William Feilden Craies

“ If they escape, the rights of the owner continue only while he is in pursuit of the fugitive, i.e. no other person can in the meantime establish a right of property against him by capturing the animal. A swarm of bees “which fly out of my hive are mine so long as I can keep them in sight and have power to pursue them.” But the right of recapture does not entitle the owner to follow his animals on to the lands of another, and the only case in which any right to follow wild animals on to the lands of others is now expressly recognized is when deer or hares are hunted with hounds or greyhounds. ”

“ Scotland.—By the law of Scotland all men have right and privilege of game on their own estates as a real right incident thereto, which does not pass by an agricultural lease except by express words, or in the case of ground game by the act of 1880. ”

“ The close time for game birds in Scotland is the same as in England, so far as dealing in them is concerned, but differs slightly as to killing. Black game may not be killed between the 10th of December and the 25th of August, nor ptarmigan between the 10th of December and the 20th of August. There is no close time for red, fallow or roe deer, or rabbits. By an old Scots act of 1621 (omitted from the recent wholesale repeal of such acts) no one may lawfully kill game in Scotland who does not own a plough-gate of land except on the land of a person so qualified. ”

“ In England the game laws proper consist of the Night Poaching Acts of 1828 and 1844, the Game Act of 1831, the Poaching Prevention Act 1862, and the Ground Game Acts of 1880 and 1906. From the fact that the right of landowners over wild animals on their land does not amount to ownership it follows that they cannot prosecute any one for stealing live wild animals: and that apart from the game laws the only remedy against poachers is by civil action for trespass. ”

“ By the common law wild animals are regarded as res nullius, and as not being the subject of private property until reduced into possession by being killed or captured. A bird in the hand is owned: a bird in the bush is not. Even bees do not become property until hived. ”

“ If a single offender refuses his name or address or gives a false address to the occupier or to the owner of the sporting rights or his representatives, or refuses to leave the land, he may be arrested by them, and is liable to a penalty not exceeding £5, and if five or more concerned together in game trespass have a gun with them and use violence, intimidation or menace, to prevent the approach of persons entitled to take their names or order them off the land, they incur a further penalty up to £5. ”

“ In the case of gamekeepers in Great Britain for whom the employer pays the duty on male servants, the annual licence fee is £2, but the licence extends only to lands on which the employer has a right to kill game. ”

“ In all cases where these special rights do not exist, the right to take or kill wild animals is treated as a profit incidental to the ownership or occupation of the land on which they are found, and there is no public right to take them on private land or even on a highway ”

“ Under the act of 1698 no one may kill game in Ireland who has not a freehold worth £40 a year or £1000 net personality, and elaborate provisions are made by that and later acts against the keeping of sporting dogs by persons not qualified by estate to kill game. ”

“ The police were not given any direct authority as to poachers until the Poaching Prevention Act 1862, under which a constable is empowered “on any highway, street or public place, to search any person whom he may have good cause to suspect of coming from any land where he shall have been unlawfully in search or pursuit of ‘game,’ or any persons aiding or abetting such person, and having in his possession any game unlawfully obtained, or any gun, part of gun, or nets or engines used for the killing or taking game ”

“ And if this is done persons who take them are thieves and not merely poachers. A game farm, like a decoy for wild water-fowl, is treated as a trade or business; but a game preserve in which full-grown animals fly or run wild is subject to the ordinary incidents of the law as to animals ferae naturae. ”

“ There are certain exceptions and exemptions as to royal personages, royal gamekeepers, and with reference to taking woodcock or snipe by nets or springes, by coursing or hunting hares or deer, or killing deer, rabbits or hares (Hares Acts 1848, Game Licences Act 1860) in certain enclosed lands by the owners or occupiers. A licence is not required for beaters and assistants who go out with holders of a game licence. The licence is granted by the Inland Revenue Department. The issue is regulated by the Game Licences Act 1860 as amended by the Customs and Inland Revenue Act 1883. ”

“ This prohibition applies to the sale of live game, British or foreign, and to the sale of British dead game. It is illegal to lay poison for game or rabbits except in rabbit holes, and it is illegal to kill game by firearms at night. Wild birds not within the list above given but of interest for sport are protected by close times fixed under the Wild Birds Protection Acts, which may vary in each county of each kingdom. ”

“ The sale of game when killed is also subject to statutory regulation. Gamekeepers may not sell game except under the authority of their employer (1831, ss. 17, 25) . Persons who hold a full game licence may sell game, but only to persons who hold a licence to deal in game. ”

“ Free warren is quite different from ordinary warrens, in which hares or rabbits are bred by the owner of the soil for sport or profit. Ground game in such warrens is protected under the Larceny Act 1861, s. ”

“ In England and Ireland the winged game above named and hares may not be killed on Sundays or Christmas Day. It is illegal to sell or expose for sale hares or leverets in March, April, May, June and July. ”

“ The right of free warren depends on crown grant or prescription founded on lost grant, and involves a right of property over beasts and fowl of warren on all lands within the franchise. As will appear from the list above, some game birds are not fowl of warren, e.g. ”