338 



THE hlABlLrilES OF I'AKTIES HUNTING, ETC. 



No unneces- 

 sary damage. 



Digging for a 

 Fox, kc. 



Hunting for 

 amusement. 



JEarl of Essex 

 V. Cajjel. 



and also Gray or Otter aud other noxious animals, as tliey 

 are injimoiis to the commonwealth (6). And in Gundry v. 

 FcHliam (f). Lord Mansfield, C. J., said, "By all the cases 

 as far back as the reign of Hemy the Eighth, it is settled 

 that a man may follow a Fox into the grounds of another." 



But a person so hunting must not unnecessarily trample 

 do"VMi another man's hedges, nor maliciously ride over his 

 grounds ; for if he does more than is absolutely necessary 

 he cannot justify it {c). Therefore, pursuing an animal as 

 Yermin does not justify fifty or sixty people following the 

 dogs(r/). 



A man cannot justify entering a close or digging up the 

 soil to hunt or take a Fox, Badger, &e., though it be for 

 the public good(f). So that it appears a person cannot 

 enter another's grounds to find Vermin, nor can he dig it 

 out Avhen it has run to earth. 



Persons hunting for their own amusement, and going 

 over the lands of another, are trespassers; and Fox-hunters, 

 like all other Hunters, may be warned off (./'). 



This point was decided by Lord Ellenborough in the case 

 of The Earl of Essex v. Cape! (g), which settled the law on 

 the subject and has never been questioned. An action of 

 Trespass was brought for breaking, entering and hunting 

 over the plaintiff's lands, and the defence was that the 

 Fox was pursued as Vermin. But Lord Ellenborough 

 said, " The defendant states in his plea that the trespass 

 was not committed for the purpose of diversion and amuse- 

 ment of the chase merely, but as the only Avay and means 

 of killing and destroying the Fox. Now if you were to 

 put it upon this question, which ^Ya.s the principal motive ? 

 Can any man of common sense hesitate in saying that the 

 principal motive and inducement was not the Idlling of 

 Vermin, but the enjojanent of the sport and diversion of 

 the chase ? And we cannot make a new law to suit the 

 pleasiu-es and amusements of those gentlemen who choose 

 to hunt for their diversion. These pleasm-es are to be 



[b) Com. Dig. Pleader, 3 M. 37. 



(c) Gundnj v. Feltham, 1 T. E. 

 337. 



{(1) Earl of Essex v. Capel, Hert- 

 ford Summer Assizes, 1809. 



(t) Com. Dig. Pleader, 3 M. 37, 

 and the authorities there cited. 



(./■) Earl of Essex v. Capel, Hert- 

 ford Summer Assizes, 1809; Boici/er 

 y. Cook, 4 C. B. 236; >S. C. 16 L. J., 



C. P. 180. 



{g) Earl of Essex v. Capel, Hert- 

 ford Summer Assizes, 1809, cited 

 in Chitty on Game Laws, 31. See 

 also Paul V. iSiai/iiier/ia>/es, L. R., 4 

 Q. B. D. 9; 48 L. J., M. C. 33; 

 39 L. T., N. S. 574 ; 27 W. R. 

 21.5, in which this case was dis- 

 cussed and approved. 



