235 
G A 
Weftin. 3, or qulampt-ores, iSEdw. I. c. i. which direfls 
that upon all fales or feoffments of lands, the feoffee 
lhall hold the fame, not of his immediate feoffor, but of 
the chief lord of the fee of wliom fuch feoffor himfelf 
held it. But thefe provifions not extending to the king’s 
own tenants in capite, the like law concerning them is de¬ 
clared by the ifatute of prero^ativa rcgis, 17 Etlvvard II. c .6. 
34 Edw. Ill. c. 15. by which ail fubinfeudations, pre¬ 
vious to the reign of Edw. I. were confirmed: but all 
fublequent to that period were left open to the king’s 
prerogative. From hence it is clear, that all manors 
exifiing at this day, muff have exifted as early as king 
Edv/ard I. for it is cllential to a manor, that there be te¬ 
nants who hold of the lord ; and by the operation of thefe 
ffatutes no tenant incapitc fince the acceilion of that prince, 
and no tenant of a common lord fince tlie flatute of quia 
€.:.'f>tores, could create any new tenants to hold of liimfelf. 
■a Comm. c. f). p. 90-93. flence it is material to notice, 
that as there can be no manor in law, without two copy- 
hold or two freehold tenants at thekaji, who are to form 
the jury and court by which alone tlie rights of a manor 
can he maintained; lo, where no fuch court is or can 
be holden, the franchife is loff, and the lordffiip is term¬ 
ed a manor extinSi, or only a reputed manor. 
From the laws or claims founded ^n the franchifes 
abpve deferibed, but particularly from the foreff laws, 
(fays fir William Blackffone, 4 Cowim. p. 4r5,) “ lias 
fprung a baftard flip, known by the name of the Game- 
law, now arrived to and wantoning in its higheft vigour : 
both founded upon the fame unreafonable notions of per- 
iniinent property in wild creatures ; and both'produdfive 
of the fame tyranny to the commons : but with this dif¬ 
ference ; that the foreff laws eltablifhed only one mighty 
hunter throughout the land, and the game laws have 
railed a little Nimrod in every manor. And in onerefpeft 
the ancient law was much lefs unreafonable than the mo¬ 
dern : for the king’s grantee of a chafe or freewarren 
might kill game in every part of his franchife ; but now, 
‘though a freeholder of lefs than lool. a year is forbidden 
to kill a partridge upon his own effate, yet nobody elfe 
can do it, without committing a trefpafs, and fubjecting 
himfdlf to an attion at law.” 
I'he learned Commentator alfo remarks, that if a man 
ftarts any game within hi.s own grounds, and follows it 
into another’s, and kills it there, the property remains 
in himfelf. ii Mod. 75. And this is grounded on reafon 
and natural joffice : for the property confiffs in the pof- 
feflion ; which poffeffion commences by the finding it in 
his own liberty, and is continued by the immediate pur- 
fuit. And fo if a ffranger ffarts game in one man’s 
chafe, or free warren, and hunts it into another liberty, 
the' property continues in the owner of the chafe or 
warren, tltis property arifing from privilege, and not be¬ 
ing changed by the act of a mere ffranger. Or if a man 
ffarts game on another’s private grounds and kills it 
there, the property belongs to him in whofe ground it 
was killed, becaufe it was alfo ffarted there, the pro¬ 
perty ■eiTiCmgrationefoli. Lord Ray m. 251. Whereas if, after 
being ffarted there, it is killed m the grounds of a tliird 
perfon, the property belongs not to the owner of the 
firff ground, becaufe the property is local; nor yet to the 
owner of the fecond, bdtaufe it was not ffarted in his foil; 
but it veffs in the perfon who ffarted and killed it; though, 
guilty of a trefpafs againf both the owners. Ld. Raym. ib. 
7 Mod. 18. zConun. 419. On a reference to this law', ’as 
laid down by lir William Blackffone, Mr. Chriffian very 
acutely obferves, that thefe diffinctions never could have 
exiffed, if the doitrine were true, “that all the game 
was the property of the king,”—for in that cafe the 
maxim in tequalt jure potior ef conditio pqjjidentis, muff have 
prevailed. zComm. c. 27. 
On the principle of tlie common law above laid down, 
Dr. Burn has.lfated the following general ina.xim from 
Manwood :—“ If I find a pheafant in my lands, and I let 
my hawk lly, I may follow the ffight into another man’s 
M E 
land by reafon of the firff property which f had in the 
pheafant ratione foli\ and if my hawk kill the plieafant 
in anotlrer man’s land, I may enter and take it, by reafon 
of that property and purftiit ; and in that cafe, I lhall 
not be ptiniffied as a trcfpaffer for taking'and carrying 
away the pheafant, but only for entering the ground. But 
if the pheafant fly into a warren (which is a privileged 
place for birds of warren) and the hawk kill it there, 
the falconer lhall not have the pheafant, but the ow'ner 
of the warren. And the law is the fame in tiie cafes of 
all wild beaffs of the foreff and chafe. Manzu. 389.—But 
if he be qualified to kill game, and the damage found 
lhall be under 40s, Ije fliall in fuch cafe pay no more 
coffs than damages. 
Butin tlie cafe of Reynold v. Edwards, M. T. 35Geo.III'. 
w'hich was upon an adlion of trefpafs tried before Buller, 
J. at Staftbrdlhire aflizes, where it appeared in evidence, 
that a trefpafs was committed by the defendant in cour- 
fing over a clofe belonging to the plaintiff', who four 
years before had given a general notice to all perfons 
not to trefpafs on his lands. It appeared alfo, that tlie 
defendant was anxious to avoid trefpafling on the plain¬ 
tiff’s grounds, a*d had made enquiries refpedting his 
boundaries. The plaintiff’s counfel prelfed the judge 
to certify that the trefpafs was wilful and malicious, in 
order to entitle the plaintiff to full coffs under 8 & 9 Will, 
c. II, which fets forth, that in all aftions of trefpafs, 
where at the trial it fliall appear and be certified by tiie 
judge under his hand, upon the back of the record, that 
the trefpafs was wilful ■SiViA malicious, tlie plaintiff lhall re¬ 
cover not only his damages, but his full coffs of fuit. 
And the judge, conceiving that he liad no diferetion on 
the lubjedl, accordingly certified, referving liberty to 
the defendant to move to fet alkie that certificate, if 
this court fhould be of opinion that the ffatute was not 
compulfory on the judge.—Afterwards a motion w'as 
made to that eff’edf. But the court refilled to grant the 
rule, faying, that in the cafe of Swinnerton v. Jarvis, E. T. 
22 Geo. III. in the common pleas, it was determined 
that if it appeared that the trefpafs, however trifling, 
was committed after notice, the judge w'as bound to cer¬ 
tify under the flatute ; and that it was proper to adhere 
to that as an univerfal rule. D.&E. 6V. ii. 
It was otherwife in the cafe of Pallant v. Roll, E. T. 
i3Geo. IIJ.—This was an afftion of trefpafs-, for that 
the defendant, being a diflblute perfon, iiegleiling his 
employment, and following hunting and other game, 
and by no means qualified by law fo to ifo, broke and 
entered tlie plaintiff’s clofes, and with dogs, guns, and 
other engines for deffrudfion of the game, hunted upon 
the faid clofes, trod dow'ii thegrafs and corn, and broke 
the fences, againff the form of the ffatute. On Not Guilty 
pleaded, and ilfue thereon, a verdidt was found for the 
plaintiff, at Bury aflizes, ior one damages, fubjedf 
to the opinion of the court upon the following cafe : 
The defendant was not qualified in his own right to kill 
game, but was, and for three years had been, a menial 
fervant, and by certificate a huntliiian, to Robert Le¬ 
man, elquire, a gentleman of 1500I. a-year effate, who 
had kept hounds for twenty years ; and the defendant 
went out by his mailer’s order with the hounds, his 
maffer not being prefent, and was beating over the 
plaintiff’s grounds. The plaintiff delired the defendant 
to go off his land, which he refufed, and at length found 
a hare, and hunted it over feveral pieces of land men¬ 
tioned ip the declaration, two of which were fown with 
wheat. The queffion was. Whether, if the court fliould 
be of opinion that the defendant is not a diflblute per¬ 
fon, or the like, under the ffatute of the 4 & 5 Will, the 
plaintiff can recover againff him in this attion upon tlie 
ffatute ? or whether he ought to have brought a common 
attion of trefpafs for breaking his clofe ? By the court : 
We have no doubt, but that the defendant is not a 
diflblute perfon within the meaning of the abt. The 
only real queffion is, Whether, as this ailtion is framed. 
