214 ^ ^ 
makes it a nuifance.—By Mr. J. Fofter : Thisjiiftifica- 
tion is clearly bad. It is founded on a claim of right, 
■which cannot be maintained. It is admitted, that a 
commoner cannot in this cafe deflroy the conies. Con- 
feo,uently he cannot deflroy the burrows; for-the effedl 
is, deftroying'tl'.e conies. If the lord has exceeded the 
bounds of his right, the lav/ is to determine the quantwn 
of fiicli excels ; and to the law the commoner mull re- 
lort for h.is remedy, if he is aggrieved, i Bur. 252- 
If any perfon fliall be found or apprehended fetting 
or ufing any fnares or other like engines, lor taking of 
conies, and .diall be thereof in like manner conviClcd, 
he fliall give to the party grieved fuch damages and in 
fuch time as the juflice lhall appoint, and pay down 
prefcntly to the cverfeer for the ufe of the poor Inch 
I'uni not exceeding los. as the juflice fliall appoint; 
which, if he fliall not do, the juflice fliall commit him 
tothehoufeof corredlion not exceeding one month. 22 
& 23 Car. II. c. 25.—Perfons aggrieved by any judgment 
given by virtue of tliis ail, may appeal to tlie next fel- 
fions, whole order therein fliall be final, if no title to any 
land or royalty be therein concerned. 
If any perfons not having lands or hereditaments ot 
40I. a-year, or not worth in goods 200I. fhall ufe any gun 
or bow to kill conies, or fliall keep any ferrets or coney 
dogs (except he have grounds inclofed for keeping ot 
conies; the increafing of which fliall amount to 40s. 
a-year to be let, and except warreners in their warrens); 
in fuch cafe, any perfon having tool, a-year, may ieize 
the fame to his own ufe. 3 Jac. c. 13. 
Of swans. 
No perfon (other than the king’s fon), uiilefs he have 
lands of freehold to the value of five marks a-year, 
Iliall have any mark or- game of fw'ans ; on pain of for¬ 
feiting the fwans, half to the king, and half-to any per¬ 
fon (fo qualified) who lhall feize the fame. i^Edio. IV. 
c. 6.—It is felony to take any fwans that be lawfully 
marked, though they beat large. Dalt. c. 156.—And as 
to fwans unmarked ; if they be domeflical or tame, 
that is, kept in a moat, or in a pond near to a dwelling 
houfe, to Ileal fuch is alfo felony. So it feemeth of 
fwans unmarked, fo long as they keep within a man’s 
manor, or w'ithin his private rivers; or if they happen 
to efcape from thence, and be purfued and taken, and 
brought in again. But if fv/ans that are unmarked fliall 
be abroad, and fhall attain to their natural liberty, then 
the property of them is lofl; and fo long felony cannot 
be committed by taking them. And yet fuch immarked 
and wild fwans the king’s officers may feize (being 
abroad) for the king’s ufe by his prerogative. Alfo tlie 
king may grant them, and by coiifequence another may 
preferibe to have them, within a certain precindt or place. 
Every perfon who lhall take the eggs of any fwan 
out of the neft, or willingly fpoil them in the nefl; and 
lhall be convidled thereof before two jullices, by con- 
feffion, or oath of two witnefles ; fliall be committed to 
gaol three months, iinlefs he pay to the churchwardens, 
for the ufe of the poor, 20s. for every egg; or after one 
month of his commitment, become bound by his recog¬ 
nizance. with tw;o fureties in 20I. a-piece, before two 
juflices, never to offend again in like manner; which re¬ 
cognizance fhall be returned to the next feffions. ijfac.c. 27. 
But by a more ancient llatute, no perfon fliall take or 
caufe to be taken, on his own ground or any other man’s, 
the egg’s of any fwan; on pain (on convidlion before the 
juflices of the peace) of imprifonment for a year and a 
day, and fine at the king’s will, half to the king, and 
half to the owner of the fwans. 11 Hen.Vll, c.iq. _ 
See the article Anas, vol. i. p, 515, 
Of partridge and PHEASANT. 
By the ii Hen. VII. c. 17.—It is enadfed, that no per- 
foiij of what condition he be, fhall take or caufe to be 
M E. 
taken, any pheafants or partridges by nets, fnares, or 
other engines, out of his own warren, upon the freehold 
of any ocher perfon, without the fpccial licence of the 
owner or polfeffioner of the fame; on pain of lol. half 
to him that fhall fue, and half to the owner or pofTeffioner 
of the ground where they fhall be taken. 
Every perfon who fhall flioot at, kill, or deflroy, any 
pheafant, or partridge, with any gun or bow ; or fhall 
take, kill, or deflroy them with fetting dogs or nets, or 
with any manner of nets, fnares, engines, or inflruments 
whatfoever ; or fliall take their eggs out of the nefl or 
fpoil them in the nefl; fhall on conviclion before two 
juflices, by confefiion or oath of two witnefles, be com¬ 
mitted to gaol three months, unlefs he pay upon epn- 
vidtion to the church-wardens for the ufe of the poor 
20s. for every pheafant, partridge, or egg; or after one 
month after his commitment, become bound by recogni¬ 
zance with two fureties, before two juflices in 20I. each, 
not to offend again in like manner. The recognizances 
to be returned to the next fellions. i Jac. c. 27. 
And by the yjac. c.ii.—Every perfon v/ho fliall 
take, kill, or deflroy, any pheafant or partridge, with 
fetting dogs and nets, or otherwife with any manner of 
nets, fnares, or engines, fhall on convidtion before two 
juflices, by confefiion, or oath of one witnefs, be com¬ 
mitted to gaol for three months, unlefs he forthwith pay 
to the churchwardens or overfeers 20s. for every phea¬ 
fant or partridge; and furtlier to become bound by re¬ 
cognizance of 20I. before one juflice, that he fliall not 
thereafter kill or deflroy any pheafant or partridge. 
The recognizance to be filed at the next fellions.—And 
every perfon w'ho fhall fell, or buy to fell again, any 
partridge or pheafflnt (except they be reared and brought 
up in houfes, or brought from beyond fea) ; fhall on 
convidlioii at the affizes or feffions, or before two juflices 
out of feflions, forfeit for every partridge los. and for 
every pheafant 20s. half to him that will fue, and half 
to the poor, ijo.c. c. 27. 
By the 33Eliz. c. to. —If any perfon of what eflate, 
degree, or condition foever, fliall take, kill, or deflroy, 
any pheafants or partridges in the night time; and-be 
thereof convidled at the affizes, feffions, or leet; he 
fliall forfeit for every pheafant 203. and for every par¬ 
tridge los. half to him that fhall fue, and half to the 
lord of the manor, unlefs fuch lord fliall licence or pro¬ 
cure the faid taking or killing, in which cafe the faid 
half lhall go to the poor, to be recovered by any one of 
the churchwardens; and if not paid in ten days after 
convi£lion, he fliall be imprifoiied for one month ; and 
moreover, befides fuch forffiture and imprifonment, he 
fhall give bond to fome juflice of the peace, with good 
fureties, not to offend again in like manner for the fpace 
of two years. 
By the 9 Anne, c. 25.—If any perfon whatfoever fhall 
take, or kill any pheafant or partridge in the night time; 
he fliall on conviClion before one juflice, on oath of one 
witnefs, forfeit 5I. half to the informer, and half to the 
poor, by diflrefs ; for want of diftrefs to be fent to the 
houfe of correilion for three months for the firft offence, 
and for every other offence four months. 
And by the 13 Geo. III. c. 80.—If any perfon fnalL 
knowingly and v/ilfully kill, take, or defiroy, or ufe any 
gun, dog, fnare, net, or other engine, w ith intent to kill, 
take, or deflroy, any pheafant or partridge in the night, 
that is between the hours of feven at night and fix in 
the morning from the i2lh day of Otflober to the 12th 
day of February, and betw een the hours of nine at night 
and four in the morning from the twelfth day of Fe¬ 
bruary to the twelfth day of Oflober; or, in the day time, 
on a Sunday, or Chriflmas-day; he lhall forfeit for the 
firfl oflence not exceeding 20I. nor lefs than lol. for 
the fecond offence not exceeding 30I. nor lei's than 20I. 
for the third and every other lublequent offence, 30I. 
To be levied and recovered as the like penalties for kill- 
