thereof, notwithstanding such devise, &c. By sect. 16, in case by any will any real or personal estate shall be charged with any debt, and any creditor, or the wife or husband of any creditor, whose debt is so charged, shall attest the execution of such will, such creditor, notwithstanding such charge, shall be admitted a witness to prove the execution of such will, &c.

By sect. 17, no person shall, on account of his being an executor of a will, be incompetent to be admitted a witness to prove the execution of such will, &c.

By sect. 18, every will made by a man or woman shall be revoked by his or her marriage (except a will made in exercise of a power of appointment, when the real or personal estate thereby appointed would not, in default of such appointment, pass to his or her heir, customary heir, executor, or administrator, or the person entitled as his or her next of kin, under the Statute of Distributions). By sect. 19, no will shall be revoked by any presumption of an intention on the ground of an alteration in circumstances.

By sect. 20, no will or codicil, or any part thereof, shall be revoked otherwise than as aforesaid, or by another will or codicil executed in manner before required, or by some other writing declaring an intention to revoke the same, and executed in the manner in which a will is hereinbefore required to be executed, or by the burning, tearing, or otherwise destroying the same by the testator, or by some person in his presence and by his direction, with the intention of revoking the same (p.)

By sect. 21, no obliteration, interlineation, or other alteration made in any will after the execution thereof, shall be valid or have any effect, except so far as the words or effect of the will before such alteration shall not be apparent, unless such alteration shall be executed in like manner as hereinbefore is required for the execution of the will; but the will, with such alteration as part thereof, shall be deemed to be duly executed if the signature of the testator and the subscription of the witnesses be made in the margin or on some other part of the will opposite or near to such alteration, or at the foot or end of, or opposite to, a memorandum referring to such alteration, and written at the end or some other part of the will (q).

By sect. 22, no will or codicil, or any part thereof, which shall be in any manner revoked, shall be revived otherwise than by the re-execution thereof, or by a codicil executed in manner hereinbefore required, and showing an intention to revive the same; and

(p) See Price v. Powell, 3 H. & N. 341; Hobbs v. Knight, 1 Curt. Ecc. R. 768; Stephens v. Taprell, 2 Curt. Ecc. R. 458.

(q) See Doe d. Shallcross v. Palmer, 16 Q. B. 747; Cooper v. Bockett, 4 Moo. P. C. C. 419; Cann v. Gregory, 22 L. J., Chan. 1059.

when any will or codicil which shall be partly revoked, and afterwards wholly revoked, shall be revived, such revival shall not extend to so much thereof as shall have been revoked before the revocation of the whole thereof, unless an intention to the contrary shall be shown.

By sect. 23, no conveyance or other act made or done subsequently to the execution of a will of or relating to any real or personal estate therein comprised, except an act by which such will shall be revoked as aforesaid, shall prevent the operation of the will with respect to such estate or interest in such real or personal estate as the testator shall have power to dispose of by will at the time of his death.

By sect. 24, every will shall be construed, with reference to the real estate and personal estate comprised in it, to speak and take effect as if it had been executed immediately before the death of the testator, unless a contrary intention shall appear by the will (r). By sect. 25, unless a contrary intention shall appear by the will, such real estate or interest therein as shall be comprised, or intended to be comprised in any devise in such will contained, which shall fail or be void, by reason of the death of the devisee in the lifetime of the testator, or by reason of such devise being contrary to law, or otherwise incapable of taking effect, shall be included in the residuary devise (if any) contained in such will.

By sect. 26, a general devise of the testator's lands shall include copyhold and leasehold as well as freehold lands (s). By sect. 27, a general devise shall include estates over which the testator has a general power of appointment. By sect. 28, where any real estate shall be devised to any person without any words of limitation, such devise shall be construed to pass the fee-simple, or other the whole estate or interest which the testator had power to dispose of by will in such real estate, unless a contrary intention shall appear by the will. By sect. 29, the words "die without issue," or "die without leaving issue," shall be construed to mean, die without issue living at the death. By sect. 30, where any real estate (other than or not being a presentation to a church) shall be devised to any trustee or executor, such devise shall be construed to pass the fee-simple or other the whole estate or interest which the testator had power to dispose of by will in such real estate, unless a definite term of years, absolute or determinable, or an estate of freehold, shall thereby be given to him expressly or by implication. By sect. 31, where any real estate shall be devised to a trustee, without any express limitation of the estate to be taken by such trustee, and the beneficial interest in such real estate, or in the surplus rents and profits thereof, shall not be given to any person for life, or such beneficial interest shall be given to any person for

(r) See O'Toole v. Browne, 3 E. & B. 572.

(s) See Wilson v. Eden, 18 Q. B. 474; 5 Exch. 752, S. C.

life, but the purposes of the trust may continue beyond the life of such person, such devise shall be construed to vest in such trustee the fee simple, or other the whole legal estate which the testator had power to dispose of by will in such real estate, and not an estate determinable when the purposes of the trust shall be satisfied.

By sect. 32, where any person to whom any real estate shall be devised for an estate tail, or an estate in quasi entail, shall die in the lifetime of the testator leaving issue who would be inheritable under such entail, and any such issue shall be living at the time of the death of the testator, such devise shall not lapse, but shall take effect as if the death of such person had happened immediately after the death of the testator, unless a contrary intention shall appear by the will.

By sect. 33, where any person, being a child or other issue of the testator, to whom any real or personal estate shall be devised or bequeathed for any estate or interest not determinable at or before the death of such person, shall die in the lifetime of the testator, leaving issue, and any such issue of such person shall be living at the time of the death of the testator, such devise or bequest shall not lapse, but shall take effect as if the death of such person had happened immediately after the death of the testator, unless a contrary intention shall appear by the will.

By sect 34, this act shall not extend to any will made before the 1st of January, 1838; and every will re-executed or republished, or revived by any codicil, shall, for the purposes of this act, be deemed to have been made at the time at which the same shall be so re-executed, republished, or revived: and this act shall not extend to any estate pur autre vie of any person who shall die before the 1st of January, 1838. It has been held, by the Judicial Committee of the Privy Council, that the words which prevent the act from extending to any will made before January 1st, 1838, do not apply where a will so made is republished by a codicil after that date; the republication being a new making of the will (t): hence, a will of lands made before January 1st, 1838, and revoked, may, under the ninth and thirty-fourth sections of this act, be republished after that day by a codicil attested by two witnesses only (u).

By sect. 35, this act shall not extend to Scotland.

(t) Brooke v. Kent, 3 Q. B. 178, n.; 3 (u) Andrews v. Turner, 3 Q. B. 177.

E. F. Moore, 334.

CHAPTER XXII.

GAME.

PAGE

I. Of the Right of taking and destroying the Game at Com-
mon Law, and of the Stat. 1 & 2 Will. IV. c. 32, .. 907

II. Of the Appointment and Authority of Gamekeepers,
III. Of the Destruction of the Game at improper Seasons of
the Year, ..

IV. Of the Duties made payable in respect of Game Certificates

..

914

915

916

I. Of the Right of taking and destroying the Game at Common Law, and of the Stat. 1 & 2 Will. IV. c. 32.

IT has been asserted by Sir W. Blackstone, in his Commentaries, that, by the common law, the sole property of all the game in England is vested in the king alone, and that the sole right of taking and destroying the game belongs exclusively to the king; and, consequently, that no person, of whatever estate or degree, has a right to kill game, even upon his own land, unless by licence or grant from the king. This, position, however, has been questioned by Mr. Christian, in a note to his edition of the Commentaries, vol. 2, p. 419, n. 10. See also Mr. Justice Coleridge's note, vol. 2, p. 419.

If A. start a hare in the ground of B., and hunt and kill it there, the property continues all the while in B.; but if A. start a hare in the ground of B., and hunt it into the ground of C., and kill it there, the property is in A., the hunter, but A. is liable to an action of trespass for hunting in the ground, as well of B. as C. (a). Trespass for a dead hare, the property of plaintiff.-The plaintiff, a farmer, being out hunting with hounds of which he had in part the management, and actually had such management at the time, though the hounds belonged to other persons, the hounds put up a hare in a third person's ground, and followed her into a field of the defendant, where, being quite spent, she ran between the legs of a labourer who was accidentally there, where one of the dogs caught

(a) Per Holt, C. J., in Sutton v. Moody, 1 Ld. Raym. 251; 2 Salk. 556; 5 Mod. 375, S. C.; Deane v. Clayton, 7 Taunt.

489, recognized in Jordin v. Crump, 8 M. & W. 782.

her, and she was taken up alive by the labourer, from whom the defendant immediately afterwards took the hare and killed her. Shortly after the plaintiff came up, and claimed to have the hare as his own, but the defendant refused to give it up, and questioned the right of the plaintiff to be where he then was. The labourer took the hare from the dogs, not for his own use, but in aid of the hunters. Verdict for the plaintiff, 40s. damages. Rule for new trial, after argument, was discharged; Lord Ellenborough, C. J., observing, that the plaintiff, through the agency of his dogs, had reduced the hare into his possession. The labourer took it for the benefit of the hunters, which is the same as if it had been taken by one of the dogs. Secus, if the labourer had taken it up for the defendant, before it was caught by the dogs, or if he had taken it as an indifferent person in the nature of a stakeholder (b).

An exception in a conveyance made in the year 1655, of the free liberty of hawking and hunting, does not include the liberty of shooting feathered game with a gun (c). Rooks are a species of birds feræ naturæ, destructive in their habits, not known as an article of food, and not protected by any statute; hence a person cannot have any property in them, or show any right to have them resort to his trees (d).

The franchise of free warren is of great antiquity, and very singular in its nature. It gives a property in wild animals; and that property may be claimed in the land of another, to the exclusion of the owner of the land. Such a right ought not to be extended by argument and inference to any animals not clearly within it. There is not any book in the law which has mentioned grouse as a bird of warren. Manwood confines his description to two species, pheasants and partridges. Hence it has been held, that the owner of a free chase and free warren cannot maintain an action for killing and taking away grouse shot within the limits of the free warren (e).

In a case where it did not appear that, at the time of the grant, the locus in quo was applied to purposes of warren, or that any distinct right of free warren, independent of the general forest right, was then subsisting on it; and the grant did not contain any words showing an intention of the crown to create such right, and pass it de novo; it was held, that free warren would not pass by general words in a grant from the crown of lands within a forest of the crown (f). A grant, by the king, of free warren of land of which he is seised in fee, is a grant of free warren in gross (g).—James I.