Game Laws.

8. Provide a summary punishment for trespass on land Suggestions in search of, or taking without the occupier's leave, upon the other birds than game, &c.,64 mentioned in the second suggestion, p. 23.

9. Prohibit justices from interfering in Game Cases, where they are in any way interested in the game, or the land upon which the offence is committed, -where related to a person so interested,-and where the parties to the proceedings are the servants or tenants of either.65

64 It should be stated, in reference to this suggestion, that the present law does not furnish any remedy for the following acts in respect of these birds when feræ naturæ ;

Being on ground in search or pursuit of birds, which are
not game, woodcocks, snipes, quails, or landrails, or
of their eggs:

Killing or taking woodcocks, snipes, quails or landrails,
or their eggs, although a trespass after the birds is
punishable:

Killing or taking swans, wild ducks, teal or widgeons,
although the taking of their eggs is punishable:
Taking or killing of any other birds than pigeons and
game, and those protected by 24 & 25 Vict. c. 96, ss.
21, 23; 24 & 25 Vict, c. 97, s. 41 (Chap. XXIII.):
Taking or destroying the eggs or nests of any other bird
than game, swans, wild ducks, teal or widgeons:
Using a dog, gun, &c. for taking, &c., any other bird
than a bird of game or rabbits.

A clause to meet all these cases was prepared by the writer
in the hope that it might have been inserted in Mr. Paull's
Poisoned Grain Prohibition Bill, now the 26 & 27 Vict.
c. 113.

65 See analogous enactments in the Alehouse, Truck, Factory and other Acts, epitomized in Oke's " Synopsis," 8th ed. pp. 25, 26.

с

CHAPTER I.

OF PROPERTY IN GAME, AND OTHER BIRDS AND
ANIMALS, THROUGHOUT THE UNITED KINGDOM.

game rests

upon the

Ownership of THE right of property in, or the actual ownership of, game, and other wild and half-tamed animals, common law. rests upon the common law alone, and not upon the exceptional legislation called the "Game Laws;" and is distinct from the right to shoot or take it. The subject, however, is somewhat complicated and perplexing, but being ably treated of in many learned and elaborate works, our observations must, to some extent, be confined to an epitome of previous writers, with sometimes their identical expressions and arrangement of the matter, to which we add the modern decisions and some practical remarks.

Not property

until captured.

As a general proposition, beasts and birds of game being included in the class of wild animals— the animals feræ naturæ of the civil or Roman law are not, properly speaking, the property of anybody; they belong to nobody until they are caught; they are their own master, are free to come and go, and are incapable of identification, and so the characteristics of the right of property are absent. This rule is, however, subject to various qualifications; and, for the purpose of ascertaining ownership, all beasts and birds are divided into

See the introductory observations at pp. 2, 3, 4, as to what animals and birds come under the denomination of game" in each part of the United Kingdom.

66

2 Woolrych, G. L. 43; Paterson, G. L. 16; Locke, G. L. iii.

cognized in

game.

wild and tame animals; and these, as regards the offence of larceny, are classed into those which are fit and those which are not fit for food. We will first treat of game in its wild state as most material. The Committee of 1845-6 upon the "Game A qualified Laws" rightly said in their Report (first resolu- property retion, ante, p. 19), "That the common law of England has always distinctly recognized a qualified right of property in game, and that from a very early period it has been found necessary, by statutory enactment, to make some special provision against the attempt to steal or destroy a species of property peculiarly exposed to depredation." The common law of England treats game as property sub modo-as a special or secondary kind of property—and the statute law recognizes the possession of it, protects it from trespassers, licenses the killing of it and sometimes its sale, but neither treats it in its wild state as susceptible of larceny; and, indeed, if it were by an act declared for all purposes to be property, its essential character would not be thereby changed, and there would still be no means of identifying it except in very rare cases, unless some new test of proprietorship were provided.3

In support of a ground of action the common law recognizes four ways of acquiring property, more or less absolute, in these animals, viz.-(1) ratione soli, (2) per industriam, (3) propter impotentiam, and (4) ratione privilegii; or, in other words, (1) by reason of their being on the soil, (2) taming them or reducing them into possession, (3) by reason of their being reared on the soil, and (4) by right of free warren, &c.

The owners or occupiers of the soil have a quali- Ratione soli.

3 Wilde, B., in the recent case of Blades v. Higgs, post, p. 29, threw out the observation, that "if the legislature should now interfere by giving to the owner of the land property in game, either absolute or qualified, so long as it remained on his land, it would be a decision in the spirit of justice and policy of the common law." (27 J. P. 193, 194, 196).

Ratione soli. fied right of property in wild animals by reason of their being on the soil. They can only be taken by means of a trespass, and the law naturally prefers the title of the owner or occupier of the land to that of the trespasser, except where there are two competing owners of land, and the animal was started on the land of one and caught or killed on that of the other; and then the law seems to treat the claims of the landowners as extinguishing each other, and confers on the person who first captures it the property of the animal captured, whether he is a poacher or trespasser or not. This statement of the law was first laid down by Chief Justice Holt, and is alleged to be deduced by him from the Year Books. Thus:-"If A. starts a hare in the ground of B., and hunts it and kills it there, the property continues all the while in B. But if A. starts a hare in the ground of B. and hunts it into the ground of C., and kills it there, the property is in A., the hunter; but A. is liable to an action of trespass for hunting in the grounds of B. as of C. But if A. starts a hare, &c., in a forest or warren5 of B. and hunts it into the ground of C., and there kills it, the property remains all the while in B., the proprietor of the warren, because the privilege continues." Then, if A. starts a hare in his own close, and hunts it into the close of B., and kills it there, the original property remains in A., and the coursing is a continuance of that property. In fact, the creature is the property of the lord of the soil whilst it remains there, but (except in the case of free warren) the property goes with the hunter as soon as he drives it off the land where he started it. This doctrine as to the hare (and the same rule is

Sutton v. Moody, 1 Ld. Raym. 250; Holt's Cas. 18; 2 Salk. 556; 7 Taunt. 511; Paterson, G. L. 17.

See Chap. II. what is a forest or free warren, and what are birds and beasts of warren.

611 Mod. 75, by Powell, J., Woolrych, G. L. 46, 47; Holt's Ca. 16, 19.

equally applicable to all wild animals) was acted Ratione soli.
on in Churchward v. Studdy," where it was held
that the hunter could sue the owner of the land on
which the game had been killed but not started,
for recovery of the game. It was also assumed and
acted on in the Earl of Lonsdale v. Rigg," and the
question was again raised and reargued in February,
1863, before the Exchequer Chamber, in the case
of Blades v. Higgs,' on appeal from the Common
Pleas, and affirming the decision of that court.
The facts in the last case were these: the plaintiff,
a licensed dealer in game, brought an action against
the defendant, a servant of the Marquis of Exeter,
for taking out of his possession ninety dead rabbits,
which the plaintiff had received from persons who
had netted them on the marquis's land the previous
night, having trespassed there for that purpose;
and the court held that the servants were justified
in treating the rabbits as the property of their
master, and in taking them from the plaintiff; in
fact, deciding that rabbits started and killed or
caught on the land of another, other than the
captor, are the property of the person on whose
land they are killed or caught, and not of the
captor, and may legally be retaken.
As a neces-
will lie for

sary consequence, an action of trover
game or rabbits killed or taken by a trespasser, at
the suit of the owner of the land on which they
were taken, as before held in Earl of Lonsdale v.
Rigg. The result may be also said to be, that,
prima facie, the hunter, though trespassing, ac-
quires the property of what he catches; but if the
game was started and caught on one person's land,
it belongs to that person, as it is called, ratione soli;

7 14 East, 249; 7 Taunt. 502.

1 H. & N. 923, in error; 26 L. J. (N. S.), Exch. 196; 28 Law T. 372; 21 J. P. 228.

32 L. J. (N. S.), C. P. 182; 7 Law T., N. S. 798, 834; 27 J. P. 193, 194, 196; S. C., in Com. Pl. 31 L. J. (N. S.), C. P. 151; 5 Law T. (N. S.), 752; 25 J. P. 743.