DEMISE OF SPORTING UNDER SEAL. 387 



allottee. It was impossible for lancjnape to he better calculated to 

 secure this than that used in the 12th section, which enacted that 

 when the game was reserved to another person than the occupier, the 

 latter should be liable to a penalty for giving permission to kill game 

 on the land so occupied by him. The rest of the judges concurred, and 

 the conviction was affirmed, with costs. 



Under an ancient charter, granting to the mayor, aldermen, and 

 burgesses of a dorough the right to sport over lands within the liherties 

 thereof, individual burgesses, in the absence of all evidence of the 

 exercise of the right, are not entitled to enter a field within the liber- 

 ties, but in the occupation of a third party, to kill rabbits with a dog 

 or ferret, or for any other kind of sporting. Coleridge and Wight- 

 man J.J, referred, in support of their judgment, to the authority of 

 The Mayor of Colchester v. Prestney, w^here (argued June 23, 1857, but 

 not reported) the right of individual burgesses to dredge for oysters 

 was attempted to be made out ; but the Court of Queen's Bench 

 held that the right was in the corporation, but not in the individual 

 corporators. 



A demise in writing, lid not under seal, of a messvage, and full and 

 exclusive licence and leave for the lessee, his friends, gamekeepers, &c., to 

 hvnt, hawk, course, shoot, and sport on, over, and upon a manor of the 

 lessor, and to fish in the ponds and waters thereof, from August to 

 February following, at an entire rent, is altogether void {Bird v. Hig- 

 ginson). And so it was ruled, in The Dulce of Somerset v. Fogivell, that 

 where a suhject is owner of a several fishery in a navigalde river, where 

 the tide flows and reflows, granted to him (as must be presumed) before 

 Magna Charta by the description of '■'• separatem piscariam" that is, an 

 incorporeal, and not a territorial hereditament, and a term for years in 

 it cannot be created without deed. But in Thomas v. FredericJcs, where 

 a written agreement 7iot under seal was declared on, by which plaintiff 

 agreed to let land to defendant with right of sporting, defendant to 

 make satisfaction to plaintiff's tenants for damage done by game on 

 their farms, the amount to be ascertained by valuers and an umpire ; 

 and defendant neither made satisfaction nor appointed a valuer ; it was 

 decided that, though the right to shoot did not pass under this contract, 

 being an incorporeal hereditament, yet the agreement to make com- 

 pensation was valid, and good ground for an action, defendant having 

 had the full benefit of such agreement. 



Jf a purchaser after the delivery of the abstract, on the face of which 

 part of the estate appears to he suhject to a right of sporting, not mentioned 

 in the particulars of sale, enters into possession, he waives that objection 

 {Burnell v. Brown). Where a vendor fails to make a good title pur- 



c c 2 



