grounds and Private prey, the destruction of which was considered a preserves. public benefit (n). But it was always held to be unlawful to enter the land of another, without his consent, to beat for or find these animals, or to dig or break the ground to unearth them, and the party was subject to an action of trespass for so doing (o). And though this right of hunting appears not to have been denied in a modern case (p), yet Mr. Justice Buller said, that a person cannot unnecessarily trample down another man's hedges, or maliciously ride over his ground, and if he do more than is absolutely ne. cessary, for the purpose of killing the fox, he cannot justify it. And by some recent decisions, the legality of hunting foxes over the land of another, without his concurrence, is rendered very questionable (g). Decoy. The last of these privileged places is a decoy, or decoy pond. A decoy is not a franchise, but being a place set apart for the taking of wild fowl, and maintained at considerable expense and trouble, is so far privileged, that a party is not only liable for entering it and killing the fowl, but may be sued if he fire a gun so near to it as to frighten away the fowl (r). And in the late case of Carrington v. Taylor (s), it was held (n) Gundry v. Feltham, 1 Term Rep. 334. and see post, Appendix, 806. (0) Gueste v. Mynns, Cro. Jac. 321.-2 Bulstr. 60.Post, Appendix, 870. 875. (p) Gundry v. Feltham, 1 Term Rep. 334. (9) See Post, App. 1381. (r) Keble v. Hickringill, 11 Mod. 74. 130. post, Appendix, 1005 to 1009. and 1369. (s) 2 Camp. 258.-11 East. 571.-Post, Appendix, 1365, 6. that firing at wild fowl to kill and make profit of Decoy. them, by one who was at the time in a boat on a public river, or open creek, where the tide ebbs and flows, so near to an ancient decoy on the shore (about 200 yards) as to make the birds there take flight, the defendant having before fired at a greater distance from the decoy, which brought out some of the birds from thence, though he did not fire into the decoy pond, is evidence of wilful disturbance of and damage to the decoy, for which an action on the case is maintainable by the owner. D CHAPTER III. Qualifica tions. OF THE PERSONS WHO ARE QUALIFIED TO HAVING, in the preceding chapter, considered the regulations relating to game, as far as respects privileged franchises and other places, we will now consider those legislative enactments and the decisions on them, which tend to protect game by confining the liberty of killing it to particular persons (a). At common law we have seen that all persons in possession of land might kill game upon it, unless it were within the limits of a forest, chase, or free warren. But in process of time it was found that this unlimited permission to kill game tended to produce the total destruction of it; and therefore the legislature, at a very early period, restrained this common law right, and required some certain freehold interest in real property to enable a party to kill game. Afterwards, according to the fluctuating policy of the times, (a) See the account of these acts, and the policy of the legislature stated in argument, post, Appendix, 1096. (and probably in favour of those persons who, being Qualificain trade, and possessed of considerable personal tions. property, had influence with the legislature) (b), personal property to a certain amount was made a qualification. But as commerce increased this again was found to extend the privilege to too many, and the qualification was once more restored, as it now continues, to an interest in real property. It will also be found that the amount of the qualifications has from time to time increased, according to the decrease in the value of money; the first qualification by estate for killing game in the reign of Richard the Second, was 40s. a year, in the reign of James the First it was advanced to 101. a year, and after that, in some instances, to 40l. a year; and at last, in the reign of Charles the Second, it was raised to 100%. a year. Not, as it has been observed (c) that the laws have become gradually more severe, but as the value of money decreased, the qualification was raised in proportion, the estate continuing nearly the same, and the penalty for destroying the game was even more severe formerly than at present. For by the first statute on this subject the punishment was a year's imprisonment, by a subsequent one 10.; whereas under the modern statutes the penalty is only 51. The principal act relating to qualification is the 22 and 23 C. 2. c. 25. ; but as there are some preceding acts un(b) See observation (c) Burn's Justice. Bathurst, J. post, Appen. Game. dix, 1129. of tit. Qualifica. tions. repealed, and which the Statutes of 4 and 5 W. & M. c. 23. s. 2. and 5 Ann. c. 14. s. I. declare shall be still in force, and which it may be advisable to proceed upon in some cases, we will consider the subject of qualifications with reference to, 1st. The Statutes before 22 and 23 C. 2. c. 25. 2nd. That Statute and the subsequent regula tions. 1st. By the Statute 13 R. 2. c. 13 (d), it was enacted, "That no layman who hath not lands or tenements to the value of 40s, a year, nor any priest or other clerk who is not beneficed to 10. per ann. shall keep any dog to hunt, or shall use ferrets or any engine to take or destroy deer, hares, rabbits, or other gentleman's game, upon pain of one year's imprisonment.' The Statute 22 Edw. 4. c. 6. (e) enacts, "That no person other than the son of the king shall have a mark or game of swans, unless he have freehold lands and tenements of the yearly value of five marks above all yearly charges;" and it authorizes any of the king's subjects, who have an estate of that value, to seize the swans as forfeit, half for himself, and half for the king. By the 25 Hen. 8. c. 11. (f) all persons who were not gentlemen who could dispend 40s. a year (d) Post, Appendix, 369. The statute only relates to hunting for pleasure, and does not affect a person hunt. Ing a fox or badger to destroy it. (e) Post, Appendix, 374. see decisions on this act, post, Appendix, 838. (f) Post, Appendix, 383. |