs: Provided, that the offender shall not be prosecuted both ways; and in case of a second prosecution, he may plead in his defence the former prosecution pending, or the conviction or judgment thereupon had. 23 G. 1. c. 19. And by the 23 G. 1. c. 19. whereas a moiety of the said penalty by several acts is directed to be applied to the use of the poor of the parish where the offence was committed, by reason whereof inhabitants of the said parish have been disallowed to give evidence, it is enacted, that it shall be lawful for any person to sue for the whole of such penalty to his own use, and if he recover he shall have double costs; such action to be brought within six months after the offence committed. But by 27 G. 3. c. 29. where any pecuniary penalty or part thereof is given to the poor, the inhabitants of every such parish or place shall be deemed competent witnesses to prove any offences committed therein, notwithstanding that the penalty incurred or any part thereof be given or applicable to the poor of such place, or for the benefit or use thereof; unless such penalty exceed 201. [See, however, under its 27 G. 3. c. 29. Inhabitants may be witnesses. proper head the 52 G. 3. c. 93. sch. (L), providing in a special 52 G. 3. c. 93. manner for the recovery of certain of the penalties relating to the sch. (L.) game laws.] This being premised, I will treat of this subject under the following heads: Sect. I. Property in game. II. General observations concerning fore sts, chases game. III. Qualification by estate or degree to kill game, with the punishment of persons unqualified killing or having game in their possession. IV. Certificate to be taken out. Selling or [24 G. 3. sess. 2. c. 43. — 25 G. 3. c. 50. — 52 G. 3. c.93. V. Concerning gamekeepers. [22 & 23 C. 2. c. 25. 3 G. 1. c. 11. -5 An. c. 14.. 9 An. c. 25. - 25 G. 3. c. 50. 48 G. 3. c. 93. 52 G. 3. c. 93. Sched. (L.) —59 G. 3. c. 102.] VI. Prevention of persons going armed by night for the destruction of game. [57 G. 3. c. 90.] VII. Laws for preserving the four-footed game in par ticular. [For the statutes see the head of this section.] VIII. Laws for preserving the winged game in particular. [For the statutes see the head of this section.] I. Property in game. Before we take notice of the statutes made for the preservation 3 Bac. Abr. 324. of the game, it may be requisite to observe how the common law stood herein; which depends upon the difference between tame and wild animals. The tame animals, such as horses, cows, sheep, and the like, are Tame animals.] such creatures as by reason of their sluggishness and unaptness for motion do not fly the dominion of mankind, but generally keep within the same pastures and limits, and may be easily pursued and overtaken, if by, accident they should escape; and therefore the owner hath the same kind of property in them as he hath in all inanimate chattels, and for the violation thereof may bring an action of trespass. The wild animals such as deer, hares, foxes, and such like, are wild animals, 3 Bac. Abr. 325. Davies v. Powell, dominion of man; and in these no person can have a property, unless they be tamed or reclaimed by him (a). And as property is the power that a man hath over any other thing for his own use, and the ability that he hath to apply it to the sustentation of his being, when that power ceaseth, his property is lost; and by consequence an animal of this kind, which after any seizure escapes into the wild common of nature, and asserts its own liberty by its swiftness, is no more mine than any creature in the Indies, because I have it no longer in my power or disposal. Hence it appears that by the common law every man had an equal right to such creatures as were not naturally under the power of man, and that the mere caption or seizure created a property in them. By immediate taking and killing them, they belong to such person in the same manner as any other chattels, and cannot be taken from him; since the first seizure and caption was sufficient to vest the property of them in him. Also by taking and taming them, they belong to the owner, as do the other tame animals, so long as they continue in this condition, that is, as long as they can be considered to have the mind of returning to their masters; for while they appear to be in this state, they are plainly the owner's and ought not to be violated; but when they forsake the houses and habitations of men, and betake themselves to the woods, they are then the property of any man. Another way of gaining property in them is, by inclosure; and then the beasts must be understood to be mine, as the profits or the soil itself are; and they can no more be taken and carried off than any other profits of the land. Therefore if deer be inclosed in a park or paddock; or conies in a field or warren, they become so much a man's own that no one ought to kill or take them away. And since in this case it is the fnclosure that retains them, (for take away the inclosure, and they are in their natural liberty,) therefore the party is said to have right as he hath to any other profits there inclosed, and a distinct and independent right in every animal. It is a maxim of the common law that such goods, of which no one can claim any property, belong to the king by his prerogative; and hence all those animals feræ naturæ, which come under the denomination of game, are styled in our laws his majesty's game; and that which he hath, he may grant to another; and consequently another may prescribe to have the same within such a precinct or lordship. And from hence cometh the right of lords of manors or others unto the game within their respective liberties. [But this doctrine, "that the sole property of all the game is "vested in the king alone," is controverted by Mr. Christian in his comment on the commentator. 2 Blac. Com. 419. n. 10. and also in his Treatise on the Game Laws, cap. 2.] (a) Mr. Christian mentions a case at York in which 107. damages were given for a tame fox, which had got loose and been taken by the defendant. One of the plaintiff's servants proved, at the trial, that he knew the fox, and that the fox knew him; for when he saw it again, and called it by its name, it crouched and rolled at his feet, as a spaniel would do at seeing his former master again. Christian's G. L. 261. II, General observations concerning forests, chases, parks, and warrens, and trespass in pursuing game. A forest is a certain territory of woody grounds and fruitful pas- Forest, what. tures, privileged for wild beast and fowls of forest, chase, and warren, to rest and abide there in the safe protection of the king for his delight and pleasure; which territory of ground so privileged is meered and bounded with unremoveable marks, meers, and boundaries, either known by matter of record or by prescription; and also replenished with wild beasts of venery or chase, and with great coverts of vert for the succour of the said beasts there to abide ; for the preservation and continuance of which, there are particular officers, laws, and privileges, belonging to the same, requisite for that purpose, and proper only to a forest and to no other place. Manw. (a) 143. Note; that vert comprehends every thing which bears green leaves in the forest. Manw. 146. And the lord having the wood in the tenant's land, which is still customary in many manors, was originally for preservation of the vert, for the sustentation of the lord's game there. Beasts of forest are properly hart, hind, buck, hare, boar, and Beasts of forest. wolf; but legally all wild beasts of venery. 1 Inst. 233. : Purlieu comes from the French pur, clear, entire, and exempt, and Purlieu, what. lieu a place that is a place, entire, clear, or exempt from the forest : and signifies those grounds which Henry the second, Richard the first, or king John, added to their ancient forests, over other men's grounds, and were disafforested by the statute of charta de foresta. 4 Inst. 303. Manw. 242. But nevertheless the purlieu 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 thèm ratione loci, but yet so that they hunt them fairly and not forestall them in their return towards the forest. Manw. 292. But a purlieu man may not hunt in every man's lands within the purlieu, but in his own lands only; and therefore if he find the beast of the forest in his woods or lands in the purlieu, 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 as 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 (a) Manwood's Treatise on the Forest Laws is a very learned and amusing book, Chase, what. Beasts of chase. Park, what. Beasts of park. Park to be inclosed. Deer shall go to the heir. Warren, what. Need not be inclosed. Conies shall go to the heir. License to erect. Hunting in a free warren. 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. A chase (from chasser to chace) 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. Manw. 49. 147. Beasts of chase are, the buck, doe, fox, martern (a), and roe. Manw. 144. A park (from the French 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. 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. Id. 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. Deer in a park shall go to the heir, and not to the executor. 1 Inst. 8. A warren is a place privileged by prescription or grant of the king, for the preservation of the beasts and fowl of the warren, viz. hares, conies, partridges, and pheasants. Manw. 44. it. A free warren may lie open, there being no necessity of inclosing Read. Game. Conies in a warren shall go to the heir, and not to the executor. 1 Inst. 8. It is not lawful for any person to make any chase, park, 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 puuished in a quo warranto, and the franchise to be seized into the king's hands. Manw. 56. R. 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 shew 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. In an action of trespass for entering a free warren, and which is sustainable even against the owner of the soil, though da mages are under 40s., the plaintiff is entitled to full costs; (a) A large kind of weasel, whose fur is much valued. Johnson's Dict. |