G A M E. 
2f3 
Of conies. 
If any warrener fliall find any treTpafiers wandering 
wi.hin his liberty, intending to do damage therein, and 
tliat will not yield tliend'elves after hue and cry made to 
(land unto the peace, hut do (lee, or defend themfelyes ; 
altliough the warrener or his afiiflant do /(. 7 / fuch ofiend- 
crs, they fliall not be troubled upon the lame. 21 
iWnu I. It. 2. 
When information fliall be made of unlawhil hunting 
in a warren by night, or with painted faces, to any of the 
king’s counfel, or to a juftice of the peace, of any per- 
fon fufpeCled, lie may make a warrant to bring fucli 
perfon before Itimfelf, or any otlicr of the faid counfel 
or juftices ; and if fuch perfon fliall conceal the faid 
luinving, or any o^' his accomplices, it fliall be felony ; 
but if he confelfeth, it fliall be but trelpafs finable at 
the i'eflions. 1 Hen. c.7. 
If any perfon fliall in the night time enter into any 
grounds inclofed, and ufed for keeping of conies, and 
liunt, drive out, take, or kill, any conies; he fliall, on 
convidtion at the fuit of the king or of the party, at the 
aliizes or fellions, on indiblnieiit, bill, or inforiiiation, or 
otiierwife, be imprifoned three months, and pay to the 
party grieved treble damages and colls, and find fureties 
for liis good abearing for feven years, or continue in 
piifon till he does : but this fliall not extend to any 
grounds to be inclofed and tiled for gonies after the mak¬ 
ing of tliis aft, znithout the kingH licence. 3 Jac. c. 13. 
If any perfon fliall at any time enter wrongfully into 
any warren or ground lawfully ufed or kept for tlie 
breeding or keeping of conies, wliether it be inclofed 
or not; and there lhall chafe, take, or kill, any conies ; 
and fliall he thereof c'onvidted in one month after the 
olhcnce, before one juflice, by confellion, or oath of one 
witnefs; he fliall yield to the party grieved treble da¬ 
mages and colts, and be inipriloned three montlis, and 
after till he find fureties for his good abearing. 22 & 23 
Car. II. c. 25. f. 4. 
If any perfon fliall wilfully and wrongfully, in the 
inght time, enter into any warren or grounds lawfully 
ufed or kept for the breeding or keeping of conies, al- 
tliough the fame be not inclofed, and fliall then and 
there wilfully and wrongfully take or kill, in the night 
time, any coney againll the will of the owner or occu¬ 
pier thereof; or fliall be aiding and airilling therein, and 
fliall be, conviiftcd tliereof at tlie aflizes; he fliall be 
tranfported for feven years, or fuifer fuch other lefl'er 
punifliment, by whipping, fine, or imprifonnient, as tlie 
court fliall award. Provided that conies may be taken, 
in the day tine, on the lea or river banks in the county of 
Lincoln, fo far as the tide fliall extend, or within one 
furlong of the faid banks; and the perfon taking them 
lhall not be obliged to make fatisfaftion for damage, un- 
lefs the fame fliall exceed the lum of is. 5 Geo. III. c. 14. 
By the Black Aft above-mentioned. If any perfon, 
being armed and difguifed, fliall appear in any warren 
or place where conies are ufually kept, or unlaw'fully 
rob any fuch warren; or (whether armed and difguifed 
or not) fliall refeue any perfon in cuflody for fuch of¬ 
fence, or procure any perfon to join him therein; he 
lhall be guilty of felony wdthout benefit of clergy. 
No perfon lhall kill or take in the night any conies 
' upon the borders of warrens, or other grounds lawfully 
.ufed for the breeding or keeping of conies (except t.he 
owner or poirellbr of the ground, or perfons employed 
by them); on pain that the otfender, on conviction in 
one month after the olience, before one juflice, by con- 
feflion, or oath of one witnefs, lhall give to the party 
injured fuch damages and in fuch time as fliall be ap¬ 
pointed by tlie juflice, and over and above pay down 
prelently to the overfeers for the ufe of the poor fuch 
lum, not exceeding los. as the juflice lhall appoint; 
which if 1 fliall not do, the juflice fliall commit iiim to 
VoL. Vlll. No. 496, 
the houfe of correftlon for fuch time as he fliall think 
fit, not exceeding one month. 22 Sc a^CarA]. c.z^.f^. 
The flatute laitli, npon the borders of warrens: but if 
they are out of tlie wuirren, no perfon hath any jiroperty in 
them, and a man may jtillify killing them if they eat tip 
his corn ; but no aftion lies againll tlie owner of tlie 
warren. 3 Co. 104.—So a perfon that hath, a riglit of com¬ 
mon may kill them, when they are out of the warren, 
and dellroy tlie common; but he cannot have an aftion 
on the cafe againjl the lord, for that would be to create a 
multiplicity of aftions. Cro'.El. Cro. Ja. i()^. Cro. 
Car. 388.—I’or a man cannot have an aftion for another 
man’s conies breaking into his grotind, becatife they are 
no longer the other’s than while they are in the warren 
or place where he hath a right to keep them ; fo that 
no violation hereby arifes to the property of one man by 
the beads of another; but the conies, being in their na¬ 
tural liberty, may be lawfully killed by the owner of 
the foil. T, Bac. Abr. 326. 
But if the lord hath a riglit to put conies upon the 
common, and by an excels in the number furcliarges tlie 
common, and by the number of burrows made by tlie 
conies prevents tlie commoners’ cattle from depalluruig 
the common; an aftion in fuch cafe is the proper reme¬ 
dy, and the tenant may not of his own accord till up the 
burrows and remove the nuifance. As in the cafe of 
Cooiier ». Marfliall, E. 30 tSeo. I!. By L. Manfeld, 
Ch. J. The queflion in this cafe is not, w itether tlie act 
of the lord be or be not hurtful, or liow tar it may be 
fo : but the queflion turns upon the remedy, whether it 
is abateable, whether the commoner can do hiinlelf juf¬ 
tice? It may be prejudicial to tlie commoner, yet not 
injurious; it may be both prejudicial and injurious, yet 
not abateable. The lord by his grant oi common, gives 
every thing incident to the enjoyment ot it, as ingrels, 
egrefs, and the like: and thereby authoriles the com¬ 
moner to remove every obflruftion to his cattle’s graz¬ 
ing the grafs which grows upon fuch a fpet ot ground c 
becatife every Inch obllrublion is direftly contrary to 
the terms of tjie grant. A hedge, a gate, or a wall, to 
keep the commoner’s cattle out, is incoiififtent with a 
grant which gives them a right to come in. But the 
lord dill remains owner of the foil; and is not debarred 
from exerciling any aft of ownerlliip. The commoner 
has no right to meddle with tlie foil. In the prefciit 
cafe, the lord has done nothing contrary to the grant. 
He hath not obdrudled the commoner Irom entering and 
putting in his cattle. I'he lord has a right to put conies 
upon the .common'. The conies themfelves naturally 
make the burrows. So that they are incident to the 
right of putting on the conies. If the lord lurcharges, 
the commoner is injured in his right of common, it is 
true: But what is the commoner’s remedy? Not to 
abate ; not to be his own judge, in a complicated quel- 
tion, which may admit of nicety to deteniiine. There 
is a certain line to be drawn. The lord has a right lo 
far, but no farther. Yet the commoner cannot dellroy 
or drive od'the conies; nor, confequently, can he de- 
droy the burrows, which is in efl'ect deltroying the co¬ 
nies.—By Mr. J. Dennifon: Upon the record of this 
cafe, it mud be taken that the plaintiff was owner ol the 
foil, and'had a free warren ; and that there is not fuffi- 
cient common left by the increafe of the conies for the 
ule of the commoner. "I'lie quedion then is. Whether 
the commoner fliall be intruded to dellroy the edate ot 
the lord, in order to preferve his own right of common. 
This would be to conllitute himfelf judge in his own 
caufe: No, let huii take his proper remedy. A coney 
burrow is not of its own nature a nuifance : on the con¬ 
trary, it is elfential to a free warren, therefore the nuj- 
lance depends upon the number of them : and you can 
at the utmod, only abate fo much of the thing as is a 
nuifance. You cannot dellroy the whole (which js tlie 
right here claimed); but only fo much of the thing as 
3 I makes 
