case Mallock against eastly the lord of a manor worth one hundred and twenty  pound ayear the demesne of which be grant to another for life be not thereby  qualify to kill game within the car c for the word leave a estate c signify a  estate in possession and quaere whether he be entitle to kill game on the  manor although he be lord of it unless he be a esquire or other person of high  degree accord to the statute SC but not S p salk rawlin Mallock Esq who sue as  well for the poor of the parish of Paington in the county of Devon as for  himself on the that day of August in the seventeenth year of our now lord the  king exhibit to the justice of our modern say now lord the king of the bench  here to wit at Westminster his certain bill against Charles eastly gentleman  one of the atorneys of the court of our say lord the king of the bench here  present here in court in his own proper person complain of the say Charles  eastly of a plea that he render to the say rawlin and to the poor of the say  parish the sum of ten pound of lawful money of great Britain which he own to  and unjust detain from the poor of the say parish and he the say rawlin for  that modern er p the say Charles not be a person qualify accord to the law to  kill the game on the thirty day of October in the seventeenth year of the  reign of our now say lord the king in the parish aforesaid in the county  aforesaid have keep and use a certain gun be a engine to kill and destroy the  game and which gun he the say Charles have keep and use for the intent and  purpose of destroy the game contrary to the form of the statute in that case  make and provide whereby a action accrue to the say rawlin who as well c to  demand and have of the say Charles five pound parcel of the say ten pound and  also for that the say Charles not be a person qualify accord to the law to  kill the game afterward to wit on the fourteenth day of October in the  seventeenth year aforesaid at the parish aforesaid in the county aforesaid  have keep and use a certain other gun be a engine to kill and destroy the game  and with the say gun do then and there destroy one pheasant contrary to the  form of the statute in those case make and provide whereby a action accrue to  the say rawlin who as well c to demand and have of the say Charles another sum  of five pound residue of the say sum of ten pound to which the say Charles  plead that he do not owe to the say rawlin who as well c the say ten pound or  any part thereof and of this he put himself upon the country and the say  rawlin who as well c likewise upon trial of the say issue so join it appear  that the defendant at the several time when c be seize in feesimple of the  moiety of the manor of Daccombe with the appurtenants the demesne of which  moiety of the say manor if they be in possession be worth one hundred and  twenty pound ayear but at the several time when c all the demesne of the say  manor be lease out to several tenant for ninety nine year determinable on the  death of one two or three person under certain yearly reserve rend amount in  the whole to fifteen pound thirteen shilling ayear that the say Charles be  also seize in right of his wife of other land of inheritance to the yearly  value of thirty pound and of other land in reversion expectant on the death of  his wife mother of the yearly value of fourteen pound whereupon a verdict be  give for the plaintiff upon the second count in the declaration for five pound  parcel of the say modern debt of ten pound for kill a pheasant out of the  defendant manor and as to the residue for the defendant the question in law be  whether the defendant be so seize of the say manor land and tenement as above  be a qualification sergeant Belfield for the plaintiff the present question  depend upon several act of parliament the first statute be the and car c S  which enact that all and every person and person not have land and tenement or  some other estate of inheritance in his own or his wife right of the clear  yearly value of one hundred pound ayear or for term of life or have lease or  lease of ninetynine year or for any long term of the clear yearly value of one  hundred and fifty pound other than the son and heir apparent of a esquire or  other person of high degreeSee Jones v smart term Rep a and the owner and  keeper of forest c be hereby declare to be person by the law of this realm not  allow to have or keep for themselves or any other person or person any gun c  or other engine aforesaid but shall be and be hereby prohibit to have keep or  use the same there be however some anterior statute for the preservation of  the game the Henry c S be a statute to prevent the kill of wile fowl at  improper season with this proviso that it shall be lawful for any gentleman or  any other that may dispend forty shilling by the year of freehold to hunt and  take such wile fowl with their spaniel only without use any net or other  engine for the same except it be a long bow or long bow the statute of the  James c S make perpetual by the car c be make for the preservation of pheasant  and partridge and qualify person to kill they which have or shall have  freewarren or shall be lord of a manor or freeholder who be or shall be seize  in his own right or in the right of his wife of land tenement or hereditament  to the clear yearly value of forty pound or more by the year over and above  all charge and reprize of some estate of inheritance or of land c in his own  right or in right of his wife for term of life or life of the modern er p  yearly value of eighty pound over and above all charge and reprize or who  shall be worth in good or chattel four hundred pound by he or themselves or by  his or their menial or household servant sufficient authorize from their  master to take pheasant or partridge in the daytime only in and upon their own  or their master freewarren manor and freehold or any part of they I mention  these statute to show the proportion that be carry on from time to time with  respect to the revenue of person intend to be qualify the defendant have not  sufficient yearly revenue to be qualify to kill the game modern all the land  claim to qualify he exclusive of the reversion in the moiety of the manor and  demesne of Daccombe be not enough to make up a qualification so the single  question be whether or no a reversion expectant upon a lease or lease for  ninetynine year determinable on one two or three person die be to be consider  as have of land tenement or hereditament within the say statute of Charles the  second so as to qualify the reversioner to kill game his real yearly income be  under one hundred pound ayear till the reversion fall into possession it  appear from the several statute mention that a revenue to give a qualification  must not be one in expectance but a present revenue or income in possession  the statute of Henry say that the person qualify must be able to dispend forty  shilling ayear and the two statute in James the first be time say that the  estate must be of the clear yearly value which be in the present tense must  mean land in possession land and the reversion of land be two distinct thing  one man may have land of which another man may have the reversion the statute  clear intend that the qualification of person shall be agreeable to the income  they have in possession the reason why the legislature restrain the power of  kill the game to particular income be that person who can not spend so much  yearly for their family may not lose their time and neglect their business in  the idle diversion of sport and shoot the game Mr sergeant Eyre for the  defendant there be only one question state at the foot of the case yet I will  consider it upon two view the first whether the defendant as lord of a manor  simple without any regard to his yearly revenue be not qualify to kill game  the other whether the defendant estate as appear in the case be not a  qualification as to the first every lord of a manor be qualify to kill game  the proprietor of manor general be baron and the manor itself compose of  demesne and court baron at present indeed several person have manor without  any land the demesne have be sell and disannexed but the property of a manor  dismember of its rend and revenue be still consider as a royalty or  jurisdiction so favour as to entitle its master to many privilege and among  the rest that of kill of game with manor the crown usual grant free warren and  though many statute have be make to preserve the game under severe penalty yet  lord of manor have be always consider as privilege person and qualify to  destroy game the first Act of parliament which take notice of lord of manor be  the James c S modern and that statute recite that the game be outrageous  destroy especial by the vulgar sort of man of small worth who be not able to  pay the penalty and enact that it shall be lawful to and for every lord of a  manor to keep pheasant and partridge c the second statute be the James sect to  the same purpose as the I James and both these statute be make perpetual by a  statute in the car the next statute be the car c which recite that diverse  disorderly person leave their lawful trade and employment betake themselves to  the destroy of the game with gun c to the prejudice of gentleman nobleman and  lord of manor for remedy whereof it enact that all lord of manor or other  royalty not under the degree of all esquire may by write under their hand and  seal authorize one or more gamekeeper within their royalty or manor who so  authorize may seize all gun c for the kill of game within the precinct of such  manor as shall be use by alley person who be by that statute prohibit to use  the same and such gamekeeper may search house in the daytime by a warrant from  a justice of peace and seize gun c to the use of the lord of such manor where  they shall be find or other modern er p wise cut they to piece or destroy they  if by this statute lord of manor may authorize gamekeeper to kill game and to  seize gun c it will be absurd to say that the lord of the manor have not such  power himself for it will be degrade he below the privilege of his servant and  why do the statute authorize they to make gamekeeper to preserve the game  unless they themselves have a interest in it and power to take and destroy it  and seize the gun c of unqualified person yet it be clear and settle that they  may carry gun and kill game within their respective manor but it may be object  that no lord of a manor can make a gamekeeper unless such lord of a manor  himself be of the degree of a esquire the import of this word esquire be very  indefinite the origin of the name and dignity be very ancient and dark former  they be only esquire who have law shield or entitle to bear their arm in a  shield but now almost everybody be esquire in the case of carpenter v Adam  comb a it be determine that nobody but the lord or lady of a manor can make a  deputy to kill game and if his servant can do it he himself must be empower to  do it by virtue of his own inherent right if the lord of a manor kill game out  of his manor he be liable to a action of trespass but not liable to the  penalty of the statute which be now sue for all the treatise upon the game law  mention lord of manor to be qualify to kill game and as the present be a penal  law and make for the benefit of lord of manor it must be modern expound  beneficial for the defendant the actual possession of a estate be not the only  qualification mention in the statute since that be dispense with in the case  of the old son of a esquire or of any person of high degree who be qualify to  kill the game although not worth one farthing as to the other question he  submit it that the defendant may be say to have a estate of inheritance to the  value of one hundred pound ayear he have some in possession and the rest in  reversion after the determination of a estate for year a reversion be a  tenement and hereditament in notion of law and therefore within the express  word of the statute of the car and in the case of plead a reversion after a  term of year he must allege that he be seize of it in his demesne of fee here  be no estate of freehold intervene but only a estate for year and in law the  possession of the lessee for year be the possession of the reversioner will  chief justice if the defendant be not qualify as be lord of a manor he certain  be not by his estate within the statute of the car c S neither within the word  or meaning of it the word be have a estate and a man can be say to have a  estate when another be in possession of it and he himself only a nude  reversion or at least not attend with rend sufficient to make up his other  yearly income a qualify estate and it will be a strong thing to say that a man  entitle to a bare reversion of a thousand pound yearly value after the  expiration of a thousand year shall be say to be qualify within this Act to  kill game but the next word be strong of the clear yearly value which must  mean Payable to he who be intend to be qualify but this case be less within  the meaning of the statute for it appear from the former act and the statute  of Charles the second and the meaning of they that person not have sufficient  income to maintain themselves and family and therefore the statute fix the  income shall not destroy their time in these idle diversion or occupation of  kill the game if then reversion or remainder be to be qualification a hundred  people may be qualify by one and the same estate by limit remainder proper one  after another suppose a man have a hundred pound ayear and owe as much as it  be worth by the construction contend for he may sell his estate and still  preserve his qualification for he may sell it for a thousand year and if the  reversion be a qualification be be still qualify though a beggar a equitable  as well as legal estate give a qualification but the estate of whatever kind  it may be must be of the value require clear of all mortgage or encumbrance  create by the owner or those under who he claim Whetherall v hall call see  also Lowndes v Lewis call that a lifeestate of less than l ayear be not a  qualification to kill game a modern er p modern but I have some doubt whether  the defendant as lord of a manor simple be not qualify to kill game within his  own manor though the statute of Charles the second empower all lord of manor  not under the degree of esquire to empower gamekeeper to prevent the game c  and the present defendant be only style gentleman upon record yet that will be  no obstruction to his qualification because the subsequent statute speak of  lord and lady of manor without confine they to any degree of gentility and a  lady of a manor can bear the title require by the statute of Charles the  second so that at present a lord of the manor may I think make gamekeeper  though under the degree of a esquire it seem a little odd that the servant of  the lord of a manor may kill game and yet the lord himself not do it without  be punish by a penalty it be determine that a esquire or other person of high  degree as such be not qualify under the car c though the son of a esquire or  the son of other person of high degree be Jones v smart term Rep a Abney  justice in cays abridgment of this statute of Charles the second the word  clear be omit this case will depend upon the construction of three act of  parliament the first be the car c sect the second be the whether c and the  three the Geo c the qualification be to be consider upon the first and be the  question of the present case the penalty sue for be give by the second and the  action upon the last at present I think there be three qualification in force  one of which every man must have to be entitle to kill game the first be of  lord of manor who have not a general qualification to kill game everywhere but  be stint and confine to the precinct of their own manor so that it will be  consider whether the defendant have not incur the penalty as the case state  that be kill the pheasant out of his manor the second sort of person so  qualify to kill game be person who have title as esquire c the old son of  esquire and of all superior title and these be qualify to kill game whether  they be possess of land or not and although they be not freeholder the three  sort of person qualify to kill game be person have estate and I be quite  satisfy that the estate of the defendant will not qualify he this very point  be express determine in the king bench upon a very great debate some year ago  where a young gentleman in Essex who have ninety pound ayear in possession and  one hundred and fifty pound in reversion expectant on the death of his mother  be yet hold not to be qualify Burnett justice be clear that the estate be no  qualification but bad some doubt as to the other point for though he imagine  that the lord of a manor be entitle to kill game within his manor as well as  his gamekeeper yet he think he will be liable to the penalty if be use a gun  to destroy game out of the boundary of his manor and here it be express find  that be kill the pheasant out of his manor modern all the court agree that the  mere have a gun be no offence within the game law for a man may keep a gun for  the defence of his house and family but the party must use the gun to kill  game before be can incur any penalty and they say this point be settle and  determine this point be settle in Trinity term Geo king v gardener stram viner  Abr see also upon this subject king v filer stram Wingfield v Stratford saver  SC will king v hunt dougl notorious facts Avery v hold Cowp king v Hartley  call king v Thompson term Rep a adjourn as to one point only