rsf) G A 
the plaintiff can recover any tiling ? He certainly cannot 
have his full colls. If lie cannot recover any thing, but 
is nonfuit, he muff pay coffs. If he can recover, as 
upon a eoniinon action of trcfpafs, lie fayes his colls. 
Nov.- certainly any man might have always brought an 
aition of trel'pafs for hunting upon his ground'. For 
this injury, among otliers, the llatute of Glouceffer gave 
coffs as ivell as,damages. The 22 & 23 Car. 11 . c. 9, to 
prevent vexation, lowered tlic-coffs, and if lefs than 40s. 
recovered, gave no more colls than damages. This lla¬ 
tute of 4 & 3 Will, rellored full colls again, even in cafe 
of linall damages recovered againft dilfolute and otlier 
peilbns defcribed in the laid llatute. But as we are of 
opinion, that the defendant is not v/ithin thefe dcfcrip- 
tions, the offence falls back upon tlie llatute of Car. II. 
whereby the plaintiff' ffiall recover no more colls than 
damages. And the verdict v/as entered by conl'ent, that 
tile jury find the defendant not a dilfolute perl'on, but 
guilty of the trefpafs; damages is. colls is. ^ Black. 
Rep. 900. 
A trefpafs is confidered as wilful, where the perfon 
has been forewarned not to come upon the land ; and 
malicious, where the trefpafs is committed plainly with 
intent to vex and diffrefs the plaintiff'. 3 Blac. Cam. 214. 
And where this appears to have been the cafe, it I'eems 
that the judge is bound to certify, provided that he be 
required fo to do in court immediately upon the trial. 
Efp. Ni. Pri. 424'. 5 Wms. JuJi. So, 
FORM OF THE NOTICE. 
'Mr.. JOHH Dill.vway.— Take notice, that f you hunt, 
foot, fowl, courfe, or jifi, in or upon any of the manors, lauds, 
felds, woods, or premfes, ponds, rivers, or wafers, belonging to 
Ji^kn Wilkes, F.fq. lying and bemg within the f-vcral parijhcs of 
Trotton, Iping, audChithurJl., in the county ofSuJfex, you will 
be confidered as a wilful trejpajfer, and be dealt with according to 
law. Dated this ^oth day of Augujl, 1806. 
T. RhoaueS; Steward of the /aid Manors. 
The common law allows of the hunting of foxes and 
badgers, being bealls of prey, in another man's ground, 
becaiife the deltroying of them is looked upon as a pub¬ 
lic benefit ; yet the digging and breaking of ground to 
unearth them is held to be unlawful, and the owner of 
the ground may maintain an aftion of trefpafs. Cro.Jac.221. 
C-t.SE of Giuidry &. Fell ham, Trin.T. 26 Geo. Ill .—This 
was ah aition of trefpafs for breaking the hedges and 
trampling the grafs of the plaintiff', with horl'es, dogs, 
&c. belonging to Humphrey Sturt, el'quire, a qualified 
perlbii, and to whom the defendant was huntlman, in 
p'lirluing a fox.-Linvrence for the plaintiff obferved 
the qiieffion was, whether a perfon hunting has a right 
to follow foxes upon the ground of another ? The quali¬ 
fication of the perl'on is entirely out of the quellion. 
By the general law, no perfon can go over the ground of 
another without his permiliion ; and in Sutton v. Moody, 
I Ld. Raym. 250, Holt laid, “If A. Harts a hare in the 
round of B. and hunts it into the ground of C. and 
ills it tliere, the property is in A. the hunter j but A. 
is liable to an action of trefpafs for hunting in the grounds 
iis well of B. as of C.’’ In Gedge v. Minne, 2 Buf. 60, 
it was determined that the defendant could not jullify 
digging for a badger. -Gibbs for the defendant was 
flopped by the court. Lord Nlansfield faid, that, by 
all tlie cafes as far back as Hen. VIII. it is fettled that 
a man may follow a fdx into the grounds of another. - 
Willes, J. laid, that the cafe in Pophain, 162, was much 
ftrongerthantile prel'cnt.-Bulier, J. laid, the quellion 
in this cafe was, whether the defendant is jullified in 
following file fox over another man’s groun-i .f it is 
averred in the plea, that this was tlie only means of kill¬ 
ing the fox. This cafe does not determine that a per¬ 
fon may unnecejfarily trample down another man’s hedges, 
or malicioujly nde over his grounds; if he does more than 
is abfolutely neceff'ary, he cannot jullify it.—-Judgment 
for the defendant, D.&E. i F. 334. 
M E. ' _ _ 
But as there is a modern faffiion among foxhuhters, 
wliich feems to call loudly for rellraint, namely, that of 
importing foxes from tlie continent on purpofe to turn 
for the multiplication of the fpecies as well as of 
tlie fport, but to the great injury and annoyance of tlieir 
neighbours ; it (hould be remembered, that this pradlice 
cannot be jullified on any ground ; and in an atlion of 
trefpafs for foxhunting, if it can be Ihewn that tlie de¬ 
fendant was in the habit of procuring foxes or young 
cubs on purpofe to turn out for his diverfioa, and did 
actually turn them out, it. is more than probable that the 
verditl would go againft him ; befides that he might be 
profecuted for a public nuilance.—It is a cafe which ap¬ 
pears never to liave been tried, or even noticed in the 
books, tliough in common and conftant prattice. 
It is a fundamental principle of tlie common law, 
laid down by a’l the great authorities, that no per¬ 
fon can break clofe, or enter upon another man’s 
land in purfuit of game, witliout being liable to an ac¬ 
tion of trefpafs. 2 Bac. Abr. 612. 2Comm.e,.iq. 2Blac.Rep. 
900. AiiJ to V/illiani Blackllone has added, in 
very ftrong-language, “that not even tlie lord of a ma¬ 
nor can by common law jullify fporting even oty;? 
foil, unlefs he hath a grant of free-warren •, nor, can he 
come upon another man’s ground to hunt or llioot, though 
it be iu his own manor, without committing trefpafs, and 
fubjedlinghimfelf to an adlionfor the fame.” 2Comm. 39. 
.and 4 Cowot. 415. 
• In this opinion all the modern writers on the game 
laws feem to liave unaniinouffy concurred ; though we 
might obferve th.at the I'entiments of all thefe writers 
appear to have been derived from one and the fame 
fource, namel)', tlie Commentaries of Sir William Black- 
Hone. And yet tliat learned commentator, in Ids fourtli 
volume, p. 174, i'ays exprel'sly, “that thofe wlio liave a 
grant ot free-warren, ora manor of their own, are exempt 
FROM THIS species OF TRESPASS.” And with re- 
fpedl to the pofition “ tliat the lord of a manor cannot 
jullify fporting even on his own foil, by real'on that the 
property of the game is exclujively velleA in the king,”— 
this is pretty evidently refuted by the fails Hated from 
Mr. Chrillian’s notes, recited above. It would feem 
therefore that the general doclrine of trel'pafs with re- 
fpeCt to the owners,_pf maiierial property, (if it holds 
good at all,) mull apply to the lords of reputed manors, 
and not to thofe who poffefs a legal manor, over wliidi 
the lord exercil'es a complete fupreinacy by his baronial 
court, compels fait and I'ervice from all his tenants, re¬ 
ceives the fines and quit-rents and Iioniage due for tlie 
farms and lands held of him, and records the prefeiitments 
of ills jury which are to punilh all innovations, encroach, 
ments, and injuries, which might appear I'ubveiTive of 
the privileges and fraiichifes of his manor, or of the 
riglits of the tenants who hold under him. 
It would feem indeed highly incompatible with the 
well-known principle of an original grant of manor and 
royally, though the lord might have leafed or granted off 
to tenants under him the principal part of it in farms 
and inclofed grounds, and ior which thefe tenants are 
obliged to render him I'uit and fervice, that this very 
lord Ihould not poffefs tlie right of purfuing his game 
over lucii loil, (although the franchil'e itl'elf was origi. 
nally granted by the king,) without being liable to an 
action of trelpul's from his oxon tenants —the very men who 
acknowledge to hold thefe lands of him by their fealty 
at liis court, and v/ho pay him lines, and quit-rents, and 
fervices, as a token of their fubmiiiion to his fupreinacy 
over the foil. Nor is it reafonable to imagine that thole 
great and arbitrary barons, who were lo jealous and icru- 
pulous of the game, would ever have granted the ufe ot 
the foil in any lliape to their vafl'als, if by fuch grant 
they were to be afterwards excluded from purfuing the 
game on thofe particular parts of the royalty or manor 
I'o granted oft'. 
'Fiicre is .a further glaring abfurdity in the contrary 
pro- 
