lease and release, bargain and sale, fines, or recovery", though but for an instant, and though he takes back the estate to the same use as before, or though the old use results to him again, so as to descend in the same line as before, still the conveyance operates to annul his will. This rule is founded on a technical principle of law, introduced, as it should seem, originally in favour of the heir: viz. that in order to render a devise valid and effectual, it is necessary that the seisin of the devisor should remain unaltered from the execution of the will until the death of the devisor (38). The foundation of the rule being wholly independent of the intention of the testator to revoke, the rule will operate where the provisions of the subsequent conveyance are consistent with the provisions of the will; and even where such conveyance is made for the express purpose of confirming the will. Hence, also, parol evidence to shew that the testator did not intend, by the subsequent conveyance, to revoke his will, is inadmissible. In conformity with the preceding rule, it has been holden, that where the whole estate is conveyed by lease and release to uses, although there be a resulting use in the ultimate reversion to the grantor by the same instrument, yet the conveyance will operate as a revocation of a prior will (39).

f E. of Lincoln's case, 2 Freem. 202. Show. P. C. 154. S. C.

g Doe d. Dilnot v. Dilnot, 2 N. R 401. h Doe d. Lushington v. Bp. of Landaff, 2 N. R. 491.

i Goodtitle v. Otway, 2 H. Bl. 516.
k Goodtitle v. Otway, 1 Bos. & Pul.
576.7 T. R. 399.

(38) In this instance as in many others, the language of pleading is evidence of the law, viz. "that J. S. was seised of certain lands in his demesne as of fee, and being so seised on such a day made his last will and testament in writing, and thereby devised, &c.; and afterwards, to wit, on &c. the said J. S. died, seised of the said lands in form aforesaid." See Co. Ent. 653. b. 654 a. 2d ed.

(39) "So if a person seised of a real estate, devise it, and afterwards convey the legal estate, though there be only a partial declaration of trust, yet as he has granted the whole estate, it is a revo¬ cation of the will." Per Lord Hardwicke, C. in Sparrow v. Hardcastle, 7 T. R. 417. n. But where tenant in tail, by bargain and sale, conveyed to J. S. in fee, in order to make him tenant to the præcipe in a common recovery, the use of which was declared to him in fee, and 8th June (Trinity term in that year having begun on the 7th June,) made his will, and afterwards a writ of entry was sued out returnable in Quind. Tr. (17th June) and the recovery suffered it was holden, that the land passed by the will, on the ground that the deed and recovery made one conveyance only, of

It will be observed, that in the preceding instances, the whole estate was conveyed; and therefore the party did not die seised of that estate which he had at the time of making his will; and consequently the devise, which will only operate upon that seisin, which the testator had at the time of making his will, was annulled or revoked: But where the devisor does not part with his whole estate, e. g. where he grants an estate for years only, to the devisee, to commence in the life of the devisor, in such case, the conveyance will not operate as a revocation of the fee'. In like manner, if a man devises land in fee to A., and afterwards makes a mortgage thereof in fee, either to the devisee" or a stranger", this mortgage in fee, though a revocation of the will in law, will not operate as such in equity, and the right of redemption will pass by the will. And the same rule holds in equity with respect to a conveyance in fee for payment of debts.

1 2 Atk. 72.

m Baxter v. Dyer, 5 Ves. jun. 656.
a Admitted to be a settled point in
York v. Stone, Salk. 158. Adjudged
by Sir John Churchill, M. R. and

Ld. Jefferies, C. in Hall v. Duuch,

1 Vern. 329. 342.

o Adm. in Cave v. Holford, 3 Ves. jun. 654.

which the deed was the principal part; and that the whole of a conveyance should be taken together, and the several parts of it should relate back to the principal part. Selwyn v. Selwyn, 2 Burr. 1131. recognised by Lord Mansfield, C. J. in Roe d. Noden v. Griffits, 4 Burr. 1962. 1 Bl. R. 605. S. C.

CHAP. XXIII.

GAME.

1. Of the Right of taking and destroying the Game at Common Law, and of the Restraints imposed

on the Exercise of such Right by Statute.

II. Of the Appointment and Authority of Gamekeepers.

III. Of the Statutes 5 Ann. c. 14.-9 Ann. c. 25.28 G. 2. c. 12. relating to the Preservation of the Game; the Penalties imposed for Offences against these Statutes; the Modes of recovering the Penalties, 1st, By Distress-2dly, By Action of Debt, and herein of the Stat. 8 G. 1. c. 19.-26 G. 2. c. 2.-2 G. 3. c. 19. IV. Of the Statutes relating to the Destruction of the Game at improper Seasons of the Year, Stat.

2 G. 3. c. 19.-13 G. 3. c. 55.-39 G. 3. c. 34.

Declaration-Evidence.

V. Of the Duties made payable in respect of killing Game.

I. Of the Right of taking and destroying the Game at Common Law, and of the Restraints imposed on the Exercise of such Right by Statute.

IT has been asserted by Sir W. Blackstone in his Commentaries (vol. 2. p. 14, 15, 417, vol. 4, p. 174.), that by the common law, the sole property of all the game in England is vested in the king alone, and that the sole right of taking and destroying the game belongs exclusively to the king; and, consequently that no person, of whatever estate or degree, has a right to kill game, even upon his own land, unless by

licence or grant from the king. This position, however, has been questioned by Mr. Christian, in a note to his edition of the Commentaries, 2 vol. p. 419. n. 10.

If A. start a hare in the ground of B., and hunt and kill it there, the property continues all the while in B. but if A. start a hare in the ground of B., and hunt it into the ground of C., and kill it there, the property is in A., the hunter, but A. is liable to an action of trespass for hunting in the ground, as well of B. as C1.

Trespass for a dead hare the property of plaintiff.-The plaintiff, a farmer, being out hunting with hounds of which he had in part the management, and actually had such management at the time, though the hounds belonged to other persons, the hounds put up a hare in a third person's ground, and followed her into a field of the defendant, where, being quite spent, she run between the legs of a labourer who was accidentally there, where one of the dogs caught her, and she was taken up alive by the labourer, from whom the defendant immediately afterwards took the hare and killed her. Shortly after the plaintiff came up, and claimed to have the hare as his own, but the defendant refused to give it up, and questioned the right of the plaintiff to be where he then was. The labourer, upon his examination at the trial, swore that when he took the hare from the dogs, he did not mean to take it for his own use, but in aid of the hunters. Verdict for the plaintiff, 40s. damages. Rule for new trial after argument was discharged; Ld. Ellenborough, C. J. observing that the plaintiff, through the agency of his dogs, had reduced the hare into his possession. The labourer took it for the benefit of the hunters, which is the same as if it had been taken by one of the dogs. Secus, if the labourer had taken it up for the defendant, before it was caught by the dogs, or if he had taken it as an indifferent person in the nature of a stakeholder.

I shall proceed to shew how far the right of taking and destroying the game has been abridged by statute; having premised that this right can only be exercised on a person's own estate, and that not even a lord of a manor (1), or his

a Per Holt, C. J. in Sutton v. Moody, b Churchward v. Studdy, 14 East, 1 Ld. Raym. 251. 2 Salk. 556. 249.

5 Mod. 375. S. C.

(1) Mr. Christian has remarked, that the common opinion, that the lord of the manor has a peculiar right to the game, superior to that of any other duly qualified land-owner within the manor, is

gamekeeper, can go into any part of the manor, which is not the lord's own estate or waste, without being a trespasser, as any other person would be; unless a right of entry in pursuit of the game be specially reserved to him.

By stat. 22 & 23 Car. 2. c. 25. s. 3. (2) “Every person, not having lands and tenements, or some other estate of inheritance, in his own or his wife's right, of the clear yearly value of 1001. per annum, or for term of life, or having lease or leases of 99 years, or for any longer term, of the clear yearly value of 150/. (other than the son and heir apparent of an esquire, or other person of higher degree, and the owners and keepers of forests, parks, chases, or warrens,) is prohibited from having, keeping, or using any guns, bows, greyhounds, setting dogs, ferrets, coney dogs, lurchers, hays, nets, lowbels, harepipes, gins, snares, or other engines aforesaid."

In the construction of this statute, it has been holden, that it is not necessary that the estate should be a freehold, or that it should be a legal estate; for a copyhold estate or an equitable estate of inheritance, of the clear yearly value of 100l. is a qualification. But it is not sufficient, if the rent of the estate be reduced below the sum required by paying the interest of a mortgage (3), or if the estate be an estate for life only, under the yearly value of 1507. (4)

c Wetherill v. Hall, Cald. 230.

d Wetherill v. Hall, B. R. M. 23 G. 3.

cited in a note to R. v. Clarke, 8 T. R. Cald. 230. S. C.

221.

e Lowndes v. Lewis, Cald. 199.

erroneous. He conceives that this opinion owes its rise to the power which lords of manors have of appointing gamekeepers, a power originally given to them by stat. 22 & 23 Car. 2. c. 25., the first statute in which lords of manors are distinguished from other landowners with respect to the game.

(2) Prior qualification acts are 13 R. 2. stat. 1. c. 13.—1 Jac. 1. c. 27. s. 6. repealed by 7 Jac. 1. c. 11. s. 6. and 3 Jac. 1. c. 13. s. 5. relating to deers and conies only. The provisions of these statutes (which remain unrepealed, but are seldom put in force) will be found under title Game in Burn's Justice.

(3) On a question arising upon an information before magistrates, as to the defendant being qualified, the magistrates may ground their opinion of his not being qualified on the fact of the defendant's having sworn on a former day under the income act to an estate under 100l. per annum. R. v. Clarke, 8 T. R. 220.

(4) A vicar, in right of his church, has not an estate of inherit