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ever to look at the paper to see in what manner it was conducted, or, as in this very case, the omission, though taking part in the publication of the paper, to insist on having articles of a doubtful tendency submitted for approval, might be deemed by a jury sufficient to disentitle a proprietor to the protection of the statute. It must always be borne in mind also that it is only on the penal responsibility of the proprietor that a limit is thus placed. His liability to damages in a civil action remains as before. No hardship is therefore imposed on the individual prosecutor, who, in the eye of the law, prosecuted not on his own behalf but on that of the public, and who may still hold the proprietor liable in damages, and if he pleases, prosecute the editor as the publisher of the libel. This being the view I take of the statute, it seems to me that the direction of the learned judge at the late trial was defective in not explaining to the jury that a general authority to an editor to conduct the business of a newspaper, in the absence of anything to give it a different character, must be taken to mean an authority to conduct it according to law. I agree that, as regards two of the three defendants, there may have been evidence to go to the jury of knowledge and consent on their parts, as it appears that they became aware of the article in question before the sale of the paper had come to an end, and took no steps to stop the issue of the remaining numbers of the paper, and therefore might be held to have known of and consented to the publication of the libel in such later papers. The jury might also possibly have held that, as regards the two defendants who were on the spot, and who might therefore have looked at the articles before the paper was published, there was a want of due care and caution, as required by the statute. But I agree with my brother Lush that the verdict must have proceeded on the ground of authority, as the jury have included in their finding the third partner, who was absent at a distance on account of illness, and to whom none of the other circumstances can at all apply, and as to whom, taking the view of the case which I do on the subject of authority, I think there was no case to go to the jury. I concur with my brother Lush therefore in holding that the rule for a new trial must be made absolute.

Rule absolute for a new trial. Solicitors for the prosecution, Gregory, Rowcliffe, and Co., for John Howard, Portsmouth.

Solicitors for the defence, Ford and Ford, for Feltham, Portsea.

Saturday, Nov. 16, 1878.

(Before Lord COLERIDGE, C.J. and MELLOR, J.) PAUL AND ANOTHER (apps.) v. SUMMERHAYES

(resp.). (a)

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entry, and, in so doing, committed an assault, for which they were convicted and fined. Held that the conviction was right, as foxhunting was no justification of a trespass, which the respondent therefore lawfully resisted.

THIS was a case stated by justices under 20 & 21 Vict. c 43.

On the 28th Dec. 1877 the information of Thomas Summerhayes, the above-named respondent, against Henry Paul and Charles George Elers, the appellants, charging them together in the same summons with assaulting and beating the said respondent at Curry Mallett, in the county of Somerset, on the 2nd Nov. 1877, was heard at a petty sessions holden at Ilminster, in the said county.

at

It was proved that the respondent lived with his father and attended to his business for him (the father being afflicted), and that a portion of the farm occupied by the father consisted of a field called "The Nineteen Acres," in the parish of Curry Mallett aforesaid. That, on the 2nd Nov. 1877, about midday, the respondent was alone at work in that field when the appellants, who were out with the Taunton Vale foxhounds, were on horseback and riding slowly across an adjoining field, in the occupation of Thomas Zouch, towards "The Nineteen Acres." That "The Nineteen Acres" is east of that adjoining field, and separated from it by a hedge, a bank about two feet high, and a shallow ditch outside the bank, all which belong to "The Nineteen Acres." That the hounds crossed Thomas Zouch's field as far as the said bank, and then turned into a covert which skirts "The Nineteen Acres " and Thomas Zouch's field on the north side. That the respon. dent got on the bank of "The Nineteen Acres a gap near the covert, and, when the appellants were within ten yards of him, said, “Gentlemen, I forbid you to come on this land." The appellant Henry Paul said, "Come on, gentlemen, it is the Prince of Wales's land," and tried to ride up the bank, and the respondent put his hand against the horse, and turned the horse back. That a second time the said Henry Paul tried to ride up the bank, and again the respondent pushed the horse back. That the said Henry Paul upon that struck the respondent on his head with a riding whip more than once. That the respondent then took up a stone, and the said Henry Paul got off his horse, and went into "The Nineteen Acres," and caught hold of the respondent, and a struggle ensued. That during the struggle the appellant Charles George Elers rode into "The Nineteen Acres" and up to and against the respondent, and said, "If you throw that stone I will knock you down." That the respondent then caught hold of the bridle of the said Charies George Elers's horse (to protect himself), and Elers struck at respondent with his hunting whip, and the respon

1 & 2 Will. 4, c. 32, ss. 2, 31, 35.

A huntsman in fresh pursuit of a fox is not justified in forcing an entry upon land against the will of the owner.

The appellants, while in fresh pursuit of a fox, came to land managed by the respondent for his father. The respondent warned them off, and endeavoured to prevent their going upon the land. The appellants thereupon attempted 10 force an (a) Reported by ARTHUR H. POYSER, Esq., Barrister-at-Law.

There was no evidence to satisfy the justices that a fox had been seen on the day in question in "The Nineteen Acres."

It was contended on behalf of the said appellants (inter alia), that the defendants were, with others, in fresh pursuit of a fox started on other land, and were entitled, under 1 & 2 Will. 4, c. 32, s. 35, to ride over "The Nineteen Acres" without interruption, and that the respondent, therefore, committed the first assault.

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That the appellants were in the exercise of a bona fide claim of right or interest to enter "The Nineteen Acres as Prince of Wales's land, and also by force of the aforesaid statute, and that consequently jurisdiction of the justices was ousted.

And that, under the circumstances of the case, the respondent was not justified in using force to prevent the appellants entering "The Nineteen Acres."

The justices were of opinion that the 1 & 2 Will. 4, c. 32, s. 35, does not make a forcible entry on land lawful, but merely declares that under certain circumstances a person shall not be liable to be summoned under that Act for trespass in pur suit of game. That there was no colour of title or interest in the appellants to oust their jurisdic tion, and that an occupier of land is justified in using such force as may be necessary to remove a person from such land after he has been forbidden to enter; and they convicted the appellant Henry Paul in the penalty of twenty shillings and costs, and the appellant Charles George Elers in the penalty of ten shillings and costs.

The questions of law submitted by the justices for the opinion of the court were:

Whether the 35th section of 1 & 2 Will. 4, c. 32, prevents an occupier resisting an entry on his land of persons hunting after they have been forbidden by him.

Whether the appellants had such a reasonable

[Q.B. DIV.

by 21 Hen. 7, pl. 28. The right existing at common law has been protected by 1 & 2 Will. 4, c. 32, sect. 35.

The

A. Charles, Q.C. for the respondent. provisions of the Game Act do not apply to this case at all, as foxes are not included in the definition of game. The real point for the decision of the court is whether a foxhunter, hunting for his own diversion, has the right to go across the land of another after being warned off by the owner. The principle governing such a case is so obvious that it could not have possibly been contested except for the decision in Gundry v. Feltham (ubi sup.). But that case was only decided upon demurrer, and by the pleadings it was admitted that a fox was a noxious animal, and that the course pursued was the only way of killing the fox; but that is a very different thing from hunting merely for the sake of diversion, and this distinction was clearly drawn by Lord Ellenborough in the Earl of Essez v. Capel (Locke on the Game Laws, p. 45), a case tried at Hertford Assizes in 1809. There he says, "These pleasures are to be taken only when there is the consent of those who are likely to be injured by them; but they must necessarily be subservient to the consent of others." The dictum of Brooke, J., alluded to on the other side, does not support the decision in the case which was before him. Baker v. Berkeley (3 C. & P. 32) is an authority distinctly in my favour. If, as is ad

Whether the respondent was, under the circumstances, justified in resisting the entry on "The Nineteen Acres" after he had forbidden the entry and it was persisted in.

If the court should be of opinion that the said conviction was legally and properly made, and the said appellants are liable as aforesaid, then the said conviction is to stand; but if the court should be of opinion otherwise, then the said information is to be dismissed.

The 1 & 2 Will. 4, c. 32, contains provisions against trespassing in pursuit of game. By sect. 2 game is defined for the purposes of the Act to include hares, pheasants, partridges, grouse, heath or moor game, black game, and bustards; and by sect. 31 are added woodcocks, snipe, quails, landrails or conies. Then the following exception is made by sect. 35:

Provided always, and be it enacted, that the aforesaid provisions against trespassers and persons found on any land shall not extend to any person hunting or coursing upon any lands with hounds or greyhounds, and being in fresh pursuit of any deer, hare, or fox already started upon any other land, nor to any person bona fide claiming and exercising any right or reputed right of free warren or free chase.

Cole, Q.C. for the appellants.-There was ample evidence here that appellants were in fresh pursuit of a fox. That being so, they had a perfect right to go upon anyone's land. Gundry v. Feltham (1 T. R. 334) is an authority directly in point. Possibly the decision in that case was founded on the idea that a fox was a noxious animal, but that does not alter the law. If it was lawful, then it has not ceased to be so because those who now join in the pursuit of a fox do so in order to obtain the pleasures of the chase. This is damnum absque injuria: (Mitten v. Fandrye, Popp. 161.) This view is supported by the dictum of Brooke, J. in Year Book, 12 Hen. 8. pl. 9; and

the conviction must be upheld, and it may be so upheld without reversing the decision in Gundry v. Feltham (ubi sup.), where the facts before the court were of a different nature.

Lord COLERIDGE, C.J.-This is an appeal against a conviction upon a summons for beating and assaulting the respondent at Curry Mallett. It appears that the respondent managed his father's business of a farmer, and on the day in question he was managing his father's business in a field called “The Nineteen Acres," On that day the neighbouring foxhounds were hunting close by "The Nineteen Acres," over which the two appellants, in company with other gentlemen, proposed to ride while in pursuit of the fox. The respondent tried to prevent this, whereupon one of the appellants struck him upon the head with a riding whip more than once; a struggle then took place, and the other appellant came up. The respondent seized hold of the second appellant's horse, in order to prevent being knocked down, when the second appellant struck at him with his hunting whip, but did not hit him. Upon these facts the magistrates convicted both the appellants, and inflicted fines upon them. The question for us to decide is whether, under the circumstances, such conviction was right. Now, one of the first points raised is as to the effect of the 1 & 2 Will. 4, c. 32; but I must confess I do not quite understand the meaning of the question, for it seems to me that statute has really no application to this case. The 35th section merely provides that certain of the foregoing provisions shall not extend to persons in fresh pursuit of a fox; but, as the exception is limited to the previous provisions of the Act, and as those provisions contain nothing about foxes, but relate only to game, and as sect. 31 has no application here, the point supposed to arise under sect. 35 cannot arise at all. It is not argued now that the appellants had any reasonable

Q.B. Div.]

claim of interest in the land such as would oust the magistrates' jurisdiction, so we come to what is the real question in this case-viz., whether the respondent was, under the circumstances, justified in resisting the entry on "The Nineteen Acres after he had forbidden the entry and it was persisted in. It has been popularly supposed that foxhunting may be exercised over the lands of any person without his consent, and even against his will, and, in support of this argument, the case of Gundry v. Feltham (ubi sup.) has been cited. I am of opinion that no such right exists. Foxhunting is, no doubt, a most valuable and interesting sport, but it must be carried on in subordination to the general rights of mankind and the ordinary and well-established laws of property, according to which you cannot go on to a man's land without his leave and against his will. Questions of this kind do not often arise, because in the great majority of cases reasonable terms are made with those upon whose land it is necessary to go, and compensation is provided for any damage done; but when such questions do arise they must be treated according to the ordinary rules of law. As far as I am aware, there is no law which allows a whole field of fox hunters to ride over a man's grounds or fields against his will. Such a supposition arises from a misunderstanding of Gundry v. Feltham (ubi sup.); but that case is different to the present one, for there the plaintiff admitted upon the pleadings that what was done was "the only way and means" of killing and destroying the fox, and, indeed, Buller, J. bases his judgment upon that very ground; and that is the only point which Gundry v. Feltham decides, and, no doubt, where it is admitted that no other means exist for destroying the fox, such a defence may prevail. But that decision afterwards came under the consideration of a very great authority in the case of the Earl of Essex v. Capel (ubi sup.), decided by Lord Ellenborough when sitting at Nisi Prius, but he had had his attention called to the case previously, and so had had an opportunity of looking into the authorities upon the subject. In the case of the Earl of Essex v. Capel the evidence showed clearly that foxhunting was pursued for the excitement and accompaniments of the chase, although incidentally a fox might be killed; and Lord Ellenborough, during the course of the case, pointed out that there was a very great distinction between foxhunting pursued as a pleasure and foxhunting pursued for the good of the common weal and in order merely to destroy a noxious animal: and he goes on to say that there is very considerable doubt whether that even would justify a trespass, as it was a doctrine that was probably based on a mere obiter dictum of Brooke, J. (Year Book 12 Hen. 8, pl. 9), which was supposed to decide a point upon which it had no bearing whatever. The dictum of Lord Ellenborough appears to me to be perfectly correct, but it is not necessary for me to decide now whether the pursuit of a fox for the sole purpose of killing a noxious animal would justify a trespass; it is enough for me to show that the supposed authority of the case in the Year Books and of Gundry v. Feltham (ubi sup.) does not conflict with the decision of Lord Ellenborough. For these reasons, I am of opinion that a man has a perfect right to forbid a field of foxhunters entering upon his land in pursuit of pleasure, and if they persist

[C.P. DIV.

in doing so he is justified in endeavouring to prevent their entry. In this case the conviction was right, and the appeal must be dismissed.

66

MELLOR, J.-I am of the same opinion. I was unaware that the 1 & 2 Will. 4, c. 32, had defined game for the purposes of that Act. If the word 99 game had included foxes the application of sect. 31 might have had unpleasant consequences, from which foxhunters could only have been extricated by the terms of sect. 35; but, under any circumstances, sect. 35 could only apply to the previous provisions of the Act, and could not justify a trespass in the course of hunting a fox. That question has been fully discussed by Lord Coleridge, and with his observations I entirely agree. Mr. Cole did not argue that the sole object, or the main object, of foxhunting was to destroy a noxious animal, and no one can suppose that ladies and gentlemen of position go down to Melton to kill vermin. I entirely concur with Lord Coleridge, that the authority of Lord Ellenborough is not only consistent with law, but with all experience and common sense. We are justified, therefore, in saying the conviction must stand.

Appeal dismissed with costs.

Solicitors for appellants, Kingdon and Cotton, for Jolliffe, Crewkerne.

Solicitors for respondent, Reed and Lovell, for Reed and Cook, Bridgwater.

COMMON PLEAS DIVISION.
Nov. 18 and 25, 1878.
(Before GROVE, J.)

BENT V. THE WAKEFIELD AND BARNSLEY UNION
BANK. (a)

Reward for information leading to apprehension of criminal-Surrender of criminal-Information of surrender and confession sent by constable -Communication of material facts for first time -Public policy.

A reward was offered to any person giving such information to the superintendent of police at D. as should lead to the apprehension of G. G. gave himself up to the chief constable at E., who, after searching the Police Gazette, and satisfying himself as to G.'s identity, telegraphed to the superintendent at D., "Do you hold warrant for the apprehension of G. for forgery?" and received a telegram in return, "I still hold warrant for G., and should like him to be apprehended." Upon that the chief constable at E. apprehended and charged him, and he was ultimately convicted. Held, that the chief constable at E. was not entitled to the reward, G. having himself given the information leading to his apprehension.

THIS was an action tried before Grove J., at the last summer assizes, at Bristol, and reserved by him for further consideration. It was an action brought by the plaintiff, who was the chief constable for Exeter, to recover a reward offered by the defendants for any information that should lead to the apprehension of one William Glover. The facts proved at the trial are fully set out in the judgment.

Nov. 18.-A. Charles, Q.C. (St.Aubyn and Austin with him) for the plaintiff.-The reward is offered to a person to do a specific thing which has been done. England v. Davidson (11 Ad. & E. 356) is

(a) Reported by A. H. BITTLESTON, Esq. Barrister-at-Law.

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an authority in favour of the plaintiff. There are numerous examples of these actions being maintained by constables.

H. T. Cole, Q.C. and Templer for the defendant. -Such an action as this is against public policy. The case of England v. Davidson, cited on the other side, is really in our favour. Lord Denman C.J. says there: "I think there may be services which the constable is not bound to render, and which he may therefore make the ground of a contract. We should not hold a contract to be against the policy of the law unless the grounds for so deciding were very clear." This was clearly a case within his duty; he was bound to apprehend Glover. [GROVE J.-I should like some authority for that; he is entitled to do it, but is he bound to ?] Upon the undisputed facts of this case, the plaintiff did nothing to earn the reward; nobody can be entitled to it. [GROVE, J. -Bent was a carrier of information to Airton which led to Glover's apprehension.] The criminal gave the information himself. In Comyn's Digest it is laid down that a constable may arrest on suspicion. The result showed that he ought to have arrested Glover, and if he did not, he can take no advantage by not having done so. In Cowles v. Dunbar (2 C. & B. 565) Abbott C.J. says, "A constable is obliged to act if there is a reasonable charge of felony." They cited also

Smith v. Moore, 1 C. B. 438;
Thatcher v. England, 3 C. B. 254;
Lancaster v. Walsh, 4. M. & W. 16;
Snowdon upon Constables, p. 152.

A. Charles, Q.C. in reply. The result of Thatcher v. England and the other cases cited is that the first person other than the criminal who gives the information is the person entitled to the reward. The head-note to Thatcher v. England is: "The defendant, who had been robbed of jewellery, published an advertisement, headed "301. reward,' describing the articles stolen, and concluding thus: "The above sum will be paid by the adjutant of the 41st Regiment, on recovery of the property and conviction of the offender, or in proportion to the amount recovered." A., a soldier, on the 10th June, informed his sergeant that B. had admitted to him that he was the party who had committed the robbery, and the sergeant gave information at the police station. On the 14th the plaintiff, a police constable, learning from one C. that B. was to be met with at a certain place, went there and apprehended him. The plaintiff, by his activity and perseverance, afterwards succeeded in tracing and recovering nearly the whole of the property, and in procuring evidence to convict B.: Held, that the plaintiff was not, but (per Tindal, C.J., and Cresswell, J.) that A. was, the party entitled to the reward." [GROVE, J.-The distinction is between information given to the authorities or the person offering the reward, and mere conversation with casual persons.] In Smith v. Moore (ubi sup.) the prisoner was in custody; here the fact whether he was in custody or not is in dispute; but eliminate that, and the two cases are on all fours. It is admitted that Airton could not claim the reward; but that Bent could is clear, if he had not been a constable, and that makes no difference. Referring to the advertisement, which constitutes the terms of the contract here, Bent was the person or persons giving such information to Mr. W. Airton, superintendent of police, Dewsbury, or to Mr. W. Halls, superintendent of police,

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Wakefield, as "led "to the apprehension of the said William Glover." [GROVE, J.-Suppose one Jones had given information to Bent, and then Bent had written to Airton, would not Jones have been entitled to the reward ?] Probably in that case Bent would be the agent of Jones. A police constable is protected in arresting a criminal on suspicion-a layman is not protected. [GROVE, J.Here the man yields himself up to the law.] Cur. adv. vult.

terms

me: I

Nov. 25.-GROVE, J.-This case was tried before me at Bristol, at the last summer assize. It was an action for a reward of 2001., offered in a published handbill by the defendants in the following -"2001. Whereas, on the 26th June last, William Glover, shoddy and mungo dealer, of Ossett, absconded from Ossett, after committing various forgeries on several manufacturing firms in the West Riding of Yorkshire: Notice is hereby given that the above reward will be paid to any person or persons giving such information to Mr. W. Airton, superintendent of police, Dewsbury, or to Mr. W. Halls, superintendent of police, Wakefield, as will lead to the apprehension of the said William Glover.-West Riding Police Office, Wakefield, 27th July 1877." The plaintiff's case, on which my judgment must be founded, was shortly stated as follows:-On the 30th Nov. 1877 a person presented himself at the police office, Exeter, and on the plaintiff, the chief constable for Exeter, being sent for, the man, who was in fact Glover, said, according to the plaintiff's evidence, "You hold a warrant for am wanted for forgery." The plaintiff asked his name, and who he was. He said, "You know already, and hold the warrant." Some further conversation took place. The plaintiff said he appeared out of his mind, and told him he had been drinking, and recommended him to go to an hotel. The plaintiff left him in a private room, searched the Police Gazette, aud found the name "William Glover wanted for forgery." He got him to take off his hat, and said, "I satisfied myself, after reading the Police Gazette, when he took his hat off." The plaintiff then telegraphed to Mr. Airton, superintendent, at Dewsbury, "Do you hold warrant for the apprehension of William Glover for forgery? Wire back. Answer paid;" and received a telegram in return, "I still hold warrant for Glover, and should like him to be appre hended." Upon that the plaintiff apprebended and charged him, and he was ultimately convicted. For the defendants evidence was given to prove that Glover gave his name before the telegram was sent; and also that he was taken into custody before it was sent. I left these two questions to the jury, and they found that Glover was not in custody before the telegrams; but could not agree, and, after being locked up, were discharged as to the first question-counsel agreeing that they would accept the finding on the second for the purposes of the case. The point reserved and argued before me on further consideration was, whether or not the plaintiff was entitled to the reward. For the plaintiff it was argued that he was the person to be taken to have given the information leading to the apprehension, within the meaning of the handbill. For the defendants, that the criminal, Glover, had given the informa tion himself; and, secondly, that, on grounds of public policy, the plaintiff was not entitled to the