1863. PAGET v. BIRKBECK. what term or interest). In March, 1860, he entered into the following agreement, on which the plea of justification was based, the interest in which was ultimately assigned to the defendant : "Articles of agreement made and entered into on the 6th of March, 1860, between John Paget, of South Park Farm, in the parish of Bletchingly, in the county of Surrey, yeoman, of the one part, and Charles Arkcoll, of Maidstone, Esq., of the other part. In consideration of the sum of 50%, the said J. Paget doth grant and demise to the said Charles Arkcoll, and his assigns, full and exclusive right and liberty for him and his and their friends, and associates and others, with his and their permission, gamekeepers, servants, and attendants, to hunt, course, fowl, shoot, and otherwise sport in, upon, and over all and every the farm lands and premises of J. Paget, called or known by the name of South Farm, containing in the whole 504 acres (more or less) as often as he the said Arkcoll shall think fit; and the game, fowl, rabbits, and other things there killed and taken to carry away for his and their use, with full liberty of ingress, egress, and regress (they doing no wilful damage to the grain or other produce of the said J. Paget, or his or their tenants), for a year, from the 1st of March, 1860." Then it was further stipulated, that during the term Paget should not hunt, course, fowl, shoot, or sport over or upon any part of the lands, &c., and provided that at any time before the 1st of March, 1861 (the expiration of the year), Arkcoll or his assignee might demand a lease of the rights so granted for a term not exceeding seven years. In 1861, there was a similar agreement entered into between the plaintiff and two persons named Cole and Strange, the interest in which was, on the 19th February in that year, assigned to the defendant, a member of the Surrey and Burstow Hunts. Previously to that there had been some disputes between them and the plaintiff, who in January, 1861, signed the following: "Paper signed by Mr. Paget, Mr. Birkbeck, and Mr. Mortimer (Master of the Surrey Hunt), at a meeting at the Greyhound Inn, Croydon, January 5, 1861; present, Mr. Mortimer, Mr. Birkbeck, Mr. J. Walker, Mr. Duckworth, Mr. Brown, and Mr. Paget. Mr. Paget having agreed to meet them to settle the hunting difference, it is arranged that he shall withdraw all hunting notices to keep off his land, and to give full permission to the Hunt to cross his land and draw his covers, on condition that the Hunt, either the Surrey Hunt or the Burstow Hunt, shall pay all fair losses of poultry, &c., and all vexatious damage by horses in crossing the land, and taking Mr. Paget's hunting and shooting in the customary way, at a rental of 50l. for 500 acres. And, on the above consideration being carried out, Mr. Paget consents to withdraw all notices to warn off the Hunt, and consents to their hunting over and drawing his lands. And in case of any difference arising, Mr. M. Walker shall act as arbitrator, and his decision is to be binding; but it is understood that this agreement is to be determinable by either party by six months' notice." (Signed by Mr. Birkbeck and Mr. Mortimer, and also by the plaintiff.) "Memorandum.-That Mr. Birkbeck undertakes to rent the shooting from Mr. Paget." (Signed by the defendant and the plaintiff.) About a month after this, Messrs. Cole and Strange assigned their interest to the defendant, who claimed a lease in accordance therewith, which the plaintiff refused to grant. The defendant Birkbeck sued Paget in equity for a performance of the agreement to grant a lease, and got a decree to that effect with this important proviso"the plaintiff (Birkbeck, the now defendant) undertaking not to turn down rabbits." This decree was in July, 1862, and directed the execution of a lease to be dated and have effect from the time at which it would have been dated if the agreement had been strictly fulfilled,-viz., on the 1st of March, 1862. All through the year 1861, disputes had been going on between the plaintiff and defendant as to hunters coming upon the land, also as to birds and rabbits alleged to have been brought upon the land by the defendant, and in November, 1862, the plaintiff brought this action. He was called as a witness and swore to certain damage to his crops caused by the hunts and also by rabbits and pheasants, and he denied the alleged accord, declaring that it related to an assault. As to the hunting, he said the defendant appeared to be the principal person, but as it appeared he was not master, and did not appear that he had brought the others, but only that he had come with others. Bovill objected that he was not liable for any damage not proved to have been caused by his own horse, and 1863. PAGET v. BIRKBECK. 1863. PAGET ບ. BIRKBECK. COCKBURN, C. J., so ruled (a). That cause of complaint therefore failed. As regarded the pheasants, it was admitted that 200 eggs had been brought by the defendant to be hatched on the farm, but that this was with the plaintiff's knowledge and assent. As regarded the rabbits, it was admitted that a few had been turned down, but with the plaintiff's assent or acquiescence, that is, that he knew of it and did not object. The evidence of the plaintiff, however, went to show excess. The plaintiff having been cross-examined as to the depositions in the suit in Chancery, Shee, Serjt., proposed to put in a deposition made by a person examined on behalf of the defendant in the Chancery suit, but COCKBURN, C. J., said it could not be put in as it did not appear that it was so far relevant to the issue, or used or adopted by the defendant, to make it admissible against (a) If it gives B. leave to go on a field in which A. has no right, and B. goes there, this will not make A. liable as a co-trespasser with B.; but if A. authorizes and orders B. to go on the field, and he does so, A. is a joint trespasser with B., the latter being an authority, the former a leave and licence only. (Robinson v. Vaughton, 8 C. & P. 252.) So on the same principle mere ratification does not render a party liable as trespasser. (Wilson v. Tummon, 6 M. & G. 236.) But there must be evidence of participation or previous direction or authorization. (Duke of Brunswick v. Slowman, 8 C. B. 317; Neate v. Harding, 6 Exch. Rep. 349; Cobbett v. Grey, 4 Exch. Rep. 729.) In the case of master and servant, indeed, the mere presence and silent acquiescence of the master has been held to make him a trespasser by the act of his servant, as in the case of the master sitting by the side of his servant who is driving. (Chandler v. Broughton, 1 C. & M. 29.) But that rests on the relation of master and servant, and does not apply to independent parties. No doubt presence and common action may be evidence of a common precedent design, but the point was not so put; and quære, whether there was evidence enough to raise it? him in this action as an admission made by him or with his authority (a). At the close of the case, COCKBURN, C. J., left it to the jury, in substance, whether there had been an unreasonable excess in bringing on birds or rabbits without the assent of the plaintiff. Verdict for the defendant. (a) The test, whether depositions in a former suit are admissible against the parties on whose behalf they were made, would seem to be whether he had an opportunity of knowing what was contained therein, and knowingly used them. In an issue from Chancery between A. and B., depositions produced in Chancery by A., in a suit of C. against B., are not admissible; TINDAL, C. J., Atkins v. Humphries, 1 M. & R. 523; of course the parties must be the same; Humphreys v. Penson, 1 My. & Cr. 580; sed vide Lorton v. Kingstown, 5 Cl. & Fin. 269. Where they are the same, and the 1863. PAGET บ. BIRK BECK. Croydon, corum Bramwell, B. SCHWEITZER v. LONG AND OTHERS. THIS Surrey Summer In an action lonial broker on a bill of exchange, on a question as to authority to accept: held, that the jury might be asked, of their own against a co knowledge as commercial men, whether colonial brokers did business by means of bills of exchange: and evidence being given to show that they did not, but the witnesses admitting that they did so, sometimes, though it was not usual; the question left to the jury was, whether it was not one mode by which they carried on business. VOL. III. 3 A F.F. 1863. SCHWEITZER v. LONG and Others. Plea, denying the deception. Lush and T. J. Clark for the plaintiff. Bovill, Joyce and W. Barnard, for the defendants. On the 7th of February the bill was received by the plaintiff, a commission agent and bill discounter in London, from one Low. The defence, in substance, was that the bill had been drawn by Wallace in fraud of the firm. The plaintiff was called to prove he took the bill from Low, and gave notice of it. Then one Levy, a commission agent, was called to confirm his case by proving the drawing, and was cross-examined as to when he last saw Seifert, whose name was to the bill as drawer, and what he knew of him. (Low was not called.) It appeared that in April the partnership with Wallace was dissolved. Bovill proposed to tender a bill of exceptions on the point, that in the business of colonial brokers one partner could not bind his co-partners by bills of exchange. The learned JUDGE said he thought it might be a question for the jury. Lush said he should also think it was a question on which the jury might find from their own commercial knowledge, without any evidence. The learned JUDGE said there certainly were matters of common knowledge within the province of juries without any express evidence (a), and he should think that the (a) It is very ancient law, although, until lately, it had become somewhat obsolete, that a jury may find a verdict on their own knowledge, without evidence as to matters of a public nature, as customs or usages of business or the like. Thus, issue upon prescription, the jurors say their ancestors do not know the contrary, nor have any information to the contrary, and find the prescription, it is a good verdict. (Year Book, 34 H. 6, 36.) So, in another case, it was said, "Evidence is not given, but to inform them (the jury) in their conscience of the right; (and) though no evidence was given of any part, or they will not give evidence, yet they are to give verdict on one side or other." (Vavisor, J., Year Book, 14 H. 7, 29.) Indeed, in the origin of trial by jury, it was mainly for the |