which would rather lead to an inference, that while it is undivided, some, at least, of the blood circulates through it. With respect to the killing of a child en ventre sa mere, Lord Coke lays down, that, "if a woman be quick with child, and by a potion or otherwise killeth it in her womb, or if a man beat her, whereby the child dieth in her body, and she is delivered of a dead child, this is a great misprision, and no murder. But, if the child be born alive, and dieth of the potion, battery, or other cause, this is murder." In support of this position, he cites the following passage from Bracton, (lib. 3, fol. 21). "Si aliquis qui mulierem pregnantem percusserit, vel ei venenum dederit per quod facerit abortivum, si puerperium jam formatum fuerit, et maxime si fuerit animatum, facit homocidium.” -And he also cites Fleta as confirming this doctrine. 3 Inst. 50. In 1 Curw. Hawk. book 1, ch. 13, s. 16; 1 Ea. P. C. 227, and 1 Russ. Cr. & Misd. 424, the same doctrine is laid down. However, Lord Hale (1 H. P. C. 433), lays down, that if a woman is quick, or great with child, if she take, or another give her, any potion to make an abortion; or if a man strike her, whereby the child within her is killed, it is not murder, nor manslaughter, by the law of England. So it is, if after such child were born alive and baptized, and after die of the stroke given to the mother, this is not homicide. And Staun. 21 acc. The only case on this point that we are aware of, is to be found in the Year Book, 1 Edw. 3, p. 23, pl. 18, which is as follows: "Brief issist al vic. de Glouc. de prendr', un D. q' p. tesmoign. de Sir G. Scrop duist aver batu un feme grosse ensient de deux enfants issint q' maintenant apres l'un enfant morust et fuit del alter deliver q' fuit baptise John p. nosme et deux jours apres p. le male q' l'enfant avoit il morust: et le indictme't fuit returne devant Sir G. Scrop et D veign' et pled de rien culp et p' ceo q' les Justices ne fuerent my en volunte de adjudge cest chose felonie l'endictee fuit lesse a mainprise e puis la parol demurra sans jour issint q' brief issust come devant et dit q' Sir G. Scrop rehersa tout le case et coment il venit et pled— Herle au vic' faits vener son corps etc. et le vic' returne le br'e al bailie de la franchise de tiel lieu q' disoyent q' mesme celvy fuist pris p' le Major de Brist, mes la cause de l'a prisel penitus ignoramus, &c." Lord Coke, 3 Inst. 51, denies this case to be law; but Lord Hale cites it as authority. The stat. 9 Geo. 4, c. 31, s. 13, makes it a capital offence to procure the miscarriage of a woman quick with child, and a transportable offence to procure the miscarriage of any woman not quick with child. And the same stat. s. 13, makes the concealment of the birth of a dead child a misdemeanor; but it seems, that the first and second of these offences must be committed by some person other than the woman herself; and it also seems that the third can only be committed by the woman herself. As to whether the birth of a dead child can be considered a miscarriage or abortion, after the seventh month of pregnancy, see Carr. Supp. App. xxx. 1833. REX V. ENOCH. 1833. STAFFORD ASSIZES. (Civil Side.) BEFORE MR. JUSTICE J. PARKE. March 13th. What a party says is evidence EARLE and Wife v. PICKEN. ISSUE from the Court of Chancery to try at what period against himself a certain conversation occurred, with a view of determining whether or not it operated as notice. as an admission, notwithstanding it may relate to the contents of a written paper. The plaintiff's counsel wished to ask a witness for the defendant, whether he had not heard the defendant say, that Mr. Symonds had agreed to give 14,000l. for the estate in question. Maule, for the defendant.-I submit that this cannot be asked. It is giving evidence of the contents of a written agreement. Mr. Justice J. PARKE.-What a party says is evidence against himself, as an admission, whether it relate to the contents of a written paper, or to any thing else. The question was put. Verdict for the defendant. Jervis, R. V. Richards, and Bishton, for the plaintiffs. [Attornies-Stanley, and Corser.] In the course of this circuit, Mr. Justice J. Parke several times observed, that too great weight ought not to be attached to evidence of what a party has been supposed to have said; as it very frequently happens, not only that the witness has misunderstood what the party has said, but that, by unintentionally altering a few of the expressions really used, he gives an effect to the statement completely at variance with what the party really did say. COCKAYNE v. HODGKISSON. LIBEL. Plea-General issue. 1833. March 14th. Every wilful publication, in character of libel; but where It appeared that the father of the plaintiff had been unauthorized for some years gamekeeper of the Marquis of Anglesey, jurious to the and that the plaintiff wished to become his Lordship's another, is a gamekeeper, and overlooker of fences for the Haywood Park farm, of which the defendant, who was about seventy years old, was the tenant. The libel was contained in a letter sent by the defendant to the Marquis of Anglesey, which letter was as follows: "To his Excellency the Marquis of Anglesey, Dublin Castle, Ireland. the writer is act ing on any duty, legal or moral, towards the per son to whom he writes, or where he has, by his situation, to protect the interest of that person, that which he writes under such circumstances is a privileged and no action will lie for what is thus written, be actuated by unless the writer malice. A., being a tenant of B., was desired by B. to inform him if he saw or heard any thing respecting the game. wrote a letter A. "Your Excellency the Marquis of Anglesey.—I most communication, humbly and heartily thank your Lordship for the benefit I have received since I wrote to you in February, respect ing the deer and rabbits troubling me so very much; and as an opportunity offers itself to make a tender to your Lordship of my poor but real and sincere wishes to supply you with a good stock of game upon my land, which I hold as tenant; and I shall feel much more comfortable could I receive a tender from you or your agent, for me to take the management of the game, which I will execute with all personal gratitude and punctuality. The actual reason that I wish to try my skill is, that I understand, please your Lordship, it is intended to allow John Cock- Held, that if A. ayne to be admitted into the cottage to take charge of the formed, and begame and the repairing of the fences; but, my Lord, I to be so, this have found great deficiency with John Cockayne's and his was a privileged father's character, both of which are not becoming to and that the gamekeeper gamekeepers; they both appear in the behalf of encourag- could not maining poaching and destroying game. If your Lordship will for a libel. to B., informing B. that his gamekeeper sold game: had been so in lieved the fact communication, tain any action In such a case the defen dant may give in evidence representations made to him as to the conduct of the gamekeeper, but cannot go into evidence of acts done by the gamekeeper. 1833. COCKAYNE v. favour me with communicating your real wish and intentions to Mr. Hodson, and thereby cause him to hold a strict investigation of the Cockaynes' characters, from the HODGKISSON. witnesses I can bring to prove that which will not be very pleasing to your Lordship's wishes. If you think that I am not a sufficient person to hold the situation which I ask from your Lordship, you will very much oblige me if you will inquire of any of the neighbouring nobility and gamekeepers; for, was it in Cockayne's power to retain so good a character as I can, there would be no fault to be found with him on my behalf; as I am uncertain whether they have had any one to uphold them in their unbecoming behaviour, for, had they looked after the game, and fed it as they ought to have done, there might have been a great deal more game killed, from the quantity of pheasants fed on my corn all the summer season; but they were not half attended to as they ought to have been: but, please your Lordship, their play has been to find something out against me, and to put young Cockayne into the cottage, where, if he could regain his aim, he would carry on a pretty game of defraud upon your Lordship's property; as I can bring a respectable man to prove that young Cockayne offered to dispose of your Lordship's game to the said man, and likewise told him that he, Cockayne, had sent hares to Birmingham, and sold them for a good price, and moreover told him, that if he wanted some to send to the same place, he would keep him some, but cautioned the man not to let any one know; and by that means he thought he had no right to kill game on a nobleman's estate like your Lordship's, and dispose of it in such a manner, so he would have nothing to do with him or the game, with the exception of a rabbit or two. He was to meet him at a certain place. For I have had a great mind to have given them notice to keep off my land. But, please your Lordship, I thought I would inform you of the transactions of young Cockayne. As to his father, I must omit for want of room, but notice is what they deserve off your Lordship's estate altogether; but perhaps 1833. COCKAYNE v. their characters have been stated quite differently to your Lordship. But, in regard to what I have said, you will find it quite correct, if your Lordship will inquire into it, or cause it to be done; and if you will give me permission, HODGKISSON. I will transact what I have offered much better than it has been done since I became tenant to your Lordship; but with regard to the Cockaynes, I will not allow them to set a foot on my land, until things are settled and proved on both sides. William Cockayne has been in the habit of cohabiting and drinking with the Stafford poachers to a great excess. "Believe me, from your most humble and obedient servant, &c. "Thomas Hodgkisson." R. V. Richards, for the defendant, opened, that the defendant had been directed by the Marquis of Anglesey to look after the game on his Lordship's estate, and to report to him on the subject; and he submitted that it became the duty of the defendant to write letters to the noble Marquis respecting the game; and that any letter so written was a privileged communication; and that, therefore, no action would lie against the defendant, if he acted without malice, and believed what he wrote to be true. The defendant's counsel proposed to prove that the plaintiff associated with poachers. Mr. Justice J. PARKE.-I cannot allow you to do that. You may give evidence of any representation on the subject that had been made to the defendant before he wrote the letter. R. V. Richards.-Suppose that we prove that the fact was notorious, the jury, without our being able to prove who was the particular person that told the defendant, would be convinced that he must have heard of it. Mr. Justice J. PARKE.-Then you must prove the rumour, and not the fact. |