342 THE LIABILITIES OF PARTIES HUNTING, ETC. 



Earl of Essex This point was decided by Lord Ellenborough in the case 

 1'. Capei. Qf jy^g -g^^^ of Essex V. Capel (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 EUenborough said, 

 " The defendant states in his plea that the trespass was not 

 committed for the purpose of diversion and amusement of 

 the chase merely, but as the only way and means of killing 

 and destroying the fox. Now if you were to put it upon 

 this question, which was the principal motive ? Can any 

 man of common sense hesitate in saying that the principal 

 motive and inducement was not the killing of vermin, but 

 the enjoyment of the sport and diversion of the chase ? 

 And we cannot make a new law to suit the pleasures and 

 amusements of those gentlemen who choose to hunt for 

 their diversion. These pleasures are to be taken only 

 where there is the consent of those who are likely to be 

 injured by them, but they must be necessarily subservient 

 to the consent of others. There may be such a public 

 nuisance by a noxious animal as may justify the running 

 him to his earth, but then you cannot justify the digging 

 for him afterwards ; that has been ascertained and settled 

 by the law. But even if an animal may be pursued with 

 dogs, it does not follow that fifty or sixty people have 

 therefore a right to follow the dogs and trespass on other 

 people's lands. I cannot see what it is that is contended 

 for by the defendant. The only case which will at all bear 

 him out is that of Gundry v. Feltham {/i) ; if it be necessary 

 I should be glad that that case should be fully considered. 

 I have looked into the case in the Year Book («) ; that 

 seems to be nothing more than the case of a person who 

 had chased a stag from the forest into his own land, where 

 he killed it ; and on an action of trespass being brought 

 against the forester who came and took the stag, he justi- 

 fied, that he had made fresh suit after the stag ; and it was 

 held that he might state that he was justified, and the 

 plaintiff took nothing by his writ. This is the case upon 

 which that of Oundry v. Feltham {h) is built, but it is 

 founded only on an obiter dictum of Justice Brook, and it 



{g) Earl of Essex v. Capel, Hert- N. S. 574 ; 27 W. E. 215, in which 



ford Summer Assizes, 1809, cited in this case was discussed and approTed. 

 Chitty on Game Laws, 31. See also (h) Gundry v. Feltham, 1 T. e'. 



Paul V. Stimmerhdijes, 4 Q. B. D. 337; 1 E. E. 215 

 9; 48 L. J., M. 0. 33; 39 L. T., (,) 12 Hen. 8, p. 9. 



