CHAP. XXIII. 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 Statutes a 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, which the learned commentator has embraced every opportunity of introducing, has been controverted successfully Mr. Christian, in a note to his edition of the Commentaries, 2 vol. p. 419. n. 10., and it may now be ranked among those erroneous doctrines, which (it must be admitted) will, upon a careful examination, be found in those books, but which were almost unavoidable in a work of so comprehensive a nature. Presuming then that the right of · taking and destroying the game belongs to the subject, at common law, I shall proceed to shew how far it 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 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 100l. 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 150l. (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." (1) It has been justly remarked by Mr. Christian, 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 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 land-owners with respect to the game. (2) Prior qualification acts are 13 R. 2. stat. 1. c. 13.-1 Jac. I. c. 27. s. 6. repealed by 7 Jac. I. 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. 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 1007. 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 150%. (4) A lease for 99 years, dependent on three lives, of the value of 150l. per annum, though neither a lease for life, nor a lease for 99 years certain, has been holden to be a sufficient qualification within this statute; because there is not any reasonable probability of any life in being extending beyond 99 years; and the legislature, in admitting leases for 99 years, of a certain value, to be a qualification, did not mean to require that they should positively endure so long; it was sufficient if they might extend to that period, subject to the contingency of the party's so long living. Doubts had been entertained whether the words other person in this statute should be taken to be in the nominative or in the genitive case; but it was solemnly determined in R. v. Utley, 24 G. 3. B. R. recognised in Jones v. Smart, 1 T. R. 44. that these words must be taken to be in the genitive case, in the same manner as if the word "of" had been actually inserted, and that the meaning of the statute is "other than the son and heir apparent of an esquire, or the son of any other person of higher degree." It follows, as a necessary consequence from this interpretation of the statute, that although the son and heir apparent of an esquire, or of other person of higher degree, be qualified by virtue of this statute, yet an esquire or person of higher de gree, as such, is not qualified. a Wetherill v. Hall, Cald. 230. c Lowndes v. Lewis, Cald. 188. (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 inheritance, but for his life only; consequently such estate must be of the value of 1507. per anuum, in order to exempt him from the penalties of these statutes. Lowndes v. Lewis, Cald. 188. A diploma conferring the degree of doctor of physice, granted by either of the universities in Scotland, does not give a qualification to kill game under this statute. A commission of captain of volunteers signed by the lord lieutenant of a county does not confer the degree of esquire; and consequently the son of such captain is not thereby qualified to kill game. II. Of the Appointment and Authority of Gamekeepers. THE stat. 22 & 23 C. 2. c. 25. s. 2. authorises lords of manors, or of other royalties, not under the degree of an esquire, to appoint by writing under their hands and seals, gamekeepers within their manors or royalties, who may seize guns, dogs, nets, and other engines used for the destruction of the game by unqualified persons within the precincts of their manors, and the said gamekeepers, or other persons authorized by a warrant from J. P. may search in the day-time the houses of unqualified persons, upon good ground of suspicion, and seize for the use of the lord, or destroy such guns, dogs, nets, &c. But by The preceding statute does not limit the number of gamekeepers, which may be appointed for each manor. stat. 9 Ann. c. 25. s. 1. lords of manors can appoint (5) only one gamekeeper for one manor; and further, the name of each gamekeeper must be entered with the clerk of the peace, &c. Such gamekeeper, by stat. 3 Geo. 1. c. 11., must have been either a person qualified, or a servant of the lord, or a person immediately employed to kill game for the sole use of the lord. But now by stat. 48 G. 3. c. 93. s. 2. any lord or lady of a manor may depute any person, whether acting as a gamekeeper to any other person or not, or whether retained and paid for as the male servant of any other person or not, or e Jones v. Smart, 1 T. R. 44. f Talbot v. Eagle, 1 Taunt. 510. of (5) "A lord of a manor cannot convey to another the power appointing a gamekeeper, without a conveyance also of the manor itself. Such a power is a mere emanation of the manor, and inseparable from it." Per Lord Kenyon C. J. 5 T. R. 20. whether a qualified person or not, to be a gamekeeper to any such manor, with authority to such person as gamekeeper, to kill game within the same, for his own use, or for the use of any other person, to be specified in such appointment or deputation, whether qualified or not. By stat. 25 G. 3. c. 50. s. 2. deputations of gamekeepers must be registered with the clerk of the peace, &c. and certificates thereof (stamp duty one guinea, that is, 10s. 6d. by this statute, and 10s. 6d. by stat. 31 G. 3. c. 21.) must be taken out annually; and a penalty of 201. is imposed on gamekeepers neglecting to register their deputations within 20 days after they are granted, and neglecting to take out, their certificates. A deputation to a gamekeeper, who is neither himself qualified to kill games, nor is a servant to the lord of the manor, need not state on the face of it, that he is appointed to kill game for the use of the lord; and it will be presumed, that whatever game he kills is for the lord's use till the contrary is proved. N. This case occurred before the stat. 48 G. 3. c. 93. The stat. 4 and 5 W. & M. c. 23. s. 4. gives to lords of manors, or their gamekeepers, the same protection in resisting offenders within the precincts of their manors in the nighttime, as the law affords to the keepers of ancient chases, parks, or warrens. It is no defence to actions of debt for penalties on the game laws, that the defendant acted bona fide as gamekeeper of the manor, in which the offence was committed, under a deputation from a person claiming a right to ap point the gamekeeper, there not being any ground for such claim. A question respecting the boundaries of a manor1, or the right to a manor, cannot be tried in an action on the game laws. g Spurrier v. Vale, 1 Camp. N. P. C. k Blunt v. Grimes, per Buller J. Wilt 457. 10 East, 413. h Calcraft v. Gibbs, 5 T. R. 19. i Hankins v. Bailey, per Buller J. Somerset Sum. Ass. 1791. shire Lent Ass. 1789, cited in Calcraft v. Gibbs, 4 T. R. 691. |