the Norman kings of England exercised the power of granting rights of chace and of free-warren, yet it does not appear that any such authority was claimed over lands which had become the private property of subjects. It is contended by Sir W. Blackstone, that the common law of England (v) vests the exclusive property in game in the Crown, and consequently that no person had a right to kill game, even upon his own freehold, unless authorized by royal grant or license; but this doctrine is not supported by the earlier decisions(w), and has been successfully controverted.

The privilege of pursuing and killing game in Ireland is derived either from a grant of free-warren, or from the ownership of the soil. The royalty, or franchise of free-warren, is the exclusive(x) privilege of preserving, pursuing, and killing beasts and fowls of warren, consisting of (y) hares, rabbits, roes, pheasants, quails, rails, woodcocks, mallards, and herons, within certain definite limits, and can only be founded on a grant from the Crown, or on prescription, which presupposes such a grant. It appears that grouse are not birds of warren, and an action will not lie for killing (2) and taking away grouse shot within the boundary of the warren: the reason of their exclusion probably arose from the Norman origin of the forest laws, and that such birds are not found in the province of Normandy.

Free-warren confers the property in wild animals, and that property may be claimed (a) in the land of another, to the exclusion of the owner of the soil; for in ancient times persons summoned to parliament often obtained from the Crown grants of warren in their demesne lands, comprising such parts of their manors or honours as then were, or might come into their actual possession; but the grant of warren(b) to a party in all his demesne lands, does not extend over the lands of freeholders of the manor, as such grants are construed strictly. However, the right to free-warren may, and sometimes does extend, over the estates of all the freeholders within the manor, where there is ground to presume that the grant was made before the freehold interests were created; and in many instances(c) persons who sold their estates re

served the free-warren, or right of killing game, to themselves and their heirs.

A warren may be either in gross, or appurtenant to a manor; and as a warren in gross is not parcel of the manor, it will not pass (d) by a conveyance of the manor, with the right of fishing, fowling, hunting, and shooting, and al. rights, liberties, franchises, privileges, hereditaments, and appurtenances, to the manor belonging, or theretofore used or enjoyed as parcel thereof, because such an assurance only embraces things belonging to the manor, and does not include a warren in gross, which is distinct from the manor.

If a person having right of warren in his own land, demises for years without mentioning(e) the warren, the lessor cannot have the warren, because it is not reserved, and the lessee shall not have it, because it is not granted; but warren-appendant passes by demise of the manor, and warren in gross is suspended during the term.

The proper remedy for encroachment on free warren, is by action of trespass for breaking and entering the warren; and though the close be the defendant's soil and freehold, it is no answer(f) to the action, because the title to the warren is collateral to the title in the land, as a person may have free warren in alieno solo.

26. Every person has a qualified property in the game upon his own land, and the right of hunting, shooting, and fishing, arises from the property in the land, unless where a right of free-warren has been constituted, or unless the common-law right has been restrained by Statute. A mistaken notion long prevailed, that the lord of a manor(g) had a right to go not only over his own lands, but over the lands of other persons within his manor: where the land itself is granted, every thing, as well above as below the surface, passes with it, unless specially reserved; and the lord of a manor, or other landed proprietor, has no right to enter upon any part of the manor which is not his own estate, or upon any lands demised to his tenants, in order to search for

Book, 35 Hen. VI. fol. 55, pl. 1; 2 Bla.
Comm. 39.

(d) Morris v. Dimes, 1 Ad. & Ell. 654; 3 Nev. & Mann. 671, S. C.; Bowlston v. Hardy, Cro. El. 547; Boulston's case, 5 Rep. 104; Attorney-General v. Parsons, 2 Cro. & Jerv. 279; 2 Tyrw. 223, S. C.

(e) Year Book, 32 Hen. VI. fol. 24, pl. 10; Bro. Abr. Grauntes, pl. 144.

(f) The Bishop of Canterbury v. Ose

bert, Year Book, 3 Hen. VI. fol. 12, pl. 15; Lord Dacre v. Tebb, 2 W. Bla. 1151; The Duke of Devonshire v. Lodge, 7 B. & Cress. 36; Bro. Abr. Trespass, pl. 10; pl. 34.

(g) Pickering v. Noyes, 4 B. & Cress. 639-648; 7 Dowl. & Ry. 49, S. C.; Bourne v. Taylor, 10 East, 189; and see Christian's note 8 to 2 Bla. Comm. 418.

or kill game, without the license of the owner of the soil, or tenant, or unless such privilege is specially reserved by the leases or grants.

If

a person start a hare, or other game, upon his own land, and follow and kill it upon the land of another(h), the property which is continued by the immediate pursuit, remains in himself. If a stranger start game on the land of another, and kill it there, the property in the dead game() belongs to him in whose ground it was killed; but if a stranger start game in the land of one person, and kill it on the land of a third person, the property vests in the person() who started the game, though he is guilty of a trespass on the lands of both the owners.

The privilege of shooting game on lands belonging to other persons, unless constituted by free-warren, can only be lawfully claimed where such right has been reserved(k) or retained by the grantor, for himself his heirs and assigns, on a conveyance in fee, or where a similar advantage is reserved or retained by a lessor, on a lease for years or for lives. By the English Game Act(), 1 & 2 Will. IV. c. 32, s. 7, landlords are enabled to enter and kill game, or to authorize any qualified person to do so, upon lands holden by leases made without fine, for any term not exceeding twenty-one years, or for life, prior to October, 1831, and tenants holding under such leases are prohibited from killing game on the demised premises, unless such right is expressly conferred by their leases.

The soil of a waste, or common, belongs to the lord of the manor, subject only to the right of the commoners to take the herbage by the mouths of their cattle, and the right of the lord to hunt or ride over it in every direction(m), and at all times, is the same right which he has over his demesne lands, and is not a mere liberty or easement. The lord enjoys no seignories or royalties in his own land, except perhaps that of free-warren, or the right of appointing a game-keeper; and the right, or privilege of sporting on his own soil, is merely a mode of enjoying his own property.

A reserved right of sporting, including hunting, hawking, shooting, and fishing, is not a royalty, as it is not derived from the royal prero

(h) Keble v. Hickeringill, 11 Mod. 73. (i) Sutton v. Moody, 1 Lord Raym. 250; 3 Salk. 290; 2 Salk. 556; 1 Com. Rep. 34; Holt, 608; 12 Mod. 144, S. C.

(j) Sutton v. Moody, 1 Lord Raym. 250; 12 Mod. 145; 2 Bla. Comm. 419; Churchward v. Studdy, 14 East, 249; The case of the Queen's Forester, Year Book, 12 Hen. VIII. fol. 9; and see

Deane v. Clayton, 7 Taunt. 489; 2
Marsh. 577, S. C.

(k) 2 Bla. Comm. 39.

() 1 & 2 Will. IV. c. 32, s. 7. There is no corresponding Irish enactment.

(m) Greathead v. Morley, 3 Mann. & Gr. 139; 3 Scott's N. R. 551; Doe dem. Lowes v. Davidson, 2 M. & Selw. 184.

gative; nor can it be considered a servitude, because the benefit acquired is merely personal(n), and is not annexed to any dominant tenement it is not an exception, as it forms no part of the property granted; and is not, in the legal(o) sense and meaning of the word, “a reservation," as it does not lie in render: it is, in fact, an incorporeal hereditament(p), or privilege, granted to the lessor or vendor, which cannot pass without deed, and being a profit a prender, does not come under the description of an easement.

The privilege of searching for and killing game, may arise from a license of pleasure, which is personal to the individual for whose amusement it is granted, and does not authorize him to take away the dead game(q) for his own use, and cannot be exercised by or with servants. Such a privilege may also arise from a license of profit, and not merely of pleasure; as if a license be granted to hunt, kill, and carry away game(r), the party licensed has a property in the game which he kills, and may hunt with or by servants. So, if a license be granted for a party and his servants to hunt, a license of profit is conferred, for these words imply that the grantee has a property in the animal hunted, as he is at liberty to employ his servants to hunt for him.

27. Vidler and Cox being seised in fee of the manor of Bullington, in trust for Widmore, by indenture dated in October, 1712, Widmore, Vidler and Cox released parcel of the demesne lands of the manor to Wade, his heirs and assigns, for ever(s), excepting and always reserving to Widmore, Vidler and Cox, their heirs and assigns, liberty, with servants or otherwise, to come upon the lands so conveyed, and there to hunt, hawk, fish, and fowl, at any time thereafter, at their will and pleasure. In an action of trespass for breaking and entering the premises so granted, and with horses and dogs hunting and searching for game, and carrying away game found thereon, it was contended that the reservation of the right of sporting was not valid, because so far as related to Widmore, it appeared he was not a conveying party to the deed, but it was ruled, that the privilege of sporting over the lands of another was not, in point of law, either a reservation or an exception, being only a right granted, although words of reservation or exception

are used and as the indenture was executed by Wade, such words of reservation and exception operated as a grant by him to Widmore, Vidler and Cox: it was also contended that the privilege of sporting conferred by the deed did not authorize the grantee to send his servants to hawk, hunt, fish, and fowl for him, in his absence. In pronouncing the judgement of the Court, Parke, Baron, said, "the point to be decided here is, whether the liberty granted is a mere personal license of pleasure, or the grant of a license of profit. The liberty of fowling has been decided to be a profit a prender, and may be prescribed for as such: the liberty of taking birds by hawks seems to follow the same rule: the liberty of fishing is of the same nature, and implies, that the person who takes the fish takes for his own benefit-it is common of fishing: the liberty of hunting is open to more question, as that does not of itself import a right to the animal when taken; and if it were a license given to one individual, either on one occasion, or for a time, or for his life, it would amount only to a mere personal license of pleasure, to be exercised by the individual licensee: but this is a grant by deed to persons, their heirs and assigns,' and it is clearly intended that not merely the particular individual named, but any to whom they or their heirs choose to assign it, should exercise the right; which shews that it is an interest, or profit a prender, which is intended to be granted. Whether the liberty is to be exercised by the licensee or his servants, or by the licensee or his assigns, makes no difference in this respect; for both shew, that not a personal license, but a license of profit, was intended to be granted. It appears to us, that the liberties to hawk, hunt, fish, and fowl, granted to a person, his heirs and assigns, are interests, or profits a prender, and may be exercised by servants in the absence of their master; and further, we think that the addition, 'with servants or otherwise,' does not limit the privilege, and exclude the exercise of it by servants, as words tending to enlarge are not, unless the intention is very plain, to be taken to restrain."

Upon a conveyance in fee made in the year 1655, by mortgagee and mortgagor, to a purchaser, excepting and reserving to the person appearing by the deed to be the mortgagor, and to the heirs of his body, free liberty of hunting and hawking over the premises, it was held, on demurrer to the defendant's plea, that such a clause(t) could not be sustained either as a reservation or exception, because the mortgagor had no legal title or interest in the land, and that the Court were

() Moore v. Ld. Plymouth, in error, 3 B. & Ald. 66; 7 Taunt. 614; 1 B.

Moore, 346, S. C.