384- FREE LTBEr.TY TO SPORT A LICEXCE OF PROFIT. 



"Where, as in DayreU v. Hoare, estates, hereditaments, and premises 

 were demised to R. for life, with power to the tenant for life to make 

 any lease of the same, or any part or parts thereof, for 21 years, re- 

 serving the most improved yearly rent, with a condition for re-entry on 

 non-payment, so that there should be no clause giving the lessee power 

 to commit waste, and so as the rent should be incident to and go along 

 with the reversion, it was held by the Court of Queen's Bench that 

 thisjwirer did not authorize a lease of jmrt of the land, tcith liberty to 

 sport over the rest ; and where defendant in trespass justifies, in a righ t 

 which he claims under the estate of tenant for life, simply as such, he 

 must aver the continuance of the life. 



Any one may lease or convey his land, and reserve to himself the right 

 of entering to kill ya me without being subject to being sued as a trespasser ; 

 but an exception to a deed, made a.d. 1655, of the free liberty of 

 hunting and hawking, will not extend to shooting feathered game with 

 a gun, because guns, not being in common use, could not have been in 

 the contemplation of the parties (dloorev. Lord Plymouth) ; and semble 

 that the liberty of hawking and hunting for the grantee, his friends 

 and servants, is a tenement, and entailable {ib.). The grant to a 

 person, his heirs and assigns, of " free liberty, with servants or otherwise, 

 to come into and upon lands, and there to hawk, hunt, fish, and fowl," 

 is a grant of a license of profit, and not of a mere personal licence of 

 pleasure ; and therefore it authorizes the grantee, his heirs and assigns, 

 to hawk, hunt, &c., by his servants in his absence ( WicJcham v. ffawJcer). 

 Such a liberty is therefore a j^^ofit « prendre within the Prescription 

 Act 2 & 3 Will. IV. c. 71, s. 2 (ib.). And per Curiam, " What relates in 

 a lease to the privilege of hawking, hunting, fishing and fowling is not 

 either a reservation or an exception in point of law ; it is only a privi- 

 lege or right granted to the lessor, though words of reservation and excep- 

 tion are used." {Doe dem. Douglas v. LocTi:). It is also decided by the 

 case of the Duchess of Norfolk v. Wiseman (Year Book, 12 Hen. VIII. 

 25), that if there be 2i personal licence of pleasure, it extends only to the 

 individual, and it cannot be exercised with or by servants ; but if there 

 is a licence of profit, and not for pleasure, it may. 



The franchise of free ivarren is of very great antiquity, and very sin- 

 gular in its nature. It gives a property in wild animals ; and that pro- 

 perty may l)e claimed in the land of another, to the exclusion of the 

 owner of the land. And " no one can make a park, chase, or warren 

 without the king's licence" (2 Inst. 109). 



As rooks are birds /«yc naturce, not known as a regular article of food, 

 causing no expense to keep, and not protected either by common law 

 or statute, the owner of a rookery can have no pro})crty in them, or 



