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ing to the habits or taste of the seamen, was termed necessity.

There was an old sea term in use in the early and middle part of the last century, for the signification of which I have sought in vain, in books of voyages, and as vainly enquired among old seamen. It is" A ship lying to, with her yards a portland." Many seafaring persons, retired from the fatigues and perils of that boisterous life, must be readers of your entertaining Miscellany, the best adapted of all others to chear the heavy hours of such persons; some such, perhaps, may be able to explain the meaning of the above technical phrase.

I remain, Sir, one of those who receive my monthly amusement, and not seldom instruction, from your hands, and your well wisher and humble servant,

AN ELDER.

INTERESTING DECISIONS UNDER THE GAME LAWS, HORSE CAUSES, &c.

Tried at the late Summer Assizes.

Essex, before Mr. Justice Le

Blanc.

Ley v. Torin, Esq.

THIS was an action of trespass against the defendant, one of the Magistrates of the county, residing at Kelvedon, for unlawfully seizing a gun, the property of the plaintiff, and converting it to his

own use.

The facts of the case were shortly these the plaintiff, Charles Ley, being an unqualified person, and having no licence to kill game, had been convicted by the defendant in the penalty of 51. under the game laws, on the 25th of October

last. The defendant made out a warrant for seizing the plaintiff's gun, which warrant was on that day executed by a constable named Robert Osborne, and the gun accordingly seized and delivered to the defendant. The question was, whether the defendant was lawfully authorized to adopt this proceeding under the statute 5 Ann, c. 14. s. 4. which gives a power to the Justices to issue their warrant for seizing to their own use, any net, spring, &c. or other engine, used by unqualified persons for taking or killing game.

Mr. Serjeant Best, on the part of the defendant, submitted that the warrant issued by his client was lawful under the statute, and consequently this action was not maintainable. He contended that a gun came within the general words of the statute, as an engine used for the purpose of killing game, and the gun in question having been unlawfully used by the plaintiff, who was a person not qualified to kill game, it might be seized under warrant of the defendant.

Mr. Marryatt and Mr. Gurney on the other side contended, that by the stat. of 22d and 23d of Charles II. a distinction was taken between a gun and nets, and other devices used for the purposes of killing game. They cited 2d Strange's Reports, Burn's Justice, 463, Session's Cases, in support of their argument.

Mr. Justice Le Blanc thought the case so doubtful, that he recommended it should be mentioned to the Court of King's Bench in term, and that in the mean time the plaintiff should be suffered to take a verdict with nominal damages, subject to a motion to enter a nonsuit, if the Court should think the action not maintainable.

A

verdict

verdict was accordingly taken for plainly that they must not attempt the plaintiff-damages 1s.

Piggott v. Pidgeon.

This was an action against the defendant, to recover three penalties under the game laws, for killing game without a license, for using dogs for the purpose of kill. ing game, and for unlawfully using a gun for the like purpose. To this action, the defendant pleaded that, at the time the said action was commenced, there was another action for the self-same offences depending against him at the suit of another plaintiff named Garth. Upon this plea, issue was taken; the plaintiff, in his replication, alleging, that the said action, alluded to in the defendant's plea, was brought for the purpose of covin and collusion, to prevent the plaintiff maintaining his said action against him.

The circumstances of this curious case were as follow:-The plaintiff is tenant of Button, Esq. the Lord of the Manor of Muckingford. On the 13th of November last, at twelve o'clock at night, the defendant and two other persons, named Garth and Powell, accompanied by three sporting dogs, and armed with fowling-pieces, came to the George public-house, kept by Torrington, Mr. Button's gamekeeper, to seek a lodging for the night. After some difficulty, Torrington admitted them into his house, but having no beds for them, they were permitted to take up their lodging in the tap-room. The publican, seeing them armed cap-a-pee with all the paraphernalia of sporting, taxed them with an intention of coming to that part of the country for the purpose of shooting, which they not denying, he told them

to do any such thing. They then pretended that they were going six miles farther on, to the grounds of a friend. About an hour before day-light they left Torrington's premises, but suspecting that their intentions were improper, he went out after he had had his breakfast, to look after them; and accordingly he found them in the act of sporting on his master's grounds. He immediately demanded their certificate, but finding them attempting to shuffle, he insisted upon having their names and addresses, which they immediately gave him, but it turned out that the names and addresses they had given were utterly false. Soon afterwards Mr. Button, who had been informed that strangers were seen in his preserves, came to demand an explanation of who they were, and whether they were qualified. To him they shuffled in the same manner, and gave him the like false description of themselves which they had given the gamekeeper. They were, however, warned off the premises, and Mr. Button watched them till they had quitted his manor. Upon inquiry afterwards, through the medium of the police department in London, it was discovered that the defendant had formerly been a waiter at Peele's Coffee-house, in Fleet-street, and then the keeper of the Royal Exchange Coffee-house; that Garth, the person alluded to in the defendant's plea, was a mathematical instrument maker, residing at Rotherhithe, and that Powell was an humble tradesman in some obscure part of the town.

It appeared in evidence with respect to the defendant's plea, that the action alleged to have been commenced against him by Garth,

was

was not thought of until some time after the present action was brought by Mr. Button's tenant.

Mr. Taddy, on the part of the defendant, alleged, that the action brought by Garth against the defendant was a bona fide proceeding, in consequence of his having taken offence at Pidgeon's giving up his real name to Mr. Button; and from the tenor of his instructions be was led confidently to believe that Garth, when examined as a witness, would prove most distinctly, that his action was brought prior to the present one on the part of the plaintiff. He was accord. ingly proceeding to call Mr. Garth,

when

The Learned Judge suggested the propriety of abstaining to call so interested a witness who, if put into the box, might expose himself to future consequences, perhaps of an unpleasant description.

Mr. Taddy adopted his Lordship's suggestion, and declined call ing Mr. Garth.

The Jury, under the direction of his Lordship, then returned a verdict for the plaintiff, upon the issue in question.-Damages 1s.-Costs, 40s.

Clark v. Parris.

This was an action upon the warranty of a horse. The parties reside in the neighbourhood of Bishop Stortford, and in the month of April last, the plaintiff made a bargain with the defendant, hy which the former was to give a mare of his own, worth 101. 10s. and the sum of 211. in money, to the defendant, in lieu of the horse in question, which was warranted to be perfectly sound. In a very short time after the horse was delivered, the plaintiff discovered that he had an incurable lameness in

his shoulder, and he immediately determined to repudiate the bargain. Accordingly he returned the horse to the defendant, demanding his money back, and the mare which he had given in exchange. By this time the defendant had sold the plaintiff's mare to some other person for twelve guineas, but expressed his readiness to take his own horse back again, the unsoundness of which be utterly denied, and restore the money which had been paid for him, and also endeavour to get the plaintiff's mare back again by re-purchase. These terms the plaintiff refused to accept, unless he was paid for the keep of the defendant's horse during the time he remained in his possession. The present action, therefore, was virtually brought for the expence incurred by the plaintiff in the keep of the defendant's horse, from the time of the sale until it was returned. Evidence, however, was gone into upon the question of the warranty, which appeared to be clearly established, and the learned Judge left it to the Jury to say, under all the circumstances of the case, what damages the plaintiff ought to receive against the defendant, who had paid into court, under a plea of tender, the 211. which he had received of the plaintiff, and had expressed his willingness to pay what should appear to be the value of the plaintiff's mare.

The Jury, after some consultation, brought in a special verdict, that each party should give up his respective horse to the other; but

Mr. Justice Le Blanc told them that that was not the question they were called upon to try. The simple question was, whether the defendant had warranted the horse to be sound which he had sold to

the

the plaintiff. If the unsoundness and the warranty were made out to their satisfaction, the plaintiff was entitled to their verdict for the value of the mare which he had given in exchange, over and above the 211. paid into court by the de fendant in respect of his unsound horse returned to him by the plaintiff.

The Jury then wished to give the plaintiff 12l. 12s. the sum for which, it appeared, the defendant had sold the plaintiff's mare; but the learned Judge told them that the plaintiff was not entitled to the profit which the defendant had made upon the sale of the mare, which he had received in exchange, but had only a right to recover the sum at which the mare was valued at between the parties originally.

The Jury, accordingly, found a verdict for the plaintiff.-Damages 101. 10s.

James Fordham was indicted at these Assizes, for having feloniously stolen, on the 10th of April, from Hainault Forest, a fallow deer, the property of Pole Tilney Long Wellesley, Esq. having been fined 501. for a similar offence on a former occasion.

The act states, that "if a person be duly convicted of any offence for which a pecuniary penalty or forfeiture is imposed, &c." But the indictment stated that "the prisoner had been lawfully convicted, &c." which flaw Lord Ellenborough held to be sufficient to acquit the prisoner. The Jury accordingly found him not guilty.

Perhaps as this subject comes under our notice in this place, a little explanation relative to the law upon the above-named offence, may not be amiss.-The act, under which the prisoner was indicted,

is the 42d of the King, c. 107, and in the 1st sect. it enacts" that if any person shall hunt, course, shoot, wound, steal, or destroy, or attempt so to do, any red or fallow deer, in any inclosed part of any forest, chase, purlew, or ancient walk, or any inclosed park, paddock, or other inclosed ground where deer are usually kept, without being duly authorised so to do, shall be guilty of a felony, and subject to transportation for seven years."-The 2d section recites the above crime, but says, if it is in any open forest, or uninclosed place, the person so offending shall be liable to a penalty of 501.-And the 4th section states, "that if any such person, after having been duly convicted of the offence mentioned in the 2 section, shall be found guilty of the sanie offence a second time, he shall be guilty of a felony, and liable to seven years transportation." In the above case, where' the prisoner so narrowly escaped, it was proved that he was convicted on the first offence, and the certificate of his conviction in accordance with the act, said he had been duly convicted; but the indictment stated that he had been lawfully convicted, and upon this be escaped.

HERTS.

Woodbridge v. Harper.

THIS was an action of trespass brought by Lord Viscount Grimston, in the name of his tenant, Mr. Woodbridge, against the defendant, for breaking and entering his Lordship's preserves, near St. Alban's, and destroying the game. It appeared in evidence, that the defendant, who keeps the Three Tuns public-house, in Beltonstreet, Hanover-street, Long Acre,

in company with a person of the name of James Tarrant, a dealer in sporting dogs and poultry, at No. 2, Chapel-row, Sloane-street, and another person of the name of Thomas Pain, who has not been found, on the 29th day of November last, got into his Lordship's preserves, and notwithstanding notices given to him, both verbally and in writing, by one of his Lord ship's gamekeepers (authorised so to do), persisted in beating the preserves, and in destroying the pheasants and other game. It also came out on the trial, that the defendant and his companions gave fictitious descriptions of themselves. The defendant stated, that he lived in West-square, Lambeth.-Tarrant stated, that he was an upholsterer in Little Moorgate-and Pain, that his name was Rainer, and that he lived in St. Martin'slane; all of which turned out upon enquiry to be false. By dint of much perseverance and industry, 'bowever, the real names of all, and the addresses of defendant and Tarrant were traced out, and the present action was brought by way of punishment for the offence. The facts being proved, the Jury with out hesitation returned a verdict for the plaintiff, finding the defendant guilty of the trespass; and the learned Judge immediately certified, thereby subjecting the defendant to all the costs and expences of the suit.

Turney v. Godfrey, (Clerk,) and another.

This was an action of assault and false imprisonment against Mr. Godfrey and Mr. Baker, two Magistrates of the county, upon the following facts:

The plaintiff, Turney, and a person of the name of Nicolls, as was

admitted by their Counsel, were unqualified persons, sporting in the neighbourhood of the defendant; upon which Mr. Baker issued bis warrant, to apprehend Nicolls and 66 a person unknown in his company," for wandering about and haunting public houses, whereby they became rogues and vagabonds. Upon this warrant the constable apprehended Nicolls and the plaintiff Turney. But in their way to the house of Mr. Baker, Nicolls escaped. The constable hearing that Mr. Baker was from home, took Turney to Mr. Godfrey's, but he refused to act upon Mr. Baker's warrant; but a charge was laid before him against Turney, for sporting, not being a qualified per

son.

He admitted he was not qualified, upon which Mr. Godfrey convicted him in a penalty of five pounds under the statute. Turney said he had no money with him, but offered to pledge his watch, which was accepted by the informer as security for the fine. He, however, never came to redeem the watch, but brought the above action for the illegality of the warrant.

His Lordship beld, that with respect to Mr. Baker, the warrant was an illegal one, yet it did not mention Mr. Turney's name, and that the constable took him at his own risque as answering the description of the 66 person unknown," for Mr. Baker never afterwards saw the constable or the prisoner so as to recognise the act of the constable; and with respect to Mr. Godfrey, he had refused to act under Mr. Baker's warrant, but had convicted the plaintiff under an information regularly laid before himself.-Plaintiff nonsuited.

SALISBURY

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