1859. 24707 [ 471 ] REG. v. WOOD. (1 F. & F. 470-472.) A person having only a right of shooting over land has no right to empower keepers to apprehend parties trespassing in search of game; and on their resisting, with no greater violence than is used by the keepers, they will not be liable for an assault. THE prisoners were charged with misdemeanor, for having, with other persons, been upon certain land in the night-time, armed with an offensive weapon, in pursuit of game. There were several counts in the indictment, and in one of them the defendants were charged, under 9 Geo. IV. c. 69, s. 2, with assaulting George Monro and Thomas Day, who were described in the indictment as the gamekeepers of a gentleman named Ames, in whose occupation the land was laid as being. There was also a second indictment against the defendants, which charged them with feloniously cutting and wounding George Monro, with intent to do some grievous bodily harm. Clark, who conducted the prosecution, elected to proceed with the indictment for misdemeanor. Worsley appeared for Wood. The other defendant was undefended by counsel. It appeared from the evidence that Monro and Day were keepers in the employ of Mr. H. F. Cavendish, who had the right of shooting over some land in the occupation of a gentleman named Ames, at Kimpton, near Welwyn, and that on the night of the 16th of December they were in a wood called Priors Wood, which was a pheasant preserve, on the look out for poachers. While so engaged they heard the report of a gun, and the pheasants were disturbed, and they went round the wood into a lane, where they found the defendants, who were well known to them, and they at once laid hold of them. The defendants at first said they did not want any disturbance, and they would go with the keepers, and Monro took charge of Wood and Day of Edmunds, and they all walked away in the direction of the head-keeper's cottage. They had only gone a short distance, however, when Wood drew the barrel of a gun from under his smockfrock and aimed a tremendous blow at the head of the keeper Monro. He warded it off with his arm. and returned the blow, and a third man came up, and he and Wood commenced a most desperate attack upon the keeper with the stock and the barrel of a gun. The other keeper, upet hearing Monro cry out, went towards him to render assistance. when he was struck from behind and knocked down, and the keepers were then beaten until they were quite insensible. and the defendants got away. They were, however, taken into custody on the same morning at a beershop, called the "Woodman," in the same neighbourhood, and their clothes were found to be completely saturated with blood, and Wood had received a most fearful injury upon the head from blows inflicted by the stick of the keeper Monro. The keeper, Monro, received very severe injuries; for a considerable time it was doubtful whether he would recover, and it appeared that he was still suffering from the violence that he had sustained. The two keepers, Monro and Day, on cross-examination, *said that they were not in the service of Mr. Ames, but of Mr. Cavendish. They knew both the prisoners very well and where they could be found, but their orders were to apprehend any person they found trespassing in pursuit of game, and this was their object in being out on the night in question. The former also said that after Wood had struck him with the gun-barrel, he hit him with his stick as hard as he could, and he did not know whether he fractured his skull or not, but he had heard it said in the neighbourhood that his skull was fractured. At the close of the case for the prosecution, Worsley objected that the count for an assault could not be maintained. MARTIN, B.: I am of that opinion. The statute only empowers the owner or occupier of land to authorize his servants to apprehend persons found trespassing, and as Mr. Cavendish only had the right of shooting, he did not possess that power. The keepers, therefore, had no right to apprehend the prisoners, and they were justified in resisting. Clark submitted that the mere act of taking the prisoners into custody did not excuse their subsequent violence, and that at all events there was an excess of resistance that would amount to an assault. MARTIN, B.: I cannot see that there was much excess when one party used a gun-barrel and the other fractured his skull with a bludgeon, and I am clearly of opinion that the count charging an assault cannot be supported under the circumstances. REG. V. WOOD. [ 472] NETSON P. SMYTHIES. y ingling want gunst his lan Lord for not paying Corrs weording to vacation, pursuant Dred dem on being made conditions pre TE TO FAMani so ad deliver up possession of the farm the farm on a later day, system. according to the 11 1. that the most covenant meant only 1 that the covenant to cultivate meant Teatery by the custom of the and to that the serendist bring xatarred in the valuation grez ap possession of the farm, was eviA simission of a substantial So 'f the Jammons precedent TESTI IZ Knox a feed, dated 1st November, 1556, which Zverned thus the past then secans to the defendant of a farm, HOT STEER a saltivare in the usual manner, had committed torthes of a recant, and dine damage to the amount of 50l., ant virerer the plantif covenanted that he would on the 17th Mar 1968. Miner op possession of the farmhouse, with the stable, math-brose and cut dings belonging to it, and thus be wind in the 1h September, 1858, deliver up to the defendant posms.cf the farm: and that he would, from the f the deed a sath delivery up of the farm, cultivate to the east m of the country on the fouroltre afsted; and that, in his delivering up the farm, the defendant would pay the plaintif for the value of the crops and TAJA KA, secunding to a valuation, &c.; but that if the pantof should not deliver up possession of the farmhouse, stila ka to the 25th March, or if he should not deliver up the possession of the farm on the 29th September, or if he should 24 mobile ealtivate the farm according to the covenant, the defendant shuld not be bound to pay for the waygoing enijs, ko. Averment of performance on the part of the plain Fresch that the defendant did not pay the amount of the valuation. Common count for crops &c. sold. Fless: 1. Never indebted. 2. That the plaintiff did not deliver up possession of the farmhouse, stable, &c. according to his ecvenant. 3. That he did not cultivate, &c. according to his ecvenant. Montague Chambers and Lloyd for the plaintiff. Hawkins and Hannen for the defendant. The plaintiff delivered up possession of the farmhouse and the stable belonging thereto, and the other outbuildings (except a fowl-house), on the 25th March, but not the farm stables. which he retained until he delivered up the farm on the 29th Stember. There was a conflict of evidence as to whether he had cultivated on the four-course system according to the custom of the country. And the defendant had made complaints at the time. But on the plaintiff's leaving, the valuation had taken place, and no claim made on the part of the defendant for deduction or allowance in respect of the damage sustained by reason of bad cultivation. And the complaint being that the ploughings had not been sufficient, the defendant swore that he had ploughed four times, and had told a friend of *the defendant that he would plough a fifth time if the defendant would pay for it. (The defendant was to pay for the ploughings, and they were reckoned in the valuation.) This party was not called by the defendant, and defendant's statement was taken as un contradicted. MARTIN, B.: The covenants on the part of the plaintiff are conditions precedent, and if it is proved that he failed in any part of them he cannot recover. And he can only recover on the deed, because no express contract has been proved subsequent to it, and an express contract excludes an implied one. 1. As to the covenant to deliver up the farmhouse and stable, that may mean the stable of the farmhouse, which was delivered. up in due time; and the question of parcel or no parcel being for you, you are at liberty to find that the plaintiff did deliver up the stable, coach-house and outbuildings belonging to the said farmhouse." 2. As to the covenant to cultivate according to the custom of the country, the evidence as to the custom being contradictory, the question turns very much on what passed with the defendant's friend or agent, and you are at liberty to find that the plaintiff ploughed as much as he was bound to do by the custom. And generally the question is, whether substantially the plaintiff cultivated according to the custom of the country, taking fairly into consideration that he was an outgoing tenant, and was to be paid only according to the value of what he put into the ground. Upon both covenants you are to consider whether the fact that the defendant in September consented to the valuation without making any cross-claim for compensation was not an admission. on his part that the covenants had been substantially performed. Verdict for the plaintiff. NEWSON v. SMYTHIES. [ *479 J R.R.-VOL. CXV. 60 1859. [ 492 ] DAVIS r. CUTBUSH. (1 F. & F. 487.) That a libel in a newspaper had been in substance and bond file. and without malice or il intent, taken from a previous publication which was privileged Held sufficient to justify a jury in giving only nominal damages. LIBEL The declaration set forth an article in a newspaper of the defendants on the subject of the failure of a Water Company, showing that the failure did not arise from any fundamental error in the scheme, but from mismanagement, for which the plaintiff was principally responsible; and it charged that he had so manoeuvred the accounts as to mystify the most expert accountant, &c.: innuendo that he had dishonestly dealt with them, &c. Plea: Not guilty. E. James for the plaintiff. Shee, Serjt., and Prentice, for the defendants. Some months before the publication of the libel, a report of a committee of investigation into the affairs of the Company had been published to the shareholders, in which it was stated that, contrary to the deed, the plaintiff was manager and treasurer, and that proper accounts had not been kept; that if the accounts had been designed to be kept in a way which should mystify the most expert accountant, greater success could not have been achieved; that, contrary to the deed, the plaintiff had a large account with the Company as a trader; that it was very unsatisfactory, and that neither the plaintiff nor the accountants could give the committee the necessary information to understand it, &c. There was no evidence of actual malice. WIGHTMAN, J. (to the jury): Although the republication of the report, which might, as regards the shareholders, be privileged, would not be justifiable, yet you may consider whether the libel is substantially founded upon it, in determining whether you will give damages substantial, or merely nominal. Verdict for the plaintiff, 20s. CLARKE v. MERCER. (1 F. & F. 492-494.) In trespass by the lord of a manor against the owner of an ancient mill for breaking and entering the mill pond (by fishing and taking the fish) the pond having originally been on a portion of the ancient waste of the manor; the mill being copyhold of the manor, and passing with a house by the words mill, messuage, with appur |