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1833.

COCKAYNE

บ.

HODGKISSON.

Jervis, for the plaintiff.-Is not that going too far, my Lord?

Mr. Justice J. PARKE,-It is going a great way, but I think I must receive that evidence.

The evidence was not given.

R. V. Richards proposed to shew what the defendant had heard respecting the plaintiff's father.

Jervis.-That can have nothing to do with the present

action.

Mr. Justice J. PARKE.-I think I must receive it, because the whole letter must be read together; and it is a question of bona fides.

R. V. Richards proposed to give evidence of the bad state of the fences.

Mr. Justice J. PARKE.-I think that is not admissible, as the letter makes no charge against the plaintiff in respect of the fences.

The following evidence was given on the part of the defendant.

Mr. Hodson said-I am the agent of the Marquis of Anglesey, and have been so for twenty-seven years; the noble Marquis wished to have the game preserved on the Haywood Park farm; I communicated that to the defendant, and told him he should report if he saw any thing wrong. I expected, that if any thing had been wrong, the defendant would have reported it to me. Lord Anglesey receives reports continually from his tenants. I know it, as any thing relating to the land is sent to me.

James Hodgkisson said—I am the son of the defendant. In the year 1829, the Marquis of Anglesey was out shooting; he came to my father's and said, "Hodgkisson, you are an old man, used to live with gentlemen who have pre

1833.

COCKAYNE

v.

served game in the strictest degree, and if ever you hear or see any thing respecting the game on my land, I desire you to inform me about it." I communicated to my father, that I had heard that the plaintiff and his father were con- HODGKISSON. nected with poachers; it was after that, that this letter was written.

Thomas Brown said-I am a tailor; I was at Rugely; the plaintiff was there; it was at the Dog and Partridge; I had a conversation with the plaintiff, which I communicated to the defendant. The plaintiff wanted me to make him a suit of clothes, and take game in part payment; I asked the defendant if the plaintiff had any right to give away game or sell it. He told me that he had not, and advised me to have nothing to do with the plaintiff. The plaintiff told me, that if I wanted any game, either for my own use, or for sale, he would help me to it; and he added, that I could, if I chose, send hares to Half Moon Street, Birmingham, and get 7s. a head for them, as he had done the year before. I told him I did not want any, but I should like a small rabbit for my little girl, who was ill.

William Padmore said, I am assistant bailiff to Mr. W. Smith, he is bailiff of a hundred, and I have followed the profession many years. I told the defendant, that I had seen the plaintiff's father at the Star, and that his, the defendant's, name was brought into question. I told him also, that the plaintiff was inviting the people to come and kill the game, and that the plaintiff said, if they would come, he would find them scales, fur, or feathers. Five or six who were in the company catch game, they were what I call poachers; I also told the defendant that I had seen the plaintiff's father drunk several times.

Mary Russell said-I told the defendant that Thomas Brown had told me, that the plaintiff had offered to find him in game off Haywood Park farm, if he would make him a suit of clothes.

Jervis in reply.-The question here is, whether this was a letter which the defendant wrote in discharge of a

1833.

duty he owed to the Marquis of Anglesey, or whether it was written maliciously. Looking at the letter, there is an abundance of passages which shew that it was a malicious HODGKISSON. and not a privileged communication.

COCKAYNE

บ.

Mr. Justice J. PARKE (in summing up).-The propositions of law which are applicable to this case I shall state to you in a few words. Every wilful unauthorized publication, injurious to the character of another, is a libel, and every such publication is, in a legal sense, malicious; however, if all that is contained in a libel be strictly true, the person libelled has no right to maintain an action for it; and it is on a different principle that truth is no justification of a libel in criminal cases, as many libels, which are quite true, would endanger a breach of the public peace. Still, if the present libel had been true, it was the duty of the defendant to have pleaded a justification, which he has not done; and you will therefore not inquire whether the allegations contained in this letter are true or not. I have already said, that every wilful and unauthorized publication, to the injury of the character of another, is a libel; but where the writer is acting on any duty, legal or moral, towards the person to whom he writes, or where he has, by his situation, to protect the interests of another, that which he writes under such circumstances is a privileged communication. The first question is, whether it was the duty of the defendant to make communications to the Marquis of Anglesey in respect of any neglect of duty in his gamekeepers. If he was desired to do so by the noble Marquis, or his agents, any communication he made would be privileged, if he wrote it bona fide, and considering that he was doing his duty to the Marquis as his landlord. If it was the duty of the defendant to make the communication, this case falls within the principle of many other cases. To write of another, that he is a thief, is a libel; but if one gentleman asks another gentleman respecting a servant's character, and he writes that the ser

vant was a thief, he is protected, if he acts bona fide. You
will say in the present case, whether the defendant was
told these stories, and whether he believed them to be
true. You will also look at the letter, and
say whether
you consider it such a letter as a man would write to the
Marquis of Anglesey, merely wishing to put him on his
guard, and to cause him to institute an inquiry; or whe-
ther you think that the defendant was actuated by malice,
and wished to supplant the plaintiff, and get the killing of
the game for himself. In the former case, the defendant
is entitled to a verdict, and in the latter, the plaintiff; in-
deed, the plaintiff is also entitled to a verdict, if you think
that there had not been any direction given to the de-
fendant by or on behalf of his landlord, for the defendant
to communicate with him, for in that case the letter would
be unauthorized and libellous.

Verdict for the defendant.

Jervis and Whateley, for the plaintiff.

R. V. Richards and W. J. Alexander, for the defendant.

[Attornies-A. Flint, and C. Flint.]

1833.

COCKAYNE

V.

HODGKISSON.

REX v. CAPEWELL and PEGG.

S. 9, for

A count in an

indictment for

night poaching stated, that the in a field called A., for the purpose of then and there taking

INDICTMENT on the stat. 9 Geo. 4, c. 69, night poaching. The first count of the indictment stated, that the prisoners, together with another person unknown, being armed, entered together into a field called the Nineteen Acres, in the night time, for the purpose of then and there taking game. The second count was similar, except game:-Held, that it stated the name of the occupier of this field instead of the name of the field itself. The third count stated,

that the prison

ers could not be

convicted on that count, unless the jury were satis

fied that the prisoners had an intention of taking game in that particular field.

1833.

REX

บ.

CAPEWELL.

that the prisoners entered into certain inclosed land belonging to Sir Robert Peel.

It appeared that the prisoners were seen in the Nineteen Acres; but it was not shewn that they were doing any act tending to the destruction of game in it. There was a wood adjoining the Nineteen Acres to which they were going, and another wood from the direction of which they were coming; and in which shots had been previously heard. Both the woods (which were inclosed), and the Nineteen Acres, belonged to Sir Robert Peel.

Greaves, for the defendants, submitted, that the jury ought not to convict on the first and second counts, unless they were satisfied that the defendants entered into the Nineteen Acres for the purpose of killing game in that very field; and he cited the case of Rex v. Barham (a).

Mr. Justice J. PARKE (in summing up).-The first two counts make it necessary to shew that the defendants were in the field called the Nineteen Acres, for the purpose of killing game there; but the third count is applicable to the wood; and the question on that count will be, whether the defendants were not in the wood for that purpose.

Whateley, for the prosecution.

Greaves, for the defendants.

[Attornies

(a) R. & M. C.C.R.151. In that case the indictment charged that the prisoner entered into a certain close, with intent then and there to destroy game. It was left to the jury to say, whether the defendant entered that particular close intending to kill game there. The jury found that the defendant was in pursuit of game, but whether in

Verdict-Guilty.

and Jones.]

that close or not they could not say. The defendant was convicted, but the twelve Judges held, that the conviction was wrong; and that, inasmuch as the entry with intent to kill game was confined by the indictment to the close specified, it was therefore necessary to prove the intent as to that close.

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